LEASE AGREEMENT
THIS LEASE, made this 16th day of August, 1999 between XXXX
XXXXXXXXX, Trustee, or his Successor Trustee, UTA dated 7/20/77, (XXXX
XXXXXXXXX SEPARATE PROPERTY TRUST) as amended, and XXXXXXX X. XXXXX, Trustee,
or his Successor Trustee, UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE
PROPERTY TRUST) as amended, hereinafter called Landlord, and QUANTUM EFFECT
DESIGN, INC., a California corporation, hereinafter called Tenant.
W I T N E S S E T H
Landlord hereby leases to Tenant and Tenant hereby hires and takes
from Landlord those certain premises (the "Premises") outlined in red on
Exhibit "A" attached hereto and incorporated hereby by this reference thereto
more particularly described as follows:
A portion of that certain 45,000+ square foot, two-story building
located at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx
00000, consisting of approximately 23,375+ square feet on the second
floor of the building. Said Premises is more particularly shown within
the area outlined in Red on EXHIBIT A. The entire parcel, of which the
Premises is a part, is shown within the area outlined in Green on
EXHIBIT A attached hereto. The Premises is leased on an "as-is" basis,
in its present condition, and in the configuration as shown in Red on
EXHIBIT B to be attached hereto.
As used herein the Complex shall mean and include all of the land
outlined in Green and described in Exhibit "A," attached hereto, and all of
the buildings, improvements, fixtures and equipment now or hereafter situated
on said land.
Said letting and hiring is upon and subject to the terms, covenants
and conditions hereinafter set forth and Tenant covenants as a material part
of the consideration for this Lease to perform and observe each and all of
said terms, covenants and conditions. This Lease is made upon the conditions
of such performance and observance.
1. USE. Tenant shall use the Premises only in conformance with
applicable governmental regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage
and other uses necessary for Tenant to conduct Tenant's business, provided
that such uses shall be in accordance with all applicable governmental laws
and ordinances and for no other purpose. Tenant shall not do or permit to be
done in or about the Premises or the Complex nor bring or keep or permit to
be brought or kept in or about the Premises or the Complex anything which is
prohibited by or will in any way increase the existing rate of (or otherwise
affect) fire or any insurance covering the Complex or any part thereof, or
any of its contents, or will cause a cancellation of any insurance covering
the Complex or any part thereof, or any of its contents. Tenant shall no do
or permit to be done anything in, on or about the Premises or the Complex
which will in any way obstruct or interfere with the rights of other tenants
or occupants of the Complex or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor
1.
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises or the Complex. No sale by auction shall be permitted on the
Premises. Tenant shall not place any loads upon the floors, walls, or
ceiling, which endanger the structure, or place any harmful fluids or other
materials in the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the Premises or outside
of the building in which the Premises are a part, except in trash containers
placed inside exterior enclosures designated by Landlord for that purpose or
inside of the building proper where designated by Landlord. No materials,
supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to
remain outside the Premises or on any portion of common area of the Complex.
No loudspeaker or other device, system or apparatus which can be heard
outside the Premises shall be used in or at the Premises without the prior
written consent of the Landlord. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Tenant shall indemnify, defend
and hold Landlord harmless against any loss, expense, damage, attorneys'
fees, or liability arising out of failure of Tenant to comply with any
applicable law. Tenant shall comply with any covenant, condition, or
restriction ("CC&R's") affecting the Premises. The provisions of this
paragraph are for the benefit of Landlord only and shall not be construed to
be for the benefit of any tenant or occupant of the Complex.
2. TERM.*
A. The term of this Lease shall be for a period of five (5)
years (unless sooner terminated as hereinafter provided) and, subject to
Paragraphs 2(B) and 3, shall commence on the 1st day of November, 1999 and
end on the 31st of October of 2004.
B. Possession of the Premises shall be deemed tendered and
the term of this Lease shall commence on November 1, 1999, or as otherwise
agreed in writing.
3. POSSESSION. If Landlord, for any reason whatsoever, cannot
deliver possession of said premises to Tenant at the commencement of the said
term, as hereinbefore specified, this Lease shall not be void or voidable; no
obligation of Tenant shall be affected thereby; nor shall Landlord or
Landlord's agents be liable to Tenant for any loss or damage resulting
therefrom; but in that event the commencement and termination dates of the
Lease, and all other dates affected thereby shall be revised to conform to
the date of Landlord's delivery of possession, as specified in Paragraph 2(b)
above. The above is, however, subject to the provision that the period of
delay of delivery of the premises shall not exceed 30 days from the
commencement date herein (except those delays caused by Acts of God, strikes,
war, utilities, governmental bodies, weather, unavailable materials, and
delays beyond Landlord's control shall be excluded in calculating such
period) in which issuance Tenant, at its option, may, by written notice to
Landlord, terminate this Lease.
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* It is agreed in the event said Lease commences on a date other than the
first day of the month the term of the Lease will be extended to account for
the number of days in the partial month. The Basic Rent during the resulting
partial month will be pro-rated (for the number of days in the partial month)
at the Basic Rent scheduled for the projected commencement date as shown in
paragraph 43.
2.
4. RENT.
A. BASIC RENT. Tenant agrees to pay to Landlord at such
place as Landlord may designate without deduction, offset, prior notice, or
demand, and Landlord agrees to accept as Basic Rent for the leased Premises
the total sum of THREE MILLION FOUR HUNDRED THIRTY SIX THOUSAND ONE HUNDRED
TWENTY FIVE AND NO/100 ($3,436,125.00) Dollars in lawful money of the United
States of America, payable as follows:
SEE PARAGRAPH 43 FOR BASIC RENT SCHEDULE.
B. TIME FOR PAYMENT. In the event that the term of this
Lease commences on a date other than the first day of a calendar month, on
the date of commencement of the term hereof Tenant shall pay to Landlord as
rent for the period from such date of commencement to the first day of the
next succeeding calendar month that proportion of the monthly rent hereunder
which the number of days between such date of commencement and the first day
of the next succeeding calendar month bears to thirty (30). In the event the
term of this Lease for any reason ends on a date other than the last day of a
calendar month, on the first day of the last calendar month of the term
hereof Tenant shall pay to Landlord as rent for the period from said first
day of said last calendar month to and including the last day of the term
here that proportion of the monthly rent hereunder which the number of days
between said first day of said last calendar month and the first day of the
term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this
Lease, if Tenant is in default in the payment of rental as set forth in this
Paragraph 4 when due, or any part thereof, Tenant agrees to pay Landlord, in
addition to the delinquent rental due, a late charge for each rental payment
in default ten (10) days. Said late charge shall equal ten percent (10%) of
each rental payment so in default.
D. ADDITIONAL RENT. Beginning with the commencement date of
the term of this Lease, Tenant shall pay to Landlord in addition to the Basic
Rent and as Additional Rent the following:
(a) Tenant's proportionate share of all Taxes
relating to the Complex as set forth in Paragraph 12, and
(b) Tenant's proportionate share of all insurance
premiums and deductibles relating to the Complex, as set forth in Paragraph
15, and
(c) Tenant's proportionate share of expenses for
the operation, management, maintenance and repair of the Building (including
common areas of the Building) and Common Areas of the Complex in which the
Premises are located as set forth in Paragraph 7, and
(d) All charges, costs and expenses, which Tenant
is required to pay hereunder, together with all interest and penalties, costs
and expenses; including attorneys' fees and legal expenses, that may accrue
thereto in the event of Tenant's failure to pay such amounts,
3.
and all damages, reasonable costs and expenses which Landlord may incur by
reason of default of Tenant or failure on Tenant's part to comply with the
terms of this Lease. In the event of nonpayment by Tenant of Additional Rent,
Landlord shall have all the rights and remedies with respect thereto as
Landlord has for nonpayment of rent.
The Additional Rent due hereunder shall be paid to Landlord
or Landlord's agent (i) within five days for taxes and insurance and within
thirty (30) days for all other additional Rent items after presentation of
invoice from Landlord or Landlord's agent setting forth such Additional Rent
and/or (ii) at the option of Landlord, Tenant shall pay to Landlord monthly,
in advance, Tenant's pro rata share of an amount estimated by Landlord to be
Landlord's approximate average monthly expenditure for such Additional Rent
items, which estimated amount shall be reconciled within 120 days of the end
of each calendar year or more frequently if Landlord so elects to do so at
Landlord's sole and absolute discretion, as compared to Landlord's actual
expenditure for said Additional Rent items, with Tenant paying to Landlord,
upon demand, any amount of actual expenses expended by Landlord in excess of
said estimated amount, or Landlord refunding to Tenant (providing Tenant is
not in default in the performance of any of the terms, covenants and
conditions of this Lease) any amount of estimated payments made by Tenant in
excess of Landlord's actual expenditures for said Additional Rent items.
The respective obligations of Landlord and Tenant under this
paragraph shall survive the expiration or other termination of the term of
this Lease, and if the term hereof shall expire or shall otherwise terminate
on a day other than the last day of a calendar year, the actual Additional
Rent incurred for the calendar year in which the term hereof expires or
otherwise terminates shall be determined and settled on the basis of the
statement of actual Additional Rent for such calendar year and shall be pro
rated in the proportion which the number of days in such calendar year
preceding such expiration or termination bears to 365.
E. FIXED MANAGEMENT FEE. Beginning with the Commencement
Date of the Term of this Lease, Tenant shall pay to Landlord, in addition to
the Basic Rent and Additional Rent, a fixed monthly fee ("Management Fee")
equal to 3% of the Basic Rent due for each month during the Lease Term.
F. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic
Rent hereunder and all payments hereunder for Additional Rent shall be paid
to Landlord at the office of Landlord at Xxxxx/Xxxxxxxxx, File 0000, Xxx
00000, Xxx Xxxxxxxxx, XX 00000 or to such other person or to each other place
as Landlord may from time to time designate in writing.
F. SECURITY DEPOSIT. Concurrently with Tenant's execution
of this Lease, Tenant shall deposit with Landlord the sum of ONE HUNDRED
TWENTY THREE THOUSAND EIGHT HUNDRED EIGHTY SEVEN AND 50/100 ($123,887.50)
Dollars. Said sum shall be held by Landlord as a Security Deposit for the
faithful performance by Tenant of all of the terms, covenants, and conditions
of this Lease to be kept and performed by Tenant during the term hereof. If
Tenant defaults with respect to any provision of this Lease, including, but
not limited to, the provisions relating to the payment of rent and any of the
monetary sums due herewith, Landlord may (but shall not be required to) use,
apply or retain all or any part of this
4.
Security Deposit for the payment of any other amount which Landlord may spend
by reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any
portion of said Deposit is so used or applied, Tenant shall, within ten (10)
days after written demand therefor, deposit cash with Landlord in the amount
sufficient to restore the Security Deposit to its original amount. Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not
be required to keep this Security Deposit separate from its general funds,
and Tenant shall not be entitled to interest on such Deposit. If Tenant fully
and faithfully performs every provision of this Lease to be performed by it,
the Security Deposit or any balance thereof shall be returned to Tenant (or
at Landlord's option, to the last assignee of Tenant's interest hereunder) at
the expiration of the Lease term and after Tenant has vacated the Premises.
In the event of termination of Landlord's interest in this Lease, Landlord
shall transfer said Deposit to Landlord's successor in interest whereupon
Tenant agrees to release Landlord from liability for the return of such
Deposit or the accounting therefor.
5. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time prescribe, Tenant and Tenant's employees, invitees and customers
shall, in common with other occupants of the Complex in which the Premises
are located, and their respective employees, invitees and customers, and
others entitled to the use thereof, have the nonexclusive right to use the
access roads, parking areas, and facilities provided and designated by
Landlord for the general use and convenience of the occupants of the Complex
in which the Premises are located, which areas and facilities are referred to
herein as "Common Area." This right shall terminate upon the termination of
this Lease. Landlord reserves the right from time to time to make changes in
the shape, size, location, amount and extent of Common Area. Landlord further
reserves the right to promulgate such reasonable rules and regulations
relating to the use of the Common Area, and any part or parts thereof, as
Landlord may deem appropriate for the best interests of the occupants of the
Complex. The Rules and Regulations shall be binding upon Tenant upon delivery
of a copy of them to Tenant, and Tenant shall abide by them and cooperate in
their observance. Such Rules and Regulations may be amended by landlord from
time to time, with or without advance notice, and all amendments shall be
effective upon delivery of a copy to Tenant. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or occupant
of the Complex of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The
manner in which the Common Area shall be maintained and the expenditures for
such maintenance shall be at the discretion of Landlord.
6. PARKING. Tenant shall have the right to use with other tenants or
occupants of the Complex 70 parking spaces in the common parking areas of the
Complex. Tenant agrees, that Tenant, Tenant's employees, agents,
representatives and/or invitees shall not use parking spaces in excess of
said 70 spaces allocated to Tenant hereunder. Landlord shall have the right,
at Landlord's sole discretion, to specifically designate the location of
Tenant's parking spaces within the common parking areas of the Complex in the
event of a dispute among the tenants occupying the building and/or Complex
referred to herein, in which event Tenant agrees that Tenant, Tenant's
employees, agents, representatives and/or invitees shall not use any parking
5.
spaces other than those parking spaces specifically designated by Landlord
for Tenant's use. Said parking spaces, if specifically designated by Landlord
to Tenant, may be relocated by Landlord at any time, and from time to time,
Landlord reserves the right, at Landlord's sole discretion, to rescind any
specific designation of parking spaces, thereby returning Tenant's parking
spaces to the common parking area. Landlord shall give Tenant written notice
of any change in Tenant's parking spaces. Tenant shall not, at any time,
park, or permit to be parked, any trucks or vehicles adjacent to the loading
areas so as to interfere in any way with the use of such areas, nor shall
Tenant at any time park, or permit the parking of Tenant's trucks or other
vehicles or the trucks and vehicles of Tenant's suppliers or others, in any
portion of the common area not designated by Landlord for such use by Tenant.
Tenant shall not park nor permit to be parked, any inoperative vehicles or
equipment on any portion of the common parking area or other common areas of
the Complex. Tenant agrees to assume responsibility for compliance by its
employees within the parking provision contained herein. If Tenant or its
employees park in other than such designated parking areas, then Landlord may
charge Tenant, as an additional charge, and Tenant agrees to pay, ten
($10.00) Dollars per day for each day or partial day each such vehicle is
parked in any area other than that designated. Tenant hereby authorizes
Landlord at Tenant's sole expense to tow away from the Complex any vehicle
belonging to Tenant or Tenant's employees parked in violation of this
provision, or to attach violation stickers or notices to such vehicles.
Tenant shall use the parking areas for vehicle parking only, and shall not
use the parking areas for storage.
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay to Landlord Tenant's proportionate share (calculated on a square
footage or other equitable basis as calculated by Landlord) of all expenses
of operation, management, maintenance and repair of the Common Areas of the
Complex including, but not limited to, license, permit, and inspection fees;
security; utility charges associated with exterior landscaping and lighting
(including water and sewer charges); all charges incurred in the maintenance
and replacement of landscaped areas, lakes, parking lots and paved areas
(including repairs, replacement, resealing and restriping), sidewalks,
driveways, maintenance, repair and replacement of all fixtures and
electrical, mechanical, and plumbing systems; structural elements and
exterior surfaces of the buildings; salaries and employee benefits of
personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect
of reducing operating expenses, provided, however, that in the event Landlord
makes such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen (15%) percent per
annum on the unamortized balance) as an operating expense in accordance with
standard account practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost of the installation of
partitioning or any other tenant improvements; cost of attracting tenants;
depreciation; interest, or executive salaries.
6.
As Additional Rent and in accordance with paragraph 4D of this
Lease, Tenant shall pay its proportionate share (calculated on a square
footage or other equitable basis as calculated by Landlord) of the cost of
operation (including common utilities, management, maintenance, and repair of
the building (including common areas such as lobbies, restroom, janitor's
closets, hallways, elevators, mechanical and telephone rooms, stairwells,
entrances, spaces above the ceilings and janitorization of said common areas)
in which the Premises are located. The maintenance items herein referred to
include, but are not limited to, all windows, window frames, plate glass,
glazing, truck doors, main plumbing systems of the building (such as water
and rain lines, sinks, toilets, faucets, drains, showers and water
fountains), main electrical systems (such as panels and conduits), heating
and air conditioning systems (such as compressors, fans, air handlers, ducts,
boilers, heaters), store fronts, roofs, downspouts, building common area
interiors (such as wall coverings, window coverings, floor coverings and
partitioning), ceilings, building exterior doors, skylights (if any)
automatic fire extinguishing systems, and elevators; license, permit, and
inspection fees; security, salaries and employee benefits of personnel and
payroll taxes applicable thereto; supplies, materials, equipment and tools;
the cost of capital expenditures which have the effect of reducing operating
expenses, provided, however that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen percent (15%) per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses. Tenant hereby
waives all rights under, and benefits of, subsection 1 of Section 1932 and
Sections 1941 and 1942 of the California Civil Code and under any similar
law, statute or ordinance now or hereafter in effect.
8. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant
accepts the Premises as being in good and sanitary order, condition and
repair and accepts the building and improvements included in the Premises in
their present condition and without representation or warranty by Landlord as
to the condition of such building or as to the use or occupancy which may be
made thereof. Any exceptions to the foregoing must be by written agreement
executed by Landlord and Tenant. Tenant agrees on the last day of the Lease
term, or on the sooner termination of this Lease, to surrender the Premises
promptly and peaceably to Landlord in good condition and repair (damage by
Acts of God, fire, normal wear and tear excepted), with all interior walls
painted, or cleaned so that they appear freshly painted, and repaired and
replaced, if damaged; all floors cleaned and waxed; all carpets cleaned and
shampooed; the air conditioning and heating equipment serviced by a reputable
and licensed service firm and in good operating condition (provided the
maintenance of such equipment has been Tenant's responsibility during the
term of this Lease) together with all alterations, additions, and
improvements which may have been made in, to, or on the Premises (except
movable trade fixtures installed at the expense of Tenant) except that Tenant
shall ascertain from Landlord within thirty (30) days before the end of the
term of this Lease whether Landlord desires to have the Premises or any part
or parts thereof restored to their condition and configuration as when the
Premises were delivered to Tenant and if Landlord shall so desire, then
Tenant shall restore said Premises or such part or parts thereof before the
end of this Lease at Tenant's sole cost and expense. Tenant, on or before the
end of the term or sooner termination of this Lease, shall remove all of
Tenant's personal property and trade fixtures from the Premises,
7.
and all property not so removed on or before the end of the term or sooner
termination of this Lease shall be deemed abandoned by Tenant and title to
same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture
and equipment so abandoned by Tenant, at Tenant's sole cost, and repair any
damage caused by such removal at Tenant's sole cost. If the Premises be not
surrendered at the end of the term or sooner termination of this Lease,
Tenant shall indemnify Landlord against loss or liability resulting from the
delay by Tenant in so surrendering the Premises including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Nothing contained herein shall be construed as an extension of the term
hereof or as a consent of Landlord to any holding over by Tenant. The
voluntary or other surrender of this Lease or the Premises by Tenant or a
mutual cancellation of this Lease shall not work as a merger and, at the
option of Landlord, shall either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of all or any such
subleases or subtenancies.
9. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be
made, any alteration or addition to the Premises, or any part thereof,
without the written consent of Landlord first had and obtained by Tenant, but
at the cost of Tenant, and any addition to, or alteration of, the Premises,
except moveable furniture and trade fixtures, shall at once become a part of
the Premises and belong to Landlord. Landlord reserves the right to approve
all contractors and mechanics proposed by Tenant to make such alterations and
additions. Tenant shall retain title to all moveable furniture and trade
fixtures placed in the Premises. All heating, lighting, electrical, air
conditioning, floor to ceiling partitioning, drapery, carpeting, and floor
installations made by Tenant, together with all property that has become an
integral part of the Premises, shall not be deemed trade fixtures. Tenant
agrees that it will not proceed to make such alteration or additions, without
having obtained consent from Landlord to do so, and until five (5) days from
the receipt of such consent, in order that Landlord may post appropriate
notices to avoid any liability to contractors or material suppliers for
payment for Tenant's improvements. Tenant will at all times permit such
notices to be posted and to remain posted until the completion of work.
Tenant shall, if required by Landlord, secure at Tenant's own cost and
expense, a completion and lien indemnity bond, satisfactory to Landlord, for
such work. Tenant further covenants and agrees that any mechanic's lien filed
against the Premises or against the Complex for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, will be
discharged by Tenant, by bond or otherwise, within thirty (30) days after the
filing thereof, at the cost and expense of Tenant. Any exceptions to the
foregoing must be made in writing and executed by both Landlord and Tenant.
10. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense,
keep and maintain the Premises (including appurtenances) and every part
thereof in a high standard of maintenance and repair, and in good and
sanitary condition. Tenant's maintenance and repair responsibilities herein
referred to include, but are not limited to, janitorization, plumbing systems
within the non-common areas of the Premises (such as water and drain lines,
sinks), electrical systems within the non-common areas of the Premises (such
as outlets, lighting fixtures, lamps, bulbs, tubes, ballasts), heating and
air conditioning controls within the non-common areas of the Premises (such
as mixing boxes, thermostats, time clocks, supply and return grills), all
interior improvements within the premises including but not limited to: wall
coverings, window
8.
coverings, acoustical ceilings, vinyl tile, carpeting, partitioning, doors
(both interior and exterior, including closing mechanisms, latches, locks),
and all other interior improvements of any nature whatsoever. Tenant agrees
to provide carpet xxxxxxx under all rolling chairs or to otherwise be
responsible for wear and tear of the carpet caused by such rolling chairs if
such wear and tear exceeds that caused by normal foot traffic in surrounding
areas. Areas of excessive wear shall be replaced at Tenant's sole expense
upon Lease termination.
11. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with paragraph 4 D of this Lease. Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of all utility charges
such as water, gas, electricity, telephone, telex and other electronic
communications service, sewer service, waste-pick-up and any other utilities,
materials or services furnished directly to the building in which the
Premises are located, including, without limitation, any temporary or
permanent utility surcharge or other exactions whether or not hereinafter
imposed.
Landlord shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any interruption or failure
of utility services in the Premises when such interruption or failure is
cause by accident, breakage, repair, strikes, lockouts, or other labor
disturbances or labor disputes of any nature, or by any other cause, similar
or dissimilar, beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or
observance of any of the terms, covenants or conditions of this Lease to be
performed or observed by it, Landlord shall furnish to the Premises between
the hours of 8:00 a.m. and 6:00 p.m. Monday through Fridays (holidays
excepted) and subject to the rules and regulations of the complex
hereinbefore referred to, reasonable quantities of water, gas and electricity
suitable for the intended use of the Premises and heat and air conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises for such purposes. Tenant may, from time to time, have its staff and
equipment operate within the Premises on a twenty-four (24) hour-a-day, seven
(7) day-a-week schedule, and Tenant may operate equipment which requires
excess electricity; however, Tenant shall pay for any extra utilities used by
Tenant. Tenant agrees that at all times it will cooperate fully with Landlord
and abide by all regulations and requirements that Landlord may prescribe for
the proper functioning and protection of the building heating, ventilating,
and air conditioning systems. Whenever heat generating machines, equipment,
or any other devices (including exhaust fans) are used in the Premises by
Tenant which affect the temperature or otherwise maintained by the air
conditioning system, Landlord shall have the right to install supplementary
air conditioning units in the Premises and the cost thereof, including the
cost of installation and the cost of operation and maintenance thereof, shall
be paid by Tenant to Landlord upon demand by Landlord. Tenant will not,
without the written consent of Landlord, use any apparatus or device in the
premises (including, without limitation), electronic data processing machines
or machines using current in excess of 110 Volts which will in any way
increase the amount of electricity, gas, water or air conditioning usually
furnished or supplied to premises being used as general office space, or
connect with electric current (except through existing electrical outlets in
the Premises), or with gas or water pipes any apparatus or device for the
purposes of using
9.
electric current, gas, or water. If Tenant shall require water, gas, or
electric current in excess of that usually furnished or supplied to premises
being used as general office space, Tenant shall first obtain the written
consent of Landlord, which consent shall not be unreasonably withheld and
Landlord may cause an electric current, gas or water meter to be installed in
the Premises in order to measure the amount of electric current, gas or water
consumed for any such excess use. The cost of any such meter and of the
installation, maintenance and repair thereof, all charges for such excess
water, gas and electric current consumed (as shown by such meters and at the
rates then charged by the furnishing public utility); and any additional
expense incurred by Landlord in keeping account of electric current, gas, or
water so consumed shall be paid by Tenant, and Tenant agrees to pay Landlord
therefor promptly upon demand by Landlord.
12. TAXES.
A. As Additional Rent and in accordance with paragraph 4 D
of this Lease, Tenant shall pay to Landlord Tenant's proportionate share of
all Real Property Taxes, which pro rata share shall be allocated to the
leased Premises by square footage or other equitable basis, as calculated by
Landlord. The term "Real Property Taxes," as used herein, shall mean (i) all
taxes, assessments, levies and other charges of any kind or nature
whatsoever, general and special, foreseen and unforeseen (including all
installments of principal and interest required to pay any general or special
assessments for public improvements and any increases resulting from
reassessments caused by any change in ownership of the Complex) now or
hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Complex (as now
constructed or as may at any time hereafter be constructed, altered, or
otherwise changed) or Landlord's interest therein; any improvements located
within the Complex (regardless of ownership); the fixtures, equipment and
other property of Landlord, real or personal, that are an integral part of
and located in the Complex; or parking areas, public utilities, or energy
within the Complex; (ii) all charges, levies or fees imposed by reason of
environmental regulation or other governmental control of the Complex; and
(iii) all costs and fees (including attorneys' fees) incurred by Landlord in
contesting any Real Property Tax and in negotiating with public authorities
as to any Real Property Tax. If at any time during the term of this Lease the
taxation or assessment of the complex prevailing as of the commencement date
of this Lease shall be altered so that in lieu of or in addition to any Real
Property Tax described above there shall be levied, assessed or imposed
(whether by reason of a change in the method of taxation or assessment,
creation of a new tax or charge, or any other cause) an alternate or
additional tax or charge (i) on the value, use or occupancy of the Complex or
Landlord's interest therein or (ii) on or measured by the gross receipts,
income or rentals for the Complex, on Landlord's business of leasing the
Complex, or computed in any manner with respect to the operation of the
Complex, then any such tax or charge, however designated, shall be included
within the meaning of the term "Real Property Taxes" for purposes of this
Lease. If any Real Property Tax is based upon property or rents unrelated to
the Complex, then only that part of such real Property Tax that is fairly
allocable to the Complex shall be included within the meaning of the term
"Real Property Taxes." Notwithstanding the foregoing, the term "Real Property
Taxes" shall not include estate, inheritance, gift or franchise taxes of
Landlord or the federal or state net income tax imposed on
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Landlord's income from all sources. The term "Real Estate Taxes" shall also
include supplemental taxes related to the period of Tenant's Lease Term
whenever levied, including any such taxes that may be levied after the Lease
Term has expired.
B. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay
ten days before delinquency, taxes levied against any personal property or
trade fixtures placed by Tenant in or about the Premises. If any such taxes
on Tenant's personal property or trade fixtures are levied against Landlord
or Landlord's property or if the assessed value of the Premises is increased
by the inclusion therein of a value placed upon such personal property or
trade fixtures of Tenant and if Landlord, after written notice to Tenant,
pays the taxes based on such increased assessment, which Landlord shall have
the right to do regardless of the validity thereof, but only under proper
protest if requested by Tenant. Tenant shall upon demand, as the case may be,
repay to Landlord the taxes so levied against Landlord, or the proportion of
such taxes resulting from such increase in the assessment; provided that in
any such event Tenant shall have the right, in the name of Landlord and with
Landlord's full cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes so paid under protest,
and any amounts so recovered shall belong to Tenant.
(b) If Tenant improvements in the Premises,
whether installed, and/or paid for by Landlord or Tenant and whether or not
affixed to the real property so as to become a part thereof, are assessed for
real property tax purposes at a valuation higher than the valuation at which
standard office improvements in other space in the Complex are assessed, then
the real property taxes and assessments levied against Landlord or the
Complex by reason of such excess assessed valuation shall be deemed to be
taxes levied against personal property of Tenant and shall be governed by the
provisions of 12Ba above. If the records of the County Assessor are available
and sufficiently detailed to serve as a basis for determining whether said
Tenant improvements are assessed at a higher valuation than standard office
improvements in other space in the Complex, such records shall be binding on
both the Landlord and the Tenant. If the records of the County Assessor are
not available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
13. LIABILITY INSURANCE. Tenant, at Tenant's expense, agrees to keep
in force during the term of this Lease a policy of commercial general
liability insurance with a combined single limit coverage of not less than
Two Million Dollars ($2,000,000) per occurrence for injuries to or death of
persons occurring in, on or about the Premises or the Complex, and property.
The policy or policies affecting such insurance, certificates of insurance of
which shall be furnished to Landlord, shall name Landlord as additional
insureds, and shall insure any liability of Landlord, contingent or
otherwise, as respects acts or omissions of Tenant, its agents, employees or
invitees or otherwise by any conduct or transactions of any of said persons
in or about or concerning the Premises, including any failure of Tenant to
observe or perform any of its obligations hereunder; shall be issued by an
insurance company admitted to transact business in the State of California;
and shall provide that the insurance effected thereby shall not be canceled,
except upon thirty (30) days prior written notice to Landlord. If, during the
term of this
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Lease, in the considered opinion of Landlord's Lender, insurance advisor, or
counsel, the amount of insurance described in this paragraph 13 is not
adequate, Tenant agrees to increase said coverage to such reasonable amount
as Landlord's Lender, insurance advisor, or counsel shall deem adequate.
14. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMANS COMPENSATION
INSURANCE. Tenant shall maintain a policy or policies of fire and property
damage insurance in "all risk" form with a sprinkler leakage endorsement
insuring the personal property, inventory, trade fixtures, and leasehold
improvements within the leased Premises for the full replacement value
thereof. The proceeds from any of such policies shall be used for the repair
or replacement of such items so insured. Tenant shall also maintain a policy
or policies of xxxxxxx'x compensation insurance and any other employee
benefit insurance sufficient to comply with all laws.
15. PROPERTY INSURANCE. Landlord shall purchase and keep in force
and as Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord (or Landlord's agent if so directed by Landlord)
Tenant's proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the deductibles on insurance
claims and the cost of policy or policies of insurance covering loss or
damage to the Premises and Complex in the amount of the full replacement
value thereof, providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake
insurance, if available, plus a policy of rental income insurance in the
amount of one hundred percent (100%) of twelve (12) months Basic Rent, plus
sums paid as Additional Rent. If such insurance cost is increased due to
Tenant's use of the Premises or the Complex, Tenant agrees to pay to Landlord
the full cost of such increase. Tenant shall have no interest in nor any
right to the proceeds of any insurance procured by Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other,
to the extent of insurance coverage of the releasing party, from any
liability for loss or damage caused by fire or any of the extended coverage
casualties included in the releasing party's insurance policies, irrespective
of the cause of such fire or casualty; provided, however, that if the
insurance policy of either releasing party prohibits such waiver, then this
waiver shall not take effect until consent to such waiver is obtained. If
such waiver is so prohibited, the insured party affected shall promptly
notify the other party thereof.
16. INDEMNIFICATION. Landlord shall not be liable to Tenant and
Tenant hereby waives all claims against Landlord for any injury to or death
of any person or damage to or destruction of property in or about the
Premises or the Complex by or from any cause whatsoever, including, without
limitation, gas, fire, oil, electricity or leakage of any character from the
roof, walls, basement or other portion of the Premises or the Complex but
excluding, however the willful misconduct or negligence of Landlord, its
agents, servants, employees, invitees, or contractors of which negligence
Landlord has knowledge and reasonable time to correct. Except as to injury to
persons or damage to property to the extent arising from the willful
misconduct or negligence of Landlord, its agents, servants, employees,
invitees, or
12.
contractors, Tenant shall hold Landlord harmless from and defend Landlord
against any and all expenses, including reasonable attorneys' fees, in
connection therewith, arising out of any injury to or death of any person or
damage to or destruction of property occurring in, on or about the Premises,
or any part thereof, from any cause whatsoever.
17. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly
comply with all laws, statutes, ordinances and governmental rules,
regulations or requirements now or hereafter in effect; with the requirements
of any board of fire underwriters or other similar body now or hereafter
constituted; and with any direction or occupancy certificate issued pursuant
to law by any public officer; provided, however, that no such failure shall
be deemed a breach of the provisions if Tenant, immediately upon
notification, commences to remedy or rectify said failure. The judgment of
any court of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any such laws, statute, ordinance or governmental rule, regulation,
requirements, direction or provisions, shall be conclusive of that fact as
between Landlord and Tenant. This paragraph shall not be interpreted as
requiring Tenant to make structural changes or improvements, except to the
extent such changes or improvements are required as a result of Tenant's use
of the Premises. Tenant shall, at its sole cost and expense, comply with any
and all requirements pertaining to said Premises, of any insurance
organization or company, necessary for the maintenance of reasonable fire and
public liability insurance covering the Premises.
18. LIENS. Tenant shall keep the Premises and the Complex free from
any liens arising out of any work performed, materials furnished or
obligation incurred by Tenant. In the event that Tenant shall not, within ten
(10) days following the imposition of such lien, cause the same to be
released of record, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but no obligation, to cause the same
to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All sums paid by Landlord for such
purpose, and all expenses incurred by it in connection therewith, shall be
payable to Landlord by Tenant on demand with interest at the prime rate of
interest as quoted by the Bank of America.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein,
and shall not sublet the Premises, or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person or entity to occupy
or use the Premises, or any portion thereof, without, in each case, the prior
written consent of Landlord which consent will not be unreasonably withheld.
As a condition for granting this consent to any assignment, transfer or
subletting, Landlord shall require Tenant to pay to Landlord, as Additional
Rent, all rents and/or additional consideration received by Tenant from its
assignees, transferees, or subtenants in excess of the rent payable by Tenant
to Landlord hereunder for the assigned, transferred, and/or subleased space.
Tenant shall, by thirty (30) days written notice, advise Landlord of its
intent to assign or transfer Tenant's interest in the Lease or sublet the
Premises or any portion thereof for any part of the term hereof. Within
thirty (30) days after receipt of said written notice, Landlord may, in its
sole discretion, elect to terminate this Lease as to the portion of the
Premises described in Tenant's notice on the date specified in Tenant's
notice by giving written notice of such election to terminate. If no
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such notice to terminate is given to Tenant within said thirty (30) day
period, Tenant may proceed to locate an acceptable sublessee, assignee, or
other transferee for presentment to Landlord for Landlord's approval, all in
accordance with the terms, covenants, and conditions of this paragraph 19. If
Tenant intends to sublet the entire Premises and Landlord elects to terminate
this Lease, this Lease shall be terminated on the date specified in Tenant's
notice. If, however, this Lease shall terminate pursuant to the foregoing
with respect to less than all the Premises, the rent, as defined and reserved
hereinabove shall be adjusted on a pro rata basis to the number of square
feet retained by Tenant, and this Lease as so amended shall continue in full
force and effect. In the event Tenant is allowed to assign, transfer or
sublet the whole or any part of the Premises, with the prior written consent
of Landlord, no assignee, transferee or subtenant shall assign or transfer
this Lease, either in whole or in part, or sublet the whole or any part of
the Premises, without also having obtained the prior written consent of
Landlord which consent shall not be unreasonably withheld. A consent of
Landlord to one assignment, transfer, hypothecation, subletting, occupation
or use by any other person shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent similar
or dissimilar assignment, transfer, hypothecation, subletting, occupation or
use by any other person. Any such assignment, transfer, hypothecation,
subletting, occupation or use without such consent shall be voided and shall
constitute a breach of this Lease by Tenant and shall, at the option of
Landlord exercised by written notice to Tenant, terminate this Lease. The
leasehold estate under this Lease shall not, nor shall any interest therein,
be assignable for any purpose by operation of law without the written consent
of Landlord which consent shall not be unreasonably withheld. As a condition
to its consent, Landlord shall require Tenant to pay all expenses in
connection with the assignment, and Landlord shall require Tenant's assignee
or transferee (or other assignees or transferees) to assume in writing all of
the obligations under this Lease and for Tenant to remain liable to Landlord
under this Lease.
20. SUBORDINATION AND MORTGAGES. In the event Landlord's title or
leasehold interest is now or hereafter encumbered by a deed of trust, upon
the interest of Landlord in the land and buildings in which the demised
Premises are located, to secure a loan from a lender (hereinafter referred to
as "Lender") to Landlord, Tenant shall, at the request of Landlord or Lender,
execute in writing an agreement subordinating its rights under this Lease to
the lien of such deed of trust, or, if so requested, agreeing that the lien
of Lender's deed of trust shall be or remain subject and subordinate to the
rights of Tenant under this Lease. Notwithstanding any such subordination,
Tenant's possession under this Lease shall not be disturbed if Tenant is not
in default and so long as Tenant shall pay all rent and observe and perform
all of the provisions set forth in this Lease.
21. ENTRY BY LANDLORD. Landlord reserves, and shall at all
reasonable times after at least 24 hours notice (except in emergencies) have
the right to enter the Premises to inspect them: to perform any services to
be provided by Landlord hereunder, to submit the Premises to prospective
purchasers, mortgagers or tenants; to post notices of nonresponsibility; and
to alter, improve or repair the premises and any portion of the Complex, all
without abatement of rent; and may erect scaffolding and other necessary
structures in or through the Premises where reasonably required by the
character of the work to be performed; provided, however that the business of
Tenant shall be interfered with to the least extent that is reasonably
14.
practical. For each of the foregoing purposes, any entry to the Premises
obtained by Landlord 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, actual or constructive, of
Tenant from the Premises or any portion thereof. Landlord shall also have the
right at any time to change the arrangement or location of entrances or
passageways, doors and doorways, and corridors, elevators, stairs, toilets or
other public parts of the Complex and to change the name, number or
designation by which the Complex is commonly known, and none of the foregoing
shall be deemed an actual or constructive eviction of Tenant, or shall
entitle Tenant to any reduction of rent hereunder.
22. BANKRUPTCY AND DEFAULT. The commencement of a bankruptcy action
or liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar
action undertaken by Tenant, or the insolvency of Tenant, shall, at
Landlord's option, constitute a breach of this Lease by Tenant. If the
trustee or receiver appointed to serve during a bankruptcy, liquidation,
reorganization, insolvency or similar action elects to reject Tenant's
unexpired Lease, the trustee or receiver shall notify Landlord in writing of
its election within thirty (30) days after an order for relief in a
liquidation action or within thirty (30) days after the commencement of any
action.
Within thirty (30) days after court approval of the assumption of
this Lease, the trustee or receiver shall cure (or provide adequate assurance
to the reasonable satisfaction of Landlord that the trustee or receiver shall
cure) any and all previous defaults under the unexpired Lease and shall
compensate Landlord for all actual pecuniary loss and herein, includes, but
shall not be limited to: (i) assurance of source and payment of rent, and
other consideration due under this Lease; (ii) assurance that the assumption
or assignment of this Lease will not breach substantially any provision, such
as radius, location, use, or exclusivity provision, in any agreement relating
to the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in
connection with a bankruptcy, liquidation, reorganization or insolvency
action or an assignment of Tenant for the benefit of creditors or other
similar act. Nothing contained in this Lease shall be construed as giving or
granting or creating an equity in the demised Premises to Tenant. In no event
shall the leasehold estate under this Lease, or any interest therein, be
assigned by voluntary or involuntary bankruptcy proceeding without the prior
written consent of Landlord. In no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency
or reorganization proceedings.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice
from Landlord within which to cure any default in the payment of rental or
adjustment thereto. Tenant shall have a period of thirty (30) days from the
date of written notice from landlord within which to cure any other default
under this Lease; provided, however, that if the nature of Tenant's failure
is such that more than thirty (30) days is reasonably required to cure
15.
the same, Tenant shall not be in default so long as Tenant commences
performance within such thirty (30) day period and thereafter prosecutes the
same to completion. Upon an uncured default of this Lease by Tenant, Landlord
shall have the following rights and remedies in addition to any other rights
or remedies available to Landlord at law or in equity;
(a) The rights and remedies provided for by California
Civil Code Section 1951.2 including but not limited to, recovery of the worth
at the time of award of the amount by which the unpaid rent for the balance
of the term after the time of award exceeds the amount of rental loss for the
same period that Tenant proves could be reasonably avoided, as computed
pursuant to subsection (b) of said Section 1951.2. Any proof by Tenant under
subparagraphs (2) and (3) of Section 1951.2 of the California Civil Code of
the amount of rental loss that could be reasonably avoided shall be made in
the following manner: Landlord and Tenant shall each select a licensed real
estate broker in the business of renting property of the same type and use as
the Premises and in the same geographic vicinity. Such two real estate
brokers shall select a third licensed real estate broker, and the three
licensed real estate brokers so selected shall determine the amount of the
rental loss that could be reasonably avoided from the balance of the term of
this Lease after the time of award. The decision of the majority of said
licensed real estate brokers shall be final and binding upon the parties
hereto.
(b) The rights and remedies provided by California Civil
Code Section which allows Landlord to continue to Lease in effect and to
enforce all of its rights and remedies under this Lease, including the right
to recover rent as it becomes due, for so long as Landlord does not terminate
Tenant's right to possession; acts of maintenance or preservation, efforts to
relet the Premises, or the appointment of a receiver upon Landlord's
initiative to protect its interest under this Lease shall not constitute a
termination of Tenant's right to possession.
(c) The right to terminate this Lease by giving notice to
Tenant in accordance with applicable law.
(d) To the extent permitted by law, the right and power to
enter the Premises and remove therefrom all persons and property, to store
such property in a public warehouse or elsewhere at the cost of and for the
account of Tenant, and to sell such property and apply such proceeds
therefrom pursuant to applicable California law. Landlord may from time to
time sublet the Premises or any part thereof for such term or terms (which
may extend beyond the term of this Lease) and at such rent and such other
terms as Landlord in its sole discretion may deem advisable, with the right
to make alterations and repairs to the Premises. Upon each subletting, (i)
Tenant shall be immediately liable to pay Landlord, in addition to
indebtedness other than rent due hereunder, the cost of such subletting,
including, but not limited to, reasonable attorneys' fees, and any real
estate commissions actually paid, and the cost of such alterations and
repairs incurred by Landlord and the amount, if any, by which the rent
hereunder for the period of such subletting (to the extent such period does
not exceed the term hereof) exceeds the amount to be paid as rent for the
Premises for such period or (ii) at the option of Landlord, rents received
from such subletting shall be applied first to payment of indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such subletting and of such alterations and repairs; third to
payment of rent due and unpaid
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hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same becomes due hereunder. If Tenant has been
credited with any rent to be received by such subletting under option (i) and
such rent shall not be promptly paid to Landlord by subtenant(s), or if such
rentals received from such subletting under option (ii) during any month be
less than to be paid during the month by Tenant hereunder, Tenant shall pay
any such deficiency to landlord. Such deficiency shall be calculated and paid
monthly. For all purposes set forth in this subparagraph d, no taking
possession of the Premises by Landlord shall be construed as an election on
its part to terminate this Lease unless a written notice of such intention be
given to Tenant. Notwithstanding any such subletting without termination,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach.
(e) The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and
remedies granted to Landlord pursuant to subparagraph d above.
23. ABANDONMENT. Tenant shall not vacate or abandon the Premises at
any time during the term of this Lease and if Tenant shall abandon, vacate or
surrender said Premises, or be dispossessed by the process of law, or
otherwise, any personal property belonging to Tenant and left on the Premises
shall be deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Landlord.
24. DESTRUCTION. In the event the Premises are destroyed in whole or
in part from any cause, except for routine maintenance and repairs and
incidental damage and destruction caused by vandalism and accidents for which
Tenant is responsible for under Xxxxxxxxx 00, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their
condition prior to the damage or destruction, or
(b) Terminate this Lease (providing that the Premises is
damaged to the extent of 33-1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within thirty
(30) days from the destruction of the Premises of its election to either
rebuild or restore them, or to terminate this Lease, Landlord shall be deemed
to have elected to rebuild or restore them, in which event Landlord agrees,
at its expense, promptly to rebuild or restore the Premises to their
condition prior to the damage or destruction. However, Tenant shall be
responsible for paying one hundred percent (100%) of the insurance
deductible, provided the damage is exclusive to Tenant's Leased Premises; if
the damage is non-exclusive to Tenant's Leased Premises and Tenant did not
cause said damage, Tenant shall pay its pro-rata share of the deductible.
Tenant shall be entitled to a reduction in rent while such repair is being
made in the proportion that the area of the Premises rendered untenantable by
such damage bears to the total area of the Premises. If Landlord initially
estimates that the rebuilding or restoration will exceed one hundred eighty
(180) days or if Landlord does not complete the rebuilding or restoration
within one hundred eighty (180) days following the date of destruction (such
period of time to be extended for delays caused by the
17.
fault or neglect of Tenant or because of Acts of God, acts of subcontractors,
or delay of the contractors or subcontractors due to such causes or other
contingencies beyond the control of Landlord), then Tenant shall have the
right to terminate this Lease by giving fifteen (15) days prior written
notice to Landlord. Notwithstanding anything herein to the contrary,
Landlord's obligation to rebuild or restore shall be limited to the building
and interior improvements constructed by Landlord as they existed as of the
commencement date of the Lease and shall not include restoration of Tenant's
trade fixtures, equipment, merchandise, or any improvements, alterations or
additions made by Tenant to the Premises, which Tenant shall forthwith
replace or fully repair at Tenant's sole cost and expense provided this Lease
is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect. Tenant hereby
expressly waives the provisions of Section 1932, Subdivision 2, in Section
1933, Subdivision 4 of the California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33-1/3% of the
replacement cost thereof, Landlord may elect to terminate this Lease, whether
the Premises be injured or not. Notwithstanding anything to the contrary
herein, Landlord may terminate this Lease in the event of an uninsured event
or if insurance proceeds are insufficient to cover 100% of the rebuilding
costs net of the deductible.
25. EMINENT DOMAIN. If all or any part of the Premises shall be
taken by any public or quasi-public authority under the power of eminent
domain or conveyance in lieu thereof, this Lease shall terminate as to any
portion of the Premises so taken or conveyed on the date when title vests in
the condemnor, and Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such taking or conveyance, and Tenant shall have no claim
against Landlord or otherwise for the value of any unexpired term of this
Lease. Notwithstanding the foregoing paragraph, any compensation specifically
awarded Tenant for loss of business, Tenant's personal property, moving cost
or loss of goodwill, shall be and remain the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any
entity or body having the right or power of condemnation of its intention to
condemn the premises or any portion thereof, or (ii) any foregoing events
occur with respect to the taking of any space in the Complex not leased
hereby, or if any such spaces so taken or conveyed in lieu of such taking and
Landlord shall decide to discontinue the use and operation of the Complex, or
decide to demolish, alter or rebuild the Complex, then, in any such events
Landlord shall have the right to terminate this Lease by giving Tenant
written notice thereof within sixty (60) days of the date of receipt of said
written advice, or commencement of said action or proceeding, or taking
conveyance, which termination shall take place as of the first to occur of
the last day of the calendar month next following the month in which such
notice is given or the date on which title to the Premises shall vest in the
condemnor.
18.
In the event of such a partial taking or conveyance of the Premises,
if the portion of the Premises taken or conveyed is so substantial that the
Tenant can no longer reasonably conduct its business, Tenant shall have the
privilege of terminating this Lease within sixty (60) days from the date of
such taking or conveyance, upon written notice to Landlord of its intention
so to do, and upon giving of such notice this Lease shall terminate on the
last day of the calendar month next following the month in which such notice
is given, upon payment by Tenant of the rent from the date of such taking or
conveyance to the date of termination.
If a portion of the Premises be taken by condemnation or conveyance
in lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter
the rent to be paid by Tenant shall be in the ratio that the area of the
portion of the Premises not so taken or conveyed bears to the total area of
the Premises prior to such taking.
26. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or
conveyance of the Complex or any interest therein, by an owner of the
reversion then constituting Landlord, the transferor shall thereby be
released from any further liability upon any of the terms, covenants or
conditions (express or implied) herein contained in favor of Tenant, and in
such event, insofar as such transfer is concerned. Tenant agrees to look
solely to the responsibility of the successor in interest of such transferor
in and to the Complex and this Lease. This Lease shall not be affected by any
such sale or conveyance, and Tenant agrees to attorn to the successor in
interest of such transferor.
27. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest
of Landlord in the land and buildings in which the leased Premises are
located (whether such interest of Landlord is a fee title interest or a
leasehold interest) is encumbered by deed of trust, and such interest is
acquired by the lender or any third party through judicial foreclosure or by
exercise of a power of sale at private trustee's foreclosure sale, Tenant
hereby agrees to attorn to the purchaser at any such foreclosure sale and to
recognize such purchaser as the Landlord under this Lease. In the event the
lien of the deed of trust securing the loan from a Lender to Landlord is
prior and paramount to the Lease, this Lease shall nonetheless continue in
full force and effect for the remainder of the unexpired term hereof, at the
same rental herein reserved and upon all the other terms, conditions and
covenants herein contained.
28. HOLDING OVER. Any holding over by Tenant after expiration or
other termination of the term of this Lease with the written consent of
Landlord delivered to Tenant shall not constitute a renewal or extension of
the Lease or give Tenant any rights in or to the Leased Premises except as
expressly provided in this Lease. Any holding over after the expiration or
other termination of the term of this Lease, with the consent of Landlord,
shall be construed to be a tenancy from month to month, on the same terms and
conditions herein specified insofar as applicable except that the monthly
Basic Rent shall be increased to an amount equal to one hundred fifty percent
(150%) of the monthly Basic Rent required during the last month of the Lease
term.
19.
29. CERTIFICATE OF ESTOPPEL. Tenant shall at any time upon not less
than ten (10) days' prior written notice from Landlord execute, acknowledge
and deliver to Landlord a statement in writing (i) certifying that this Lease
is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified,
is in full force and effect) and the date to which the rent and other charges
are paid in advance, if any, and (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder,
or specifying such defaults, if any, are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant that this Lease is in full force and effect,
without modification except as may be represented by Landlord; that there are
no uncured defaults in Landlord's performance, and that not more than one
month's rent has been paid in advance.
30. CONSTRUCTION CHANGES. It is understood that the description of
the Premises and the location of ductwork, plumbing and other facilities
therein are subject to such minor changes as Landlord or Landlord's architect
determines to be desirable in the course of construction of the Premises, and
no such changes, or any changes in plans for any other portions of the
Complex shall affect this Lease or entitle Tenant to any reduction of rent
hereunder or results in any liability of Landlord to Tenant. Landlord does
not guarantee the accuracy of any drawings supplied to Tenant and
verification of the accuracy of such drawings rests with Tenant.
31. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and
conditions of this Lease to be performed or observed by Tenant shall be
performed or observed by Tenant at Tenant's sole cost and expense and without
any reduction of rent. If Tenant shall fail to pay any sum of money, or other
rent, required to be paid by it hereunder and such failure shall continue for
five (5) days after written notice thereof by Landlord, or shall fail to
perform any other term or covenant hereunder on its part to be performed, and
such failure shall continue for thirty (30) days after written notice thereof
by Landlord, Landlord, without waiving or releasing Tenant from any
obligation of Tenant hereunder, may, but shall not be obligated to, make any
such payment or perform any such other term or covenant on Tenant's part to
be performed. All sums so paid by Landlord and all necessary costs of such
performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the
date of such payment or performance by Landlord, shall be paid (and Tenant
covenants to make such payment) to Landlord on demand by Landlord, and
Landlord shall have (in addition to any other right or remedy of Landlord)
the same rights and remedies in the event of nonpayment by Tenant as in the
case of failure by Tenant in the payment of rent hereunder.
32. ATTORNEYS' FEES.
(a) In the event that either Landlord or Tenant should
bring suit for the possession of the Premises, for the recovery of any sum
due under this Lease, or because of the breach of any provision of this
Lease, or for any other relief against the other party hereunder, then all
costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party therein shall be paid by the other party, which obligation
on the part of the other party shall be
20.
deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgement.
(b) Should Landlord be named as a defendant in any suit
brought against Tenant in connection with or arising out of Tenant's
occupancy hereunder, Tenant shall pay to Landlord its costs and expenses
incurred in such suit, including a reasonable attorney's fee.
33. WAIVER. The waiver by either part of the other party's failure
to perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a
waiver of such term, covenant or condition or of any subsequent failure to
the party failing to perform or observe the same or any other such item,
covenant or condition therein contained, and no custom or practice which may
develop between the parties hereto during the term hereof shall be deemed a
waiver of, or in any way affect, the right of either party to insist upon
performance and observance by the other party in strict accordance with the
terms hereof.
34. NOTICES. All notices, demands, requests, advices or designations
which may be or are required to be given by either party to the other
hereunder shall be in writing. All notices, demands, requests, advices or
designations by Landlord to Tenant shall be sufficiently given, made or
delivered if personally served on Tenant by leaving the same at the Premises
or if sent by United States certified or registered mail, postage prepaid,
addressed to Tenant at the Premises. All notices, demands, requests, advices
or designations by Tenant to Landlord shall be sent by United States
certified or registered mail, postage prepaid, addressed to Landlord at its
offices at Xxxxx/Xxxxxxxxx, 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx
Xxxxx, XX 00000. Each notice, request, demand, advice or designation referred
to in this paragraph shall be deemed received on the date of the personal
service or mailing thereof in the manner herein provided, as the case may be.
35. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for a lease, and this instrument is not effective as a lease or
otherwise until its execution and delivery by both Landlord and Tenant.
36. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no event earlier than 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 heretofore
been furnished to Tenant in writing, specifying wherein landlord has failed
to perform such obligations; provided, however, that if the nature of
Landlord's obligations is such that more than thirty (30) days are required
for performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.
37. CORPORATE AUTHORITY. If Tenant is a corporation (or a
partnership), each individual executing this Lease on behalf of said
corporation (or partnership) represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said corporation
21.
(or partnership) in accordance with the by-laws of said corporation (or
partnership in accordance with the partnership agreement) and that this Lease
is binding upon said corporation (or partnership) in accordance with its
terms if Tenant is a corporation, Tenant shall, within thirty (30) days after
execution of this Lease, deliver to Landlord a certified copy of the
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
38. LIMITATION OF LIABILITY. In consideration of the benefits
accruing hereunder, Tenant and all successors and assigns covenant and agree
that, in the event of any actual or alleged failure, breach or default
hereunder by Landlord:
(i) the sole and exclusive remedy shall be against
Landlord and Landlord's assets;
(ii) no partner of Landlord shall be sued or named as a
party in any suit or action (except as may be necessary to secure
jurisdiction of the partnership);
(iii) no service of process shall be made against any
partner of Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(iv) no partner of Landlord shall be required to
answer or otherwise plead to an service of process;
(v) no judgment will be taken against any partner of
Landlord;
(vi) any judgment taken against any partner of Landlord may
be vacated and set aside at any time without hearing;
(vii) no writ of execution will ever be levied against the
assets of any partner of Landlord;
(viii) these covenants and agreements are enforceable both
by landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements
shall be applicable to any covenant or agreement either expressly contained
in this Lease or imposed by statute or at common law.
39. MISCELLANEOUS AND GENERAL PROVISIONS.
(a) Tenant shall not, without the written consent of
Landlord, use the name of the building for any purpose other than as the
address of the business conducted by Tenant in the Premises.
(b) This Lease shall in all respects be governed by and
construed in accordance with the laws of the State of California. If any
provision of this Lease shall be invalid, unenforceable or ineffective for
any reason whatsoever, all other provisions hereof shall be and remain in
full force and effect.
22.
(c) The term "Premises" includes the space leased hereby
and any improvements now or hereafter installed therein or attached thereto.
The term "Landlord" or any pronoun used in place thereof includes the plural
as well as the singular and the successors and assigns of Landlord. The term
"Tenant" or any pronoun used in place thereof includes the plural as well as
the singular and individuals, firms, associations, partnerships and
corporations, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the benefit of and
bind such heirs, executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings of
this Lease are for convenience of reference only and shall have no effect upon
the construction of any provision hereof.
(d) Time is of the essence of this Lease and of each and all
of its provisions.
(e) At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days
after written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in the
State of California, to remove the cloud or encumbrance created by this Lease
from the real property of which Tenant's Premises are a part.
(f) This instrument along with any exhibits and attachments
hereto constitutes the entire agreement between Landlord and Tenant relative to
the Premises and this agreement and the exhibits and attachments may be altered,
amended or revoked only by an instrument in writing signed by both Landlord and
Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral
agreements between and among themselves and their agents or representatives
relative to the leasing of the Premises are merged in or revoked by this
agreement.
(g) Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
(h) Tenant further agrees to execute any amendments required
by a lender to enable Landlord to obtain financing, so long as Tenant's rights
hereunder are not substantially affected.
(i) Paragraphs 43 through 54 are added hereto and are
included as a part of this lease.
(j) Clauses, plats and riders, if any, signed by Landlord
and Tenant and endorsed on or affixed to this Lease are a part hereof.
(k) Tenant covenants and agrees that no diminution or
shutting off of light, air or view by any structure which may be hereafter
erected (whether or not by Landlord) shall in
23.
any way affect his Lease, entitle Tenant to any reduction of rent hereunder
or result in any liability of Landlord to Tenant.
41. BROKERS. Tenant warrants that it had dealings with only the
following real estate brokers or agents in connection with the negotiation of
this Lease: none; and that it knows of no other real estate broker or agent
who is entitled to a commission in connection with this Lease.
42. SIGNS. No sign, placard, picture, advertisement, name or notice
shall be inscribed, displayed or printed or affixed on or to any part of the
outside of the Premises or any exterior windows of 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. If Tenant is allowed
to print or affix or in any way place a sign in, on, or about the Premises,
upon expiration or other sooner termination of this Lease, Tenant at Tenant's
sole cost and expense shall both remove such sign and repair all damage in
such a manner as to restore all aspects of the appearance of the Premises to
the condition prior to the placement of said sign.
All approved signs or lettering on outside of doors shall be
printed, painted, affixed or inscribed at the expense of Tenant by a person
approved of by Landlord. Tenant shall not place anything or allow anything to
be placed near the glass of any window, door partition or wall which may
appear unsightly from outside the Premises.
Paragraphs 43 through 51 to Lease Agreement dated August 16, 1994,
By and Between the Xxxx Xxxxxxxxx and Xxxxxxx X. Xxxxx Separate Property
Trusts, as Landlord, and Quantum Effect Design, Inc., a California
corporation, as Tenant for 23,375 PLUS OR MINUS Square Feet of Space Located
at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx.
43. BASIC RENT. In accordance with Paragraph 4(A) herein, the total
aggregate sum of THREE MILLION FOUR HUNDRED THIRTY SIX THOUSAND ONE HUNDRED
TWENTY FIVE AND NO/100 DOLLARS ($3,436,125.00), shall be payable as follows:
On November 1, 1999, the sum of FIFTY TWO THOUSAND FIVE HUNDRED
NINETY THREE AND 75/100 DOLLARS ($52,593.75) shall be due, and a like sum due
on the first day of each month thereafter, through and including October 1,
2000.
On November 1, 2000, the sum of FIFTY FOUR THOUSAND NINE HUNDRED
THIRTY ONE AND 25/100 DOLLARS ($54,931.25) shall be due, and a like sum due
on the first day of each month thereafter, through and including October 1,
2001.
On November 1, 2001, the sum of FIFTY SEVEN THOUSAND TWO HUNDRED
SIXTY EIGHT AND 75/100 DOLLARS ($57,268.75) shall be due, and a like sum due
on the first day of each month thereafter, through and including October 1,
2002.
24.
On November 1, 2002, the sum of FIFTY NINE THOUSAND SIX HUNDRED
SIX AND 25/100 DOLLARS ($59,606.25) shall be due, and a like sum due on the
first day of each month thereafter, through and including October 1, 2003.
On November 1, 2003, the sum of SIXTY ONE THOUSAND NINE HUNDRED
FORTY THREE AND 75/100 DOLLARS ($61,943.75) shall be due, and a like sum due
on the first day of each month thereafter, through and including October 1,
2004, or until the entire aggregate sum of THREE MILLION FOUR HUNDRED THIRTY
SIX THOUSAND ONE HUNDRED TWENTY FIVE AND NO/100 DOLLARS ($3,436,125.00) has
been paid.
44. "AS-IS" BASIS. It is hereby agreed that the Premises leased
hereunder is leased strictly on an "as-is" basis and in its present
condition, and in the configuration as shown on Exhibit B to be attached
hereto, and by reference made a part hereof. It is specifically agreed
between the parties that Landlord shall not be required to make, nor be
responsible for any cost, in connection with any repair, restoration, and/or
improvement to the Premises in order for this Lease to commence, or
thereafter, throughout the Term of this Lease. Notwithstanding anything to
the contrary within this Lease, Landlord makes no warranty or representation
of any kind or nature whatsoever as to the condition or repair of the
Premises, nor as to the use or occupancy which may be made thereof.
45. CONSENT. Whenever the consent of one party to the other is
required hereunder, such consent shall not be unreasonably withheld.
46. CHOICE OF LAW: SEVERABILITY. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provisions of this Lease shall be invalid, unenforceable,
or ineffective for any reason whatsoever, all other provisions hereof shall
be and remain in full force and effect.
47. AUTHORITY TO EXECUTE. The parties executing this Lease Agreement
hereby warrant and represent that they are properly authorized to execute
this Lease Agreement and bind the parties on behalf of whom they execute this
Lease Agreement and to all of the terms, covenants and conditions of this
Lease Agreement as they relate to the respective parties hereto.
48. ASSESSMENT CREDITS. The demised property herein may be subject
to a special assessment levied by the City of Santa Xxxxx as part of an
Improvement District. As a part of said special assessment proceedings (if
any), additional bonds were or may be sold and assessments were or may be
levied to provide for construction contingencies and reserve funds. Interest
shall be earned on such funds created for contingencies and on reserve funds
which will be credited for the benefit of said assessment district. To the
extent surpluses are created in said district through unused contingency
funds, interest earnings or reserve funds, such surpluses shall be deemed the
property of Landlord. Notwithstanding that such surpluses may be credited on
assessments otherwise due against the Leased Premises, Tenant shall pay to
Landlord, as additional rent if, and at the time of any such credit of
surpluses. an amount equal to all such surpluses so credited. For example: if
(1) the property is subject to an annual assessment of $1,000.00 and (ii) a
surplus of $200.00 is credited towards the current year's assessment which
25.
reduces the assessment amount shown on the property tax xxxx from $1,000.00
to $800.00, Tenant shall, upon receipt of notice from Landlord, pay to
Landlord said $200.00 credit as Additional Rent.
49. ASSIGNMENT AND SUBLETTING (CONTINUED):
A. Notwithstanding the foregoing, Landlord and Tenant agree
that it shall not be unreasonable for Landlord to refuse to consent to a
proposed assignment, sublease or other transfer ("Proposed Transfer") if the
Promises or any other portion of the Property would become subject to
additional or different Government Requirements as a direct or indirect
consequence of the Proposed Transfer arid/or the Proposed Transferee's use
and occupancy of the Promises and the Property. However, Landlord may, in its
sole discretion, consent to such a Proposed Transfer where Landlord is
indemnified by Tenant and (i) Subtenant or (ii) Assignee, in form and
substance satisfactory to Landlord's counsel, by Tenant and/or the Proposed
Transferee from and against any and all costs, expenses. obligations and
liability arising out of the Proposed Transfer and/or the Proposed
Transferee's use and occupancy of the Premises and the Property.
B. Any and all sublease agreement(s) between Tenant and any
and all subtenant(s) (which agreements must be consented to by Landlord,
pursuant to the requirements of this Lease) shall contain the following
language:
"If Landlord and Tenant jointly and voluntarily
elect, for any reason whatsoever, to terminate the Master
Lease prior to the scheduled Master Lease termination date,
then this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease.
Subtenant expressly acknowledges and agrees that (1) the
voluntary termination of the Master Lease by Landlord and
Tenant and the resulting termination of this Sublease shall
not give Subtenant any right or power to make any legal or
equitable claim against Landlord, including without limitation
any claim for interference with contract or interference with
prospective economic advantage, and (2) Subtenant hereby
waives any and air rights it may have under law or at equity
against Landlord to challenge such an early termination of the
Sublease, and unconditionally releases and relieves Landlord,
and its officers, directors, employees and agents, from any
and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or
unknown, latent or apparent, suspected or unsuspected,
foreseeable or unforeseeable, which Subtenant may have arising
out of or in connection with any such early termination of
this Sublease. Subtenant knowingly and intentionally waives
any and all protection which is or may be given by Section
1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the
creditor does not
26.
know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with debtor.
The term of this Sublease is therefore subject to
early termination. Subtenant's initials here below evidence
(a) Subtenant's consideration of and agreement to this early
termination provision, (b) Subtenant's acknowledgment that, in
determining the net benefits to be derived by Subtenant under
the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement
to the general waiver and release of Claims above.
Initials: Initials:
------------------ ----------------
Subtenant Subtenant
50. BANKRUPTCY AND DEFAULT. Paragraph 22 is modified to provide that
with respect to non-monetary defaults not involving Tenant's failure to pay
Basic Rent or Additional Rent, To shall not be in default of any non-monetary
obligation if (i) more than thirty (30) days is required to cure such
non-monetary default, and (ii) Tenant commences cure of such default as soon
as reasonably practicable after receiving written notice of such default from
Landlord and thereafter `continuously and with due diligence prosecutes such
cure to completion.
51. ABANDONMENT. Paragraph 23 is modified to provide that Tenant
shall not be in default under the Lease if it leaves all or any part of
Premises vacant so long as (i) Tenant is performing all of its other
obligations under the Lease including the obligation to pay Basic Rent and
Additional Rent (ii) Tenant provides on-site security during normal business
hours for those parts of the Premises left vacant, (iii) such vacancy does
not materially and adversely affect the validity or coverage of any policy of
insurance carried by Landlord with respect to the Premises, and (iv) the
utilities and heating and ventilation system are operated and maintained to
the extent necessary to prevent damage to the Premises or its systems.
52. HAZARDOUS MATERIALS. Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Materials" (as defined herein)
on, in, under or about the Premises and real property located beneath said
Premises and the common areas of the Complex (hereinafter collectively
referred to as the "property"):
A. As used herein, the term "Hazardous Materials" shall mean any
material, waste, chemical, mixture or byproduct which is or hereafter is
defined, listed or designated under Environmental Laws (defined below) as a
pollutant, or as a contaminant, or as a toxic or hazardous substance, waste
or material, or any other unwholesome, hazardous, toxic, biohazardous, or
radioactive material, wage, chemical, mixture or byproduct. or which is
listed, regulated or restricted by any Environmental Law (including, without
limitation, petroleum hydrocarbons or any distillates or derivatives or
fractions thereof, polychlorinated biphenyls, or
27.
asbestos). As used herein, the term "Environmental Laws" shall mean any
applicable Federal. State of California or local government laws (including
common law), statute, regulation, rule, ordinance, permit, license, order,
requirement, agreement, or approval, or any determination, judgment,
directive, or order of any executive or judicial authority at any level of
Federal, State of California or local government (whether now existing or
subsequently adopted or promulgated) relating to pollution or the protection
of the environment, ecology, natural resources, or public health and safety.
B. Tenant shall obtain Landlord's written consent, which
may be withheld in Landlord's discretion, prior to the occurrence of any
Tenant's Hazardous Materials Activities (defined below); provided, however;
that Landlord's consent shall not be required for normal use in compliance
with applicable Environmental Laws of customary household and office supplies
(Tenant shall first provide Landlord with a list of said materials use), such
as mild cleaners, lubricants and copier toner. As used herein, the term
"Tenant's Hazardous Materials Activities" shall mean any and all use,
handling, generation, storage, disposal, treatment, transportation, release,
discharge, or emission of any Hazardous Materials on, in, beneath, to, from,
at or about the Property, in connection with Tenant's use of the Property, or
by Tenant or by any of Tenant's agents, employees, contractors, vendors,
invitees, visitors or its future subtenants or assignees. Tenant agrees that
any and all Tenant's Hazardous Materials Activities shall be conducted in
strict, full compliance with applicable Environmental Laws at Tenant's
expense, and shall not result in any contamination of the Property or the
environment. Tenant agrees to provide Landlord with prompt written notice of
any spill or release of Hazardous Materials at the Property during the term
of the Lea of which Tenant becomes aware,. and further agrees to provide
Landlord with prompt written notice of any violation of Environmental Laws in
connection with Tenant's Hazardous Materials Activities of which Tenant
becomes aware. If Tenant's Hazardous Materials Activities involve Hazardous
Materials other than normal use of customary household and office supplies,
Tenant also agrees at Tenant's expense: (i) to install such Hazardous
Materials monitoring, storage and containment devices as Landlord reasonably
deems necessary (Landlord shall have no obligation to evaluate the need for
any such installation or to require any such installation); (B) provide
Landlord with a written inventory of such Hazardous Materials, including an
update of same each year upon die anniversary date. of the Commencement Date
of the Lease ("Anniversary Date"); and (iii) on each Anniversary Date, to
retain a qualified environmental consultant, acceptable to Landlord, to
evaluate whether Tenant is in compliance with all applicable Environmental
Laws with respect to Tenant's Hazardous Materials Activities. Tenant, at its
expense, shall submit to Landlord a report from such environmental consultant
which discusses the environmental consultant's findings within two (2) months
of each Anniversary Date. Tenant, at its expense, shall promptly undertake
and complete any and all steps necessary, and in full compliance with
applicable Environmental Laws, to fully correct any and all problems or
deficiencies identified by the environmental consultant, and promptly provide
Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant,
at its expense, shall (i) properly remove from the Property all Hazardous
Materials which come to be located at the Property in connection with
Tenant's Hazardous Materials Activities, and (ii) fully comply with and
complete all facility closure requirements of applicable Environmental Laws
regarding
28.
Tenant's Hazardous Materials Activities, including but not limited to (x)
properly restoring and repairing the Property to the extent damaged by such
closure activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence
that closure has been completed in compliance with applicable Environmental
Laws. Tenant shall promptly provide Landlord with copies of any claims,
notices, work plans, data and reports prepared, received or submitted in
connection with any such closure activities.
D. If Landlord, in its sole discretion, believes that the
Property has become contaminated as a result of Tenant's Hazardous Materials
Activities, Landlord in addition to any other rights it may have under this
Lease or under Environmental. Laws or other laws, may enter upon the Property
and conduct inspection, sampling and analysis, including but not limited to
obtaining and analyzing samples of soil and groundwater, for the purpose of
determining the nature and extent of such contamination. Tenant shall
promptly reimburse Landlord for the costs of such an investigation, including
but not limited to reasonable attorneys' fees Landlord incurs with respect to
such investigation, that discloses Hazardous Materials contamination for
which Tenant is liable under this Lease. Notwithstanding the above, Landlord
may, at its option and in its sole and absolute discretion, choose to perform
remediation and obtain reimbursement for cleanup costs as set forth herein
from Tenant. Any cleanup costs incurred by Landlord as the result of Tenant's
Hazardous Materials Activities shall be reimbursed by Tenant within thirty
(30) days of presentation of written documentation of the expense to Tenant
by Landlord. Such reimbursable costs shall include, but not be limited to,
any reasonable consultant and attorney fees incurred by Landlord. Tenant
shall take all actions necessary to preserve any claims it has against third
parties, including, but not limited to, its insurers, for claims related to
its operation, management of Hazardous Materials or contamination of the
Property. Except as may be required of Tenant by applicable Environmental
Laws, Tenant shall not perform any sampling, testing, or drilling to identify
the presence of any Hazardous Materials at the Property, without Landlord's
prior written consent which my be withheld in Landlord's discretion. Tenant
shall promptly provide Landlord with copies of any claim, notices, work
plans, data and reports prepared, received or submitted in connection with
any sampling, testing or drilling performed pursuant to the preceding
sentence.
E. Tenant shall indemnify, defend (with legal counsel
acceptable to Landlord, whose consent shall not unreasonably be withheld) and
hold harmless Landlord its employees, assigns, successors,
successors-in-interest agents and representatives from and against any and
all claims (including but not limited to third party claims from a private
party or it government authority), liabilities, obligations, losses, causes
of action, demands, governmental proceedings or directives, fines, penalties,
expenses, costs (including but not limited to reasonable attorneys',
consultants' and other experts' fees and costs), and damages, which arise
from or relate to: (i) Tenant's Hazardous Materials Activities; (ii) any
Hazardous Materials contamination caused by Tenant prior to the Commencement
Date of the Lease or (iii) the breach of any obligation of Tenant under this
Paragraph 52 (collectively, "Tenant's Environmental Indemnification").
Tenant's Environmental Indemnification shall Include but is not limited to
the obligation to promptly and fully reimburse Landlord for losses in or
reductions to rental income, and diminution in fair market value of the
Property. Tenant's Environmental Indemnification shall further include but is
not limited to the obligation to diligently and properly implement to
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completion, at Tenant's expense, any and all environmental investigation,
removal, remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, "Response Actions"). Tenant
shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with
any Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous
Materials will survive the expiration or termination of this Lease and that
Landlord may obtain specific performance of Tenant's responsibilities under
this Paragraph 52.
53. CROSS DEFAULT. It is acknowledged that concurrently with the
execution of this Lease, Landlord and Tenant are also executing Amendment No.
3 dated August 16, 1999 to Lease Agreement dated September 14, 1994
(hereinafter referred to as the "Existing Lease" affecting property located
at 0000-0 Xxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx. As a material part
of the consideration for the execution of this Lease by Landlord, it is
agreed between Landlord and Tenant that a default under this Lease, or a
default under the Existing Lease may, at the option of Landlord be considered
a default under both leases, in which event Landlord shall be entitled (but
in no event required) to apply all rights and remedies of Landlord under the
terms of one lease to both leases including, but not limited to, the right to
terminate one or both of said leases by reason of a default under said
Existing Lease or hereunder.
54. LEASE CONTINGENT UPON LANDLORD OBTAINING TERMINATION AGREEMENT
WITH CURRENT TENANT. This Lease is subject to and conditional upon Landlord
obtaining from Ambit Design Systems, Inc. ("Ambit"), the current tenant
occupying Premises leased hereunder, a Termination Agreement satisfactory to
Landlord on or before October 31, 1999. In the event Landlord is unable to
obtain said satisfactory Termination Agreement on or before October 31, 1999,
this Lease Agreement shall, at Landlord's option (a) be rescinded, or (b) the
Commencement Date hereof shall be modified to reflect the date Landlord so
obtains said satisfactory Termination Agreement and receives possession of
the Premises hereunder free and clear of Ambit's occupancy; provided,
however, that said period of delay caused by Ambit shall not extend beyond
November 30, 1999. In the event this Lease does not commence by December 1,
1999 (subject only to the delays covered in Paragraph 3) this Lease shall be
automatically rescinded.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SEPARATE PROPERTY QUANTUM EFFECT DESIGN, INC., a California
TRUST corporation
By: \s\ Xxxx Xxxxxxxxx By: \s\ X. X. Xxxxx
------------------------- ------------------------------
XXXX XXXXXXXXX, Trustee
XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST Title: Director - Human Resources
---------------------------
By: \s\ Xxxxxxx X. Xxxxx
--------------------------
XXXXXXX X. XXXXX, Trustee Type of Print Name: X.X. XXXXX
--------------
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