SUBLEASE AGREEMENT
This Sublease Agreement, made as of the 8th day of November, 1999 by
and between SILICON GRAPHICS, INC. (hereinafter referred to as "Sublessor"),
and ZAPME! CORPORATION, a Delaware Corporation (hereinafter referred to as
"Sublessee").
WITNESSETH:
WHEREAS, by Lease Agreement dated March 13, 1991, First Lease Addendum dated
January 15, 1993, Second Lease Addendum dated July 15, 1993, Third Lease
Addendum dated March 12, 1996, Fourth Lease Addendum dated September 4, 1996,
Fifth Lease Addendum dated June 2, 1998 (hereinafter referred to as the
("Prime Lease"), wherein Alexander Properties Company (hereinafter referred
to as the "Lessor") leased to SILICON GRAPHICS, INC., (hereinafter
"Sublessor") approximately 15,789 square feet of rentable space in that
certain building known as 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, located at Xxx
Xxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as the "Building"), at the
rent and upon and subject to the terms and conditions set forth in the Prime
Lease; and
WHEREAS, ZapMe! Corporation (hereinafter "Sublessee") desires to sublet from
Sublessor, all of said floor space under the Prime Lease to Sublessor;
NOW, THEREFORE, the parties hereto, for themselves, their successors and
assigns, mutually covenant and agree as follows:
1. DEMISED PREMISES. Sublessor does hereby sublease to Sublessee, and
Sublessee does hereby sublease from Sublessor, for the term and upon the
conditions hereinafter provided, approximately 15,789 square feet of
rentable floor area on the first floor of the Building (such area
hereinafter referred to as the "Demised Premises").
2. SPECIFICATIONS. Sublessee agrees to sublease the Demised Premises, upon
and subject to the terms and conditions herein set forth in its "AS IS"
condition existing on the date possession is delivered to Sublessee,
without requiring any alterations, improvements, repairs or decorations
to be made by Sublessor, either at the time possession is given to
Sublessee or during the term of this Sublease Agreement. Sublessee
represents that it has thoroughly examined the Building and the Demised
Premises and accepts same in its present "AS IS" condition.
3. TERM. The term of this Sublease Agreement shall commence on January 17,
2000 ("Commencement Date"), and shall end on October 31, 2001, which said
term may expire or be terminated pursuant to any of the conditions or
limitations or other provisions of this Sublease Agreement, or Prime
Lease, or pursuant to law. In the event Lessor's consent has not been
obtained within seven (7) days of execution of this agreement, or such
later date as Sublessor or Sublessee may agree to in writing, this
Sublease Agreement shall be and become null and void and of no further
force or effect.
4. BASE RENT. Sublessee accepts the basic rent in the schedule below and
agrees to pay upon execution of this Sublease Agreement the first months
rent and thereafter pay in advance the monthly rent commencing at the
beginning of the term and continuing thereafter on the first day of each
and every calendar month during the term of this Sublease Agreement. If
the obligation of Sublessee to pay rent thereunder begins on a day other
than on the first day of a calendar month, rent from such date until the
first day of the following calendar month shall be prorated at the rate
of one-thirtieth (1/30th) of the monthly installment for each day payable
in advance. The monthly base rent, additional rent and any other charges
herein reserved or payable shall be paid to Sublessor at:
Business Integration Group
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
XXX ref 1003-06
Xxxxx, XX 00000
or at such other place as Sublessor may designate in writing, in lawful
money of United States of America without demand therefore and without
any deduction, setoff or abatement whatsoever, except as expressly
provided for in this Sublease Agreement.
Base rent shall be as follows:
TIME PERIOD ANNUAL MONTHLY PER SQ.FT./PER MONTH
1/17/00-10/31/01 $378,936 $31,578.00 $2.00
5. ADDITIONAL RENT. Sublessee agrees to pay to Sublessor, as additional
rent under this Sublease Agreement, all utilities, operating expenses and
real estate tax pass throughs charged to Sublessor by Lessor in
accordance with the Prime Lease. Sublessee shall pay its proportionate
share of increases in real estate taxes and operating expenses above a
2000 base year. (Sublessee's base index).
Any additional rent which may be payable to Sublessor shall be
apportioned during the year in which the term of this Sublease Agreement
commences and during the year in which such term shall end, such that
Sublessee shall be obligated to pay a proportionate share of such
additional rental which is attributable to the number of days of the term
hereof which are included in the period for which such additional rental
is payable by Sublessor under the Prime Lease. Sublessor shall give
Sublessee copies of all relevant statements and bills received by
Sublessor pursuant to the applicable provisions of the Prime Lease,
together with a statement of the amount of additional rent, if any, which
Sublessee is required to pay under this paragraph. Sublessee shall pay
additional rent immediately upon receipt of said statement. Sublessee
shall also pay to Sublessor, as additional rent, all charges for
additional services provided to Sublessee, including, without limitation,
charges and fees for alterations and after-hours heating and air
conditioning services. Sublessee's obligation to pay additional rent
shall survive the termination of this Sublease Agreement.
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6. DEPOSIT. Simultaneous with the execution of this Sublease Agreement,
Sublessee shall deposit with Sublessor or the Sublessor's agent, the sum
of $63,156. Said Deposit shall be held by Sublessor as a security
deposit until the expiration of the sublease term. The deposit provided
herein shall be considered as security for the payment and performance by
Sublessee of all of Sublessee's obligations, convenants, conditions and
agreements under this Sublease Agreement. In the event of any default by
Sublessee hereunder, Sublessor shall have the right, but not the
obligation, to apply all or any portion of the deposit to cure such
default, in which event Sublessee shall be obligated to promptly deposit
with Sublessor that portion of the deposit used to cure such default. In
the event Sublessee fails to perform its obligations and to take
possession of the Demised Premises on the appropriate commencement date
provided herein, said deposit shall not be deemed liquidated damages, and
application of the deposit to reduce Sublessor's damages shall not
preclude Sublessor from recovering additional damages incurred by
Sublessor.
7. USE. Sublessee will use and occupy the Demised Premises solely for
general office purposes and in accordance with the use permitted under
the Prime Lease. Without the prior written consent of Lessor and
Sublessor, the Demised Premises will not be used for any other purposes.
8. ALTERATIONS. Sublessee shall not make any alterations, improvements,
decorations, or installations (hereinafter called "Alterations") in or to
the Demised Premises, without in each instance obtaining the prior
written consent of Lessor (when required) Sublessor (in all instances)
which consent by Sublessor shall not be unreasonably withheld. If any
Alterations are made without consent, Lessor or Sublessor may remove
same, and may correct, repair and restore the Demised Premises and any
damage arising from such removal, and Sublessee shall be liable for any
and all costs and expenses incurred by Lessor or Sublessor in the
performance of this work. All alterations performed shall be in
accordance with the Prime Lease. Further, Sublessee hereby agrees to
indemnify and hold harmless Sublessor from all claims, liens, expenses or
damages, including reasonable attorney's fees, to person or property
which might arise by reason of any alterations or improvements made to
the Premises by Sublessee.
9. SUBLESSEE IMPROVEMENT ALLOWANCE. Sublessee shall take the space in its'
current "AS-IS" condition, without any Sublessee improvement allowance.
10. SUBLESSEE'S PERSONAL PROPERTY. Upon the expiration or earlier
termination of this Sublease Agreement, Sublessee shall remove all of its
furniture, furnishings, equipment, or trade fixtures and shall repair all
damage resulting from such removal or its use of the Demised Premises,
and shall surrender the Demised Premises, as so required, in good
condition, subject only to reasonable wear and tear, and in accordance
with the provisions of the Prime Lease. The obligations of Sublessee as
herein provided shall survive the termination of this Sublease Agreement.
11. TERMS OF PRIME LEASE. All of the terms, provisions, covenants and
conditions of the Prime Lease, a copy of which is attached hereto as
Exhibit "A", and is incorporated herein by reference, are superior to
this Sublease Agreement, except as herein otherwise expressly
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provided. Sublessee in executing this Sublease Agreement agrees to be
bound by each and every term, condition and covenant contained in the
Prime Lease.
As between Sublessor and Sublessee, Sublessee hereby assumes all of the
obligations of the Sublessor, as the Lessee, under the Prime Lease, but
only to the extent they are applicable to the Demised Premises after the
Commencement Date EXCLUDING THE PAYMENT OF RENT. Sublessee shall obtain
and maintain all insurance types and coverages as specified in the Prime
Lease to be obtained and maintained by Sublessor, as lessee, in amounts
not less than those specified in the Prime Lease. Any such policy(s)
shall name Sublessor as an additional named insured under said policy(s).
Sublessee's insurance shall be primary over Lessor's and Sublessor's
insurance. Sublessee will deliver to Sublessor concurrently with the
execution of this Sublease Agreement, and annually, certificates
reflecting that Sublessee has obtained and is maintaining the required
insurance coverage's in the appropriate amounts.
Notwithstanding anything in this Sublease Agreement to the contrary,
Sublessee agrees that Sublessor shall not be obligated to furnish to
Sublessee any services of any nature whatsoever, including, without
limitation, the furnishing of heat, electrical energy, air conditioning,
elevator service, cleaning, window washing, or rubbish removal services.
Sublessor, however, shall be obligated to take commercially reasonable
actions necessary to obtain the performance of and furnishing of such
services for the Demised Premises by Lessor pursuant to the terms of the
Prime Lease. Additionally, under no circumstances shall Sublessee be
entitled to any rental abatement or self help reimbursement due to a loss
of services for Lessors failure to provide same, unless expressly
provided for in the Prime Lease. In the event Sublessor obtains said
rental abatement or reimbursements, any amount (less any cost and
expenses) shall be passed through to Sublessee.
Sublessor shall have all of the rights of Lessor under the Prime Lease as
against Sublessee and, as between the parties hereto, Sublessor agrees to
observe and perform the terms, covenants and conditions on its part to be
observed and performed thereunder as well as those applicable terms,
covenants and conditions to be observed and performed by Lessor under the
Prime Lease with respect to the Demised Premises. Sublessee shall have
all of the rights of Lessee under the Prime Lease unless excepted herein.
Sublessee acknowledges that is has received a true copy of the Prime
Lease, that it has reviewed same, and that it is familiar with the
contents thereof.
12. SUBLESSEE'S COVENANTS. Sublessee covenants and agrees that Sublessee
will not do anything which would constitute a default under the Prime
Lease or omit to do anything which Sublessee is obligated to do under the
terms of this Sublease Agreement and which would constitute a default
under the Prime Lease. Sublessor represents and warrants that as of the
execution of this Sublease Agreement, Sublessor is not in default of the
Prime Lease and, if after the execution of this Sublease Agreement,
Sublessor is in default of the Prime Lease, Sublessor shall pay those
reasonable costs and expenses actually incurred by Sublessee as a result
of any such breach or default. Sublessor represents and warrants that
the attached copy of the Prime Lease is true, correct and complete.
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13. INDEMNIFICATION. Sublessee shall and hereby does indemnify and hold
Lessor and Sublessor harmless from and against any and all actions,
claims, demands, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) asserted against, imposed upon or
incurred by Lessor or Sublessor by reason of (a) any violation caused,
suffered or permitted by Sublessee, its agents, servants, employees or
invitees. Further, Sublessee shall indemnify, defend and hold Sublessor
and Lessor harmless from and against any all loss, cost, liability,
damage or expense including reasonable attorney's fees, which either may
incur or sustain or which may be asserted against either by reason of any
liability Sublessor or Lessor may incur for clean up, restoration costs,
fines, or penalties resulting from the violation of any environmental law
or regulation caused by Sublessee, its employees, agents and contractors,
arising out of Sublessee's use of the Premises. Sublessee shall operate
is business in the Premises in compliance with all environmental laws or
regulations including, but not limited to obtaining all required permits
or licenses, if any, when required.
14. LIMITATIONS. Notwithstanding anything contained to the contrary herein,
Sublessee shall not have the right to any renewal or, expansion options,
to sublease or assign all or any portion of the Demised Premises.
Additionally, Sublessee shall not take any action(s) which will subject
Sublessor to any additional costs without first obtaining Sublessor's
written consent (i.e., additional services).
15. BROKERS. Sublessor and Sublessee represent to each other that neither
has dealt with any broker or consultant in connection with this Sublease
Agreement other than Cornish & Xxxxx, acting in a dual agency capacity
representing both Sublessor and Sublessee, or Xxxxxxx & Wakefield, acting
on behalf of Sublessor, and that no other fees or real estate commissions
have been earned by any party other than Cornish & Xxxxx and Xxxxxxx &
Wakefield. Sublessee hereby agrees to indemnify and hold Sublessor
harmless for any and all claims or liabilities for commissions or fees
arising from a breach of this representation by Sublessee. Any
commission or fees owed shall be paid by Sublessor pursuant to a separate
agreement.
16. ENTIRE AGREEMENT. This Sublease Agreement contains all of the covenants,
agreements, terms, provisions, conditions, warranties and understandings
relating to the leasing of the Demised Premises and Sublessor's
obligations in connection therewith. Sublessee in executing and
delivering this Sublease Agreement is not relying upon any warranties,
representations, promises or statements whatsoever or of any kind, except
to the extent expressly set forth in this Sublease Agreement. All
understandings and agreements, if any, between the parties are merged in
this Sublease Agreement, which alone fully and completely expresses the
agreement of the parties. The failure of Sublessor to insist in any
instance upon the strict keeping, observance or performance of any
covenant agreement, term, provision or condition of this Sublease
Agreement or Prime Lease, or to exercise any election contained therein,
shall not be construed as a waiver or relinquishment for the future
enforcement of such covenant, agreement, term provision, condition or
election, but the same shall continue and remain in full force and
effect. No waiver or modification of any covenant, agreement, term,
provision or condition of this Sublease Agreement, or the Prime Lease,
shall be deemed to have been made unless expressed in writing and signed
by Lessor and Sublessor. No surrender of possession of the Demised
Premises or of any part thereof or
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of any remainder of the term of this Sublease Agreement shall release
Sublessee from any of its obligations thereunder unless accepted by
Sublessor in writing except as provided in the Prime Lease for
condemnation, fire and casualty, or service interruption. The receipt
and retention by Sublessor of monthly base rent or additional rent
from anyone other than Sublessee shall not be deemed a waiver of the
breach by Sublessee of any covenant, agreement, term, or provision of
this Sublease Agreement, or as the acceptance of such other person as
a Sublessee, or as a release of Sublessee from the further keeping,
observance or perfomance by Sublessee of the covenants, agreements,
terms, provisions and conditions herein contained. The receipt and
retention by Sublessor of monthly base rent or additional rent with
knowledge of the breach of any covenant, agreement, term, provision or
condition herein contained shall not be deemed a waiver of such breach.
17. SUCCESSOR AND ASSIGNS. The respective rights and obligations provided in
this Sublease Agreement shall bind and shall inure to the benefit of the
parties hereto, their legal representatives, heirs, successor and
assigns.
18. NOTICES. Any and all communications delivered hereunder shall be sent in
writing, hand delivered, by registered or certified mail, return receipt
requested, first class postage paid, or sent postage prepaid by a
reputable air courier service that provides written notice of delivery
addressed as follows: If to Xxxxxx, Xxxxxxxxx Properties Company, X.X.
Xxx 000 Xxx Xxxxxxx Xxxx, Xxx Xxxxx, XX 00000, and if to Sublessor, SGI
c/o C&W/Business Integration Group, 0000 X. Xxxxxx Xxxx, xxxxx 000,
Xxxxx, XX 00000, if to Sublessee at the leased premises.
19. DELIVERY OF THE DEMISED PREMISES. Sublessor shall deliver the Demised
Premises to Sublessee by the Commencement Date free of Sublessor's
personal property, except as specifically provided for herein, and in a
"broom clean" condition. Sublessee shall have access to the Demised
Premises upon mutual execution of the Sublease Agreement and Lessors
consent of the Sublease Agreement to begin moving small items into the
Demised Premises provided Sublessee does not interfere with Sublessor's
move-out. All provisions of this Sublease Agreement (including, but not
limited to all insurance and indemnification provisions) shall be in full
force and effect as of the date of Lessor's consent. Should term
commence later than January 31, 2000 for reasons within Sublessors sole
control, Sublessor agrees to credit Sublessee's rent by 150% per day of
delay to be applied upon commencement of term.
20. NO SMOKING. Sublessee understands and agrees that there shall be no
smoking in the Demised Premises and the Building.
21. REPRESENTATION BY SUBLESSEE. Sublessor and Sublessee warrant that the
signatories to this Sublease Agreement are authorized to sign this
Sublease Agreement on behalf of each party, and legally bind them
hereunder.
22. NO HOLDOVER. Sublessee shall not have the right to holdover in the
Demised Premises at the expiration of the Sublease term. In the event
Sublessor suffers any damages or costs
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whatsoever as a result of any holdover by Sublessee, Sublessee shall
bear such costs and shall indemnify Sublessor for all costs and
damages resulting from such holdover.
23. ATTORNEYS FEES. Should either party bring an action against the other to
enforce the terms, conditions or covenants of this Sublease Agreement, or
for a breach thereof, then the prevailing party shall be entitled to
recover its reasonable attorney fees and court costs in such action.
24. PARKING. Sublessee shall be entitled to all parking rights, if any,
granted under the Prime Lease (including parking ratio and type, parking
charges and parking abatement).
25. LESSOR'S CONSENT. This Sublease Agreement shall be contingent upon
obtaining the written consent of Lessor.
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this Sublease
Agreement as of the day and year first above written.
SUBLESSOR: SILICON GRAPHICS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxx
Title: Director of Facilities and Services
------------------------------------------
Date: 11/9/99
-------------------------------------------
SUBLESSOR: ZapMe! Corporation
By: /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxxxxx
Title: Chief Financial Officer and Secretary
------------------------------------------
Date: 11/3/99
------------------------------------------
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FIFTH LEASE ADDENDUM
THIS FIFTH LEASE ADDENDUM IS MADE AND ENTERED INTO THIS 2ND DAY OF JUNE,
1998, BY AND BETWEEN ALEXANDER PROPERTIES COMPANY, A CALIFORNIA PARTNERSHIP
(HEREINAFTER REFERRED TO AS "LANDLORD") AND SILICON GRAPHICS, INC., A DELAWARE
CORPORATION (HEREINAFTER REFERRED TO AS "TENANT").
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED
MARCH 13, 1991, FIRST LEASE ADDENDUM DATED JANUARY 15, 1993, SECOND LEASE
ADDENDUM DATED JULY 15, 1993, THIRD LEASE ADDENDUM DATED MARCH 12, 1996, FOURTH
LEASE ADDENDUM DATED SEPTEMBER 4, 1996 (HEREINAFTER COLLECTIVELY REFERRED TO AS
"LEASE") IN THE FOLLOWING MANNER:
Section 20. MISCELLANEOUS
THE FOLLOWING SUBSECTION 20.28 IS HEREBY ADDED TO THE LEASE:
Subsection 20.28 SATELLITE ANTENNA. Subject to compliance with the
provisions of this Lease and applicable Laws, Tenant may install on the roof of
the Building at a location designated or approved by Landlord an electronic
satellite dish or antenna (not to exceed eight (8) feet in diameter) and
associated cabling and equipment (collectively the "System") for data
communications used in the conduct of Tenant's business in the Premises.
Tenant's right to install and maintain any such System is non-exclusive;
Landlord may grant similar or additional rights to others. Prior to any such
installation Tenant shall furnish detailed plans and specifications for the
installation to Landlord for approval, which approval shall not be unreasonably
withheld or delayed. The size, location and installation of the antenna shall
conform to all existing and future Laws. Upon approval, the System shall be
installed, at Tenant's expense, and the installation shall be attractively
screened if so required by Landlord or applicable Laws. Landlord may require
use of a non-penetrating roof mount. If reasonably requested by Landlord, a
roofing company acceptable to Landlord shall at Tenant's expense install an
appropriate base upon which Tenant's installation shall be mounted. All aspects
and phases of Tenant's installation, including the antenna, any associated
electronic or other equipment, wiring, roof mount and base, shall at all times
be subject to supervision and approval by Landlord (solely to protect Landlord's
interests; Landlord shall have no obligation to Tenant to exercise any such
power of supervision or approval). Tenant shall be responsible for procuring
whatever consents, approvals, licenses or permits may be required for the use or
operation of Tenant's System. Landlord makes no warranties or representations
as to the permissibility of any such installation by Tenant. All costs and
expenses incurred in connection with any such installation or proposed
installation by Tenant, including any cost or expenses incurred by Landlord in
connection with review or supervision, shall be borne by Tenant. Tenant shall
reimburse Landlord for all charges for electricity or other utilities used in
connection with Tenant's operation of the System. Tenant shall be permitted
access to the area on the roof where any such installation may be made as
necessary for the installation and maintenance thereof. Tenant shall at all
times and at Tenant's sole expense be responsible for proper maintenance of any
such installation and all
governmental permits and approvals required in connection therewith
(including compliance with any and all conditions attached thereto). Any
such installation and the roof area on which it is located shall be deemed to
be part of the Premises for purposes of Tenant's insurance and
indemnification obligations under Sections 11 and 12. If any such
installation or use thereof by Tenant interferes in any manner with the
ability of other tenants or occupants of the Building to communicate in any
manner (whether by telephone, radio, telex, telecommunication, television,
microwave, computer or otherwise), then Tenant shall do whatever is necessary
to stop such interference (including, if necessary, removing the System from
the Building). Tenant may at any time, and shall at expiration or earlier
termination of the Term, remove the System, restore the Building to the
condition existing prior to Tenant's installation, and repair any damage
caused by Tenant's installation or removal. Tenant shall pay to Landlord as
additional Rent for the use of the rooftop area, TWO HUNDRED AND NO/100
($200.00) per month. Rent shall not commence until after the first month
following the actual installation of the Satellite Dish.
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With the exception of the modifications set out above, all other terms,
covenants and agreements of the Lease shall remain in full force and effect.
LANDLORD TENANT
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.,
A CALIFORNIA PARTNERSHIP A DELAWARE CORPORATION
By: By:
------------------------------ ----------------------------
Title: Title:
---------------------------- ---------------------------
Date: Date:
------------------------------ -----------------------------
Regarding:
Xxxxxx Ranch 8, Building Q
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx 000, 408 & 000
Xxx Xxxxx, XX 00000
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FOURTH LEASE ADDENDUM
THIS FOURTH LEASE ADDENDUM IS MADE AND ENTERED INTO THIS 4TH DAY OF
SEPTEMBER, 1996, BY AND BETWEEN ALEXANDER PROPERTIES COMPANY, A CALIFORNIA
PARTNERSHIP (HEREINAFTER REFERRED TO AS "LANDLORD") AND SILICON GRAPHICS, INC.,
A DELAWARE CORPORATION (HEREINAFTER REFERRED TO AS "TENANT").
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED
MARCH 13, 1991, FIRST LEASE ADDENDUM DATED JANUARY 15, 1993, SECOND LEASE
ADDENDUM DATED JULY 15, 1993, AND THIRD LEASE ADDENDUM DATED MARCH 12, 1996
(HEREINAFTER REFERRED TO AS "LEASE") IN THE FOLLOWING MANNER:
Section 1. PREMISES
Subsection 1.1 DESCRIPTION. The size of the Premises is hereby
increased by 5,847 rentable square feet, located on the fourth floor of 0000
XXXXXXXXX XXXXXXX, consisting of SUITES 408 AND 430 (hereinafter referred to as
"EXPANSION SPACE B") for a new total of 15,789 rentable square feet as shown on
the attached Exhibit A, effective on the date (the "COMMENCEMENT DATE") that
Landlord delivers EXPANSION SPACE B to Tenant or is deemed to have delivered
EXPANSION SPACE B to Tenant under the terms of the Work Letter attached to this
Fourth Lease Addendum. The COMMENCEMENT DATE is scheduled to occur on NOVEMBER
10, 1996 (hereinafter referred to as the "SCHEDULED COMMENCEMENT DATE").
(a) ACKNOWLEDGMENT OF COMMENCEMENT DATE. Upon
determination of the COMMENCEMENT DATE, Landlord and Tenant shall execute a
written acknowledgment of the COMMENCEMENT DATE in the form attached hereto as
Exhibit G.
Subsection 1.2 WORK OF IMPROVEMENT. Landlord shall perform the
work and pay for the cost of the "Suite Improvements" (as such term is defined
in the Work Letter attached hereto as Exhibit B) for improving the Premises up
to a maximum amount of TWO HUNDRED EIGHTY-FOUR THOUSAND FOUR HUNDRED EIGHTY AND
NO/100 DOLLARS ($284,480.00 OR $20.00 PER USABLE SQUARE FOOT). Any cost in
excess of this amount is to be paid for by Tenant to Landlord within thirty (30)
days from Tenant's receipt of Landlord's invoice for said work.
Section 2. TERM
Subsection 2.1 TERM. The expiration date of the term of this Lease
is hereby extended from OCTOBER 30, 1996 to OCTOBER 31, 2001.
Section 3. RENT
Subsection 3.1 RENT. The Base Rent shall hereby increase from
FIFTEEN THOUSAND ONE HUNDRED SIXTY-EIGHT AND 50/100 DOLLARS ($15,168.50) per
month to THIRTY-ONE THOUSAND FIVE HUNDRED SEVENTY-EIGHT AND NO/100 DOLLARS
($31,578.00) per month effective on the Effective Date.
Subsection 3.3 RENT CREDIT. Landlord hereby grants Tenant with a
Rent Credit in an amount equal to THIRTY THOUSAND AND NO/100 DOLLARS
($30,000.00) which, at Tenant's option, may be used to offset Rent when due or
taken in cash and utilized by Tenant to pay its real estate broker or
consultant. In the event Tenant elects to take said Rent Credit as a cash
contribution from Landlord, said Rent Credit shall be due and payable to Tenant
upon execution of this Addendum.
Section 5. TAX AND BUILDING OPERATING COST INCREASES
Subsection 5.2 TENANT'S SHARE. Tenant's Share of Building
Operating Costs shall be increased from 4.72% to 7.50%. The Expense stop shall
be adjusted to $7.65 per square foot per annum. The change in Tenant's Share
and the Expense Stop will become effective on the COMMENCEMENT DATE.
Section 20. MISCELLANEOUS
Subsection 20.24 RIGHT OF FIRST REFUSAL. Landlord hereby grants
Tenant with a Right of First Refusal to lease the premises as shown on Exhibit A
shown as the "Right of First Refusal Space." In order for Tenant to exercise
this Right of First Refusal, Tenant must, within seven (7) business days from
Landlord's written notice to Tenant of Landlord's intent to lease said Right of
First Refusal Space, notify Landlord in writing whether it will exercise said
Right. In the event Tenant exercises its Right, the Base Rental Rate, Expense
Stop and Tenant Improvement Allowance shall be the same as offered to another
party who has expressed their intent to lease said space, and the Term shall be
the same as that offered to the other party. In the event Tenant, upon
notification from Landlord, does not exercise its Right of First Refusal, Tenant
shall be deemed to have waived its Right and have no further rights to lease
said space.
Subsection 20.25 OPTION TO RENEW. Subject to the provisions of this
Subsection 20.25, Landlord hereby grants Tenant with one (1) , five (5) year
Option to Extend the Term of this Lease. Tenant's notice of its election to
exercise the Option to Extend must be given to Landlord in writing at least ten
(10) months prior to the expiration date of the then current Term. Tenant must
exercise its Option to Extend for the entire Premises.
(a) RENT. Base Rent for the Option period shall be set
at Fair Market Value at the time Tenant exercises its Option to Extend, but in
no event less than $24.00 per rentable square foot per year. Fair Market Value
is described in (b) below.
(b) FAIR MARKET VALUE. The Term "Fair Market Value"
used in this Lease shall mean the annual rental rate being charged in the
general area of the buildings in San Xxxxx and Walnut Creek for space comparable
to the space for which Fair Market Value is to be
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determined, taking into consideration use, location and floor level within the
applicable building, the location, size of tenancy, quality and age of the
building, the definition of rentable area or net rentable area, as the case may
be, with respect to which such rental rates are computed for renewal tenants,
leasehold improvements provided for renewal tenants, rental concessions for
renewal tenants, the date the particular rate under consideration became
effective, the term of the lease under consideration, the extent of services
provided thereunder, applicable distinctions between "gross" leases and "net"
leases, expense stop figures for escalation purposes, and other adjustments to
base rental, and any other relevant term or condition in making such evaluation,
including bona fide written offers made to Landlord by third parties at arms
length to lease the same or comparable space for which the Fair Market Value is
being determined.
(c) Within thirty (30) days following Tenant's notice to
Landlord to extend the term of this Lease, Landlord shall notify Tenant of the
proposed Fair Market Value. Tenant shall have thirty (30) days following
receipt of Landlord's notice in which to:
(1) accept such determination; or
(2) elect to have such determination made by
arbitration as described below; or
(3) withdraw its notice of exercise of Option to
Extend.
If Tenant fails to notify Landlord of its election
within said thirty (30) day period, Tenant shall be deemed conclusively to have
withdrawn its notice of exercise of Option to Extend the Lease and the Lease
shall terminate on the Term Expiration Date as if such notice was never given.
If Tenant elects to have such determination made by arbitration, then:
(i) Within ten (10) days after Landlord
receives Tenant's notice of its election to have such determination made by
arbitration, Landlord and Tenant shall each appoint and employ, at its cost, a
real estate appraiser (who shall be licensed in the state where the Demised
Premises are located and be a member of the American Institute of Real Estate
Appraisers (MAI) with at least ten (10) years of full time commercial appraisal
and real estate marketing experience in the immediate area where the Demised
Premises are located) to appraise and establish the Fair Market Value.
(ii) The two appraisers, thus appointed,
shall meet promptly and attempt to agree upon and designate a third appraiser
meeting the qualifications set forth above within ten (10) days after the date
of appointment of the last of the two appraisers.
(iii) If the two appraisers are unable to
agree on the third appraiser, either of the parties, after giving five (5) days'
notice to the other, shall request the American Arbitration Association in the
county in which the Premises are located to appoint such independent third
appraiser who shall be of similar affiliation or background of the appraisers
aforementioned. Each of the parties shall bear one-half of the cost of the
appointment of the third appraiser and of the third appraiser's fee.
-3-
(iv) Within thirty (30) days after the
selection of the third appraiser, a majority of the appraisers shall agree upon
the Fair Market Value. If a majority of the appraisers are unable to agree
within the stipulated time, then each appraiser shall render his/her separate
appraisal within such time, and the three appraisals shall be averaged in order
to establish such rate; provided, however, if the low appraisal and/or the high
appraisal are more than ten (10%) percent lower and/or higher than the middle
appraisal, the low appraisal and/or high appraisal shall be disregarded. If
only one appraisal is disregarded, the remaining two appraisals shall be
averaged in order to establish such Fair Market Value. If both the low
appraisal and the high appraisal are disregarded, the middle appraisal shall
establish the Fair Market Value. After the Fair Market Value has been
established, the appraisers shall immediately notify the parties in writing.
(d) NOTICE. In the event Tenant does not provide
Landlord with written notice of its intent to exercise this Option to Extend
within the aforementioned time frame, Tenant shall be deemed to have waived its
Option to Extend.
(e) OPTIONS ARE PERSONAL. Except as permitted in
Section 15 of this Lease, the Option to Extend is Personal to the Tenant
executing this Lease and are otherwise not assignable or transferrable.
Subsection 20.26 RIGHT TO RELOCATE. Tenant is hereby granted the
right, at Tenant's expense, to have Landlord relocate the tenant occupying the
Right of First Refusal Space (Q-440). In order for Tenant to exercise this
Right, Tenant must provide Landlord with at least seven (7) months' prior
written notice that it wishes Landlord to relocate such tenant. In the event
Tenant provides Landlord with such written notice, the Premises will be leased
in their as-is, broom clean condition. The rental rate will be set at Fair
Market Value, but in no event less than $24.00 per rentable square foot, and the
Lease term shall be conterminous with the expiration date set forth herein.
Subsection 20.27 SIGNAGE RIGHTS. Landlord hereby grants Tenant with
the right, at Tenant's sole expense, to "Building Standard" monument signage.
Upon written request from Tenant and approval by Tenant of the cost of such
monument signage, Landlord will, within 45 days from receipt of such request,
install the monument signage.
-4-
With the exception of the modifications set out above, all other terms,
covenants and agreements of the Lease shall remain in full force and effect.
LANDLORD TENANT
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.,
A CALIFORNIA PARTNERSHIP A DELAWARE CORPORATION
By: By:
------------------------- ---------------------------
Title: Title:
---------------------- ------------------------
Date: Date:
----------------------- -------------------------
Regarding:
Xxxxxx Ranch 8, Building Q
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Expansion Space B (Suites 408 & 430)
Xxx Xxxxx, XX 00000
-5-
EXHIBIT B TO FOURTH LEASE ADDENDUM
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF SEPTEMBER 4, 1996
BETWEEN
ALEXANDER PROPERTIES COMPANY, AS LANDLORD,
AND
SILICON GRAPHICS, INC., A DELAWARE CORPORATION,
AS TENANT ("LEASE")
WORK LETTER
1. SUITE IMPROVEMENTS. Landlord shall with reasonable diligence
construct and install in EXPANSION SPACE B the improvements and fixtures
provided for in this Construction Rider ("Suite Improvements").
1.1. PLANS.
Tenant will submit to Landlord the following plans:
(a) On or before AUGUST 31, 1996, Tenant will submit to
Landlord a Space Plan showing details and specifications sufficient to permit
Landlord's contractor and subcontractors to price the Suite Improvements. Such
plans shall hereinafter be referred to as the "Pricing Plans." Within seven (7)
days from Landlord's receipt of Tenant's approved Pricing Plans, Landlord will
provide Tenant with a price to complete the scope of work as shown on said
Pricing Plans.
(b) The Pricing Plans will become the Construction
Documents, hereinafter referred to as the "Construction Documents" and shall be
used by Landlord to complete the construction of Tenant's Suite Improvements.
In all events said Construction Documents must be approved by Tenant no later
than SEPTEMBER 15, 1996. In the event Landlord has not received Tenant's
approved Construction Documents by SEPTEMBER 15, 1996, such delay will be
considered a Tenant Delay unless such delay was caused by Landlord.
1.2. CONSTRUCTION. Upon Landlord's receipt of the Final
Construction Documents, approved by Tenant, Landlord shall proceed with
reasonable diligence to cause the Suite Improvements to be Substantially
Completed on or prior to the Scheduled Commencement Date. The Suite
Improvements shall be deemed to be "Substantially Completed" when they have been
completed in accordance with the Final Construction Documents except for
finishing details, minor omissions, decorations and mechanical adjustments of
the type normally found on an architectural "punch list". (The definition of
Substantially Completed shall also define the terms "Substantial Completion" and
"Substantially Complete.")
1.3. COST OF SUITE IMPROVEMENTS. See Section 1.2 of this Second
Lease Addendum.
1.4. TENANT DELAYS.
Tenant shall be responsible for, and shall pay to Landlord,
any and all direct costs and expenses incurred by Landlord in connection with
any delay in the commencement or completion of any Suite Improvements and any
increase in the cost of Suite Improvements (whether or not Above-Standard)
caused by (i) Tenant's failure to cause the Space Planner to deliver the items
described above within the time periods required above, (ii) the failure of
Landlord to receive Final Construction Documents before SEPTEMBER 15, 1996,
(iii) Above-Standard Suite Improvements requested by Tenant, (iv) any changes or
modifications in the work requested by Tenant following approval of the Final
Construction Documents, (v) Tenant's early entry onto EXPANSION SPACE B as
described in Paragraph 3 hereof, or (vi) any other delay requested or caused by
Tenant (collectively, "Tenant Delays"). Notwithstanding the foregoing, no
Tenant Delay shall be deemed to have occurred unless it actually causes a Delay
and until Landlord gives written notice to Tenant specifying the action,
inaction or occurrence constituting the Tenant Delay and the number of days of
such Tenant Delay ("Tenant Delay Notice"). Notwithstanding anything to the
contrary, in the event of a Tenant Delay, Rent shall commence on the Scheduled
Commencement Date; however, in the event the delay in Substantial Completion is
caused by Landlord, the Scheduled Commencement Date shall be adjusted by one (1)
day for every day of Landlord caused delay.
2. COMMENCEMENT OF TERM. Upon Substantial Completion of the Suite
improvements, Landlord shall deliver possession of EXPANSION SPACE B to Tenant.
The Commencement Date will be the earlier of Substantial Completion of the Suite
Improvements or the date Landlord would have completed EXPANSION SPACE B and
tendered EXPANSION SPACE B to Tenant if Substantial Completion had not been
delayed by the number of days specified in any and all Tenant Delay Notices
given by Landlord as described in Paragraph 1.4.
3. ACCESS TO EXPANSION SPACE B. Landlord, at its reasonable
discretion, shall allow Tenant or Tenant's Representatives to enter EXPANSION
SPACE B prior to the Substantial Completion to permit Tenant to make EXPANSION
SPACE B ready for its use and occupancy; provided, however, that prior to such
entry of EXPANSION SPACE B, Tenant shall provide evidence reasonably
satisfactory to Landlord that Tenant's insurance, as described in Paragraph 12
of the Lease, shall be in effect as of the time of such entry. Such permission
may be revoked at any time upon twenty-four (24) hours' written notice, and
Tenant or its Representatives shall not interfere with Landlord or Landlord's
contractor in completing the Building or the Suite Improvements. Tenant agrees
that Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's property placed upon or installed in
EXPANSION SPACE B prior to the Commencement Date, the same being at Tenant's
sole risk, and Tenant shall be liable for all injury, loss or damage to persons
or property arising as a result of such entry of EXPANSION SPACE B by Tenant or
its Representatives, unless such injury, loss, or damage is the result of
Landlord's or its representatives' negligence, omissions, or willful misconduct.
4. OWNERSHIP OF SUITE IMPROVEMENTS. All Suite Improvements
permanently affixed to the real property, whether or not Above-Standard, and
whether installed by Landlord or Tenant, shall become a part of EXPANSION
SPACE B, shall be the Property of Landlord and, unless Landlord elects otherwise
as provided in the Lease, shall be surrendered by Tenant with EXPANSION SPACE B,
without any compensation to Tenant, at the expiration or termination of the
Lease.
-2-
EXHIBIT C - SPACE PLAN
TO BE PROVIDED
ALEXANDER
PROPERTIES COMPANY
One Xxxxxxx Xxxx Xxxx Xxxxxx Xxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000 Fax
510/000-0000 Tel 510/000-0000
EXHIBIT G
COMMENCEMENT OF FOURTH LEASE ADDENDUM
It is hereby agreed to that as of __________, 199__, Expansion Space B (Suites
408 and 430) located at 0000 Xxxxxxxxx Xxxxxxx, described in the Fourth Lease
Addendum dated __________, 199__, by and between ALEXANDER PROPERTIES COMPANY as
Landlord and SILICON GRAPHICS, INC. as Tenant, were occupied by Tenant and that
said Fourth Lease Addendum is in full force and effect.
ACKNOWLEDGED AND ACCEPTED:
LANDLORD TENANT
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.,
a California partnership a Delaware corporation
By: By:
---------------------------------- --------------------------------
Title: Title:
------------------------------- -----------------------------
Date: Date:
-------------------------------- ------------------------------
THIRD LEASE ADDENDUM
THIS THIRD LEASE ADDENDUM IS MADE AND ENTERED INTO THIS 12TH DAY OF
MARCH, 1996, BY AND BETWEEN ALEXANDER PROPERTIES COMPANY, A CALIFORNIA
PARTNERSHIP (HEREINAFTER REFERRED TO AS "LANDLORD") AND SILICON GRAPHICS, INC.,
A DELAWARE CORPORATION (HEREINAFTER REFERRED TO AS "TENANT").
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED
MARCH 13, 1991, FIRST LEASE ADDENDUM DATED JANUARY 15, 1993, AND SECOND LEASE
ADDENDUM DATED JULY 15, 1993, (HEREINAFTER REFERRED TO AS "LEASE") IN THE
FOLLOWING MANNER:
Section 2. TERM
Subsection 2.1 TERM. The expiration date of the term of this Lease
is hereby extended from APRIL 30, 1996 to OCTOBER 30, 1996.
With the exception of the modifications set out above, all other terms,
covenants and agreements of the Lease shall remain in full force and effect.
LANDLORD TENANT
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.,
A CALIFORNIA PARTNERSHIP A DELAWARE CORPORATION
By: By:
---------------------------------- --------------------------------
Title: Title:
------------------------------- -----------------------------
Date: Date:
-------------------------------- ------------------------------
Regarding:
Xxxxxx Ranch 8, Building Q
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
SECOND LEASE ADDENDUM
THIS SECOND LEASE ADDENDUM IS MADE AND ENTERED INTO THIS ______ DAY OF
________, 1993, BY AND BETWEEN ALEXANDER PROPERTIES COMPANY, A CALIFORNIA
PARTNERSHIP (HEREINAFTER REFERRED TO AS "LANDLORD") AND SILICON GRAPHICS, INC.,
A DELAWARE CORPORATION (HEREINAFTER REFERRED TO AS "TENANT").
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED
MARCH 13, 1991, AND FIRST LEASE ADDENDUM DATED JANUARY 15, 1993, (HEREINAFTER
REFERRED TO AS "LEASE") IN THE FOLLOWING MANNER:
Section 1. PREMISES
Subsection 1.1 DESCRIPTION. The size of the Premises is hereby
increased by 3,670 rentable square feet (hereinafter referred to as the
"Expansion Space") for a new total of 9,942 rentable square feet as shown on the
attached Exhibit A, effective August 1, 1993 (hereinafter referred to as the
"Effective Date").
Subsection 1.2 WORK OF IMPROVEMENT. Landlord shall perform the
work and pay for the cost of improving the Expansion Space as shown on the
attached Exhibit C (space plan) up to an amount equal to ELEVEN AND 42/100
DOLLARS ($11.42) per usable square foot in the Expansion Space, but in no event
to exceed THIRTY-SEVEN THOUSAND SEVEN HUNDRED FIFTY-NINE AND NO/100 DOLLARS
($37,759.00). In the event Landlord is required by code to install additional
smoke detectors or a new fire panel in the Expansion Space, said work shall be
completed by Landlord at Landlord's sole cost and expense.
Section 3. RENT
Subsection 3.1 RENT. The Base Rent shall hereby increase from
EIGHT THOUSAND TWO HUNDRED NINETY-FIVE AND NO/100 DOLLARS ($8,295.00) per month
to THIRTEEN THOUSAND NINE HUNDRED EIGHTY-THREE AND 50/100 DOLLARS ($13,983.50)
per month effective on the Effective Date.
Subsection 3.2 ADJUSTMENTS TO BASE RENT. The Base Rent shall be
adjusted to FIFTEEN THOUSAND ONE HUNDRED SIXTY-EIGHT AND 50/100 DOLLARS
($15,168.50) per month effective at the commencement of the 37th month of the
Lease term.
Section 5. TAX AND BUILDING OPERATING COST INCREASES
Subsection 5.2 TENANT'S SHARE. Tenant's percentage share of
Building Operating Costs shall be increased by 1.74% (Tenant's percentage share
on the Expansion Space) to 4.72%. The expense stop for the Expansion Space
shall be $6.60 per square foot per annum. The change in Tenant's percentage
share will become effective on the Effective Date.
Section 20. MISCELLANEOUS
Subsection 20.20 RIGHT TO TERMINATE. Tenant hereby waives its rights
to Subsection 20.20.
Subsection 20.23 RENTAL CREDIT. Landlord hereby grants Tenant a
rental credit in the amount of EIGHT THOUSAND SEVEN HUNDRED SIXTY-NINE AND
96/100 DOLLARS ($8,769.96). Said rental credit may be used by Tenant at anytime
after Tenant takes occupancy of the Expansion Space.
With the exception of the modifications set out above, all other terms,
covenants and agreements of the Lease shall remain in full force and effect.
LANDLORD TENANT
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.,
A CALIFORNIA PARTNERSHIP A DELAWARE CORPORATION
By:__________________________ By:______________________________
Title:_______________________ Title:___________________________
Date:________________________ Date:____________________________
Regarding:
Xxxxxx Ranch 8, Building Q
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
-2-
FIRST LEASE ADDENDUM
THIS FIRST LEASE ADDENDUM IS MADE AND ENTERED INTO THIS 15TH DAY OF
JANUARY, 1993, BY AND BETWEEN ALEXANDER PROPERTIES COMPANY, A CALIFORNIA
PARTNERSHIP (HEREINAFTER REFERRED TO AS "LANDLORD") AND SILICON GRAPHICS, INC.,
A DELAWARE CORPORATION (HEREINAFTER REFERRED TO AS "TENANT").
IT IS AGREED BETWEEN LANDLORD AND TENANT TO MODIFY THE LEASE DATED MARCH
13, 1991, (HEREINAFTER REFERRED TO AS "LEASE"). THE MODIFICATIONS UNDER THIS
ADDENDUM, EFFECTIVE JANUARY 1, 1993, ARE AS FOLLOWS:
Section 1. PREMISES
Subsection 1.1 DESCRIPTION. The square footage is hereby amended
from 5,650 usable square feet to 6,272 rentable square feet.
Section 5. TAX AND BUILDING OPERATING COST INCREASES
Subsection 5.2 TENANT'S SHARE. Tenant's Share is hereby restated
and amended as follows: In the event the Building Operating Costs incurred by
Landlord during any calendar year following the Base Year shall exceed the
Building Operating Costs "expense stop" of $5.41 per rentable square foot of the
Premises, Tenant shall pay to Landlord the amount of such excess. Tenant's
share of Building Operating Costs shall be computed based upon a rentable area
of the Building of 210,526 square feet and a rentable area of the Premises of
6,272 square feet for a percentage of 2.98%.
With the exception of the modifications set out above, all other terms,
covenants and agreements of the Lease shall remain in full force and effect.
LANDLORD TENANT
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.,
A CALIFORNIA PARTNERSHIP A DELAWARE CORPORATION
By:__________________________ By:______________________________
Title:_______________________ Title:___________________________
Date:________________________ Date:____________________________
Regarding:
Xxxxxx Ranch 8, Building Q
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
ALEXANDER
PROPERTIES COMPANY
Xxxx Xxxxxx Xxx 000 Xxx Xxxxxxx Xxxx Xxx Xxxxx, Xxxxxxxxxx 00000 415/866-0100
EXHIBIT G
COMMENCEMENT OF LEASE
It is hereby agreed to that as of MAY 1, 1991, the Premises located at
0000 XXXXXXXXX XXXXXXX, Xxxxx 000, described in the Lease Agreement dated
MARCH 13, 1991, by and between ALEXANDER PROPERTIES COMPANY as Landlord and
SILICON GRAPHICS, INC. as Tenant, were occupied by Tenant and that said Lease is
in full force and effect.
ACKNOWLEDGED AND ACCEPTED:
LANDLORD TENANT
By:__________________________ By:______________________________
Title:_______________________ Title:___________________________
SILICON GRAPHICS, INC.
BUILDING LEASE - TABLE OF CONTENTS
DESCRIPTION PAGE
1. PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
3. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
4. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
5. TAX AND BUILDING OPERATING COST INCREASES . . . . . . . . . . . . . . . . . .3
6. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
7. SERVICE AND UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
8. MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS. . . . . . . . . . . . . .7
9. ENTRY BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
10. LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
11. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13. DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . 13
16. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17. DEFAULT; REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
18. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
19. RELOCATION OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
20. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SIGNATURE PAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBITS
XXXXXX RANCH BUSINESS PARK
BUILDING LEASE
This Lease is made and entered into this 13th day of March, 1991, by and
between ALEXANDER PROPERTIES COMPANY, a California partnership, (hereinafter
"Landlord") and SILICON GRAPHICS, INC., a Delaware corporation (hereinafter
"Tenant"). For and in consideration of the rental to be paid and of the
covenants and agreements hereinafter set forth to be kept and performed by
Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises herein described for the term, at the rental and subject to and
upon all of the terms, covenants and agreements hereinafter set forth.
1. PREMISES
1.1 DESCRIPTION. Landlord hereby leases to Tenant and Tenant
hereby rents from Landlord the Premises (hereinafter "Premises") crosshatched on
Exhibit A containing 5,650 square feet known as Suite 410, located on the Fourth
floor of 3000 Executive Parkway, Building Q (hereinafter "Building"), located at
Xxx Xxxxx, Xxxxxxxxxx 00000.
1.2 WORK OF IMPROVEMENT. The obligation of Landlord and Tenant
to perform the work and supply the necessary materials and labor to prepare the
Premises for occupancy are set forth in detail in Exhibit B and Exhibit C.
Landlord and Tenant shall expend all funds and do all acts required of them, if
any, in Exhibit B and Exhibit C and shall have the work performed promptly and
diligently in a first class workmanlike manner. Any changes initiated by Tenant
to the plan (Exhibit C) dated March 4, 1991, which affect the cost of the work
shall be paid by Tenant to Landlord promptly after incurred.
2. TERM
2.1 TERM. Subject to Paragraph 2.2 below, the term of this
Lease shall be for Five (5) years, commencing May 1, 1991, and ending April 30,
1996, unless sooner terminated pursuant to this Lease.
2.2 DELAY IN COMMENCEMENT. Tenant agrees that in the event of
the inability of Landlord for any reason to deliver possession of the Premises
to Tenant on the commencement date set forth in Paragraph 2.1, Landlord shall
not be liable for any damage thereby nor shall such inability affect the
validity of this Lease or the obligations of Tenant hereunder, but in such case
Tenant shall not be obligated to pay rent or other monetary sums until
(i) Landlord has substantially completed the "Tenant Improvements" (as defined
in Exhibit C) in accordance with the approved plans therefor and there remain no
uncompleted items that would adversely affect Tenant's use of the Premises, and
(ii) Landlord is legally able to and has delivered possession of the Premises to
Tenant. In the event Landlord shall not have delivered possession of the
Premises within sixty (60) days from the scheduled commencement date, then
Tenant at its option, to be exercised within thirty (30) days after the end of
said sixty (60) day period, may terminate this Lease and, upon Landlord's return
of any monies previously deposited by Tenant, the parties shall have no further
rights or liabilities toward each other. If Tenant elects to terminate the
Lease pursuant to this paragraph,
Landlord shall refund to Tenant all prepaid rent, and other monies paid by
Tenant under the Lease, and neither party shall bear any further rights or
obligations under the Lease. Tenant shall be under no obligation to make any
rental payments hereunder until Landlord has complied with items (i) and (ii)
above. Notwithstanding anything to the contrary in the Lease, acceptance of
the Premises shall not be deemed a waiver of Tenant's right to have defects
in materials, design, construction, and equipment repaired at Landlord's
expense. Tenant shall give notice to Landlord whenever any such defects
become reasonably apparent, and Landlord shall repair such defects as soon as
practicable. Effective upon completion of the Premises, Landlord hereby
warrants that the construction of the Tenant Improvements and Building was
performed in accordance with the plans therefor, in a good and workmanlike
manner, and that all materials and equipment furnished conform to said plans
and are otherwise of good quality.
2.3 ACKNOWLEDGMENT OF COMMENCEMENT DATE. In the event the
commencement date of the term of the Lease is other than as provided in
Paragraph 2.1, then Landlord and Tenant shall execute a written
acknowledgment of the date of commencement which date shall acknowledge
commencement of this Lease and shall attach it to the Lease as Exhibit G.
3. RENT.
3.1 BASE RENT. Tenant shall pay to Landlord as base rent for
the Premises in advance on the first day of each calendar month of the term of
this Lease without deduction, offset, prior notice or demand, in lawful money of
the United States of America, the sum of EIGHT THOUSAND TWO HUNDRED NINETY-FIVE
AND NO/100 DOLLARS ($8,295.00). If the commencement date is not the first day
of a month, or if the Lease termination day is not the last day of a month, a
prorated monthly installment shall be paid at the then current rate for the
fractional month during which the Lease commenced and/or terminates.
Concurrently with Tenant's execution of this Lease, Tenant shall
pay to Landlord the sum of EIGHT THOUSAND TWO HUNDRED NINETY-FIVE AND NO/100
DOLLARS ($8,295.00) as rent for the eighth (8th) month of the Lease term. The
rental for the first seven (7) full months of occupancy shall be abated.
3.2 ADJUSTMENTS TO BASE RENT.
(a) Effective at the commencement of the (37th) month of
the Lease term the Base rental shall be increased to NINE THOUSAND FOUR HUNDRED
EIGHTY AND NO/100 DOLLARS ($9,480.00) per month.
4. SECURITY DEPOSIT
(Delete)
-2-
5. TAX AND BUILDING OPERATING COST INCREASES
5.1 DEFINITIONS. For purposes of this paragraph, the following
terms are herein defined:
(a) BASE YEAR: The calendar year in which this Lease
commences.
(b) BUILDING OPERATING COSTS: Building Operating Costs
shall include all costs and expenses of ownership, operation and maintenance of
Building (excluding depreciation on the Building, all amounts paid on loans of
Landlord, expenses capitalized for federal income tax purposes, and Landlord's
personal property and income taxes) computed in accordance with generally
accepted accounting principles adopted by Landlord consistently applied,
including by way of illustration but not limited to: real property taxes and
assessments and any tax in addition to or in lieu thereof, other than taxes
covered by Paragraph 5.4, whether assessed against Landlord or Tenant or
collected by Landlord or both; utilities; parts; equipment; supplies; insurance;
license, permit and inspection fees; cost of services and materials of
independent contractors (including property management fees not in excess of
those customarily charged for similar properties); cost of compensation
(including employment taxes and reasonable fringe benefits) of all persons who
perform regular and recurring duties connected with day-to-day operation,
maintenance and repair of Building, its equipment and the adjacent walks,
parking and landscaped areas, including janitorial, scavenger, gardening,
security, parking, operating engineer, elevator, painting, plumbing, electrical,
carpentry, heating, ventilation, air conditioning, window washing, signing and
advertising (but excluding sources and materials of persons performing services
not uniformly available to or performed for substantially all Building tenants);
and rental expense or a reasonable allowance for depreciation of personal
property used in the maintenance, operation and repair of the Building.
(c) COMPUTATION ADJUSTMENT. In the event the Building
is not fully occupied for any calendar year of the Term, the Building Operating
Costs shall be adjusted to the amount which would have been incurred if the
Building had been fully occupied for the year.
5.2 TENANT'S SHARE. In the event the Building Operating Costs
incurred by Landlord during any calendar year following the Base Year shall
exceed the Building Operating Costs "expense stop" of $6.00 per square foot of
rentable space in the Premises, Tenant shall pay to Landlord the amount of such
excess in proportion to Tenant's allocable share. Tenant's share of Building
Operating Costs shall be computed based upon a rentable area of the Building of
189,663 square feet and a rentable area of the Premises of 5,650 square feet for
a percentage of 2.98%.
5.3 PAYMENT. Within ninety (90) days after the end of each
calendar year following the Base Year, Landlord shall furnish Tenant with a
written statement showing in reasonable detail Landlord's Building Operating
Costs for the preceding calendar year, and the amount, if any, of any increase
or decrease in the sums due from Tenant taking into account prior increases paid
by Tenant (if any).
Coincidentally with the rent payment next due following Tenant's
receipt of such statement, Tenant shall pay to Landlord (in the case of an
increase), an amount equal to the sum of (i) the difference between Building
Operating Costs for the preceding calendar year and the expense
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stop less increases paid by Tenant (if any); and (ii) one-twelfth (1/12) of
said increases for the current calendar year multiplied by the number of rent
payments (including the current one) then elapsed in such calendar year.
Thereafter, one-twelfth (1/12) of the amount of the increase shall be paid
monthly with the rent until the adjustment the following year pursuant
hereto. In the event of a decrease, Landlord shall credit the entire amount
overpaid by Tenant during the preceding year against the next rent due from
Tenant. In no event shall the adjustment entitle Tenant to receive the
benefit of a reduction in Building Operating Costs below the level of the
expense stop.
5.4 NEW TAXES. In addition to rent and other charges to be
paid by Tenant hereunder, Tenant shall reimburse to Landlord, within thirty (30)
days of receipt of a demand therefor, Tenant's pro rata share, specified in
Paragraph 5.2, of any and all taxes payable by Landlord (other than net income
taxes and advalorem personal and real property taxes and other taxes excluded in
Paragraph 5.2 above) whether or not now customary or within the contemplation of
the parties hereto (i) upon, allocable to or measured by the area of the
Premises or on the rent payable hereunder, including without limitation any
gross receipts tax or excise tax levied by the State, any political subdivision
thereof, city or federal government with respect to the receipt of such rent; or
(ii) upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (iii) upon or measured by the value of Tenant's personal
property, equipment or fixtures located in the Premises; or (iv) upon this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises. Landlord agrees that during the term
of the Lease should an assessment district be levied or formed for Xxxxxx Ranch
that said assessments or any portions thereof will not be passed on to Tenant.
5.5 TENANT'S PERSONAL PROPERTY TAXES. Tenant shall pay before
delinquency, any and all taxes levied or assessed and which become payable
during the term hereof upon Tenant's equipment, furniture, fixtures and other
personal property located in the Premises and the taxes payable (whether levied
on Landlord or Tenant) for the cost of the portion of improvements located on
the Premises paid for by Tenant. Should Tenant desire to contest the County
Assessor's determination of personal property taxes, Tenant agrees to confer in
writing with Landlord prior to any such contest. In the event Tenant is not in
agreement with said determination, Tenant may then contest such taxes by
appropriate legal proceedings, provided Tenant protects Landlord and the
Premises by appropriate means reasonably satisfactory to Landlord. For the
purpose of determining said amount, figures supplied by the County Assessor as
to the amount so assessed shall be conclusive. Tenant shall comply with the
provisions of any law, ordinance or rate of the taxing authorities which require
Tenant to file a report of Tenant's property leased in the Premises.
6. USE
6.1 USE. The Premises shall be used and occupied by Tenant for
general office purposes and for no other purpose without the prior written
consent of Landlord.
6.2 SUITABILITY. Tenant acknowledges that neither Landlord nor
any agent of Landlord has made any representation or warranty with respect to
the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises except as provided in
this
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Lease. Except for latent or unknown defects and subject to Paragraph 2.2,
the taking of possession of the Premises by Tenant shall conclusively establish
that the Premises and the Building were at such time in satisfactory condition
unless within fifteen (15) days after such date Tenant shall give Landlord
written notice specifying in reasonable detail the respects in which the
Premises or the Building were not in satisfactory condition.
6.3 USES PROHIBITED
(a) Tenant shall not do nor permit anything to be done
in or about the Premises nor bring or keep anything therein which will in any
way increase the existing rate or affect any fire or other insurance upon the
Building or any of its contents (unless Tenant shall pay any increased premium
as a result of such use or acts), or cause a cancellation of any insurance
policy covering said Building or any part thereof or any of its contents, nor
shall Tenant sell or permit to be kept, used or sold in or about said Premises
any articles which may be prohibited by a standard form policy of fire
insurance.
(b) Tenant shall not do or permit anything to be done in
or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building, or injure or annoy them,
or use or allow the Premises to be used for any unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in or about the
Premises. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises.
(c) Tenant shall not use the Premises or permit anything
to be done in or about the Premises which will violate any law, statute,
ordinance or governmental rule or regulation or requirement of duly constituted
public authorities now in force or which may hereafter be enacted or
promulgated. Tenant shall at its sole cost and expense promptly comply with all
laws, statutes, ordinances and governmental rules, regulations or requirements
now in force or which may hereafter be in force and with the requirements of any
board of fire underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not relating to or affecting the condition, use or
occupancy of the Premises, or not related to or affected by Tenant's
improvements or acts. The judgment of any court of competent jurisdiction
whether Landlord be a party thereto or not, that Tenant has violated any law,
statute, ordinance or governmental rule, regulation or requirement, shall be
conclusive of the fact as between Landlord and Tenant. Tenant's obligation
under this Paragraph shall be limited to those situations in which a violation,
order or duty is imposed resulting from the particular use made of the demised
Premises or any portion thereof by Tenant, it being understood that Tenant shall
not be responsible for complying with any violations, orders, codes or duties
which are imposed on the Building generally and which would have to be complied
with whether Tenant or any other tenants were then in possession of the demised
Premises.
7. SERVICE AND UTILITIES
7.1 LANDLORD'S OBLIGATIONS. Provided Tenant is not in default
hereunder, Landlord shall furnish to the Premises during reasonable hours of all
business days except Federal holidays, and subject to the rules and regulations
of the Building, water, gas and electricity suitable for the intended use of the
Premises, heat and air conditioning required in Landlord's reasonable judgment
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for the comfortable use and occupancy of the Premises, scavenger, janitorial,
window washing service and elevator service customary in similar first class
office buildings in the competing geographical areas. Landlord shall also
maintain and keep lighted the common lobbies, hallways, stairs and toilet rooms
in the Building.
7.2 TENANT'S OBLIGATION. Tenant shall pay for, prior to
delinquency, all telephone and all other materials and services, not expressly
required to be paid by Landlord, which may be furnished to or used in, on or
about the Premises by Tenant during the term of this Lease.
7.3 TENANT'S ADDITIONAL REQUIREMENTS.
(a) Tenant will not, without the written consent of
Landlord, use any apparatus or device in the Premises, including but without
limitation thereto, electronic data processing machines, punch card machines and
machines using electric current in excess of 220 volts, which will in any way
increase the amount of electricity or water usually furnished or supplied for
use of the Premises as general office space; nor connect with electric current,
except through existing electrical outlets in the Premises, or water pipes, any
apparatus or device, for the purposes of using electric current or water.
(b) If Tenant shall require water or electric current in
excess of that usually furnished or supplied for use of the Premises as general
office space, Tenant shall first procure the consent of Landlord for the use
thereof, which consent Landlord may refuse, and Landlord may cause a water meter
or electric current meter to be installed in the Premises, so as to measure the
amount of water and electric current consumed for any such other use. The cost
of such meters and of installation, maintenance and repair thereof shall be paid
by Tenant and Tenant agrees to pay Landlord promptly upon demand by Landlord for
all such water and electric current consumed as shown by said meters, at the
rates charged for such services by the city in which the Building is located or
the local public utility, as the case may be, furnishing the same, plus any
additional expense incurred in keeping account of the water and electric current
so consumed. If a separate meter is not installed to measure such excess use,
then Landlord shall have the right to estimate the amount of such use through
qualified personnel.
(c) Wherever heat generating machines or equipment are
used in the Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord reserves the right to install supplementary
air conditioning units in the Premises and the cost thereof, including the cost
of installation, operation and maintenance thereof, shall be paid by Tenant to
Landlord upon demand by Landlord.
Landlord shall make all reasonable efforts to cure any
interruption or suspension of services and pursue same until completion. If the
cessation or stoppage of such services which Landlord is obligated to provide
for Tenant causes any portion of the demised Premises to become unusable by
Tenant in its reasonable discretion for more than thirty (30) consecutive days,
then Tenant shall be entitled to a pro rata abatement of rent as to such
unusable portion of the Premises commencing on the thirty-first (31st) day on
which the Premises or portion thereof are unusable. Tenant shall not be
entitled to any abatement of rent due to usability (i) caused by any act or
omission of Tenant; (ii) resulting from a request to Landlord from Tenant to
alter,
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improve or add to the Premises and Tenant has been apprised that such
alteration, improvement or addition will cause the cessation to such
services; or (iii) where the repairs are those which Tenant is required to
furnish hereunder.
7.4 NONLIABILITY. Except as set forth herein, Landlord shall
not be liable for and Tenant shall not be entitled to, any abatement or
reduction of rent by reason of Landlord's failure to furnish any of the
foregoing when such failure is caused by an act of God, acts of the public
enemy, fire, floods, epidemics, quarantine restrictions, strikes, labor
disputes, freight embargoes, inability to obtain materials or supplies, or
unusually severe weather conditions.
8. MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS
8.1 MAINTENANCE AND REPAIRS
(a) LANDLORD'S OBLIGATIONS. Landlord shall maintain in
good order, condition and repair the Building, the basic heating, ventilating,
air conditioning and electrical systems, the plumbing mains and all other
portions of the Premises not the obligation of Tenant in the Building. Any
maintenance and repair caused by wrongful acts or omissions of Tenant or
Tenant's employees, invitees and customers shall be paid for by Tenant.
Landlord shall diligently proceed with and complete all repairs for which it is
obligated hereunder and conduct such repairs in a manner which causes the least
interference and disruption of Tenant's business and occupation of the Premises.
(b) TENANT'S OBLIGATIONS
(1) Tenant, at Tenant's sole cost and expense,
except for services furnished by Landlord pursuant to Section 7 hereof, shall
maintain the Premises in good order, condition and repair including the interior
surfaces of the ceilings, walls and floors, all doors, interior windows, and all
plumbing pipes, electrical wiring, switches, fixtures and equipment installed
for the use of the Premises by Tenant.
(2) Upon the expiration or earlier termination of
this Lease, Tenant shall surrender the Premises in the same condition as
received, except for ordinary wear and tear and damage by fire, earthquake, act
of God or the elements, not caused by the wrongful act or omission of Tenant or
Tenants' agents and shall promptly remove or cause to be removed, at Tenant's
expense, from the Premises and the Building any signs, notices and displays
placed by Tenant.
(3) Upon the expiration or earlier termination of
this Lease, Tenant shall repair any damage to the Premises or the Building
caused by Tenant in the removal of any articles of personal property, business
or trade fixtures, machinery, equipment, cabinetwork, furniture, movable
partitions or permanent improvements or additions, including without limitation
thereto, repairing the floor and patching and painting the walls where required
by Landlord to Landlord's reasonable satisfaction, all at Tenant's sole cost and
expense. Tenant shall indemnify Landlord against any loss or liability
resulting from delay by Tenant in so surrendering the Premises, including
without limitation, any claims made by any succeeding tenant founded on such
delay.
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(4) In the event Tenant fails to maintain the
Premises in good order, condition and repair, Landlord shall give Tenant notice
to do such acts as are reasonably required to so maintain the Premises. In the
event Tenant fails to promptly commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform such work.
Any amount so expended by Landlord shall be paid by Tenant promptly after demand
with interest at the maximum rate permitted by law from the date of payment by
Landlord such work. Except for Landlord's gross negligence or willful
misconduct, Landlord shall have no liability to Tenant for any damage,
inconvenience or interference with the use of the Premises by Tenant as a result
of performing any such work.
(c) COMPLIANCE WITH LAW. Landlord and Tenant shall each
do all acts required to comply with all applicable laws, ordinances, regulations
and rules of any public authority relating to their respective maintenance
obligations as set forth herein.
(5) Notwithstanding the foregoing, Tenant shall
not be responsible for the performance or cost of repair and maintenance:
(i) necessitated by the acts or omissions of Landlord or its agents, employees
or contractors or the acts of other tenants of the Building or Office Park or
their agents, employees or contractors or any other party not an agent of
Tenant; (ii) of construction defects in the Building or Tenant improvements;
(iii) arising from a failure to construct the Building, common areas, or Tenant
improvements in accordance with all laws, CC&R's and plans approved by Tenant;
(iv) for which Landlord has a right of reimbursement from others; or (v) which
would constitute a capital expense, improvement or replacement.
8.2 ALTERATIONS AND ADDITIONS
(a) Tenant shall make no alterations, additions or
improvements to the Premises or any part thereof without obtaining the prior
written consent of Landlord.
(b) Landlord may impose as a condition to the aforesaid
consent such requirements as Landlord may deem necessary in its sole discretion,
including without limitation thereto, performing the work itself, specifying the
manner in which the work is done, selecting the contractor by whom the work is
to be performed, (provided, however, that such contractor charges reasonable
fees), the times during which it is to be accomplished and the requirement that
upon written request of Landlord prior to the expiration or earlier termination
of the Lease, Tenant will remove any and all permanent improvements or additions
to the Premises installed at Tenant's expense and all movable partitions,
counters, and fixtures.
(c) All alterations, additions or improvements shall, at
the expiration or earlier termination of the Lease, become the property of
Landlord and shall remain upon and be surrendered with the Premises, unless
installed at Tenant's expense.
(d) All articles of personal property and all business
and trade fixtures, machinery and equipment, cabinetwork, furniture and movable
partitions owned by Tenant or installed by Tenant at its expense in the Premises
shall be and remain the property of Tenant and
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may be removed by Tenant at any time during the lease term when Tenant is not
in default hereunder.
9. ENTRY BY LANDLORD
Landlord and Landlord's agents shall at any and all times have
the right to enter the Premises to inspect the same, to supply janitorial
service and any other service to be provided by Landlord to Tenant hereunder,
to submit said Premises to prospective purchasers or tenants, to post notices
of non-responsibility and "for lease" signs, and to alter, improve or repair
the Premises and any portion of the Building without abatement of rent, and
may for that purpose erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, always
providing the entrance to the Premises shall not be blocked thereby, and
further providing that the business of Tenant shall not be interfered with
unreasonably. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in, upon
and about the Premises, excluding Tenant's vaults and safes, and Landlord and
Landlords' agents shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency, in order to
obtain entry to the Premises, and any entry to the Premises obtained by
Landlord or Landlords' agents by any of said means, or otherwise, 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 of Tenant from the
Premises or any portion thereof.
Notwithstanding anything to the contrary contained in the Lease,
Landlord: (i) shall not enter the Premises without first giving reasonable prior
notice to Tenant, except in the case of emergency, (ii) shall be accompanied by
an employee of Tenant at all times while in the Premises, (iii) shall comply
with Tenant's security procedures, and (iv) shall not unreasonably interfere
with Tenant's use of the Premises.
10. LIENS
Tenant shall keep the Premises and any building of which the
Premises are a part free from any liens arising out of work performed, materials
furnished, or obligations incurred by Tenant and shall indemnify, hold harmless
and defend Landlord from any liens and encumbrances arising out of any work
performed or materials furnished by or at the direction of Tenant. In the event
that Tenant shall not, within twenty (20) days following the imposition of any
such lien, cause such lien to be released of record by payment or posting of a
proper bond, Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but 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 such sums paid by Landlord and all expenses
incurred by it in connection therewith, including attorneys' fees and costs,
shall be payable to Landlord by Tenant on demand with interest at the rate of
ten percent (10%) per annum. Landlord shall have the right at all times to post
and keep posted on the Premises any notices permitted or required by law, or
which Landlord shall reasonably request for the protection of Landlord and the
Premises, and any other party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give to Landlord at least ten (10)
business days prior written notice of the expected date of commencement of any
work relating to alterations or additions to the Premises.
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11. INDEMNITY
11.1 TENANT'S INDEMNITY. Tenant shall indemnify and hold
Landlord harmless from and defend Landlord against any and all claims of
liability for any injury or damage to any person or property whatsoever
(i) occurring in, on or about the Premises or any part thereof; and
(ii) occurring in, on or about any facilities (including, without prejudice to
the generality of the term "facilities," elevators, stairways, passageways,
hallways and parking areas), the use of which Tenant may have in conjunction
with other tenants of the Building, when such injury or damage is caused in part
or in whole by the act, negligence, fault or omission of any duty with respect
to the same by Tenant, its agents, contractors, employees or invitees. Tenant
shall further indemnify and hold Landlord harmless from and against any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part to be performed under the terms of this Lease, or arising from
any act or negligence of Tenant, or any of its agents, contractors, employees
and from and against all costs, reasonable attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord; provided, however, that Tenant shall not be liable for damage or
injury occasioned by the negligence or intentional acts of Landlord and its
designated agents or employees unless covered by insurance Tenant is required to
provide.
11.2 EXEMPTION OF LANDLORD FROM LIABILITY. Except for
Landlord's gross negligence or willful misconduct, Landlord shall not be liable
for injury or damage which may be sustained by the person, goods, wares,
merchandise or property of Tenant, its employees, invitees or customers, or any
other person in or about the Premises caused by or resulting from fire, steam,
electricity, gas, water or rain, which may leak or flow from or into any part of
the Premises, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether the damage or injury results from conditions
arising upon the Premises or upon other portions of the Building of which the
Premises are a part, or from other sources. Landlord shall not be liable for
any damages arising from any act or neglect of any other tenant of the Building.
11.3 Tenant shall neither release nor indemnify Landlord from:
(i) the willful misconduct or gross negligence of Landlord or its agents,
employees or contractors; or (ii) a breach of Landlord's obligations or
representations under the Lease.
11.4 Landlord shall indemnify Tenant for damages or claims
resulting from the willful misconduct or gross negligence of Landlord or its
employees, agents or subcontractors, or a breach of Landlord's obligations or
representations under the Lease.
12. INSURANCE
12.1 COVERAGE. Tenant shall, at all times during the term of
this Lease, and at its own cost and expense, procure and continue in force
Bodily Injury and Property Damage Liability Insurance with a combined single
limit for bodily injury and property damage of not less than $3,000,000.
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12.2 INSURANCE POLICIES. The aforementioned minimum limit of
policies shall in no event limit the liability of Tenant hereunder. The
aforesaid insurance shall name Landlord as an additional insured. Said
insurance shall be with companies having a rating of not less than A+X in
"Best's Insurance Guide". Tenant shall furnish from the insurance companies or
cause the insurance companies to furnish certificates of coverage. No such
policy shall be cancelable or subject to reduction of coverage or other
modification or cancellation except after thirty (30) days prior written notice
to Landlord by the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of the coverage which Landlord
may carry. Tenant shall, at least twenty (20) days prior to the expiration of
such policies, furnish Landlord with renewals or binders. Tenant agrees that if
Tenant does not take out and maintain such insurance, Landlord may (but shall
not be required to) procure said insurance on Tenant's behalf and charge Tenant
the premiums together with a reasonable handling charge, payable upon demand.
Tenant shall have the right to provide such insurance coverage pursuant to
blanket policies obtained by Tenant, provided such blanket policies expressly
afford coverage to the Premises and to Tenant as required by this Lease.
12.3 LANDLORD'S OBLIGATION TO INSURE. Landlord shall obtain and
keep in force during the term of this Lease a policy or policies of insurance
(i) of Broad Form General Liability in an amount not less than $1,000,000 per
occurrence of bodily injury and property damage, (ii) covering loss or damage to
the Building and project improvements, but not Tenant's personal property,
fixtures, or equipment, in the amount of the full replacement cost thereof, as
the same may exist from time to time, providing protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, plate glass, HVAC, and such other perils as Landlord deems
reasonably necessary to insure adequately the Building and project of this
nature. All such policies shall be with insurance companies having a rating of
not less than A+X in "Best's Insurance Guide."
13. DAMAGE OR DESTRUCTION
13.1 PARTIAL DAMAGE - INSURED. In the event the Premises or the
Building are damaged by any casualty which is covered under fire and extended
coverage insurance carried by Landlord, then Landlord shall restore such damage,
provided insurance proceeds are available to pay eighty percent (80%) or more of
the cost of restoration and provided such restoration can be completed within
sixty (60) days after the commencement of the work in the opinion of a
registered architect or engineer appointed by Landlord. In such event this
Lease shall continue in full force and effect, except that Tenant shall be
entitled to proportionate reduction of rent while such restoration takes place,
such proportionate reduction to be based upon the extent to which the
restoration efforts interfere with Tenant's business and occupation of the
Premises. In the event such repairs cannot be completed within such sixty (60)
day period, Tenant shall have the right to terminate the Lease by giving
Landlord sixty (60) days' notice from date or damage.
13.2 PARTIAL DAMAGE - UNINSURED. In the event the Premises or
the Building are damaged by a risk not covered by Landlord's insurance or the
proceeds of available insurance are less than eighty percent (80%) of the cost
of restoration, or if the restoration cannot be completed within sixty (60) days
after the commencement of work in the opinion of the registered architect or
engineer appointed by Landlord, then Landlord shall have the option either to:
(i) repair or restore such damage, this Lease continuing in full force and
effect, but the rent to be proportionately abated
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as hereinabove provided; or (ii) give notice to Tenant at any time within
thirty (30) days after such damage terminating this Lease as of a date to be
specified in such notice, which date shall be not less than thirty (30) nor
more than sixty (60) days after giving such notice. Notwithstanding the
foregoing, Tenant shall have the right to terminate the Lease by giving
Landlord sixty (60) days' written notice from the date of damage. In the
event of the giving of any notice hereunder to terminate, this Lease shall
expire and all interest of Tenant in the Premises shall terminate on such
date so specified in such notice and the rent, reduced by any proportionate
reduction based upon the extent, if any, to which said damage interfered with
the use and occupancy of Tenant, shall be paid to the date of such
termination.
13.3 TOTAL DESTRUCTION. In the event the Premises are
totally destroyed or the Premises cannot be restored as required herein under
applicable laws and regulations, or more than 50 percent of the rentable area
of the Building has been damaged, regardless of any damage to the Premises,
notwithstanding the availability of insurance proceeds, this Lease shall be
terminated effective the date of the destruction.
13.4 DAMAGE NEAR END OF THE TERM. Notwithstanding anything to
the contrary contained in this Section 13, Landlord shall not have any
obligation whatsoever to repair, reconstruct or restore the Premises when the
damage resulting from any casualty covered under this Section 13 occurs during
the last twelve (12) months of the term of this Lease or any extension thereof.
13.5 LANDLORD'S OBLIGATIONS. Subject to other provisions of
this Lease, except for Landlord's negligence or willful misconduct, Landlord
shall not be required to repair any injury or damage by fire or other cause, or
to make any restoration or replacement of any panelings, decorations,
partitions, railings, floor coverings, office fixtures or any other improvements
or property installed in the Premises by Tenant or at the direct or indirect
expense of Tenant. Tenant shall be required to restore or replace same in the
event of damage. Except for abatement of rent, if any, Tenant shall have no
claim against Landlord for any damage suffered by reason of any such damage,
destruction, repair or restoration.
14. CONDEMNATION
If all or any part of the Premises shall be taken or
appropriated for public or quasi-public use by right of eminent domain with
or without litigation or transferred by agreement in connection with such
public or quasi-public use, either party hereto shall have the right at its
option, exercisable within thirty (30) days of receipt of notice of such
taking, to terminate this Lease as of the date possession is taken by the
condemning authority, provided, however, that before Tenant may terminate
this Lease by reason of taking or appropriation as provided hereinabove, such
taking or appropriation shall be of such an extent and nature as to
substantially handicap, impede or impair Tenant's use of or business at the
Premises. For the purposes of this Lease, any total taking of the Premises
for a period in excess of forty-five (45) days or any taking of the Building
which affects the Building's public areas (including, without limitation,
lobbies, elevators, or restrooms) for a period of twenty (20) days shall be
deemed to substantially handicap, impede, and impair Tenant's use of and
business at the Premises. Subject to the foregoing, if any part of the
Building other than the Premises shall be so taken or appropriated, Landlord
shall have the right at its option to terminate this Lease. No award for any
partial or entire taking shall be apportioned, and Tenant hereby assigns
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to Landlord any award which may be made in such taking or condemnation,
together with any and all rights of Tenant now or hereafter arising in or to
the same or any part thereof; provided, however, that nothing contained
herein shall be deemed to give Landlord any interest in or to require Tenant
to assign to Landlord any award made to Tenant for the taking of personal
property and fixtures belonging to Tenant and/or for the interruption of or
damage to Tenant's business and/or for Tenant's unamortized cost of leasehold
improvements or other award for the inability of Tenant to retain occupancy
of the Premises. In the event of a partial or temporary taking which does
not result in a termination of this Lease, rent shall be abated in the
proportion which the part of Premises so made unusable bears to the rented
area of the Premises immediately prior to the taking, and Landlord, at
Landlord's cost, shall restore the Premises remaining to an architectural
whole with the base rent reduced in proportion to what the area taken bears
to the Premises prior to the taking. No temporary taking of the Premises
and/or of Tenant's rights therein or under this Lease shall terminate this
Lease or give Tenant any right to any abatement of rent thereunder; any award
made to Tenant by reason of any such temporary taking shall belong entirely
to Tenant and Landlord shall not be entitled to share herein. In the event
Landlord or Tenant shall receive notice of any proposed o pending
condemnation proceeding affecting the Premises or Building, the party
receiving such notice shall promptly notify the other party.
15. ASSIGNMENT AND SUBLETTING
15.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not assign,
transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest
therein, and shall not sublet the Premises or any part thereof, without the
prior written consent of Landlord and any attempt to do so without such consent
being first had and obtained shall be wholly void and shall constitute a breach
of this Lease.
15.2 REASONABLE CONSENT. If Tenant complies with the following
conditions, Landlord shall not unreasonably withhold its consent to the
subletting of the Premises or any portion thereof or the assignment of this
Lease. Tenant shall submit in writing to Landlord (i) the name and legal
composition of the proposed subtenant or assignee; (ii) the nature of the
business proposed to be carried on in the Premises; (iii) the terms and
provisions of the proposed sublease; (iv) such reasonable financial information
as Landlord may request concerning the proposed subtenant or assignee; and
(v) if the rent under the sublease is greater than the rent hereunder that
Tenant agrees that the rent payable pursuant to Paragraph 3 shall be increased
to equal the rent payable under the sublease.
15.3 NO RELEASE OF TENANT. No consent by Landlord to any
assignment or subletting by Tenant shall relieve Tenant of any obligation to be
performed by Tenant under this Lease, whether occurring before or after such
consent, assignment or subletting. The consent by Landlord to any assignment or
subletting shall not relieve Tenant from the obligation to obtain Landlord's
express written consent to any other assignment or subletting. The acceptance
of rent by Landlord from any other person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any assignment,
subletting or other transfer. Consent to one assignment, subletting or other
transfer shall not be deemed to constitute consent to any subsequent assignment,
subletting or other transfer.
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15.4 ATTORNEYS' FEES. In the event Landlord shall consent to a
sublease or assignment under this Section 15, Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with giving such consent. In
no event shall such fees exceed FIVE HUNDRED AND NO/100 DOLLARS ($500.00).
15.5 TRANSFER OF OWNERSHIP INTEREST. If Tenant is a business
entity, any transfer of 50 percent or more of the ownership interest of the
entity shall be deemed a transfer under Paragraph 15.1.
15.6 Notwithstanding anything contained in Section 15 entitled
"Assignment and Subletting," Tenant may, without Landlord's prior written
consent, sublet the Premises or assign the Lease to: (i) a subsidiary,
affiliate, division or corporation controlled by Tenant; (ii) a successor
corporation related to Tenant by merger, consolidation, non-bankruptcy
reorganization, or government action; or (iii) a purchaser of substantially all
of Tenant's assets so long as such entity in (i), (ii), or (iii) above is of
like or greater credit rating as Tenant.
16. SUBORDINATION
16.1 Landlord represents and warrants, as of the date hereof,
and as of the Commencement Date of the Lease, that it has the right to lease the
Premises and that Landlord's title to the Premises is free and clear of all
third party interests which are or would be in conflict or which would
materially affect the rights granted to Tenant herein.
16.2 SUBORDINATION. Notwithstanding anything to the contrary
contained in the Lease, Tenant's leasehold interest shall not be subordinate to
any future mortgage, deed of trust, or other instrument of security, nor shall
Tenant be required to execute any documents subordinating the Lease, unless the
lender agrees to enter into a recognition agreement which: (i) provides that the
Lease will not be terminated following a foreclosure if Tenant is not in
default, and (ii) recognizes all of Tenant's rights under the Lease. Moreover,
if Landlord sells or otherwise conveys its interest in the Premises, Landlord
shall not be relieved of its obligations under the Lease unless Landlord's
successor-in-interest assumes in writing Landlord's obligations under the Lease.
16.3 SUBORDINATION AGREEMENTS. Subject to Paragraph 16.2 above,
Tenant covenants and agrees to execute and deliver upon demand without charge
therefor, such further instruments evidencing such subordination of this Lease
to such ground or underlying leases and to the lien of any such mortgages or
deeds of trust, as may be reasonably required by Landlord.
16.4 QUIET ENJOYMENT. Landlord covenants and agrees with Tenant
that upon Tenant paying rent and other monetary sums due under the Lease,
performing its covenants and conditions under the Lease, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the term, subject,
however, to the terms of the Lease and of any of the aforesaid ground leases,
mortgages or deeds of trust described above.
16.5 ATTORNMENT. In the event any proceedings are brought for
default under a ground or any underlying lease or in the event of foreclosure or
the exercise of the power of sale under any mortgage or deed of trust made by
the Landlord covering the Premises, Tenant shall attorn
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to the purchaser upon any such foreclosure or sale and recognize such
purchaser as the landlord under this Lease, provided said purchaser expressly
agrees in writing to be bound by the terms of the Lease.
17. DEFAULT; REMEDIES
17.1 DEFAULT. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant:
(a) Any failure by Tenant to pay the rent or any other
monetary sums required to be paid hereunder (where such failure continues for
five (5) days after written notice by Landlord to Tenant);
(b) The abandonment or vacation of the Premises by
Tenant;
(c) A failure by Tenant to observe and perform any other
provision of this Lease to be observed or performed by Tenant, where such
failure continues for thirty (30) days after written notice thereof by Landlord
to Tenant; provided, however, that if the nature of the default is such that the
same cannot reasonably be cured within said thirty (30) day period, Tenant shall
not be deemed to be in default if Tenant shall within such period commence such
cure and thereafter diligently prosecute the same to completion;
(d) The making by Tenant of any general assignment or
general arrangement for the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Tenant, the same is dismissed within sixty
(60) days; the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
17.2 REMEDIES. In the event of any such material default or
breach by Tenant, Landlord may, at any time thereafter without limiting Landlord
in the exercise of any right or remedy at law or in equity which Landlord may
have by reason of such default or breach:
(a) Maintain this Lease in full force and effect and
recover the rent and other monetary charges as they become due, without
terminating Tenant's right to possession irrespective of whether Tenant shall
have abandoned the Premises. In the event Landlord elects not to terminate the
Lease, Landlord shall have the right to attempt to re-let the Premises at such
rent and upon such conditions and for such a term, and to do all acts necessary
to maintain or preserve the Premises as Landlord deems reasonable and necessary
without being deemed to have elected to terminate the Lease, including removal
of all persons and property from the Premises; such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of
Tenant. In the event any such re-letting occurs, this Lease shall terminate
automatically upon the new tenant taking possession of the Premises.
Notwithstanding that Landlord fails to elect to
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terminate the Lease initially, and provided that Tenant has not cured such
default, Landlord at any time during the term of this Lease may elect to
terminate this Lease by virtue of such previous default of Tenant.
(b) Terminate Tenant's right to possession by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including without limitation thereto,
the following:
(1) The worth at the time of award of any
unpaid rent which had been earned at the time of such termination; plus
(2) The worth at the time of award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that is proved
could have been reasonably avoided; plus
(3) The worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that is proved could be
reasonably avoided; plus
(4) The portion of any leasing commission paid
by Landlord applicable to the unexpired portion of the term.
(5) Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to
perform his obligations under this Lease or which in the ordinary course of
events would be likely to result therefrom; plus
(6) At Landlord's election, such other amounts
in addition to or in lieu of the foregoing as may be permitted from
time-to-time by applicable state law. Upon any such re-entry Landlord shall
have the right to make any reasonable repairs, alterations or modifications to
the Premises, which Landlord in its sole discretion deems reasonable and
necessary. As used in (1) and (2) above, the "worth at the time of award" is
computed by allowing interest at the rate of ten percent (10%) per annum from
the date of default. As used in (3) the "worth of at the time of award" is
computed by discounting such amount at the discount rate of the U.S. Federal
Reserve Bank at the time of award plus one percent (1%). The term "rent" as
used in this Paragraph 17, shall be deemed to be and to mean the rent to be
paid pursuant to Paragraph 3 and all other monetary sums required to be paid
by Tenant pursuant to the terms of this Lease.
17.3 LATE CHARGES. Tenant hereby acknowledges that late
payment by Tenant to Landlord of rent and other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges, and late charges which may
be imposed on Landlord by the terms of any mortgage or deed of trust covering
the Premises. Accordingly, if any installment of rent or any other sum due
from Tenant shall not be received by Landlord or Landlord's designee within
ten (10) days after such amount shall be due, Tenant shall pay to Landlord a
late charge equal to ten percent (10%) of such overdue amount. The parties
hereby agree that such late
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charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder.
17.4 DEFAULT BY LANDLORD. Landlord shall not be in default
unless Landlord fails to perform obligations required of Landlord and has not
cured such default within thirty (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 theretofore been furnished to
Tenant in writing, specifying wherein Landlord has failed to perform such
obligations; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for performance, then
Landlord shall not be in default if Landlord commences performance within such
thirty (30) day period and thereafter diligently prosecutes the same to
completion.
18. PARKING
Tenant and Tenant's employees, invitees and customers shall have
the right to use the parking areas of the Building free of charge during the
initial term of this Lease subject to such regulations as Landlord shall
reasonably adopt from time to time, and subject to the right of Landlord to
restrict the use by Tenant and Tenant's employees, invitees and customers when
in the reasonable judgment of Landlord such use is excessive for the parking
area in relationship to the reasonable use required by other Tenants.
19. RELOCATION OF PREMISES
19.1 CONDITIONS. For the purpose of maintaining an economical
and proper distribution of Tenants throughout Xxxxxx Ranch acceptable to
Landlord, Landlord shall have the right no more than one time during the term
of this Lease to relocate the Premises within Xxxxxx Ranch on the following
terms and conditions:
(a) The rented and usable areas of the new location
are of equal and contiguous size to the existing location and is in Xxxxxx
Ranch 8 or 15 (subject to a variation of up to ten percent (10%) provided the
amount of rent payable under this Lease is not increased and such variation
applies only to a larger size);
(b) If the then prevailing rental rate for the new
location is less than the amount being paid for the Premises the rent on such
new premises shall be reduced to equal the then prevailing rent for the new
location;
(c) Landlord shall pay the cost of providing tenant
improvements including all electrical improvements in the new location
comparable in quality and quantity to the tenant improvements in the Premises
and the new premises shall be substantially complete (the standard for such
shall be as set forth in Paragraph 2.2 above) and ready for Tenant's occupancy
prior to Tenant's move.
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(d) Landlord shall pay the expenses reasonably
incurred by Tenant in connection with such substitution of Premises, including
but not limited to costs of moving, door lettering, telephone relocation and
reasonable quantities of new stationery;
19.2 NOTICE. Landlord shall deliver to Tenant written notice
of Landlord's election to relocate the Premises, specifying the new location
and the amount of rent payable therefore at least sixty (60) days prior to the
date the relocation is to be effective. If the relocation of the Premises is
not acceptable to Tenant, Tenant for a period of ten (10) days after receipt
of Landlord's notice to relocate shall have the right (by delivering written
notice to Landlord) to terminate this Lease effective thirty (30) days after
delivery of written notice to Landlord.
20. MISCELLANEOUS
20.1 ESTOPPEL CERTIFICATE
(a) Either party without any charge therefor shall at
any time within ten (10) days after prior written notice from the other
execute, acknowledge and deliver to the requesting party a statement in
writing:
(1) 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
(2) Acknowledging that there are not, to the
best of such party's knowledge, any uncured defaults on the part of the
requesting party 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.
(b) A party's failure to deliver such statement within
such time shall be conclusive upon such party:
(1) That this Lease is in full force and
effect, without modification except as may be represented by the requesting
party;
(2) That there are no uncured defaults in the
requesting party's performance; and
(3) That not more than one month's rent has
been paid in advance.
(c) If Landlord desires to finance or refinance the
Building, or any part thereof, Tenant hereby agrees to deliver to any lender
designated by Landlord Tenant's most recent 10K and Annual Report.
20.2 TRANSFER OF LANDLORD'S INTEREST. In the event of a sale
or conveyance by Landlord of Landlord's interest in the Premises or the
Building other than a transfer for security purposes only, Landlord shall be
relieved of, after the date specified in any such notice of transfer,
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all obligations and liabilities accruing thereafter on the part of Landlord,
provided that any funds in the hands of Landlord at the time of transfer in
which Tenant has an interest, shall be delivered to the successor of Landlord.
This Lease shall not be affected by any such sale and Tenant agrees to attorn
to the purchaser or assignee provided all Landlord's obligations hereunder are
assumed in writing by the transferee.
20.3 CAPTIONS; ATTACHMENTS; DEFINED TERMS
(a) The captions of the paragraphs of this Lease are
for convenience only and shall not be deemed to be relevant in resolving any
question of interpretation or construction of any paragraph of this Lease.
(b) Exhibits attached hereto, and addenda and
schedules initialed by the parties, are deemed by attachment to constitute
part of this Lease and are incorporated herein.
(c) The words "Landlord" and "Tenant" as used herein,
shall include the plural as well as the singular. Words used in neuter gender
include the masculine and feminine and words in the masculine or feminine
gender include the neuter. If there be more than one Landlord or Tenant, the
obligations hereunder imposed upon Landlord or Tenant shall be joint and
several; as to a Tenant which consists of husband and wife, the obligations
shall extend individually to their sole and separate property as well as
community property. The term "Landlord" shall mean only the owner or owners
at the time in question of the fee title or a Tenant's interest in a ground
lease of the land underlying the Building. The obligations contained in this
Lease to be performed by Landlord shall be binding on Landlord's successors
and assigns only during their respective periods of ownership.
20.4 ENTIRE AGREEMENT. This Lease along with any exhibits and
attachments hereto constitutes the entire agreement between Landlord and
Tenant relative to the Premises and this Lease and the exhibits and
attachments may be altered, amended or revoked only by 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 Lease.
20.5 SEVERABILITY. If any term or provision of this Lease
shall, to any extent, be determined by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforceable to the fullest extent permitted by law.
20.6 COSTS OF SUIT
(a) If Tenant or Landlord shall bring any action for
any relief against the other, declaratory or otherwise, arising out of this
Lease, including any suit by Landlord for the recovery of rent or possession
of the Premises, the losing party shall pay the successful party a reasonable
sum for attorneys' fees which shall be deemed to have accrued on the
commencement of such action and shall be paid within thirty (30) days after
the conclusion of such action (the finality of which is not legally contested).
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(b) Should either party, without fault be made a party
to any litigation instituted by the other or by any third party, or by or
against any person holding under or using the Premises by license of Tenant,
or for the foreclosure of any lien for labor or material furnished or any such
other person or otherwise arising out of or resulting from any act or
transaction of the other party or of any such other person, the other
covenants to save and hold harmless the indemnified party from any judgment
rendered against such party or the Premises or Building as the case may be, or
any part thereof, and all costs and expenses, including reasonable attorneys'
fees, incurred by the indemnified party in or in connection with such
litigation.
20.7 TIME; JOINT AND SEVERAL LIABILITY. Time is of the
essence of this Lease and each and every provision hereof. All the terms,
covenants and conditions contained in this Lease to be performed by either
party, if such party shall consist of more than one person or organization,
shall be deemed to be joint and several, and all rights and remedies of the
parties shall be cumulative and nonexclusive of any other remedy at law or in
equity.
20.8 BINDING EFFECT; CHOICE OF LAW. The parties hereto agree
that all provisions hereof are to be construed as both covenants and
conditions as though the words imparting such covenants and conditions in each
separate paragraph hereof. Subject to any provisions hereof restricting
assignment or subletting by Tenant and subject to Paragraph 19.2, all of the
provisions hereof shall bind and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns.
This Lease shall be governed by the laws of the State of California.
20.9 WAIVER. No covenant, term or condition or the breach
thereof shall be deemed waived, except by written consent of the party against
whom the waiver is claimed, and any waiver or breach of any covenant, term or
condition shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other covenant, term or condition. Acceptance by
Landlord of any performance by Tenant after the time the same shall have
become due shall not constitute a waiver by Landlord of any preceding breach
or default of any other covenant, term or condition unless otherwise expressly
agreed to by Landlord in writing.
20.10 SURRENDER OF PREMISES. The voluntary or other surrender
of this Lease by Tenant, or a mutual cancellation thereof, shall not work a
merger, and shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies, or may, at the option of Landlord, operate as an
assignment to Landlord of any or all such subleases or subtenancies.
20.11 HOLDING OVER. If Tenant remains in possession of all or
any part of the Premises after the expiration of the term hereof, with or
without the express or implied consent of Landlord, such tenancy shall be from
month-to-month only and not a renewal hereof or any extension for any further
term, and in such case, rent and other monetary sums due hereunder shall be
payable in the amount and at the time applicable at the time of expiration and
at the time specified in this Lease and such month-to-month tenancy shall
arise at one hundred twenty-five percent (125%) of the then annual rent and be
subject to every other term, covenant and agreement contained herein.
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20.12 SIGNS
(a) Tenant will comply with Landlord's regulations and
Tenant shall not place or permit to be placed in or upon the Premises where
visible from outside the Premises or any part of the Building, any signs,
notices, drapes, shutters, blinds or displays of any type without the prior
consent of Landlord. Landlord shall include Tenant in the Building
directories located in the Building.
(b) Landlord reserves the right in Landlord's sole
discretion to place and locate on the roof, exterior of the Building, and in
any area of the Building not leased to Tenant such signs, notices, displays
and similar items as Landlord deems appropriate in the proper operation of the
Building.
20.13 REASONABLE CONSENT. Except as limited elsewhere in this
Lease, wherever this Lease Landlord or Tenant is required to give its consent
or approval to any action on the part of the other, such consent or approval
shall not be unreasonably withheld or delayed. In the event of failure to
give any such consent, the other party shall be entitled to specific
performance at law and shall have such other remedies as are reserved to it
under this Lease, but in no event shall Landlord or Tenant be responsible in
monetary damages for failure to give consent unless said consent is withheld
maliciously or in bad faith.
20.14 INTEREST ON PAST DUE OBLIGATIONS. Except as expressly
provided, any amount due to a party hereunder not paid when due shall bear
interest at ten percent (10%) per annum from the due date. Payment of such
interest shall not alone excuse or cure any default by Tenant under this Lease.
20.15 RULES AND REGULATIONS. Tenant and Tenant's agents,
servants, employees, visitors and licensees shall observe and comply fully and
faithfully with all reasonable and nondiscriminatory rules and regulations
adopted by Landlord for the care, protection, cleanliness and operation of the
Building and its tenants including those annexed to this Lease as Exhibit D
and any modification or addition thereto adopted by Landlord, provided
Landlord shall give written notice thereof to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance by any other tenant or occupant
of the Building of any of said rules and regulations. Notwithstanding
anything to the contrary contained in the Lease, (i) Tenant shall not be
required to comply with any new rules or regulations unless the rule applies
to all other tenants in the Building or project, and does not unreasonably
interfere with Tenant's use of the Premises and (ii) Tenant shall be permitted
to keep food at the Premises and, to prepare such food, may move into and use
at the Premises, a microwave oven and refrigerator.
20.16 NOTICES. All rent and any other amounts payable by
Tenant to Landlord shall be paid at the address of Landlord as established
pursuant to this paragraph. All notices or demands of any kind required or
desired to be given by Landlord or Tenant hereunder shall be in writing and
shall be personally delivered or sent in the United States mail, certified or
registered, postage prepaid, addressed to the Landlord or Tenant respectively
at the addresses set forth below,
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Landlord: Tenant:
ALEXANDER PROPERTIES COMPANY SILICON GRAPHICS, INC.
Xxx Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx: Legal Services
X.X. Xxx 000 0000 X. Xxxxxxxxx Xxxx.
Xxx Xxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000-0000
or such other address as shall be established by notice to the other pursuant
to this paragraph. In the case of any notice sent by mail, it shall be deemed
delivered on the earlier of the third business day following deposit thereof
with the United States Postal Service or the delivery date shown on the return
receipt prepared in connection therewith. Refusal to accept delivery shall be
deemed acceptance of such notice.
20.17 CORPORATE AUTHORITY. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease on
behalf of said corporation.
20.18 VACATION OF PREMISES. Tenant shall be responsible for
removal of all telephone cables and wires, CRT, data and telephone equipment,
and any other form of cabling that exists in Tenant's space ten (10) days
after Tenant has vacated Premises. Should Tenant not remove the above
mentioned wires, Landlord shall do so and charge Tenant for those costs, or
deduct those costs from any deposits held by Landlord.
20.19 WAIVER OF SUBROGATION. Landlord and Tenant hereby
release each other from, and waive their right of recovery against the other
with respect to, loss or damage arising out of or incident to any peril of the
type to be covered by the insurance required to be carried by the Lease, or
Tenant or their agents, employees, contractors, or invitees, or any other
cause. Landlord and Tenant shall obtain insurance policies which waive the
insurance carriers' right of subrogation for such perils.
20.20 RIGHT TO TERMINATE. Tenant shall be granted a one time
right to terminate this Lease. Said right to terminate may be exercised by
Tenant at the commencement of the 37th month of this Lease term by providing
Landlord with at least nine (9) months' prior written notice and a cash
payment of ONE HUNDRED TEN THOUSAND AND NO/100 DOLLARS ($110,000.00).
20.21 RELOCATION ALLOWANCE. Upon occupancy of the Premises as
evidenced by the execution of Exhibit G, Landlord shall pay Tenant the cash
sum of TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00) as a relocation
allowance.
20.22 HAZARDOUS MATERIALS. Tenant shall not, without
Landlord's prior written consent, which consent may be granted, denied, or
conditioned upon Tenant's compliance with all requirements imposed by Landlord
(including the posting of a surety bond in the amount of the estimated closure
costs) in Landlord's sole discretion, install in, handle, generate, store,
treat, use or dispose of in, on or about the Project ("Handle," "Handled" or
"Handling") any (i) asbestos containing materials, (ii) electrical
transformers, fluorescent light fixtures with ballasts or other equipment
containing PCB's, or (iii) toxic or hazardous materials or any other substance
which
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constitutes or is regulated as a hazardous, extremely hazardous, toxic,
extremely toxic or similarly dangerous material (collectively "Hazardous
Materials") under the Comprehensive Environmental Response Compensation and
Liability Act, the Clean Water Act, the Resource Conservation and Recovery
Act, the California Hazardous Waste Control Act, the Xxxxxxxxx-Xxxxxxx-Xxxxxx
Hazardous Substance Account Act, or any other law, rule, ordinance or
regulation, as amended from time to time (collectively "Hazardous Substance
Law". Notwithstanding the foregoing, normal quantities of those Hazardous
Materials, if any, customarily used in the conduct of general office
activities ("Common Office Chemicals") (for example, copier fluids and
cleaning supplies) may be Handled without Landlord's prior written consent.
All Hazardous Materials, including, without limitation, Common Office
Chemicals, which are Handled by Tenant or Tenant's Agents shall be Handled in
compliance with the provisions of this Lease, in accordance with all
applicable laws, rules, ordinances and regulations and in a manner which will
prevent any personal injury, property damage, environmental impairment or
other damage, loss or statutory or common law liability resulting therefrom,
whether or not such Handling is in violation of any law, rule, ordinance or
regulation. Tenant's obligations under the immediately preceding sentence
shall include the obligation to remove all Hazardous Materials Handled by
Tenant from the Project at the expiration or earlier termination of the Lease,
to clean up the Project and all equipment, fixtures, or other property not
removed by Tenant pursuant to this Lease from those Hazardous Materials
Handled by Tenant, including performing all removal and remediation work
necessary to return the Project to the condition existing prior to any such
Handling of Hazardous Materials by Tenant ("Clean-up"), to comply with all
laws in connection with such Clean-up, including any closure requirements,
filing any reports or plans required by any law or governmental authority, and
performing or causing to be performed all post-closure monitoring, inspection,
testing and other acts necessary to ensure all laws, rules, ordinances and
regulations have been complied with and Clean-up has been completed with
respect to those Hazardous Materials Handled by Tenant. Tenant shall deliver
to Landlord prior to delivery to any governmental agency, or promptly after
receipt from any such agency, copies of all permits, manifests, closure plans,
proposed closure plans, remedial action plans, and other notices,
communications, plans, documents or instruments relating to the presence of
Handling of Hazardous Materials on the Project. If any Holder or governmental
agency shall ever require testing to ascertain whether or not there has been
any release by Tenant of Hazardous Materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
Rent if such requirement applies to the Premises and such tests prove that
Tenant has caused such release. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's request
concerning Tenant's best knowledge and belief regarding Tenant's release of
Hazardous Materials on the Premises. In all events, Tenant shall indemnify
Landlord and protect, defend and hold Landlord harmless from and against all
claims, demands, liabilities, actions, fines, governmental orders, damages,
losses, including but not limited to consultants' fees and attorneys' fees, in
any way related to the Handling of Hazardous Materials by Tenant on the
Premises. LANDLORD'S REPRESENTATION AND WARRANTY. Landlord represents and
warrants that as of the date hereof, and as of the Commencement Date of the
Lease, (i) the Premises, Building and land upon and the project in which the
Premises and Building are located (the "Land") are not in violation of any
Hazardous Substance Law; (ii) with the exception of Common Office Chemicals,
there are no Hazardous Materials on, under, or about the Premises, Building,
or Land; (iii) there is no litigation or governmental action pending,
proposed, threatened or anticipated with respect to Hazardous Materials in
connection with the Premises,
-23-
Building, or Land; and (iv) Landlord's other tenants and Landlord are not in
violation of any Hazardous Substance Law and none of the above have been
served with a notice from any governmental body or other entity claiming any
violation of or requiring or calling attention to the need for, any work,
repairs, construction or alterations in order to comply with any Hazardous
Substance Law. Landlord shall indemnify Tenant and protect, defend and hold
Tenant harmless from and against all claims, demands, liabilities, actions,
fines, governmental orders, damages, losses, including but not limited to
consultants' fees and attorneys' fees, asserted against Tenant arising from
any past, present, or future presence of any Hazardous Materials, on, in,
under or affecting all or any portion of the Premises, Building or Land which
has not been released by Tenant and any breach by Landlord or Landlord's
representations and warranty herein with respect to Hazardous Materials.
Landlord and Tenant have executed this Lease on the date and year set
forth at the beginning of this Lease.
Landlord: Tenant:
ALEXANDER PROPERTIES COMPANY, SILICON GRAPHICS, INC.
a California partnership a Delaware corporation
By: By:
--------------------------- ------------------------------------
Agent
-24-
EXHIBIT B FOR XXXXXX RANCH 8
Listed below are the Standard Material Specifications for tenant improvements
at Xxxxxx Ranch 8 along with the definition of the building shell. It is
hereby agreed that Landlord shall provide, obtain and install all materials
and permits required to build out SILICON GRAPHICS, INC.'S space as drawn on
the attached space plan dated 3/4/91 and approved by Tenant under the
Standard Material Specifications in this Exhibit B. Should the attached
space plan be modified in any manner, Tenant agrees to pay for in advance any
modifications as they affect the cost of Tenant's build out.
DEFINITION OF BUILDING SHELL
* All core areas, elevator lobbies and restrooms
complete.
* Main HVAC loop in place ready to receive mixing boxes
for zoning.
* Main fire sprinkler risers and grid in place ready for
drop down.
* All perimeter walls sheetrocked and ready for paint.
* Upper floors covered with 3 1/2 inch concrete.
* Electrical service to closets on floor.
* Telephone service/conduit to closets on floor.
STANDARD TENANT IMPROVEMENTS - MATERIAL SPECIFICATIONS
ELECTRICAL * Day Bright 244 light fixtures with energy conserving
ballasts and lamps; per Title 24 requirements.
* Double switching in individual offices.
* One duplex 110 receptacle at each work station.
* One telephone duct at each work station.
HVAC * One zone per 800 square feet.
* Individual pneumatic thermostats per 800 sq. ft.
FIRE * One 160 degree rated, Star SSP-1 concealed sprinkler
SPRINKLERS head per 144 square feet.
PARTITIONS * Sheetrock walls (5/8 inch) on 21/2 inch steel stands
AND DOORS with smooth finish.
* Solid core Heritage Oak doors (36" x 96").
* Aluminum door jambs.
* Schlage door latches or equal.
PAINT * Xxxxx Xxxxx: Bone White.
FIRE RATED * Conwed: Aurora Reveal Tile, 3/4 inch on steel grid
CEILING GRID
AND BOARD
CARPET, TILE * Carpet: Design Weave - Westbridge II.
AND BASE
* Xxxxxxxxx Imperial Modern Excelon Tile.
* 32 oz. nylon composition pad.
* 4 inch rubber top set base or equal.
WINDOW * Mini Blinds: Color - Alabaster.
COVERING
-2-
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall
be inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the Building or the Premises without the written consent of
Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice
to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved 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; provided, however that Tenant may request
Landlord to furnish and install a building standard window covering at all
exterior windows at Tenant's cost.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the Tenants or used by them for
any purpose other than for ingress to an egress from their respective
Premises. The halls, passages, exits, entrances, elevators, stairways,
balconies and roof are not for the use of the general public and the Landlord
shall in all cases retain the right to control and prevent access thereto by
all persons whose presence in the judgment of the Landlord shall be
prejudicial to the safety, character, reputation and interests of the Building
and its Tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom the Tenants normally deals in the
ordinary course of Tenant's business unless such persons are engaged in
illegal activities. No Tenant and no employees or invitees of any Tenant
shall go upon the roof of the Building.
3. Tenant shall not alter any lock or install any new or additional
locks or any bolts on any door of the Premises without the written consent of
Landlord.
4. The toilet rooms, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the Tenant who, or whose employees or invitees
shall have caused it.
5. Tenant shall not overload the floor of the Premises or xxxx,
drive nails, screw or drill into the partitions, woodwork or plaster or in any
way deface the Premises or any part thereof. No boring, cutting or stringing
of wires or laying of linoleum or other similar floor coverings shall be
permitted except with the prior written consent of the Landlord and as the
Landlord may direct.
6. No furniture, freight or equipment of any kind shall be brought
into the Building without the consent of Landlord and all moving of the same
into or out of the Building shall be done
at such time and in such manner as Landlord shall designate. Landlord shall
have the right to prescribe the weight, size and position of all safes and
other heavy equipment brought into the Building and also the times and manner
of moving the same in and out of the Building. Safes or other heavy objects
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as is necessary to properly distribute the weight. Landlord will
not be responsible for loss of or damage to any such safe or property from any
cause and all damage done to the Building by moving or maintaining any such
safe or other property shall be repaired at the expense of Tenant. There
shall not be used in any space, or in the public halls of the Building, either
by any Tenant or others, any hand trucks except those equipped with rubber
tires and side guards.
7. Tenant shall not employ any person or persons other than the
janitor of Landlord for the purpose of cleaning the Premises unless otherwise
agreed to by Landlord. Except with the written consent of Landlord, no person
or persons other than those approved by Landlord shall be permitted to enter
the Building for the purpose of cleaning the same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall in no way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of any Tenant by the janitor
or any other employee or any other person. Janitor service shall include
ordinary dusting and cleaning by the janitor assigned to such work and shall
not include cleaning of carpets or rugs, except normal vacuuming, or moving of
furniture and other special services. Janitor service will not be furnished
on nights when rooms are occupied after 9:30 p.m. Window cleaning shall be
done only by Landlord, and only between 6:00 a.m. and 5:00 p.m.
8. Tenant shall not use, keep or permit to be used or kept any food
or noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to the Landlord
or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants of those having
business therein, nor shall any animals or birds be brought in or kept in or
about the Premises or the Building. No Tenant shall make or permit to be made
any unseemly or disturbing noises or disturb or interfere with occupants of
this or neighboring Buildings or premises or those having business with them
whether by the use of any musical instrument, radio, phonograph, unusual
noise, or in any other way.
9. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use of
the Premises for general office purposes. No Tenant shall occupy or permit
any portion of his Premises to be occupied for the manufacture or sale of
liquor, narcotics, or tobacco in any form. The Premises shall not be used for
lodging or sleeping or for any illegal purposes.
10. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
11. Landlord will direct electricians as to where and how telephone
and telegraph wires are to be introduced. No boring or cutting for wires will
be allowed without the consent of Landlord.
-2-
The location of telephones, call boxes and other office equipment affixed to
the Premises shall be subject to the approval of Landlord.
12. No Tenant shall lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the Premises
in any manner except as approved by the Landlord. The expense of repairing
any damage resulting from a violation of this rule or removal of any floor
covering shall be borne by the Tenant by whom, or by whose contractors
employees or invitees, the damage shall have been caused.
13. No furniture, packages, supplies, equipment or merchandise will
be received in the Building or carried up or down in the elevators, except
between such hours and in such elevators as shall be designated by Landlord.
14. On Sundays, legal holidays and on Saturday commencing at 12:00
noon and on other days between the hours of 7:00 p.m. and 7:00 a.m. the
following day, access to the Building or to the halls, corridors, elevators,
or stairways in the Building, or to the Premises may be refused unless the
person seeking access is known to the person or employee of the Building in
charge and has a pass or is properly identified. The Landlord shall in no
case be liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In case of invasion, mob, riot,
public excitement, or other commotion, the Landlord reserves the right to
prevent access to the Building during the continuance of the same by closing
the doors or otherwise, for the safety of the Tenants and protection of
property in the Building and the Building. Landlord reserves the right to
close and keep locked all entrance and exit doors of the Building on Sundays,
legal holidays, and on Saturdays commencing at 12:00 noon and on other days
between the hours of 7:00 p.m. and 7:00 a.m. and during such further hours as
Landlord may deem advisable for the adequate protection of said Building and
the property of its Tenants.
15. Tenant shall see that the doors of the Premises are closed and
securely locked before leaving the Building and must observe strict care and
caution that all water faucets or water apparatus are entirely shut off before
Tenant or Tenant's employees leave the Building, and that all electricity
shall likewise be carefully shut off, so as to prevent waste or damage and for
any default or carelessness Tenant shall make good all injuries sustained by
other tenants or occupants of the Building or Tenant.
16. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
17. The requirements of Tenant will be attended to only upon
application at the Office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless under
special instructions from the Landlord, and no employee will admit any person
(Tenant or otherwise) to any office without specific instructions from the
Landlord.
18. No vending machine or machines of any description shall be
installed, maintained or operated upon the Premises without the written
consent of the Landlord.
-3-
19. Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time-to-time by Landlord and Tenant also
shall provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security
regulations.
20. Landlord reserves the right by written notice to Tenant, to
rescind, alter or waive any rule or regulation at any time prescribed for the
Building when, in Landlord's judgment, it is necessary, desirable or proper
for the best interest of the Building and its Tenants.
21. Tenants shall not disturb, solicit, or canvass any occupant of
the Building and shall cooperate to prevent same.
22. Without the written consent of Landlord, Tenant shall not use
the name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
23. Landlord shall furnish heating and air conditioning during the
hours of 7:00 a.m. and 7:00 p.m. Monday through Friday, except for holidays.
In the event Tenant requires heating and air conditioning during off hours,
Saturdays, Sundays or holidays, Landlord shall on notice provide such services
at the rate established by Landlord from time-to-time. Landlord shall have
the right to control and operate the public portions of the Building and the
public facilities, and heating and air conditioning, as well as facilities
furnished for the common use of the Tenants, in such manner as it deems best
for the benefit of the Tenants generally.
24. Notwithstanding anything to the contrary contained in the Lease,
Tenant shall not be required to comply with any new rules or regulations
unless the rule applies to all other tenants in the Building or project, and
does not unreasonably interfere with Tenant's use of the Premises.
ACKNOWLEDGED AND ACCEPTED:
Landlord: Tenant
By:___________________________________ By:________________________________
Date:_________________________________ Date:______________________________
-4-
EXHIBIT E
JANITORIAL SPECIFICATIONS
The following specific janitorial services will be provided in accordance with
provisions of Paragraph 7.1, Landlord's obligations:
OFFICE AREAS (DAILY)
------------
1. Empty all waste baskets and disposal cans, if liners used, replace as
necessary.
2. Spot dust desks, chairs, file cabinets, counters and furniture.
3. Spot vacuum all carpets and walk-off mats; spot as necessary.
4. Sweep all hard surface floors with treated dust mop.
OFFICE AREAS (WEEKLY)
------------
1. Vacuum carpets completely, including around base boards, etc.
2. Perform low dusting of furniture.
3. Dust window xxxxx and ledges.
OFFICE AREAS (QUARTERLY)
------------
1. Perform all high dusting of doors, sashes, moldings, etc.
2. Dust venetian blinds as needed.
OFFICE AREA CORRIDORS AND LOBBIES (DAILY SERVICE)
---------------------------------
1. Vacuum carpets and dust mop any hard floors.
2. Spot clean carpets of all spillage.
3. Clean all thresholds.
OFFICE AREA CORRIDORS AND LOBBIES (WEEKLY)
---------------------------------
1. Perform all high dusting of doors, sashes, moldings, etc.
2. Vacuum and clean all ceiling vents.
3. Polish any metal railings, placards, etc.
STAIRWAYS (DAILY)
---------
1. Sweep all hard surface steps.
2. Dust banisters.
STAIRWAYS (WEEKLY)
---------
1. Sweep all hard surfaces.
2. Spot mop all spills as needed.
RESTROOMS COMMON AREA (DAILY SERVICE)
---------------------
1. Empty all waste containers and replace liners as needed.
2. Clean all metal, mirrors, and fixtures.
3. Sinks, toilet bowls and urinals are to be kept free of scale.
4. Clean all lavatory fixtures using disinfectant cleaners.
5. Wash and disinfect underside and tops of toilet seats.
6. Wipe down walls around urinals.
7. Refill soap, towel, and tissue dispensers.
8. Wet mop tile floors with disinfectant solution.
9. Refill sanitary napkin machines as necessary.
RESTROOMS COMMON AREA (WEEKLY)
---------------------
1. Perform high dusting and vacuum vents.
2. Use germicidal solution in urinal traps, lavatory traps, and floor
drains.
RESTROOMS COMMON AREA (MONTHLY)
---------------------
1. Scrub floors with power machine.
2. Wash down all ceramic tile and toilet compartments.
ELEVATORS (DAILY)
---------
1. Vacuum floors.
2. Clean thresholds.
3. Spot walls and polish surfaces.
GENERAL
-------
All glass entry doors to offices, corridors, or lunch rooms are to be cleaned
as necessary.
-2-
EXHIBIT F
DOOR SIGN, DIRECTORY STRIP AND MAIL BOX REQUEST
1. I, the undersigned, hereby authorize Landlord to order one door sign.
The business name on it shall be:
Wood ( ) or glass ( ) door
_______________________________________________________________________________
2. The directory strip shall read:
_______________________________________________________________________________
3. The mail box strip shall read:
_______________________________________________________________________________
_______________________________________ ______________________________________
Signature Date
Street Address: 0000 Xxxxxxxxx Xxxxxxx
---------------------------
Suite Number: 410
---------------------------
Complex: Xxxxxx Ranch 8, Building Q
---------------------------
[LETTERHEAD]
EXHIBIT G
COMMENCEMENT OF LEASE
It is hereby agreed to that as of ________________, the Premises located at
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, described in the Lease Agreement dated
_______________ by and between ALEXANDER PROPERTIES COMPANY as Landlord and
Silicon Graphics, Inc. as Tenant, were occupied by Tenant and that said Lease
is in full force and effect.
ACKNOWLEDGED AND ACCEPTED:
LANDLORD: TENANT:
By:____________________________________ By:________________________________
Date:__________________________________ Date:______________________________
EXHIBIT B FOR XXXXXX RANCH 8
Listed below are the Standard Material Specifications for tenant improvements
at Xxxxxx Ranch 8 along with the definition of the building shell. It is
hereby agreed that Landlord shall provide, obtain and install all materials
and permits required to build out SILICON GRAPHICS, INC.'S space as drawn on
the attached space plan dated 3/4/91 and approved by Tenant under the Standard
Material Specifications in this Exhibit B. Should the attached space plan be
modified in any manner, Tenant agrees to pay for in advance any modifications
as they affect the cost of Tenant's build out.
DEFINITION OF BUILDING SHELL
* All core areas, elevator lobbies and restrooms
complete.
* Main HVAC loop in place ready to receive
mixing boxes for zoning.
* Main fire sprinkler risers and grid in place
ready for drop down.
* All perimeter walls sheetrocked and ready for
paint.
* Upper floors covered with 3 1/2 inch concrete.
* Electrical service to closets on floor.
* Telephone service/conduit to closets on floor.
STANDARD TENANT IMPROVEMENTS - MATERIAL SPECIFICATIONS
ELECTRICAL * Day Bright 244 light fixtures with energy conserving
ballasts and lamps; per Title 24 requirements.
* Double switching in individual offices.
* One duplex 110 receptacle at each work
station.
* One telephone duct at each work station.
HVAC * One zone per 800 square feet.
* Individual pneumatic thermostats per 800 sq.
ft.
FIRE * One 160 degree rated, Star SSP-1 concealed
SPRINKLERS sprinkler head per 144 square feet.
PARTITIONS * Sheetrock walls (5/8 inch) on 21/2 inch steel
stands with smooth finish.
AND DOORS
* Solid core Heritage Oak doors (36" x 96").
* Aluminum door jambs.
* Schlage door latches or equal.
PAINT * Xxxxx Xxxxx: Bone White.
FIRE RATED * Conwed: Aurora Reveal Tile, 3/4 inch on steel grid
CEILING GRID
AND BOARD
CARPET, TILE AND BASE * Carpet: Design Weave - Westbridge II.
* Xxxxxxxxx Imperial Modern Excelon Tile.
* 32 oz. nylon composition pad.
* 4 inch rubber top set base or equal.
WINDOW COVERING * Mini Blinds: Color - Alabaster.
-2-
