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EXHIBIT 10.5
[2101 XXXXXXX LOGO]
OFFICE LEASE
XXXXXXX STREET PARTNERS, LTD.,
A California Limited Partnership
"LANDLORD"
VISION SOFTWARE TOOLS, INC.
A California Corporation
"TENANT"
Dated for reference purposes as of:
June 17, 1997
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TABLE OF CONTENTS
BASIC LEASE TERMS .............................................................4
1. PREMISES AND COMMON AREAS LEASED ..........................................7
2. TERM ......................................................................8
3. POSSESSION ................................................................8
4. MONTHLY BASIC RENT ........................................................8
5. RENTAL ADJUSTMENT .........................................................8
6. SECURITY DEPOSIT .........................................................11
7. USE ......................................................................12
8. PAYMENTS AND NOTICES .....................................................12
9. BROKERS ..................................................................12
10. HOLDING OVER .............................................................12
11. TAXES ON TENANT'S PROPERTY ...............................................13
12. CONDITION OF PREMISES ....................................................13
13. ALTERATIONS ..............................................................13
14. REPAIRS ..................................................................15
15. LIENS ....................................................................16
16. ENTRY BY LANDLORD ........................................................16
17. UTILITIES AND SERVICES ...................................................16
18. INDEMNIFICATION ..........................................................18
19. DAMAGE TO TENANT'S PROPERTY ..............................................18
20. INSURANCE ................................................................19
21. DAMAGE OR DESTRUCTION ....................................................20
22. EMINENT DOMAIN ...........................................................21
23. DEFAULTS AND REMEDIES ....................................................22
24. ASSIGNMENT AND SUBLETTING ................................................23
25. QUIET ENJOYMENT ..........................................................25
26. SUBORDINATION ............................................................25
27. ESTOPPEL CERTIFICATE .....................................................26
28. BUILDING PLANNING ........................................................26
29. RULES AND REGULATIONS ....................................................26
30. CONFLICT OF LAWS .........................................................26
31. SUCCESSORS AND ASSIGNS ...................................................26
32. SURRENDER OF PREMISES ....................................................27
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33. PROFESSIONAL FEES ........................................................27
34. PERFORMANCE BY TENANT ....................................................27
35. MORTGAGE AND SENIOR LESSOR PROTECTION ....................................27
36. DEFINITION OF LANDLORD ...................................................28
37. WAIVER ...................................................................28
38. IDENTIFICATION OF TENANT .................................................28
39. PARKING AND TRANSPORTATION ...............................................28
40. OFFICE AND COMMUNICATIONS SERVICES .......................................29
41. TERMS AND HEADINGS .......................................................30
42. EXAMINATION OF LEASE .....................................................30
43. TIME .....................................................................30
44. PRIOR AGREEMENT; AMENDMENTS ..............................................30
45. SEPARABILITY .............................................................30
46. RECORDING ................................................................30
47. LIMITATION ON LIABILITY ..................................................31
48. RIDERS ...................................................................31
49. SIGNS ....................................................................31
50. MODIFICATION FOR LENDER ..................................................31
51. ACCORD AND SATISFACTION ..................................................31
52. FINANCIAL STATEMENTS .....................................................31
53. TENANT AS CORPORATION ....................................................31
54. NO PARTNERSHIP OR JOINT VENTURE ..........................................31
55. AMERICANS WITH DISABILITIES ACT ..........................................32
56. HAZARDOUS MATERIALS ......................................................32
57. ARBITRATION OF DISPUTES ..................................................35
58. NOTICES ..................................................................35
RIDER NO. 1 TO OFFICE LEASE ..................................................37
EXHIBITS
A. OUTLINE OF FLOOR PLAN OF PREMISES ........................................40
B. SITE PLAN ................................................................41
C. LANDLORD'S WORK ..........................................................42
D. SAMPLE FORM OF NOTICE OF LEASE COMMENCEMENT ..............................43
E. SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE ...............................44
F. RULES AND REGULATIONS ....................................................46
G. NON DISTURBANCE ..........................................................51
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0000 XXXXXXX XXXXXX
BASIC LEASE TERMS
This Office Lease (the "Lease") is made and entered into as of the date
hereinafter set forth between Landlord and Tenant (as such parties are
hereinafter defined). For and in consideration of the payment of all rent to be
paid by Tenant hereunder (including, but not limited to, Tenant's Percentage
Share of Operating Expense and Tenant's Percentage Share of Real Property Taxes
[as hereinafter defined] and of the covenants and agreements hereinafter set
forth to be kept and performed by Tenant, Landlord hereby leases to Tenant the
Premises for the Term beginning on the Commencement Date (as such terms are
hereinafter defined), at the rent and subject to and upon all of the terms and
agreements hereinafter set forth.
The Standard Office Lease Provisions ("Standard Provisions") attached
hereto are incorporated herein by this reference.
1. Landlord: XXXXXXX STREET PARTNERS, LTD.,
A CALIFORNIA LIMITED PARTNERSHIP.
2. Landlord's Address: Copy To:
XXXXXXX STREET PARTNERS, LTD. XXXXXXX STREET PARTNERS, LTD.
Attn: Xxxx X. Xxxxxxxxx Attn: Building Manager
0000 Xxxxx Xxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 Suite 1475
Xxxxxxx, Xxxxxxxxxx 00000
3. Tenant:
VISION SOFTWARE TOOLS, INC., A CALIFORNIA CORPORATION.
4. Tenant's Address: Copy To:
VISION SOFTWARE TOOLS, INC. XXXXXXX, XXXXXXX & XXXXXXXX LLP
0000 XXXXXXX XXXXXX, 0XX XXXXX XXXXX XXXXXX XXXXX
XXXXXXX, XX 00000 ONE MARKET
ATTN: MR. XXXX XXXXXX, CFO XXX XXXXXXXXX, XX 00000
ATTN: XXXXX XXXX XXXXX, ESQ.
5. Addresses:
(a) Office Building (b) Multi-Story Parking
and Basement Garage: Facility:
0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx
00000 94612
6. Suite Number: 800
7. Floor(s) upon which the Premises are located: 8TH FLOOR
8. Premises: Those certain premises defined in Subparagraph 1(a)
of the Standard Provisions.
9. Site: The parcel or parcels of real property defined in
Subparagraph 1(a) of the Standard Provisions.
10. Rentable Square Feet within Premises: 23,470 RENTABLE SQUARE
FEET
11. Landlord's Work: Tenant improvements with respect to the
Premises as more particularly defined in Exhibit "C".
12. Tenant Improvement Allowance: $-0- per unsable square foot of
Premises.
13. Commencement Date: DECEMBER 1, 1997
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14. Commencement Date: [INTENTIONALLY DELETED]
15. Expiration Date: NOVEMBER 30, 2000
16. Monthly Basic Rent: YEAR 1 $1.55/RENTABLE SQUARE FOOT
YEAR 2 $1.60/RENTABLE SQUARE FOOT
YEAR 3 $1.65/RENTABLE SQUARE FOOT
17. Operating Expense Stop: THE ACTUAL OPERATING EXPENSES INCURRED
IN CALENDAR YEAR 1998. THE OPERATING EXPENSES WILL BE ADJUSTED FOR THE LARGER OF
ACTUAL LEASING LEVELS OR NINETY-FIVE PERCENT (95%) LEASING LEVELS.
18. Real Property Taxes Stop: THE ACTUAL REAL PROPERTY TAXES
INCURRED IN CALENDAR YEAR 1998. THE BUILDING IS CURRENTLY 100% ASSESSED.
19. Tenant's Percentage Share: 5.10%
20. Security Deposit: Waived.
21. Permitted Use: General Office Use.
22. Brokers: XXXXXXX XXXXXXXX OF CB COMMERCIAL IS RECOGNIZED AS
TENANT'S BROKER IN THIS TRANSACTION AND WILL BE PAID A COMMISSION BY THE
LANDLORD PURSUANT TO A LEASING COMMISSION AGREEMENT. LANDLORD IS REPRESENTED BY
XXXX XXXXXXXX AND XXXXX XXXX OF XXXXX & XXXXX AND WILL BE PAID A COMMISSION BY
THE LANDLORD PURSUANT TO A LISTING SERVICES AGREEMENT
23. Landlord's Construction Representative: XXXXX XXXXXXXX
24. Tenant's Construction Representative: XXXX XXXXXX
25. Parking: 2 standard automobile parking spaces in the Basement
Garage and 35 standard automobile parking spaces in the Multi-Story Parking
Facility. ALL PARKING IS OFFERED AT PREVAILING MARKET RATES.
CURRENT MONTHLY RATES: 0000 XXXXXXX XXXXX XXXX $177.00
0000 XXXXXXX XXXXX XXXX $100.00
2353 XXXXXXX SELF PARK $83.00**
**(PAY FOR 4 MONTHS, GET
ONE MONTH FREE)
RATES INCLUDE CITY OF
OAKLAND PARKING TAXES.
26. Riders: 1 through 1 inclusive, which Riders are attached to this
Lease and are incorporated herein by this reference.
27. Lease Year: A period of 12 consecutive calendar months
commencing on the Commencement Date or any anniversary of the Commencement Date.
28. Basement Garage: That certain basement garage defined in
subparagraph 2(a) of the Standard Provisions.
29. Multi-Story Parking Facility: That certain multi-story parking
facility defined in Subparagraph 1(a) of the Standard Provisions.
30. Exhibits: A through G inclusive, which Exhibits are attached to
this Lease and are incorporated herein by this reference.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
this 17th day of June, 1997
TENANT: LANDLORD:
VISION SOFTWARE TOOLS, INC. XXXXXXX STREET PARTNERS, LTD.
a California corporation a California limited partnership
By: X.X. XXXXXX XX. By: CHASKOW FOUR ASSOCIATES, LTD.
---------------------------------- a California limited partnership
its general partner
Its: VP & CFO By: CHASKOW FOUR,
-------------------------------- a California limited partnership
its general partner
Print Name: X.X. Xxxxxx Xx. By: XXXXXX HOLDINGS, INC.
------------------------- a California corporation
its general partner
By: /s/ XXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxxx
Vice President
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2101 XXXXXXX
STANDARD OFFICE LEASE PROVISIONS
The following Standard Office Lease Provisions are attached to and are
made a part of that certain Office Lease between Xxxxxxx Street Partners, Ltd.,
a California limited partnership, as Landlord, and Vision Software Tools, Inc.,
a California limited partnership, as Tenant, dated as of this 17th day of June,
1997.
1. PREMISES AND COMMON AREAS LEASED
(a) Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, the premises contained within the suite designated in the
Basic Lease Terms, outlined on the Floor Plan attached hereto and marked
Exhibit "A" (the "Premises"), of that certain twenty story office
building ("Office Tower") and basement garage ("Basement Garage")
located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, "Multi-Story
Parking Facility" (exclusive of the YMCA facility) located at 0000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx. Said Office Tower and the Basement
Garage are collectively referred to as the "Building" and are located on
the parcels of real property (the "Site") described in the legal
descriptions and outlined on the site plans attached hereto and marked
Exhibit "B-1". The Multi-Story Parking Facility is located on the
parcels of real property (the "Parking Site") described in the legal
descriptions and outlined on the site plans attached hereto and marked
Exhibit "B-2". The Building, Site, Multi-Story Parking Facility and
Parking Site are collectively referred to as the "Property". The
Premises are to be improved by Landlord with the Landlord's Work
described in Exhibit "C" attached hereto and incorporated herein by this
reference. Said Premises being agreed, for the purposes of this Lease,
to have the number of rentable square feet designated in Paragraph 10 of
the Basic Lease Terms.
The parties hereto agree that said letting and hiring is upon
and subject to the terms, covenants and conditions herein set forth and
Tenant covenants as a material part of the consideration for this Lease
to keep and perform each and all of said terms, covenants and conditions
by it to be kept and performed and that this Lease is made upon the
condition of such performance.
(b) Tenant shall have the nonexclusive right to use in common
with other tenants in the Building and subject to the Rules and
Regulations referred to in Paragraph 30 below, the following areas
("Common Areas") appurtenant to the Premises.
(i) The common entrances, lobbies, restrooms, elevators,
stairways and accessways, and passageways and serviceways
thereto, any the common pipes, conduits, wires and appurtenant
equipment serving the Premises;
(ii) Parking areas (subject to the provisions of
Xxxxxxxxx 00 xxxxxxxxxxx), xxxxxxxx, sidewalks, walkways, and
driveways appurtenant to the Building.
(c) Landlord shall make all commercially reasonable efforts to
avoid any action under the provisions of this paragraph which would
materially or unreasonably interfere with Tenant's access to or use of
the Premises:
(i) To install, use, maintain, repair and replace pipes,
ducts, conduits, wires and appurtenant meters and equipment for
service to other parts of the Building above the ceiling
surfaces, below the floor surfaces, within the walls and in the
central core areas, and to relocate any pipes, ducts, conduits,
wires, and appurtenant meters and equipment included in the
Premises which are located in the Premises or located elsewhere
outside the Premises, and to expand the Building;
(ii) To make changes to the Common Areas, including,
without limitation, changes in the location, size, shape and
number of driveways, entrances, loading and unloading areas,
ingress, egress, direction of traffic, landscaped areas and
walkways and, subject to Paragraph 40, parking spaces and
parking areas;
(iii) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the
Premises remains available;
(iv) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Building,
or any portion thereof;
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(v) To do and perform such other acts and make such
other changes in, to or with respect to the Site, Common Areas
and Building as Landlord may, in the exercise of sound business
judgment, deem to be appropriate.
2. TERM.
The term of this Lease shall be for the period commencing on the
Commencement Date designated in Paragraph 13 of the Basic Lease Terms, and
ending on the Expiration Date designated in Paragraph 15 of the Basic Lease
Terms; unless the term hereby demised shall be sooner terminated as hereinafter
provided.
3. POSSESSION.
Landlord shall deliver possession of the Premises to Tenant on the
Commencement Date regardless of whether Landlord has completed Landlord's Work
by the Commencement Date. If Landlord has not completed Landlord's Work by the
Commencement Date, Landlord shall provide Tenant, upon the Commencement Date,
with a list of incomplete and/or corrective items, which list shall be approved
and acknowledged by Tenant and which items Landlord shall complete and/or
correct promptly thereafter. Landlord and Tenant agree that if Landlord has not
completed Landlord's Work by the Commencement Date, this Lease shall not be void
or voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom; provided, however, in the event any portion of the Premises
is rendered unusable (meaning Tenant is unable to conduct its normal course of
business for physical reasons) by Tenant as a result of Landlord's completion of
Landlord's Work after the Commencement Date, rent shall be abated, commencing on
the Commencement Date, in proportion to the portion of the Premises rendered
unusable, until the portion is again usable by Tenant.
4. MONTHLY BASIC RENT.
Tenant agrees to pay Landlord as Monthly Basic Rent for the Premises the
Monthly Basic Rent designated in Paragraph 16 of the Basic Lease Terms (subject
to adjustment as hereinafter provided) in advance on the first day of each and
every calendar month during said term. In the event the term of this Lease
commences or ends on a day other than the first day of a calendar month, then
the rental for the first and last months of the Term shall be prorated in the
proportion that the number of days this Lease is in effect during the first and
last months of the Term bears to thirty (30), and such rental shall be paid at
the commencement of such periods. In addition to said Monthly Basic Rent, Tenant
agrees to pay the amount of the rental adjustments as and when hereinafter
provided in this Lease. Said Monthly Basic Rent, additional rent, and rental
adjustments shall be paid to Landlord, without any prior demand therefor and
without any deduction or offset whatsoever in lawful money of the United States
of America, which shall be legal tender at the time of payment, at the address
of Landlord designated in Paragraph 2 of the Basic Lease Terms or to such
other person or at such other place as Landlord may from time to time designate
in writing. Further, all charges to be paid by Tenant hereunder, including,
without limitation, payments for real property taxes, insurance, repairs, and
parking shall be considered additional rent for the purposes of this Lease, and
the word "rent" in this Lease shall include such additional rent unless the
context specifically or clearly implies that only the Monthly Basic Rent is
referenced.
5. RENTAL ADJUSTMENT.
(a) For the purposes of this Paragraph 5, the following terms
are defined as follows:
Tenant's Percentage Share: Tenant's Percentage Share shall mean
that portion of the total rentable area of the Building (exclusive of
parking areas and based on 456,187 rentable square feet the Building)
occupied by Tenant as set forth as a percentage in Paragraph 19 of the
Basic Lease Terms. In the event the Premises are either reduced or
expanded, Tenant's Percentage Share shall be adjusted to reflect that
portion of the total rentable area of the Building (exclusive of
parking areas) occupied by Tenant as fairly determined by Landlord.
Operating Expense Stop: The meaning given in Paragraph 17 of the
Basic Lease Terms shall apply.
Real Property Taxes Stop: The meaning given in Paragraph 18 of
the Basic Lease Terms shall apply.
Operating Expenses: Operating Expenses shall consist of all
direct costs of operation and maintenance of the Building, the Common
Areas and the Site, as determined by standard accounting practices,
calculated assuming the Building is at least ninety-five percent (95%)
leased including the following costs by way of illustration, but not
limitation: water and sewer charges; the net cost and expense of
insurance for which Landlord is responsible hereunder or which Landlord
or any first mortgagee with a lien affecting the Premises reasonably
deems necessary in
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connection with the operation of the Building; utilities; janitorial
services; security; labor; utilities surcharges, or any other costs
levied, taxed or assessed or imposed by, or at the direction of, or
resulting from statutes or regulations or interpretations thereof,
promulgated by any federal, state, regional, municipal or local
government authority in connection with the use, occupancy, or the
collection of revenue of the Building or the Premises; the cost
(amortized on a straight line basis over the useful life of the
applicable capital item together with interest at the prime rate as
quoted in the Wall Street Journal from time to time plus 2% on the
unamortized balance) of (i) any capital improvements made to the
Building by the Landlord after the first year of the term of the Lease
that reduce other Operating Expenses, or made to the Building by
Landlord after the date of the Lease that are required under any
governmental law or regulation that was not applicable to the Building
at the time it was constructed, or (ii) replacement of any building
equipment reasonably necessary to enable Landlord to operate the
Building at the same quality levels as prior to the replacement; costs
incurred in the management of the Building if any (including supplies,
wages and salaries of employees used in the management, operation and
maintenance of the Building, and payroll taxes and similar governmental
charges with respect thereto, Building management office rental if said
office is located in the Building, and Landlord's and the property
manager's reasonable management fees); air-conditioning; waste disposal;
heating; ventilating; elevator maintenance; supplies; materials;
equipment; tools; except as expressly excluded below, repair and
maintenance of the structural portions of the Building; the plumbing,
heating, ventilating, air-conditioning and electrical systems installed
or furnished by Landlord; and maintenance, costs of upkeep and
operations of the Basement Garage and common areas; rental of personal
property used in maintenance; costs and expenses of gardening and
landscaping; maintenance of signs (other than Tenant owned signs); audit
or verification fees; and costs and expenses of repairs, resurfacing,
repairing, maintenance, painting, lighting, cleaning, refuse removal,
security and similar items, including appropriate reserves (other than
repairs that are capital in nature, except to the extent expressly
permitted hereunder). Operating Expenses shall not include depreciation,
amortization and other non-cash charges (except as expressly permitted
above); real estate brokers' commissions or leasing agents and other
costs related to leasing the Building; interest expense on Building
financing; ground rent; franchise taxes, taxes imposed on (or measured
by) Landlord's income (other than Real Property Taxes and business and
parking taxes imposed by the City and County), and other taxes that do
not constitute Real Property Taxes including, without limitation,
estate, succession, inheritance, profit, capital gains, capitol stock,
transfer and income taxes imposed upon Landlord or the Building; all
costs related to renovating or otherwise altering, improving, decorating
or redecorating space for tenants or other occupants of the Building, or
incurred in renovating or otherwise altering, improving, decorating or
redecorating vacant rentable space of the Building; the cost (including
attorneys' fees and disbursements) of any judgment, settlement, or
arbitration award resulting from tort liability; the cost of defects in
the construction, design, or equipping of the Building or the Building
systems (including electrical, plumbing, heating, ventilation, and air
conditioning systems) or with respect to any of the structural
components of the Building; the cost of or expenditures for any repairs
in accordance with Articles 21 and 22 of this Lease (except as provided
for in Article 21 (e); any Operating Expense related to the
Multi-Story Parking Facility or any other parking facility other than
the Basement Garage; attorneys' fees and expenses which are not related
to the operation of the Building; losses covered by insurance or that
are required to be insured against or that are capital in nature (except
as expressly permitted above); expenses reimbursed to Landlord from
Tenant or other tenants of the Building; improvements, alterations,
additions, changes, equipment, replacements, repairs and other items
that constitute capital expenses under generally accepted accounting
principles (except as expressly permitted above); costs of repair,
abatement, removal or clean-Up of any Hazardous Materials; and any costs
or expenses that are incurred to make any of Landlord's representations
or warranties under this Lease true or correct.
In the event that the Building is less than ninety-five (95%)
leased, the portion of the Operating Expenses considered variable
expenses shall be adjusted proportionately from their actual amounts to
what they would have been if the Building was 95% leased for the
period. Variable costs shall include: utility costs, janitorial costs,
the cost of paper supplies and trash disposal costs.
Real Property Taxes: Real Property Taxes shall be calculated
assuming the Building is at least ninety-five percent (95%) occupied for
any period during which the Building is less than ninety-five percent
(95%) occupied and shall include any form of assessment, license fee,
license tax, business license fee, commercial rental tax, levy, charge,
penalty, tax or similar imposition, imposed by any authority having the
direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other
improvement or special assessment district thereof, as against any legal
or equitable interest of Landlord in the Building and/or the Site of
which the Building and Premises form a part, including, but not limited
to, the following:
(i) Any tax on Landlord's "right" to rent or "right" to
other income from the Premises or as against Landlord's
business of leasing the Premises;
(ii) Any assessment, tax, fee, levy or charge in
substitution, partially or totally, of any assessment, tax,
fee, levy or charge previously included within the definition of
real estate tax, it being
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acknowledged by Tenant and Landlord that Proposition 13 was
adopted by the voters of the State of California in the June,
1978 Election and that assessments, taxes, fees, levies and
charges may be imposed by governmental agencies for such
services as fire protection, street, sidewalk and road
maintenance, refuse removal and for other governmental services
formerly provided without charge to property owners or
occupants. It is the intention of Tenant and Landlord that all
such new or adjusted assessments, taxes, fees, levies and
charges be included within the definition of "Real Property
Taxes" for the purposes of this Lease;
(iii) Any assessment, tax, fee, levy or charge allocable
to or measured by the area of the Premises or the rent payable
hereunder, including, without limitation, any gross income tax
or excise tax levied by the State, city or federal government,
or any political subdivision thereof, with respect to the
receipt of such rent, or upon or with respect to the possession,
leasing, operating, management, maintenance, alteration, repair,
use or occupancy by Tenants of the Premises, or any portion
thereof;
(iv) [Intentionally Deleted]
(v) Any assessment, tax, fee, levy or charge by any
governmental agency related to any transportation plan, fund or
system instituted within the geographic area of which the
Building is a part;
(vi) Reasonable legal, consultants' and other
professional fees, costs and disbursements incurred in
connection with proceedings to contest, determine or reduce real
property taxes;
(vii) Any personal property taxes levied on or
attributable to personal property used in connection with the
entire Building, or Common Areas.
Notwithstanding any provision of this Subparagraph 5(a)
expressed or implied to the contrary, "Real Property Taxes"
shall not include Landlord's federal or state income, franchise,
inheritance or estate taxes.
(b) [Intentionally Deleted]
(c) As soon as reasonably practicable, during each calendar year
during the term of this Lease after the first calendar year of the term
of this Lease, Landlord shall deliver to Tenant statements wherein
Landlord shall estimate the Operating Expenses and Real Property Taxes
for the current calendar year (individually, the "Estimated Operating
Expense Statement" and the "Estimated Real Property Taxes Statement" and
sometimes referred to collectively as the "Estimated Statement"), and
the amount by which Tenant's Percentage Share of the (i) Operating
Expenses on account of the operation or maintenance of the Building is
in excess of the Operating Expense Stop and (ii) Real Property Taxes on
account of Tenant's occupation of the Building is in excess of the Real
Property Taxes Stop. Provided, however, if Landlord determines that
Tenant's Percentage Share of the Operating Expenses or Real Property
Taxes for such current calendar year is greater than that set forth in
the applicable Estimated Statement, then Landlord may deliver on the
first day of June, September, or December, as appropriate, a revised
Estimated Statement and Tenant shall pay to Landlord, within ten (10)
business days of the delivery of such revised Estimated Statement, the
difference between such revised Estimated Statement for such item and
the original Estimated Statement for such item for the portion of the
current calendar year which has then expired, and Tenant shall pay
during the balance of such current calendar year through February of the
succeeding calendar year a fraction of the balance of such difference as
would fully amortize such excess over the remaining months of the then
current calendar year through and including February of the succeeding
calendar year.
(d) If Tenant's Percentage Share of the Operating Expenses or
Real Property Taxes estimated in the applicable Estimated Statement
exceeds the Operating Expense Stop or Real Property Taxes Stop then such
excess amount shall be divided into twelve (12) equal monthly
installments and Tenant shall pay to Landlord, concurrently with the
regular monthly rent payment next due following the receipt of such
statement, an amount equal to one (1) monthly installment multiplied by
the number of months from January in the calendar year in which said
statement is submitted to the month of such payment, both months
inclusive. Subsequent installments shall be paid concurrently with the
regular monthly rent payments for the balance of the calendar year and
shall continue until the next calendar year's Estimated Statement is
rendered.
(e) As soon as reasonably practicable during each succeeding
calendar year during the term of this Lease, Landlord shall deliver to
Tenant a statement ("Actual Statement") wherein Landlord shall state the
actual Operating Expenses and Real Property Taxes for the preceding
calendar year. If the Actual Statement reveals a greater increase in
Tenant's Percentage Share of Operating Expenses and/or Tenant's
Percentage Share of Real Property Taxes than was estimated by Landlord
in any Estimated Statement delivered as provided herein, then within
twenty (20)
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business days following receipt of the Actual Statement from Landlord,
Tenant shall pay a lump sum equal to said total increase over the
Operating Expense Stop and/or Real Property Taxes Stop, less the total
of the monthly installments of increases set forth on the Estimated
Statement which were paid in the previous calendar year.
(f) If, in any calendar year, Tenant's Percentage Share of
Operating Expenses and/or Real Property Taxes is less than the preceding
calendar year, then upon receipt of Landlord's Actual Statement, any
overpayment made by Tenant on the monthly installment basis provided
above shall be credited toward the next monthly rent failing due and the
monthly installment of Tenant's Percentage Share of Operating Expenses
and/or Real Property Taxes to be paid pursuant to the then current
Estimated Statement shall be adjusted to reflect such lower expenses or
real property taxes for the most recent calendar year, or if this Lease
has been terminated, such excess shall be credited against any amount
which Tenant owes Landlord pursuant to this Lease, and if such amounts
have been paid, Landlord shall promptly pay such excess to Tenant. Any
delay or failure by Landlord in delivering any estimate or statement
pursuant to this Paragraph shall not constitute a waiver of its right to
require an increase in rent nor shall it relieve Tenant of its
obligations pursuant to this Paragraph, except that Tenant shall not be
obligated to make any payments based on such estimate or statement until
ten (10) business days after receipt of such estimate or statement.
(g) In the event Tenant shall dispute the amount set forth in
the Actual Statement described above; Tenant shall have the right not
later than sixty (60) calendar days following receipt of such Actual
Statement to review Landlord's books and records and such review shall
be conducted during the hours and at the location in the Bay Area
designated by Landlord. Tenant shall have the right not later than ten
(10) business days following such review to cause Landlord's books and
records with respect to the preceding calendar year to be audited by a
certified public accountant mutually acceptable to Landlord and Tenant.
If such audit discloses an amount payable by Landlord such amount shall
be credited to Tenant as provided in Subparagraph 5(f) above. If such
audit discloses an amount payable by Tenant to Landlord, Tenant shall
pay a lump sum equal to such amount upon receipt of the results of the
audit. If such audit discloses a liability for further refund by
Landlord to Tenant in excess of ten percent (10%) of the payments
previously made by Tenant for such calendar year, the cost of such audit
shall be borne by Landlord; otherwise the cost of such audit shall be
borne by Tenant. If Tenant fails to request an audit within ten (10)
business days following such review, such Actual Statement shall be
conclusively binding upon Landlord to Tenant.
(h) Even though the term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage
Share of Operating Expenses and Tenant's Percentage Share of Real
Property Taxes for the year in which this Lease terminates, and subject
to Tenant's audit rights described above, Tenant shall within twenty
(20) business days following the receipt of the final determination, pay
any increase due over the estimated expense paid and conversely any
overpayments made in the event said expenses decrease immediately shall
be rebated by Landlord to Tenant.
6. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit designated in
Paragraph 20 of the Basic Lease Terms. Said deposit shall be held by Landlord as
security 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,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this Security Deposit for the payment of any rent or any other sum in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any 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 demand therefor, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount and
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 Security Deposit. If
Tenant shall fully and faithfully perform 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 interests
hereunder) at the expiration of the Lease term, provided that Landlord may
retain the Security Deposit until such time as any amount due from Tenant in
accordance with Paragraph 4 and 5 hereof has been determined and paid in full.
Should Landlord sell its interest in the Premises during the term hereof or if
Landlord deposits with purchaser thereof the then unappropriated funds deposited
by Tenant as aforesaid, thereupon Landlord shall be discharged from any further
liability with respect to such Security Deposit.
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7. USE.
Tenant shall use the Premises for general office purpose, including
without limitation software development (but excluding a computer processing
center facility) and purposes incident thereto, and shall not use or permit the
Premises to be used for any other purpose without the prior written consent of
the Landlord, not to be unreasonably withheld or delayed). Tenant shall not use
or occupy the premises in violation of any recorded covenants, conditions and
restrictions affecting the Site or of any law or of the Certificate of Occupancy
or temporary Certificate of Occupancy issued for the Building of which the
Premises are a part, and shall, upon five (5) days written notice from Landlord,
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of any recorded covenants and
restrictions affecting the Site or of any law or of said Certificate of
Occupancy or temporary Certificate of Occupancy. Tenant may not offer shared
tenant services, such as but not limited to word processing, to any unaffiliated
tenant in the Building without Landlord's prior written consent, which consent
may be withheld by Landlord at its sole and absolute discretion. Tenant shall
comply with any direction of any governmental authority having jurisdiction
which shall, by reason of the nature of Tenant's use or occupancy of the
Premises, impose any duty upon Tenant or Landlord with respect to the Premises
or with respect to the use or occupation thereof. Tenant shall not do or
knowingly permit anything to be done in or about the Premises which will in any
way obstruct or interfere with the rights of other tenants or occupants of the
Building, or injure or annoy them, or use or knowingly allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or knowingly permit any nuisance in, or about the
Premises. Tenant shall not commit or suffer to be committed any waste in or upon
the Premises and shall keep the Premises in first class repair and appearance.
Landlord reserves the right to prescribe the weight and position of all safes,
files and heavy equipment which Tenant desires to place in the Premises so as
to distribute properly the weight thereof. Tenant shall be responsible for the
cost of all structural engineering required to determine the structural load of
all safes, files and heavy equipment which Tenant desires to place in the
Premises.
8. PAYMENTS AND NOTICES.
All rents and other sums payable by Tenant to Landlord hereunder shall
be paid to Landlord at the address designated by Landlord in Paragraph 2 of the
Basic Lease Terms above or at such other places as Landlord may hereafter
designate in writing. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery or by mail, and if
given by mail shall be deemed sufficiently given if sent by registered or
certified mail addressed to Tenant at the Building of which the Premises are a
part or if delivered personally to Tenant at the Premises or to Landlord at both
of the addresses designated in Paragraph 2 of the Basic Lease Terms. Either
party may by written notice to the other specify a different address for notice
purposes. If more than one person or entity constitutes the "Tenant" under this
Lease, service of any notice upon any one of said persons or entities shall be
deemed as service upon all of said persons or entities.
9. BROKERS.
The parties recognize that the brokers who negotiated this Lease are the
brokers whose names are stated in Paragraph 22 of the Basic Lease Terms, and
agree that Landlord shall be solely responsible for the payment of brokerage
commissions to said brokers, and that Tenant shall have no responsibility
therefor. As part of the consideration for the granting of this Lease, Tenant
represents and warrants to Landlord that to Tenant's knowledge no other broker,
agent or finder negotiated or was instrumental in negotiating or consummating
this Lease and that Tenant knows of no other real estate broker, agent or finder
who is, or might be, entitled to a commission or compensation in connection with
this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to
disclose herein shall be paid by Tenant. Tenant shall hold Landlord harmless
from all damages and indemnify Landlord for all said damages paid or incurred by
Landlord resulting from any claims that may be asserted against Landlord by any
broker, agent or finder undisclosed by Tenant herein.
10. HOLDING OVER.
(a) With Landlord's Consent: If Tenant, with Landlord's written
consent, remains in possession of all or any portion of the Premises
after the Expiration Date or earlier termination (collectively
"Termination") of this lease and if Landlord and Tenant have not
executed a written agreement as to the terms of such holding over, then
Tenant's continued occupancy shall be a tenancy from month to month.
With respect to such month to month tenancy, the monthly rent payable
shall be of the Monthly Basic Rent in effect immediately prior to
Expiration Date or earlier termination together with additional rent in
the form of such other payments required of Tenant under the provisions
of this lease including, without limitations the provisions of Section 5
of this Lease.
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(b) Without Landlord's Consent: If Tenant remains in possession
all or any portion of the Premises after the Termination of this Lease
without Landlord's consent, Tenant shall be deemed a tenant at
sufferance only. Landlord and Tenant agree that as to such tenancy at
sufferance, the fair market rental value of the Premises shall be deemed
to be One Hundred and Thirty-Five percent (135%) of the Monthly Basic
Rent in effect immediately prior to Termination together with additional
rent in the form of such other payments required of Tenant under the
provisions of this Lease including, without limitation, the provisions
of Section 5 of this Lease (the "Sufferance Rent"). Tenant shall be
obligated to pay the Sufferance Rent to Landlord until the Premises are
delivered back into Landlord's possession and control. The provisions of
this paragraph are in addition to and do not affect Landlord's right of
re-entry or any other rights of Landlord conferred by this Lease or
provided by law.
(c) Compliance with Tenant's Obligations as Defined by this
Lease: In the event Tenant remains in possession all or any portion of
the Premises after the Termination of this Lease, with or without
Landlord's consent, such possession by Tenant shall obligate Tenant to
satisfy each, all and every one of the Tenant's obligations under the
provisions of this lease for the duration of such occupancy the
provisions of this Lease shall remain in effect for the duration of the
month to month tenancy.
(d) Indemnity: If Tenant fails to surrender the Premises upon
the Termination of this Lease or remains in possession of the Premises
for any period without Landlord's written consent, Tenant shall
indemnify and hold Landlord harmless from all expense (including
reasonable attorneys fees), loss and liability including without
limitation, any claim made by any succeeding tenant founded on or
resulting from such failure to surrender.
11. TAXES ON TENANT'S PROPERTY.
Tenant shall be liable for and shall pay prior to delinquency: (1) all
taxes levied against any personal property or trade fixtures placed by Tenant in
or about the Premises; and (2) any improvements installed in the Premises by
Landlord in excess of the allowance as specified in paragraph 12 of the Basic
Lease Terms; and (3) any Changes (as defined in Section 13 of this Lease. The
matters referred to as items (1), (2) and (3) in the preceding sentence are
collectively referred to as the "Taxable Items". If any such taxes on the
Taxable Items are levied against Landlord or Landlord's property or if the
assessed value of the Premises is increased by the inclusion of a value placed
upon all or any portion of the Taxable Items, Landlord, after written notice to
Tenant, shall have the right, but not the obligation to pay any taxes levied
upon the Taxable Items without regard to the validity of the levy. If Landlord
pays the taxes based upon such assessments and/or increased assessments, Tenant
shall, upon demand, repay to Landlord the taxes levied against Landlord or the
portion of such taxes resulting from such increase in the assessment together
with interest at the rate of two per cent higher than the Bank of America
Reference Rate from the date of advancement until the date of repayment.
Tenant, at Tenant's sole cost and expense, shall have the right to bring suit in
Landlord's name in any court of competent jurisdiction to recover the amount of
any such taxes paid by Landlord. Landlord shall cooperate with respect to such
suit. Tenant will hold Landlord harmless from all cost, loss and expense in
connection with the suit.
12. CONDITION OF PREMISES.
Tenant acknowledges that, except as set forth in this Lease, neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises or the Building or with respect to the suitability of
either for the conduct of Tenant's business. The taking of possession of the
Premises by Tenant shall conclusively establish that the Premises and the
Building were at such time in satisfactory condition.
13. ALTERATIONS.
(a) Tenant may, at any time and from time to time during the
term of this Lease, at its sole cost and expense, make alterations,
additions, installations, substitutions, improvements and decorations
(hereinafter collectively called "Changes") in and to the Premises,
excluding structural changes, on the following conditions, and providing
such Changes will not result in a violation of or require a change in
the Certificate of Occupancy or temporary Certificate of Occupancy
applicable to the Premises;
(i) The outside appearance, character or use of the
Building shall not be affected, and no Changes shall weaken or
impair the structural strength or, in the reasonable opinion of
Landlord, materially lessen the value of the Building or create
the potential for unusual expenses to be incurred by Landlord or
any future tenant of the Premises upon the removal of Changes
and the restoration of the Premises upon the termination of this
Lease;
(ii) No part of the Building outside of the Premises
shall be physically affected;
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(iii) The proper functioning of any of the mechanical,
electrical, sanitary and other service systems or installations
of the Building ("Service Facilities") shall not be adversely
affected and there shall be no construction which might
materially interfere with Landlord's free access to the Service
Facilities or materially interfere with the moving of Landlord's
equipment to or from the enclosures containing the Service
Facilities;
(iv) In performing the work involved in making such
Changes, Tenant shall be bound by and observe all of the
conditions and covenants contained in this Paragraph;
(v) All work shall be done at such times and in such
manner as Landlord from time to time may reasonably designate;
(vi) Tenant shall not be permitted to install and make
part of the Premises or Building any materials, fixtures or
articles which are subject to liens, conditional sales,
contracts or chattel mortgages.
(vii) Unless approved in writing by Landlord in
accordance with Section 13(I) below, at the date upon which the
term of this Lease shall end, or the date of any earlier
termination of this Lease, Tenant shall on Landlord's written
request restore the Premises to their condition prior to the
making of any Changes permitted by this Paragraph 13, reasonable
wear and tear, casualty and condemnation excepted.
(b) Before proceeding with any Change (exclusive of changes to
items constituting Tenant's personal property) either in excess of
$25,000 or that may effect the structural integrity of or the mechanical
systems in the Building, Tenant shall submit to Landlord plans and
specifications for the work to be done, which shall require Landlord's
written approval not to be unreasonably withheld, conditioned or
delayed. Landlord shall have seven (7) working days to review the
proposed Changes and either approve the Changes as submitted or state
its reasons for not approving such Changes.
(c) If the proposed Change requires approval by or notice to the
lessor of a superior lease or the holder of a mortgage, no Change shall
be proceeded with until such approval has been received, or such notice
has been given, as the case may be, and all applicable conditions and
provisions of said superior lease or mortgage with respect to the
proposed Change or alteration have been met or complied with at Tenant's
expense; and Landlord, if it approves the Change, will request such
approval or give such notice, as the case may be.
(d) After Landlord's written approval has been sent to Tenant
and the approval by or notice to the lessor of a superior lease or the
holder of a superior mortgage has been received or given, as the case
may be, Tenant shall enter into an agreement for the performance of the
work to be done pursuant to this Paragraph 13 with Landlord's
contractor. All costs and expenses incurred in connection with Changes
shall be paid by Tenant within seven (7) business days after each
billing by Landlord or any such contractor or contractors. Tenant shall
in all cases comply with the provisions of Paragraph 15 hereof in
performing hereunder. If Landlord approves the construction of specific
interior improvements in the Premises by other contractors chosen by
Tenant from a list prepared by Landlord at Tenant's request, then
Tenant's contractors shall obtain on behalf of Tenant and at Tenant's
sole cost and expense, (i) all necessary governmental permits and
certificates for the commencement and prosecution of Tenant's Changes
and for final approval thereof upon completion, and (ii) a completion
and lien indemnity bond, or other surety, satisfactory to Landlord, for
the Changes. In the event Tenant shall request any changes in the work
to be performed after the submission of the plans referred to in this
Paragraph 13, such additional changes shall be subject to the same
approvals and notices as the changes initially submitted by Tenants.
(e) All Changes and the performance thereof shall at all times
comply with (i) all laws, rules, order, ordinances, directions,
regulations and requirements of all governmental authorities, agencies,
offices, departments, bureaus and boards having jurisdiction thereof,
(ii) all rules, order, directions, regulations and requirements of the
Pacific Fire Rating Bureau, or of any similar insurance body or bodies,
and (iii) all rules and regulations of Landlord, and Tenant shall cause
Changes to be performed in compliance therewith and in good and first
class workmanlike manner, using materials and equipment at least equal
in quality and class to the original installations of the building.
Changes shall be performed in such manner as not to materially interfere
with the occupancy of any other tenant in the Building nor delay, or
impose any additional expense upon Landlord in construction, maintenance
or operation of the Building, and shall be performed by contractors or
mechanics approved by Landlord and submitted to Tenant pursuant to this
Paragraph, who shall coordinate their work in cooperation with any other
work being performed with respect to the Building. Throughout the
performance of Changes, Tenant, at its expense, shall carry, or cause to
be carried, workmen's compensation insurance in statutory limits, and
general liability insurance for any occurrence in or about the Building,
of which Landlord and its managing agent shall be
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June 16, 1997
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named as parties insured, in such limits as Landlord may reasonably
prescribe, with insurers reasonably satisfactory to Landlord all in
compliance with Paragraph 20(b) hereof;
(f) Tenant further covenants and agrees that any mechanic's lien
filed against the Premises or against the Building for work claimed to
have been done for, or materials claimed to have been furnished to
Tenant, will be discharged by Tenant, by bond or otherwise, within ten
(10) days after the filing thereof, at the cost and expense of Tenant.
All alterations, decorations, additions or improvements upon the
Premises, made by either party, including (without limiting the
generality of the foregoing) all wallcovering, built-in cabinet work,
paneling and the like, shall, unless Landlord elects otherwise, become
the property of Landlord, and shall remain upon, and be surrendered with
the Premises, as a part thereof, at the end of the term hereof, except
that Landlord may by written notice to Tenant, given at least thirty
(30) days prior to the end of the term, require Tenant to remove all
Changes installed by Tenant, and Tenant shall repair any damage to the
Premises arising from such removal or, at Landlord's option, shall pay
to the Landlord all of Landlord's actual reasonable costs of such
removal and repair, unless approved in writing by Landlord in accordance
with Section 13(i) below,
(g) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions
owned by Tenant or installed by Tenant at its expense in the Premises
shall be and remain the property of Tenant and may be removed by Tenant
at any time during the lease term provided Tenant is not in default
hereunder, and provided further that Tenant shall repair any damage
caused by such removal. If Tenant shall fail to remove all of its
effects from said Premises upon termination of this Lease for any cause
whatsoever, Landlord shall choose, and store said effects without
liability to Tenant for loss thereof, and Tenant agrees to pay Landlord
upon demand any and all expenses incurred in such removal, including
court costs and reasonable attorney's fees and storage charges on such
effects for any length of time that the same shall be in Landlord's
possession.
(h) Landlord reserves the right at any time and from time to
time without the same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefor or otherwise
affecting Tenant's obligations under this Lease, to make such changes,
alterations, additions, improvements, repairs or replacements in or to
the Site or the Building (including the Premises if required so to do by
any law or regulation) and the fixtures and equipment thereof, as well
as in or to the street entrances, halls, passages and stairways thereof,
provided Tenant's access to or use of the Premises is not materially
affected thereby, to change the name by which the Building is commonly
known, as Landlord may deem necessary or desirable. Nothing contained in
this Paragraph 13 shall be deemed to relieve Tenant of any duty,
obligation or liability of Tenant with respect to making any repair,
replacement or improvement or complying with any law, order or
requirement of any government or other authority and nothing contained
in this Paragraph 13 shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the
care, supervision or repair of the Building or any part thereof other
than as otherwise provided in this Lease.
(i) At the time Tenant elects to make any Changes to the
Premises, Tenant shall have the right to notify Landlord in writing of
tile proposed Changes and to request that Landlord notify Tenant whether
Landlord will require Tenant to remove the Changes upon expiration or
earlier termination of this Lease. Landlord agrees that if it receives
the such written notice from Tenant, Landlord will notify Tenant in
writing, within ten (10) business days after receiving Tenant's notice
as to whether Landlord will waive its rights herein to require Tenant to
remove said Changes upon the expiration or earlier termination of this
Lease.
14. REPAIRS.
(a) By entry hereunder, Tenant accepts the Premises as being in
good and sanitary order, condition and repair. Tenant shall, when and if
needed or whenever requested by Landlord to do so, at Tenant's sole cost
and expense, maintain and make all repairs to the interior of the
Premises and every part thereof, to keep, maintain and preserve the
Premises in first class condition, excepting ordinary wear and tear, and
repair. Any such maintenance and repairs shall be performed by
Landlord's contractor, or at Landlord's option, by such contractor or
contractors as Tenant may choose from an approved list to be submitted
by Landlord. All costs and expenses incurred in such maintenance and
repair shall be paid by Tenant within seven (7) business days after
billing by Landlord or such contractor or contractors unless such repair
is necessitated by the act, neglect, fault or emission of any duty of
Landlord, its agents, servants or employees. Tenant shall upon the
expiration or sooner termination of the term hereof surrender the
Premises to Landlord in the same condition as when received, reasonable
wear and tear, casualty and condemnation excepted and subject to Section
13(i) above. Except as set forth in Exhibit "C" herein, Landlord shall
have no obligation to alter, remodel, improve, repair, decorate or paint
the Premises or any part thereof and the parties hereto affirm that
Landlord has made no representations to Tenant respecting the condition
of the Premises or the Building except as specifically herein set forth.
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(b) Landlord shall repair and maintain the structural portions
of the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord,
unless such maintenance and repairs are caused in part or in whole by
the act, neglect, fault of or omission of any duty by Tenant, its
agents, servants, employees or invitees, in which case Tenant shall pay
to Landlord as additional rent, the actual reasonable cost of such
maintenance and repairs. Landlord shall not be liable for any failure to
make any such repairs, or to perform any maintenance unless such failure
shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Paragraph 21 hereof there shall be no abatement of rent and
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in
or to fixtures, appurtenances and equipment therein unless such repair
is necessitated by the act, neglect, fault or omission of any duty of
Landlord or its agents, servants or employees, in which case, if Tenant
is unable to use the Premises, or any portion of it, during the period
of such repairs, rent shall be abated in proportion to the portion of
the Premises rendered unusable until Tenant is again able to use the
entire Premises. Tenant shall maintain and repair at its sole cost and
expense, and with maintenance contractors approved by Landlord, all
special non-base building facilities installed by or on behalf of Tenant
including but not limited to lavatory, shower, toilet, washbasin and
kitchen facilities and special heating and air conditioning systems,
including all plumbing connected to said facilities or systems,
15. LIENS.
Tenant shall not permit any mechanic's, materialmen's, or other liens to
be filed against the Multi-Story Parking Facility or the Site or any portion
thereof of which the Premises form a part nor against the Tenant's leasehold
interest in the Premises. Landlord shall have the right at all reasonable times
to post and keep posted on the Premises any notices which it deems necessary for
protection from such liens. If any such liens are filed, Landlord may, without
waiving its rights and remedies based on such breach of Tenant and without
releasing Tenant from any of its obligations, cause such liens to be released by
any means it shall deem proper, including payment in satisfaction of the claim
giving rise to such lien. Tenant shall pay to Landlord at once, upon notice by
Landlord, any sum paid or expense incurred by Landlord to remove such liens,
together with interest at the prime rate as quoted in the Wall Street Journal
from time to time plus 4% from the date of such payment by Landlord.
16. ENTRY BY LANDLORD
Landlord reserves the right to enter the Premises for purposes of
inspection, maintenance, repair and alteration of the Premises and the Building.
Landlord further reserves the right to enter the Premises to show them to
prospective purchasers or, during the last twelve months of the lease, to
prospective tenants. Except in the case of an emergency, Landlord will restrict
its entry to normal business hours and will provide such advanced notice of the
intended entry as is reasonably possible under the circumstances. Landlord shall
make commercially reasonable efforts to perform all such inspections, showings,
maintenance and repairs expeditiously and shall make commercially reasonable
efforts to minimize interference with Tenant's normal business operations.
Tenant agrees that Landlord and Landlord's manager shall retain a key to all
doors (excluding doors to safes and vaults) in the Premises to facilitate such
access as Landlord may require. Tenant shall not change or add any locks to any
doors in the Premises without Landlord's advance permission. Should Tenant
violate the provisions of the preceding sentence, Landlord shall have the right
to use such means as may be required to gain entry to the Premises and Tenant
shall be responsible for all costs, expenses and repairs required as a result.
No entry by Landlord pursuant to the provisions of this Lease shall be deemed or
construed as a violation of Tenant's right of quiet enjoyment, an eviction of
Tenant or a violation of any other right claimed by Tenant.
17. UTILITIES AND SERVICES.
(a) Landlord agrees, during the Lease term, to furnish to the
Premises during those hours set forth in the Rules and Regulations as
defined in Exhibit "F" hereof, as may be amended in writing by Landlord
from time to time during the term of this Lease and delivered to Tenant,
(i) electrical current in amounts described below, which amounts
Landlord and Tenant have specifically considered and hereby acknowledge
as representing the normal demands of general office space and hereby
conclusively deem to represent a reasonable quantity of electric current
for normal lighting and fractional horsepower office machines for the
use as described herein: (ii) heating, ventilation and air conditioning
("HVAC") in amounts consistent with amounts provided for general office
space which, by way of illustration, shall be considered to be HVAC
necessary to provide adequate heating, cooling and ventilation for up to
one (1) person per 175 rentable square feet during normal business hours
(as more fully described in the Rules and Regulations) assuming the
absence of heat generating equipment or devices and the absence of an
excessive concentration of equipment or devices which individually would
generate a normal amount
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of heat but together generate an excessive amount of heat; (iii)
standard janitorial service (including washing of windows with
reasonable frequency as determined by Landlord), generally consistent
with janitorial service furnished in other first-class office buildings
in the City of Oakland; (iv) water in reasonable quantities,
reasonableness being determined with reference to the typical usage of
office tenants within the Building for the use as described herein, for
lavatory and drinking purposes not in the Premises and (v) passenger
elevator service by non-attended automatic elevators.
(b) In its use of the Premises, Tenant shall strictly adhere to
all of the following electric demand and consumption levels:
(i) Tenant's use of electricity shall be consistent with
other tenants in the Building and shall not exceed that of other
typical office tenants in the Oakland Central Business District.
(ii) Except as approved by the Landlord, the Tenant
shall at no time permit the electrical current used in the
Premises to violate any restrictions imposed by any governmental
authority, including the requirements with respect to lighting
devices set forth in the California Administrative Code, Title
24, Part 6, Division T-20, Chapter 2, Subchapter 4.
(iii) If at any time after the Commencement Date, Tenant
requires additional electrical capacity, such additional
capacity may result in the imposition of additional rent to
Tenant pursuant to Subparagraph (e) below, if such additional
electrical capacity is available and Landlord in its reasonable
discretion agrees to provide same.
(c) Landlord makes no guarantees or representations to Tenant
that the level of HVAC provided to the Premises pursuant to
Subparagraph (a) above will be adequate for Tenant's business purposes.
If (i) Tenant's business use, or (ii) Tenant's occupancy of the Premises
(if such occupancy exceeds one person per one hundred seventy-five
(175) square feet of rentable area), requires additional HVAC above the
level provided for general office space in the Building or affects the
HVAC level otherwise maintained in the Building, Landlord shall have the
right in its sole discretion to install any machinery and equipment that
Landlord reasonably deems necessary to provide Tenant with additional
HVAC or to restore the HVAC level otherwise maintained in the Building,
including, without limitation, modifications or alterations to the
Building's HVAC system or the installation of a separate HVAC system to
service the Premises.
(d) Landlord shall not be liable for, and Tenant shall not be
entitled to any abatement or reduction of rent by reason of Landlord's
failure to furnish any of the foregoing when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor
disturbances of any character, or for any other causes.
(e) If Tenant requires or utilizes more water, HVAC or
electricity than is permitted by the standards set forth above, then
such amounts will conclusively be deemed to be excess usage. Landlord
may at its option (i) require Tenant to pay, as additional rent, the
reasonable actual cost, incurred by Landlord to provide such excess
usage, including but not limited to, any and all costs incurred in
connection with the purchase, installation, operation and maintenance of
additional systems and transformers and any other equipment required to
handle such extraordinary capacity and any and all fees required to
governmental authorities resulting from such extraordinary capacity, or
(ii) Landlord shall install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant shall pay all charges of the utility
providing service.
(f) Landlord may charge as additional rent such reasonable fees
or charges established by Landlord for any additional or unusual
janitorial services required because of the carelessness of Tenant, the
nature of Tenant's business (including the operation of Tenant's
business other than from 8:00 a.m. to 6:00 p.m., Monday through Friday)
and the removal of any refuse or rubbish from the Premises except for
discarded material placed in wastepaper baskets and left for emptying as
an incident to Landlord's normal cleaning of the Premises. Landlord
shall have no responsibility for providing janitorial service to any
portion of the Premises used for preparing, selling or consuming food or
beverages, for storage, for a mail room, or for a bathroom, shower, or
similar function. Tenant shall also be responsible for the cost of
maintaining non-standard improvements including but not limited to
metallic trim, wood floor covering, glass panels, partitions, kitchens
and executive washrooms in the Premises.
(g) Tenant specifically undertakes to install within the
Premises and maintain at Tenant's cost such nonbase building standard
fire protection and life safety equipment as required by any
governmental authority or insurer, and if so required, Tenant shall
appoint one of Tenant's personnel to coordinate with the fire protection
facilities and personnel of Landlord. With respect to fire
extinguishers, Landlord shall be responsible for the
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maintenance of fire extinguishers in the Common Areas
only. Tenant shall maintain all fire extinguishers
installed in the Premises by or on behalf of the Tenant.
(h) Landlord shall furnish and replace all
Building Standard Lamps, as defined herein, only. For
the purpose of this Lease, Building Standard Lamps shall
be defined as four foot (4') long fluorescent tubes
installed in the building standard 2'x 4', 2-lamp and
3-lamp fixtures. Landlord shall, as all Operating
Expense of the Building, replace non-Building Standard
Lamps furnished at the sole cost of the Tenant.
(i) Without the prior written consent of
Landlord, which Landlord may refuse in its sole
discretion, Tenant shall connect no equipment,
apparatus, machine, or other device to any of the
Building's systems that would exceed the design capacity
of such systems. Tenant may connect standard office
machines which consume comparable amounts of electricity
to the electrical system in the Premises but only
through electrical outlets in the Premises which have
been installed in accordance with the local building
codes.
(j) Without the prior written consent of
Landlord, which Landlord may refuse in Landlord's sole
discretion, Tenant shall not place or install in the
Premises any machine, equipment, storage, or shelving
the weight of which exceeds the normal load bearing
capacity of the floors of the Building. If Landlord
consents to the placement or installation of any such
machine, equipment, storage, or shelving in the Premises
which exceeds such weight allowance, Tenant at its sole
expense shall reinforce the floor of the Premises in the
area of such placement or installation, pursuant to
plans and specifications approved by Landlord and
otherwise in compliance with Paragraph 13, to the
extent necessary to assure that no damage to the
Premises or the Building or weakening of any structural
supports will be caused.
18. INDEMNIFICATION.
(a) Tenant's Indemnity. To the fullest extent permitted by law
Tenant hereby agrees to defend, indemnify and hold Landlord harmless
against and from any and all claims arising from Tenant's use of the
Premises or the conduct of its business or from any activity, work, or
thing done, permitted or suffered by Tenant, its agents, contractors,
employees or invitees (collectively "Tenant and its Agents") in or about
the Premises or elsewhere, and hereby agrees to further indemnify and
hold harmless Landlord against and from any and all claims arising from
any breach or default in the performance of any obligation on Tenant's
part to be performed under the terms of this Lease, or arising from any
act, neglect, fault or omission of Tenant, or of its agents, employees
or invitees, and from and against all costs, attorneys' fees, expenses
and liabilities incurred in or about such claim or any action or
proceeding brought thereon; [and in case any action or proceeding
brought against Landlord by reason of any such claim] except for
Landlord's willful misconduct or negligence of Landlord or its agents or
employees in connection with the Premises, Building or Site. Tenant, as
a material part of the consideration to Landlord, hereby assumes all
risk of damage to property or injury to persons in, upon or about the
Premises caused by the condition of the Premises except that which is
caused by the failure of Landlord to observe any of the terms and
conditions of this Lease and such failure has persisted for an
unreasonable period of time after written notice of such failure.
(b) Landlord's Indemnity. To the fullest extent permitted by law
Landlord hereby agrees to defend, indemnify and hold Tenant harmless
against and from any and all claims arising from Landlord's conduct of
its business or from any activity, work, or thing done, permitted or
suffered by Landlord, its agents, contractors, employees or invitees
(collectively Landlord and its Agents) in or about the Premises,
Building or Site, and hereby agrees to further indemnify and hold
harmless Tenant against and from any and all claims arising from any
breach or default in the performance of any obligation, on Landlord's
part to be performed under the terms of this Lease, or arising from any
act, neglect, fault or omission of Landlord, or of its agents, employees
or invitees, and from and against all costs, attorneys' fees, expenses
and liabilities incurred in or about such claim or any action or
proceeding brought thereon; [and in case any action or proceeding
brought against Tenant by reason of any such claim] except for Tenant's
willful misconduct or negligence of Tenant or its agents or employees in
connection with the Premises, Building or Site.
19. DAMAGE TO TENANT'S PROPERTY.
Notwithstanding any other provision of this Lease, Landlord and its
Agents shall have no liability for any injury or damage to Tenant's personal
property resulting from any cause including but not limited to; fire, explosion,
falling plaster, steam, gas, electricity, water or rain which may leak from any
part of the Property or from the pipes, appliances or plumbing works located
within any structure constructed upon the Property or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
patent or latent cause whatsoever. Landlord and its agents shall have no
liability to Tenant for interference with the light or other rights or benefits
associated with the use of the Premises or the Property. Tenant shall give
prompt notice to Landlord in case of fire or accidents on or in the Property or
of defects in the Property, any structure located upon the Property and all
fixtures and equipment located within the Property.
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20. INSURANCE.
(a) Tenant's Insurance. During the term of this lease and any
extension of the term, Tenant at his sole cost and expense shall,
obtain, maintain and keep in full force and effect, the insurance
described below with respect to the Property.
(i) Property insurance covering the risks of physical
damage or loss as provided under the Standard Causes of Loss
Form, or other equivalent form, upon property of every
description and kind located in or upon the Property: (1) owned
by Tenant; (2) for which Tenant is legally liable; (3) installed
by or on behalf of Tenant including, without limitation,
furniture, fittings, installations, including tenant
improvements and betterments, fixtures and any other personal
property; and (4) all improvements installed by Landlord within
the Premises which are in excess of the allowance as specified
in paragraph 12 of the Basic Lease Terms. All insurance acquired
by Tenant pursuant to the provisions of this paragraph shall be
in an amount not less than ninety percent (90%) of the full
replacement cost of the items described as (1) through (4)
above, inclusive. Notwithstanding any other provision of this
Lease, in event of a dispute as to the amount which comprises
full replacement cost, Landlord's decision shall be conclusive.
(ii) A policy of Commercial General Liability Insurance
coverage including personal injury, bodily injury, broad form
property damage, premises/operations, owner's protective
coverage, blanket contractual liability, products and completed
operations liability, host liquor liability and owned/nonowned
auto liability, in an amount not less than $2,000,000 per
occurrence. The policy shall name Landlord, Landlord's managing
agent and all lenders secured by the Property ("Lenders") as
additional insureds, and shall also be endorsed to contain the
following provision:
"Insurance afforded by this policy for Landlord's
benefit and protection shall be primary with respect to all
claims, losses or liabilities arising out Tenant's use of the
Premises or from Tenant's operation. Any insurance carried by
Landlord shall be excess and non contributing."
(iii) Loss of income and extra expense insurance in such
amounts as will reimburse Tenant for direct or indirect loss of
earnings attributable to all perils commonly insured against by
prudent tenants or attributable to prevention of access to the
Premises or to the Building as a result of such perils.
(iv) Worker's compensation insurance and other insurance
to comply with all applicable regulations.
(v) Any other form or forms of insurance as Landlord may
reasonably require from time to time in form, in amounts and for
insurance risks against which a prudent tenant would protect
itself.
(b) Qualified Insurers. All insurance policies required pursuant
to the provisions of this Section shall be maintained with insurers with
a Best's rating of A-VI or better, unless otherwise approved in writing
by the Landlord and in form satisfactory from time to time to Landlord.
Tenant will cause Landlord to receive certificates of insurance on the
Landlord's standard form, or, at Landlord's option, certified copies of
each insurance policy and endorsement (collectively the "Insurance
Certifications"). Tenant will deliver the Insurance Certifications to
Landlord as soon as practicable after placing the required insurance,
but in no event later than ten (1O) business days after the Commencement
Date. Each insurance policy obtained by Tenant shall include an
endorsement requiring the insurer to notify Landlord and the Lenders in
writing at least thirty (30) days prior to any material change,
reduction in coverage, cancellation, or other termination of the policy.
(c) Insurance Proceeds on Termination. In the event of damage to
or destruction of the Property entitling Landlord to terminate this
Lease pursuant to Paragraph 21 of this Lease, if the Premises have also
been damaged, and if Landlord terminates this Lease, Tenant will
immediately pay to Landlord all of its insurance proceeds, if any,
relating to the Landlord's Work and alterations made by Landlord (but
not to Tenant's trade fixtures, equipment, furniture or other personal
property of Tenant) in the Premises. Upon termination of this Lease,
Tenant will deliver to Landlord, in accordance with the provisions of
this Lease, the Landlord's Work, the alterations and the Premises.
(d) Landlord's Insurance, Throughout the term of this Lease,
Landlord shall insure the Building (excluding any property which Tenant
is obligated to insure pursuant to the provisions of subparagraph 29(a)
above), which insurance shall be an Operating Expense of the Property
and the Site, against damage by fire and other perils insured under the
standard Special Causes of Loss Form, or other equivalent form, and
Commercial General Liability and Umbrella Liability in such reasonable
amounts with such reasonable deductibles as would be carried by a
prudent owner of a similar Class A office building in Northern
California. Landlord may take out and carry any other form
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or forms of insurance as it may reasonably determine advisable.
Notwithstanding any contribution by Tenant to the cost of insurance
premiums, with respect to the Building or any alterations of the
Premises, as provided herein, Tenant acknowledges that it has no right
to receive any proceeds from any such insurance policies carried by
Landlord. Landlord shall use such insurance proceeds in the repair and
reconstruction of the Building and the Premises unless the provisions of
Subparagraph 20(c) above shall apply. Landlord will not carry insurance
of any kind on Tenant's furniture or furnishings, or on any fixtures,
equipment, improvements or appurtenances of Tenant under this Lease; or
on any tenant improvements constructed in the Premises by Landlord in
excess of the allowance as specified in paragraph 12 of the Basic Lease
Terms; and Landlord shall not be obligated to repair any damage thereto
or replace the same.
(e) Conditional Waiver. Landlord and Tenant hereby release each
other and their respective Agents from any and all claims or demands of
damage, loss, expense or injury to the Premises, the Property, the
furnishings and fixtures and equipment or inventory or other property of
either Landlord or Tenant in, about or upon the Property, which is
caused by or results from perils or events which are the subject of
insurance carried by the parties in force at the time of such loss;
provided, however, that such waiver shall be effective only to the
extent permitted by the insurance covering such loss and to the extent
insurance coverage is not prejudiced thereby. Each party shall cause
each insurance policy it obtains to provide that the insurer waives all
right of recovery by way of subrogation against either party in
connection with damage covered by such policy,
(f) Compliance with Policy Requirements. Tenant agrees that it
will not keep, use, sell or offer for sale in or upon the Premises any
article which may be prohibited by any insurance policy in force from
time to time covering the Property or any portion of the Property or any
personal property located within the Property (collectively the "Insured
Property"). Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any insurance covering the "Insured
Property" and shall comply with all rules, orders, regulations and
requirements of the Pacific Fire Rating bureau or any other organization
performing a similar function. In the event Tenant's occupancy or
conduct of business in or on the Premises, whether or not Landlord has
consented to the same, results in any increase in premiums for the
insurance carried from time to time by Landlord with respect to the
Insured Property, Tenant shall pay any such increase in premiums as
additional rent within ten (10) days after being billed therefor by
Landlord. In determining whether increased premiums are a result of
Tenant's use or occupancy of the Premises, a schedule issued by the
organization computing the insurance rate on the Insured Property or the
Landlord's Work showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up such
rate. Tenant shall promptly comply with all requirements of the
insurance authority or of any insurer now or hereafter in effect
relating to the Insured Property.
(g) Cure of Matters Negatively Impacting Insurance Coverage. If
any insurance policy carried by Landlord, as provided by Subparagraph
20(d) above, shall be canceled or cancellation shall be threatened or
the coverage thereunder reduced or threatened to be reduced, in any way
be reason of the use or occupation of the Premises or any part thereof
by Tenant or by any assignee or sub-tenant or Tenant or by anyone
permitted by Tenant to be upon the Premises and, if Tenant fails to
remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within forty-eight (48) hours
after notice thereof, Tenant shall be in default of its obligations
hereunder and Landlord may, at its option, either terminate this Lease
or enter upon the Premises and attempt to remedy such condition and
Tenant shall forthwith pay the cost thereof to Landlord as additional
rent. Landlord shall not be liable for any damage or injury caused to
any property of Tenant or of others located in the Premises as a result
of such entry. In the event that Landlord shall be unable to remedy such
condition, then Landlord shall have all of the remedies provided for in
this Lease in the event of a default by Tenant. In no event shall
Landlord be obligated to attempt to remedy such default.
(h) Ownership. Nothing in this Section shall be construed as
affecting the ownership or right to possession of fixtures, personal
property, the Landlords Work or other tenant improvements constructed in
the Premises by Landlord in excess of the allowance as specified in
paragraph 12 of the Basic Lease Terms.
21. Damage or Destruction.
(a) In the event the Building and/or the Premises or any insured
alterations are damaged by fire or other perils covered by Landlord's
extended coverage insurance to an extent not exceeding twenty-five
percent (25%) of the full insurable value thereof and if the damage
thereto is such that the Building and/or the Premises and any insured
alterations may be repaired, reconstructed or restored within a period
of one-hundred eighty (180) days from the date of the happening of such
casualty and Landlord will receive insurance proceeds sufficient to
cover the cost of such repairs, Landlord shall commence and proceed
diligently with the work or repair, reconstruction and restoration and
the Lease shall continue in full force and effect. If such work or
repair, reconstruction and restoration is such as to require a period
longer than one-hundred eighty (180) days or exceeds twenty-five (25%)
of the full insurable value
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thereof, or if said insurance proceeds will not be sufficient to cover
the cost of such repairs, Landlord either may elect to so repair,
reconstruct or restore the Building and/or Premises and any insured
alterations and the Lease shall continue in full force and effect or
Landlord may elect not to repair, reconstruct or restore the Building
and/or Premises and any insured alterations and the Lease shall in such
event terminate. Under any of the conditions of this Subparagraph
21(a), Landlord shall give written notice to Tenant of its intention
within thirty (30) days from the date of such event of damage or
destruction. In the event Landlord elects not to restore said Building
and/or Premises and any insured alterations, this Lease shall be deemed
to have terminated as of the date of such partial destruction.
(b) Upon any termination of this Lease under any of the
provisions of this Paragraph 21, the parties shall be released thereby
without further obligation to the other from the date possession of the
Premises is surrendered to Landlord except for items which have
theretofore accrued and are then unpaid.
(c) In the event of repair, reconstruction and restoration by
Landlord as herein provided, the rent provided to be paid under this
Lease shall be abated proportionately with the degree to which Tenant's
use of the Premises is impaired during the period of such repair,
reconstruction or restoration. Tenant shall not be entitled to any
compensation or damages for loss in the use of the whole or any part of
the Premises and/or any inconvenience or annoyance occasioned by such
damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations
under this Lease except to the extent and upon the conditions expressly
stated in this Paragraph 21. Notwithstanding anything to the contrary
contained in this Paragraph 21, should Landlord be delayed or prevented
from repairing or restoring the damaged Premises within six (6) months
after the occurrence of such damage or destruction by reason of acts of
God, war, governmental restrictions, inability to procure the necessary
labor or materials, or other cause beyond the control of Landlord,
Landlord shall be relieved of its obligation to make such repairs or
restoration and Tenant shall be released from its obligations under this
Lease as of the end of said six (6) months period.
(e) It is hereby understood that if Landlord is obligated to or
elects to repair or restore as herein provided, (i) Landlord shall be
obligated to make repairs or restoration only of those portions of the
Building and the Premises which were originally provided at Landlord's
expense or which were insured by either party and approved by Landlord
and the proceeds of such insurance have been received by Landlord, and
the repair and restoration of items not provided at Landlord's expense
shall be the obligation of Tenant and (ii) the deductible amount
required to be paid in connection with the recovery of proceeds under
any insurance policy covering the Building and/or the Premises shall be
included as an Operating Expense of the Site to the extent such damage
or destruction occurs to the exterior and/or structural portion of the
Building and/or the Common Areas, as reasonably determined by Landlord.
To the extent such damage or destruction occurs to the Premises, as
reasonably determined by Landlord, Tenant shall reimburse Landlord for
such deductible amount.
(f) In the event that damage in excess of the deductible amount
of insurance is due to any cause other than fire or other peril covered
by extended coverage insurance, Landlord may elect to terminate this
Lease.
(g) Notwithstanding anything to the contrary contained in this
Xxxxxxxxx 00, Xxxxxxxx shall not have any obligations whatsoever to
repair, reconstruct or restore the Premises when the damage resulting
from any casualty covered under this Paragraph 21 occurs during the last
twelve (12) months of the term of this Lease or any extension hereof.
(h) The provisions of California Civil Code SS 1932, Subsection
2, and SS 1933, Subsection 4, are hereby waived by Tenant.
(i) In the event it becomes necessary for Landlord to terminate
the Lease in accordance with the terms of this Section 21, Landlord's
treatment of Tenant shall be consistent with the treatment of other
tenants in the Building.
22. EMINENT DOMAIN.
(a) In case the whole of the Premises, the Building or the Site
or such part of the Premises, Building or the Site as shall
substantially interfere with Tenant's use and occupancy thereof, shall
be taken for any public or quasipublic purpose by any lawful power or
authority by exercise of the right of appropriation, condemnation or
eminent domain, or sold to prevent such taking, either party shall have
the right to terminate this Lease effective as of the date possession is
required to be surrendered to said authority. Tenant shall not assert
any claim against Landlord or the taking authority for any compensation
because of such taking and Landlord shall be entitled to receive the
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entire amount of any award without deduction for any estate or interest
of Tenant. In the event the amount of property or the type of estate
taken shall not substantially interfere with the conduct of Tenant's
business, Landlord shall be entitled to the entire amount of the award
without deduction for any estate or interest of Tenant, and Landlord at
his option may terminate this Lease; provided, however, Landlord's
treatment of Tenant shall be consistent with the treatment of other
tenants in the Building. If Landlord does not so elect, Landlord shall
promptly proceed to restore the Premises to Substantially their same
condition prior to such partial taking, and a proportionate allowance
shall be made to Tenant for the rent corresponding to the time during
which, and to the part of the Premises of which, Tenant shall be so
deprived on account of such taking and restoration. Nothing contained in
this Paragraph 22 shall be deemed to give Landlord any interest in any
award separately made to Tenant for the taking of personal property and
trade fixtures belonging to Tenant or for moving costs incurred by
Tenant in relocating Tenant's business or for interference with Tenant's
business.
(b) In the event of taking of the Premises or any part thereof
for temporary use, (i) this Lease shall be and remain unaffected thereby
and rent shall be abated only for the portion of the Premises affected,
and (ii) Tenant shall be entitled to receive for itself such portion or
portions of any award made for such use with respect to the period of
the taking which is within the term, provided that if such taking shall
remain in force at the expiration or earlier termination of this Lease,
Tenant shall then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under Paragraph 14 with respect to
surrender of the Premises and upon such payment shall be excused from
such obligations. For purpose of this Subparagraph 22(b), a temporary
taking shall be defined as a taking for a period of fifty (50) days or
less.
(c) Tenant waives the provisions of California Code of Civil
Procedure Section 1265.130.
23. DEFAULTS AND REMEDIES.
1. Default Conditions. Each of the following events constitutes a
default and breach of this Lease by Tenant:
(a) Tenant's failure to pay any rent or charges required to be
paid by Tenant under this Lease where such failure continues for five
(5) days after written notice from Landlord to Tenant of such failure to
perform (the notice period respecting the existence of a default shall
not modify the obligation to pay a late charge provided for below);
(b) Tenant's failure to promptly and fully perform any other
covenant, condition or agreement contained in this Lease where such
failure continues for 10 Days after written notice from Landlord to
Tenant of such failure to perform with respect to the payment of money
or 30 Days after written notice from Landlord to Tenant of such failure
to perform with respect to failures to perform of a non monetary nature;
(c) the levy of a writ of attachment or execution on this Lease
or on any of Tenant's property located in the Premises which is not
stayed within 90 days after the date upon which it is filed;
(d) a general assignment for the benefit of Tenant's creditors
or an arrangement, composition, extension or adjustment with Tenant's
creditors, the filing by or against Tenant of a petition for relief or
other proceeding under the federal bankruptcy laws or state or other
insolvency laws, or the assumption by any court or administrative
agency, or by a receiver, trustee or custodian appointed by either, of
jurisdiction, custody or control of the Premises or of Tenant or any
substantial part of its assets or property which remains under such
control 90 days following the date of the assumption of control.
If a non monetary default occurs which Tenant cannot reasonably cure
within the above time period but Tenant commences corrective action within that
period and prosecutes the corrective action diligently and continuously to
completion, Tenant's rights under the lease shall remain in good standing and
Tenant shall be subject to no further monetary penalty for such default.
2. Landlord's Remedies. If Tenant defaults under this Lease, in addition
to other rights or remedies Landlord may have under this Lease or the law,
Landlord may elect either of the remedies set forth in paragraphs 2.1 and 2.2 of
this Lease.
For purposes of this Paragraph (inclusive of all subparagraphs), "worth
at the time of award" of the amounts referred to in parts 2.1(i) and 2.2(ii)
shall be computed by allowing interest at the highest rate allowable by law, and
"worth at time of award" of the amount referred to in part 11.2.1(iii) shall be
computed by discounting such amount at the rate specified in California Civil
Code Section 1951.2(b) or any successor statute. In such computations, the rent
due hereunder shall include Monthly Basic Rent plus the aggregate amount of all
other rents, charges, Operating Expenses and other amounts payable by Tenant
hereunder.
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2.1. Landlord, at its option, shall have the right to
immediately terminate this Lease and Tenant's right to possession of the
Premises by giving written notice to Tenant and to recover from Tenant
an award of damages equal to the sum of,
(i) the worth at the time of award of the unpaid rental
which had been earned at the time of termination,
(ii) the worth at the time of award of the amount by
which the unpaid rental which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant affirmatively proves could have been
reasonably avoided,
(iii) the worth at the time of award of the amount by
which the unpaid rental for the balance of the Term after the
time of award exceeds the amount of such rental loss that Tenant
affirmatively proves could be reasonably avoided, and
(iv) any other amount necessary to compensate Landlord
for all the detriment either proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease or
which in the ordinary course of things would be likely to result
therefrom, and
(v) all such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time under
applicable law; or;
2.2. Notwithstanding any other provision of this Lease, Landlord
has the remedy described in California Civil Code Section 1951.4
(Landlord may continue this Lease in effect after Tenant's breach and
abandonment and recover rent as it becomes due, if Tenant has the right
to sublet or assign, subject only to reasonable limitations). Tenant
agrees that this Lease confers upon tenant the right to sublet or assign
its interest in this lease subject to reasonable limitations. Tenant
acknowledges that such reasonable limitations and the right to sublet or
assign as conferred by this Lease comply with the requirements imposed
by California Civil Code Section 1951.4. This right shall continue in
effect for so long as Landlord does not terminate this Lease and
Tenant's right to possession of the Premises, in which event, Landlord
shall retain the right to enforce all rights and remedies provided by
this Lease and by law, including the right to recover all rent and other
charges payable by Tenant under this Lease as they become due.
3. Landlord's Default Except as otherwise provided by this Lease,
Landlord's failure to perform any obligation required of Landlord (other than a
delay in delivery of possession) within 30 Days after Tenant's delivery to
Landlord of written notice, specifying the obligation Landlord has failed to
perform shall constitute a default. Notwithstanding the preceding sentence, if
the nature of the obligation is such that more than 30 Days are required for
performance, then Landlord shall not be in default if it commences performance
within such 30 Day period and diligently prosecutes the same to completion. If
Landlord has not timely commenced to cure the default (or subsequently does not
diligently pursue the cure), Tenant may perform Landlord's obligation(s) with
respect to the default and xxxx Landlord for the reasonable cost of performance.
Should Landlord dispute the claim for any reason, the matter will be resolved
pursuant to the arbitration provisions of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) Required Approval. Without first obtaining Landlord's
written consent, Tenant shall not directly or indirectly: (1) assign
this Lease in whole or in part; (2) sublet all or any part of the
Premises; (3) license the use of all or any part of the Premises; (4)
license all or any part of any business conducted on the Premises; (5)
encumber or hypothecate this Lease (items (1) through (5) are
collectively referred to as a "Transfer"). Landlord shall not
unreasonably withhold or delay Landlord's consent to any requested
Transfer. As used in this Section, "Transferee" refers to the person(s)
or entity(ies) intended to receive any use or occupancy rights to the
Premises as the result of a proposed Transfer.
(b) Request for Consent. Tenant's request for consent to any
Transfer shall be in writing and shall include the following: (a) the
name and legal composition of the proposed Transferee; (b) the nature of
the proposed Transferee's business to be carried on in the Premises; (c)
the Terms and provisions of the proposed Transfer including, without
limitation the proposed commencement and termination dates (respectively
the "Scheduled Commencement" and the "Scheduled Termination"); and (d)
such financial and other information as Landlord may reasonably request
concerning the proposed Transferee, the proposed Transfer and any
transaction contemplated to occur in connection with the proposed
Transfer. Within fifteen (15) days of receipt of such written notice,
and additional information requested by Landlord concerning the proposed
assignee's or Transferee's financial responsibility, Landlord shall
elect one of the following options And notify Tenant in writing of its
election;
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(i) Consent to the proposed Transfer;
(ii Conditionally consent to the proposed Transfer,
requiring that Tenant and/or the proposed Transferee agree to
specific reasonable terms and provisions as a condition of
approval of the Transfer.
(iii) Refuse to consent to the Transfer on reasonable
grounds.
(iv) Elect to terminate this Lease, or in the case of a
request for approval of Transfer of a portion of the Premises,
terminate this Lease as to the portion of the Premises subject
to the proposed Transfer. If Tenant requests Landlord's consent
to any Transfer of all or a portion of the Premises, Landlord
shall have the right, to be exercised by giving written notice
to Tenant within thirty (30) days of receipt by Landlord of the
financial responsibilities information required by this Section
to terminate this Lease, in whole or as to the affected portion
of the Premises, effective as of the Scheduled Commencement.
(v) Landlord's failure to give written notice of its
approval or disapproval of the proposed subletting or assignment
within such period shall be deemed Landlord's consent to the
proposed assignment or subletting. If Landlord disapproves of
any proposed assignment or subletting, Landlord shall state the
reason for the disapproval in Landlord's response to Tenant.
(c) Voidable Transfers. Any Transfer without Landlord's prior
written consent shall be voidable at Landlord's election and shall
constitute a default under the provisions of this Lease entitling
Landlord to exercise all rights and remedies provided by this Lease for
Tenant's default.
(d) Consent Does Not Constitute Waiver. Landlord's consent to
any Transfer shall not constitute a waiver of the necessity for such
consent to any subsequent Transfer by Tenant and/or by any Transferee of
Tenant. The prohibition against assignment and subletting contained in
this paragraph includes a prohibition against assignment or subletting
by operation of law.
(e) Change in Tenant's Composition. Except as set forth to the
contrary in Paragraph 3 of the Rider attached hereto, in the event that
Tenant is a partnership, a withdrawal or change of partners or a change
of interests of partners or if Tenant is a corporation, other than a
publicly traded corporation, any transfer of stock which collectively
modifies 50% or more of the ownership shall constitute a Transfer
requiring Landlord's advance approval.
(f) Tenant's Liability. Unless Landlord expressly agrees to the
contrary in writing, notwithstanding any approved Transfer, Tenant shall
remain fully liable on this Lease and shall not be released from the
obligations imposed upon Tenant by this Lease.
(g) Grounds for Withholding Consent to Transfer. Without
limiting other reasons or circumstances, Landlord and Tenant agree that
it is reasonable for Landlord to withhold consent to Transfer, if (i)
the financial strength of the proposed Transferee is not, in Landlord's
reasonable judgment, commensurate with the obligations of the Lease;
(ii) the proposed Transferee's use would, in Landlord's reasonable
judgment, be incompatible with the then current tenants, or the use of
the rest of the Property; (iii) the proposed Transferee's use would
generate traffic, parking and/or wear and tear on the Premises or
Property materially in excess of that generated by Tenant's use; (iv)
the proposed terms of the Transfer do not expressly require compliance
by the Transferee with each, all and every one of the provisions of this
Lease; or (v) the proposed Transferee is a current tenant of the
Building or a Prospective Tenant. As used in this Section, "Prospective
Tenant" means a person or entity with which Landlord has negotiated for
space in the Building within four months prior to the date of delivery
to Landlord of the request for approval of the Transfer and any
partnership, association or corporation owned 50% or more by any such
persons and/or entities with whom Landlord has negotiated with the same
time period. As used in this Section, "Property" refers to the Building
and the Multi-Story Parking Facility and the Site.
(h) Reasonable Limitations. Tenant expressly agrees that the
provisions of this Lease respecting subletting, assignment and any
Transfer are subject only to reasonable limitations in compliance with
the requirements of California Civil Code Section 1951.4.
(i) Landlord's Fees and Expenses. Tenant shall pay Landlord's
reasonable processing costs and attorneys' fees incurred in reviewing
and processing all requests for approval of a proposed Transfer whether
or not, Landlord consents to the proposed Transfer.
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(j) Excess Rents. Tenant shall pay Landlord 50% of all Excess
Rent received by Tenant directly or indirectly in connection with any
Transfer respecting this Lease. As used in this Lease, "Excess Rent"
means, subject to the adjustments provided below and allocated on a pro
rata basis in the event of a Transfer of a portion of the Premises, in
the case of an assignment, all consideration received and, in the case
of a sublease or license, all consideration received in excess of rents
and charges reserved under this Lease. The adjustments allowed pursuant
to the provisions of this paragraph are: the cost of broker's
commissions paid by Tenant with regard to the Transfer, legal fees
incurred by Tenant respecting the Transfer, the unamortized portions of
improvements made in the subleased area by Tenant for Tenant's use
during the original tenancy (except those paid for by Landlord or by any
Allowance from Landlord for such improvements) and other expenses
reasonably incurred by Tenant in effectuating the Transfer including
improvements constructed by Tenant for the Transferee as a condition of
the Transfer). Notwithstanding the foregoing language, no broker's
commissions, legal fees and other expenses so charged against receipts
from the Transfer may exceed the fair market value for such services and
all such services shall be strictly related to the Transfer.
Tenant shall not receive any adjustment for its moving or
relocation expenses and may not deduct them from compensation received.
Tenant shall submit an accounting of all such expenses to Landlord
within 60 days of the effective date of the Transfer. Such accounting
shall be certified as accurate by a Certified Public Accountant or
signed and certified as accurate by Tenant. All amortization of
improvements shall be calculated in a manner which complies with
generally accepted United States accounting practices consistently
applied, Landlord shall have the right to-dispute any charges included
in the accounting. In the event of any such dispute, Tenant shall, upon
Landlord's request, provide reasonable documentation to substantiate all
disputed items.
(k) Transferee's Direct Payment. Landlord may require that the
Transferee remit directly to Landlord on a monthly basis, all moneys due
to Tenant by said Transferee. Landlord's imposition of such a
requirement shall not relieve Tenant of any responsibilities or
obligations under the provisions of this Lease, nor shall it obligate
Landlord to undertake collection actions on Tenant's behalf. Landlord
shall pay to Tenant any moneys remaining from the Transferee's payments
after deducting all moneys due to Landlord under the terms of this
Lease.
(1) Restriction on Exercise of Options. To the extent Tenant
possesses any option or options to expand into additional space within
the Building or to extend the term of this Lease, such options may not
be exercised nor will the time limits in which Tenant must exercise such
options be extended, so long as any portion of the Premises are subject
to a Transfer, whether or not Landlord has consented to the Transfer.
Except with respect to the transferees described in Section 3 of the
Rider attached hereto, but specifically excluding the transferees
described in Subsection 3(c) of the Rider attached hereto, no Transferee
shall acquire the right to extend the term of this Lease or to expand
into additional space unless Landlord expressly consents in writing to
the Transferee's acquisition of such right.
(m) Restoration of Premises. Notwithstanding anything to the
contrary in paragraphs 13 or 24, Landlord, at its sole discretion, may
require Tenant, at Tenant's sole expense, to restore the Premises to the
condition and configuration that existed in the Premises prior to any
approved Transfer, normal wear and tear excepted unless approved
otherwise in writing by Landlord.
25. QUIET ENJOYMENT.
Landlord covenants and agrees with Tenant that upon Tenant paying the
rent required under this Lease and paying all other charges and performing all
of the covenants and provisions aforesaid on Tenant's part to be observed and
performed under this Lease, Tenant shall and may peaceably and quietly have,
hold and enjoy the Premises in accordance with this Lease.
26. SUBORDINATION.
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the election of
Landlord or any first mortgagee with a lien on the Building or any ground lessor
with respect to the Building, this Lease shall be subject and subordinate at all
times to: (a) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the Site, (b) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed in any
amount for which the Building, Site, ground leases or underlying leases, or
Landlord's interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu Of foreclosure a made for any reason, Tenant shall, if
requested by the ground lessor, mortgages or beneficiary as applicable attorn
to and become the Tenant of the successor in Interest to Landlord and in
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such event Tenant's right to possession of the Premises shall not be disturbed
if Tenant is not in default and so long as Tenant shall pay the rent and all
other amounts required to be paid to Landlord pursuant to the terms hereof and
observe and perform all of the provisions of this Lease, unless the Lease is
otherwise terminated pursuant to its terms. Tenant covenants and agrees to
execute and deliver, upon demand by Landlord and in the form requested by
Landlord and reasonably acceptable to Tenant, any additional documents
evidencing the priority or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such mortgage or deed of
trust. Should Tenant fail to sign and return any such documents within ten (10)
business days of receipt of a second notice thereof, Tenant shall be in default,
and Landlord may, at Landlord's option, terminate this Lease provided written
notice of such termination is received by Tenant prior to Landlord's receipt of
such documents.
27. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which
either party may make from time to time, the other party shall execute
and deliver to the requesting party a statement, in a form substantially
similar to the form of Exhibit "E" attached hereto, certifying (i) the
Commencement Date of this Lease; (ii) the fact that this Lease is
unmodified and in full force and effect (or, if there have been
modifications hereto, that this Lease is in full force and effect, as
modified, and stating the date and nature of such modifications); (iii)
the date to which the rental and other sums payable under this Lease
have been paid; and (iv) the fact that there are no current defaults
under this Lease by either Landlord or Tenant except as specified in
Tenant's statement; Landlord and Tenant intend that any statement
delivered pursuant to this Paragraph 28 may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein,
(b) The non-requesting party's failure to deliver such statement
within such time shall be conclusive upon such party (i) that this Lease
is in full force and effect, without modification except as may be
represented by the requesting party; (ii) that there are no uncured
defaults in the requesting party's performance; and (iii) that not more
than one (1) month's rent has been paid in advance. In the event that
Landlord is the requesting party, Tenant's failure to deliver said
statement to Landlord within ten (10) working days of receipt of a
second notice thereof shall constitute a default under this Lease, and
Landlord may, at Landlord's option, terminate the Lease, provided
written notice of such termination is received by Tenant prior to
Landlord's receipt of said statement.
28. BUILDING PLANNING.
In the event Landlord requires the Premises for use in conjunction with
another suite or for other reasons connected with the Building planning program,
upon notifying Tenant in writing a minimum of sixty (60) days in advance,
Landlord shall have the right to move Tenant to other space in the Building of
which the Premises forms a part, provided such space is comparable in size and
design to the Premises, can in Tenant's reasonable determination, accommodate
Tenant's permitted use hereunder, and is located on a floor above the Premises,
at Landlord's sole cost and expense, including all of Tenant's moving expenses,
telephone installation, electrical wiring and cabling, and stationary reprinting
charges, and the terms and conditions of the original Lease shall remain in full
force and effect, save and excepting that a revised Exhibit "A" shall become
part of this Lease and shall reflect the location of the New space and the Basic
Lease Terms shall be amended to include and state all correct data as to the new
space.
29. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the "Rules and
Regulations", a copy of which is attached hereto and marked Exhibit F", and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the Building of any of said Rules and Regulations.
30. CONFLICT OF LAWS.
This Lease shall be governed by and construed pursuant to the laws of
the State of California.
31. SUCCESSORS AND ASSIGNS.
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
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32. SURRENDER OF PREMISES.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies. Upon the expiration or termination of this Lease, Tenant shall
peaceably surrender the Premises and all alterations and additions thereto broom
clean, in good order, repair and condition, reasonable wear and tear, casualty
and condemnation excepted, and shall comply with the provisions of Subparagraphs
13(f) and 13(g). The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not be sufficient to constitute a
termination of this Lease or a surrender of the Premises.
33. PROFESSIONAL FEES.
(a) Should either party bring suit against the other with
respect to matters arising from or growing out of this Lease, then all
costs and expenses, including without limitation, its actual reasonable
professional fees and expenses such as appraisers', accountants' and
attorneys' fees and expenses, incurred by the prevailing party therein
shall be paid by the other party, which obligation on the part of the
other party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the
action is prosecuted to judgment.
(b) Should Landlord be named as a defendant in any suit brought
against Tenant in connection with or arising out of Tenant's occupancy
hereunder, Tenant shall pay to Landlord its costs and expenses incurred
in such suit, including without limitation, its reasonable actual
professional fees such as appraisers', accountants' and attorneys' fees
and expenses. As used in this paragraph, references to "suit" include
arbitration proceedings as well as actions commenced in court.
34. PERFORMANCE BY TENANT.
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. Tenant acknowledges that the late
payment by Tenant to Landlord of any sums due under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of such
cost being extremely difficult and impractical to fix. Such costs include,
without limitation, processing and accounting charges, and late charges that may
be imposed on Landlord by the terms of any encumbrance and note secured by an
encumbrance covering the Premises or the Building of which the Premises are a
part. Therefore, if any monthly installment of Monthly Basic Rent is not
received by Landlord within five (5) days following the due date therefor, or if
Tenant fails to pay any other sum of money due hereunder and such failure
continues for five (5) days after notice thereof by Landlord, Tenant shall pay,
as additional rent, as liquidated damages for Landlord's costs an amount equal
to four percent (4%) of the overdue amount, plus such overdue amount shall bear
interest at the lesser of fifteen percent (15%) or the maximum rate permissible
by law, calculated from the date the monthly installment of Annual Basic Rent is
due until the date of payment to Landlord. Landlord's acceptance of any late
charge or interest shall not constitute a waiver of Tenant's default with
respect to the overdue amount or prevent Landlord from exercising any of the
other rights and remedies available to Landlord under this Lease or any law now
or hereafter in effect. Further, in the event such late charge is imposed by
Landlord for two (2) consecutive months for whatever reason, Landlord shall have
the option to require that, beginning with the first payment of rent due
following the imposition of the second consecutive late charge, rent shall no
longer be paid in monthly installments but shall be payable three (3) months in
advance,
35. MORTGAGE AND SENIOR LESSOR PROTECTION.
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release of
such obligations or a termination of this Lease unless (a) Tenant has given in
accordance with Section 58, which notice is concurrent with notice to Landlord,
to any beneficiary of a deed of trust or mortgage covering the Premises and to
the Lessor under any master or ground Lease covering the Building, the Site or
any interest therein whose identity and address shall have been furnished to
Tenant, and (b) Tenant offers such beneficiary, mortgagee or Lessor a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or of judicial foreclosure, if such should prove
necessary to effect a cure.
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36. DEFINITION OF LANDLORD.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title to,
or a lessee's interest in a ground lease of the Site or master lease of the
Building. In the event of any transfer, assignment or other conveyance or
transfers of any such title or interest, Landlord herein named (and in case of
any subsequent transfers or conveyances the then grantor) shall be automatically
freed and relieved from and after the date of such transfer, assignment or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed and, without further agreement, the transferee of such title or
interest shall be deemed to have assumed and agreed to observe and perform any
and all obligations of Landlord hereunder, during its ownership of the Premises.
Landlord may transfer its interest in the Premises without the consent of Tenant
and such transfer or subsequent transfer shall not be deemed a violation on
Landlord's part of any of the terms and conditions of this Lease.
37. WAIVER.
The failure of Landlord to seek redress for violation of, or to insist
upon strict performance of, any term, covenant or condition of this Lease or the
Rules and Regulations attached hereto as Exhibit F", shall not be deemed a
waiver of such violation or prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation, nor shall the failure of Landlord to enforce any of said Rules and
Regulations against any other tenant of the Building be deemed a waiver of any
such Rule or Regulation, nor shall any custom or practice which may become
established between the parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect, the right of Landlord to insist upon
the performance by Tenant in strict accordance with said terms. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
38. IDENTIFICATION OF TENANT.
Unless the provisions of Paragraph 53 hereinbelow are applicable to this
Lease, then if more than one person executes this Lease as Tenant, (a) each of
them is jointly and severally liable for the keeping, observing and performing
of all of the terms, covenants, conditions, provisions and agreements of this
Lease to be kept, observed and performed by Tenant, and (b) the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally and
the act of or notice from, or notice or refund to, or the signature of, any one
or more of them, with respect to the tenancy or this Lease, including, but not
limited to, any renewal, extension, expiration, termination or modification of
this Lease, shall be binding upon each and all of the persons executing this
Lease as Tenant with the same force and effect as if each and all of them had so
acted or so given or received such notice or refund or so signed.
39. PARKING AND TRANSPORTATION.
(a) Provided no event of default has occurred and is continuing
hereunder, Tenant shall have the right to lease the number of parking
spaces designated in Paragraph 25 of the Basic Lease Terms. Parking
rates for the parking designated in Paragraph 25 of the Basic Lease
Terms shall be Landlord's prevailing market rates then in effect for the
applicable parking facility. Landlord, in the exercise of its sound
business judgment, shall have the right to change the mode of parking in
both the Basement Garage and the Multi-Store Parking Facility at any
time. Tenant shall not use more parking spaces than said number. In the
event Landlord has not assigned specific spaces to Tenant, Tenant shall
not use any spaces which have been so specifically assigned by Landlord
to other tenants or for such other uses as visitor parking or which have
been designated by governmental entities with competent jurisdiction as
being restricted to certain uses.
(i) Tenant shall not permit or allow any vehicles that
belong to or are controlled by Tenant or Tenant's employees,
suppliers, shippers, customers, or invitees to be loaded,
unloaded, or parking in areas other than those designated by
Landlord for such activities.
(ii) If Tenant permits or allows any of the prohibited
activities described in this Paragraph 40, then Landlord shall
have the right, without notice, in addition to such other rights
and remedies that it may have, to remove or tow away the vehicle
involved and charge the cost to Tenant, which cost shall be
immediately payable upon demand by Landlord.
(iii) Landlord reserves the right at any time to
relocate such spaces and to substitute an equivalent number of
parking spaces in a parking structure or subterranean parking
facility or in a surface parking area
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reasonably equivalent to the affected parking area and within a
reasonable distance of the Premises or to change or modify the
manner or mode of parking, including, but not limited to,
changing any reserved spaces to valet parking and or re-striping
such spaces.
(iv) Tenant shall submit a written notice in a form
reasonably specified by Landlord, containing the names, home and
office addresses and telephone numbers of those persons who are
authorized by Tenant to use the parking spaces on a monthly
basis (the "Authorized Users") and shall use its best efforts to
identify each automobile by make, model and license number. Such
notice shall be served upon Landlord prior to the beginning of
the term of this Lease. Such notice, as amended from time to
time, is hereafter referred to as the "Parking Notice". No
person whose name and address is not contained in the Parking
Notice shall have any right to park an automobile in the area of
the Building parking facilities designated for monthly parking
and no person whether or not his name is included in the Parking
Notice shall have any right to park an automobile not identified
in the Parking Notice without (in either case) paying the
parking charge then applicable for daily parking in the Building
parking facilities and parking in the area designated for daily
parking.
(v) Tenant and Authorized Users shall comply with all
rules and regulations as set forth in the Parking Rules and
Regulations portion of Exhibit "F" hereto. Landlord reserves the
right to modify, add to, or delete from time to time such
Parking Rules and Regulations as it deems reasonably necessary
for the operation of said parking. Landlord may refuse to permit
any person who violates with unreasonable frequency the Parking
Rules and Regulations to parking in the Building Garage and
Multi-Story Parking Facility, and any violation of the rules
shall subject the car to removal. Tenant agrees to use its
reasonable best efforts to acquaint all Authorized Users and
visitors with the Parking Rules and Regulations.
(vi) All responsibility for damage to cars is assumed by
Authorized Users. Tenant shall repair or cause to be repaired at
its sole cost and expense any and all damage to the Basement
Garage and MultiStore Parking Facility or any part thereof
caused by Tenant or its Authorized Users or resulting from
vehicles of Authorized Users.
(b) Tenant agrees that it will use its reasonable best efforts
to cooperate in programs which may be undertaken by Landlord
independently, or in cooperation with local municipalities or
governmental agencies or other property owners in the vicinity of the
Building, to reduce peak levels of commuter traffic. Such programs may
include, but shall not be limited to, carpools, vanpools and other ride
sharing programs, public and private transit, and flexible work hours.
(c) Tenant shall be entitled to the number of standard
automobile parking spaces designated in Paragraph 25 of the Basic Lease
Terms. In the event that any of the spaces Tenant is entitled to are not
purchased by the Tenant for four (4) consecutive months, Tenant shall
have no further rights to these spaces and Landlord may offer these
spaces to other parties as it so chooses.
(d) Tenant's parking rights hereunder shall extend to any
permitted assignee or sublessee of this Lease.
40. OFFICE AND COMMUNICATIONS SERVICES.
(a) Landlord has advised Tenant that certain office and
communications services may be offered to tenants of the building by a
concessionaire under contract or license to Landlord ("Provider").
Tenant shall be permitted to contract with Provider for the provision of
any or all of such services on such terms and conditions as Tenant and
Provider may agree. Tenant shall also be permitted to obtain office and
communications services from any other reputable person or entity in the
business of providing the same (herein called an "Alternate Provider"),
provided that Landlord shall not be required thereby to make any
alterations in or to any part of the Building or the use of any
facilities or equipment of the Building, and provided further that no
such services provided by an Alternate Provider, or any equipment or
facilities used or to be used in connection therewith, shall be
incompatible in any respect with, or shall interfere with or otherwise
impair or adversely affect, the operation, reliability or quality of
tile Building systems or any services, equipment or facilities used or
operated by Provider or ally tenant in the Building.
(b) Tenant acknowledges and agrees that: (i) Landlord has made
no warranty or representation to Tenant with respect to the availability
of any such services, whether provided by Provider or any Alternate
Provider, or the quality, reliability or suitability thereof; (ii)
neither Provider nor any Alternate Provider is acting as the agent or
representative of Landlord in the provision of such services, and
Landlord shall have no liability or responsibility
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for any failure or inadequacy of such services, or any equipment or
facilities used in the furnishing thereof, or any act or omission of
Provider or any Alternate Provider, or their agents, employees,
representatives, officers or contractors: (iii) Landlord shall have no
responsibility or liability for the installation, alteration, repair,
maintenance, furnishing, operation, adjustment or removal of any such
services, equipment or facilities; and (iv) any contract or other
agreement between Tenant and Provider or any Alternate Provider shall be
independent of this Lease, the obligations of Tenant hereunder, and the
rights of Landlord hereunder, and, without limiting the foregoing, no
default or failure of Provider or any Alternate Provider with respect to
any such services, equipment or facilities, or under any contract or
agreement relating thereto, shall have any effect on this Lease or give
to Tenant any offset or defense to the full and timely performance of
its obligations hereunder, or entitle Tenant to any abatement of rent or
additional rent or any other payment required to be made by Tenant
hereunder, or constitute any actual or constructive eviction of Tenant,
or otherwise give rise to any claim of any nature against Landlord.
(c) The Landlord shall maintain, as an Operating Expense of the
Building, the vertical telephone riser cables terminating at the
Building telephone room located in the central core on each floor. All
telephone cabling from the Building telephone room located in the
central core on each floor to the Premises and within the Premises shall
be maintained at the Tenant's expense regardless of who paid for the
initial installation. Landlord shall have no responsibility for the
maintenance of any dedicated data cabling or special wiring
installations installed for the exclusive use of a tenant in the
Building.
41. TERMS AND HEADINGS.
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in any gender include other genders.
If there be more than one Tenant, i.e., if two or more persons or entities are
jointly referred to in this Lease as "Tenant", the obligations hereunder imposed
upon Tenant shall be joint and several. The Paragraph headings of this Lease are
not a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
42. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for Lease, and it is not
effective as a Lease or otherwise until execution by and delivery to both
Landlord and Tenant.
43. TIME.
Time is of the essence with respect to the performance of every
provision of this Lease in which time or performance is a factor.
44. PRIOR AGREEMENT; AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior agreement
or understanding, oral or written, express or implied, pertaining to any such
matter shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest. The parties acknowledge that
all prior agreements, representations and negotiations are deemed superseded by
the execution of this Lease to the extent they are not incorporated herein.
45. SEPARABILITY.
Any provision of this Lease which shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provision hereof,
and such other provisions shall remain in full force and effect.
46. RECORDING.
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other and if such recording
occurs, it shall be at the sole cost and expense of the party requesting the
recording.
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47. LIMITATION ON LIABILITY.
The obligations of Landlord under this Lease do not constitute personal
obligations of the individual partners, directors, officers or shareholders of
Landlord, and Tenant shall not seek recourse against the individual partners,
directors, officers or shareholders of Landlord or any of their personal assets
for satisfaction of any liability in respect to this Lease. The individual
directors and officers of Tenant shall not be personally liable for the
obligations of Tenant under this Lease and Landlord shall not seek recourse
against the individual officers and directors of Tenant or their personal assets
for satisfaction of any liability of Tenant hereunder.
48. RIDERS.
Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
49. SIGNS.
Tenant shall not place any sign upon the Premises or the Building
without Landlord's prior written consent not to be unreasonably withheld,
conditioned or delayed with respect to the Premises. Landlord may at any time
place on or about the Building any ordinary "For Sale" signs and Landlord may at
any time during the last one hundred eighty (180) days of the Term hereof place
on or about the Premises any ordinary "For Lease" signs, all without rebate of
rent or liability to Tenant.
50. MODIFICATION FOR LENDER.
If in connection with obtaining construction, interim or permanent
financing for the Building, the lender shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or, defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially or adversely
affect the leasehold interest hereby created or Tenant's rights hereunder.
51. ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the
rent payment herein stipulated shall be deemed to be other than on account of
the rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy provided in
this Lease. Tenant agrees that each of the foregoing covenants and agreements
shall be applicable to any covenant or agreement either expressly contained in
this Least or imposed by a statute or at common law.
52. FINANCIAL STATEMENTS.
At any time during the term of this Lease, but not more than one (1)
time per annum, Tenant shall, upon ten (10) days prior written notice from
Landlord, provide Landlord with a current financial statement and financial
statements of the two (2) years prior to the current financial statement year.
Such statement shall be prepared in accordance with generally accepted
accounting principles and, if such is the normal practice of Tenant, shall be
audited by an independent certified public accountant.
53. TENANT AS CORPORATION.
If Tenant executes this Lease as a corporation, then Tenant and the
persons executing this Lease on behalf of Tenant represent and warrant that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf in accordance with a duly adopted
resolution of the board of directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, and in accordance with the By-Laws of
Tenant and that this Lease is binding upon Tenant in accordance with its terms.
54. NO PARTNERSHIP OR JOINT VENTURE.
Nothing in this Lease shall be deemed to constitute Landlord and Tenant
as partners or joint venturers. It is the express intent of the parties hereto
that their relationship with regard to this Lease be and remain that of Landlord
and Tenant.
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55. AMERICANS WITH DISABILITIES ACT.
Landlord shall be responsible for compliance with the American with
Disabilities Act ("ADA") in all Common Areas of the Building. Commencing on the
Commencement Date, it shall be the Tenant's responsibility for compliance with
ADA within the boundaries of the Premises, except for Landlord's Work as
described in Exhibit "C" .
56. HAZARDOUS MATERIALS.
(a) Tenant's Obligations.
(i) Restrictions on Hazardous Materials, Tenant, its
agents, servants, employees, officers, directors, invitees,
guests, clients, contractors and their respective
representatives (hereafter collectively referred to as "Agents"
shall not cause or knowingly permit "Hazardous Material" (as
defined below) to be brought upon, used, handled, disposed of
transported, kept, manufactured, generated or stored (hereafter
collectively "Handled" or "Handling") in, on, or about the
Property without Landlord's prior written consent. As used in
this Section, "Property" refers to the Building and the
Multi-Story Parking Facility and the Site.
As used in this lease, "Hazardous Material" includes,
without limitation, (1) petroleum or petroleum products; (2)
hydrocarbon substances of any kind; (3) asbestos in any form;
(4) formaldehyde; (5) radioactive substances; (6) industrial
solvents; (7) flammables; (8) explosives; (9) leakage from
underground storage tanks; (10) substances defined as "hazardous
substances", "hazardous material", or "toxic substances" in (A)
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 or as otherwise amended, 42
U.S.C. Section 9601, et seq., (B) the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq. and any
amendments thereto, or (C) the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. and any amendments
thereto; (11) those substances defined as "hazardous wastes",
"extremely hazardous wastes" or "restricted hazardous wastes" in
Sections 25115, 25117, and 25122.7 or listed pursuant to Section
25140 of the California Health & Safety Code and any amendments
thereto; (12) those substances defined as "hazardous substances"
in Section 25316 of the California Health & Safety Code and any
amendments thereto; (13) those substances defined as "hazardous
material", "hazardous wastes" or "hazardous substances" in
Section 25501 and Section 25501.1 of the California Health &
Safety Code and any amendments thereto; (14) those substances
defined as "hazardous substances" under Section 25281 of the
California Health & Safety Code and any amendments thereto; (15)
those substances causing "pollution" or "contamination" or
constituting "hazardous substances" within the meaning of (A)
the Clean Water Act, 33 U.S.C. Section 1251 et seq. and any
amendments thereto, (B) the Xxxxxx-Cologne Water Quality Control
Act, Section 13050 of the California Water Code and any
amendments thereto, and (C) the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq.; (16) such chemicals as are
identified on the list published from time to time as provided
in Chapter 6.6 of the California Health and Safety Code, as
amended, as causing cancer or reproductive toxicity; (17)
polychlorinated biphenyls (PCBs) set forth in the Federal Toxic
Substance Control Act, as amended, 15 U.S.C. Section 2601 et
seq.; (18) "toxic air contaminant" as defined in California
Health and Safety Code Section 39655; (19) the wastes,
substances, materials, contaminants and pollutants identified
pursuant to or set forth in the Regulations adopted or judicial
or administrative orders, decisions or decrees promulgated
pursuant to any of the foregoing laws; and (20) all receptacles
and containers for any and all materials referred to above. The
foregoing list of definitions and statutes is intended to be
illustrative and not exhaustive and such list shall be deemed to
include all definitions, rules, regulations and laws applicable
to the subject matter of this paragraph as such rules, laws,
regulations and definitions may be amended, modified, or changed
from time to time. Notwithstanding the foregoing, "Hazardous
Materials" shall not include reasonable and customary amounts of
cleaning and maintenance materials normally used in the
operation and maintenance of an office building provided they
are stored and used in accordance with applicable laws, provided
however, that Tenant shall be responsible for the cleanup and
remediation of such materials.
(ii) Applicable Regulations. If any Hazardous Material
is Handled in, on, about or under the Property by Tenant and/or
its Agents, Tenant shall bear all financial and other
responsibility for ensuring that the Handling of such Hazardous
Material complies with all Regulations respecting the Handling
of such Hazardous Material and with the highest standards
prevailing in the industry for Handling of such Hazardous
Material. Without limiting Tenant's other obligations as set
forth in this Lease, Tenant shall, at its own cost and expense,
procure, maintain in effect and comply with all conditions and
requirements of
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any and all permits, licenses and other governmental and
regulatory approvals or authorizations required under any and
all applicable Regulations relating to the Handling of such
Hazardous Material. Tenant will provide Landlord copies of all
permits, licenses, or other regulatory approvals or
authorizations within five days of receipt thereof. As used in
this Section, "Regulation" includes all laws, statutes,
regulations and requirements adopted by duly constituted public
authorities now in force or hereafter adopted together with all
orders, judgments, decrees and rules promulgated by any local,
regional, state or federal governmental agency, court, judicial
or quasi-judicial body or legislative or quasi-legislative body
which relates to matters of the environment, health, industrial
hygiene or safety.
(iii) Restoration. If, as a result of actions caused or
permitted by Tenant and/or its Agents, the presence of Hazardous
Material in, on, about or under the Property or any adjoining
property results in any contamination of the Property or the
surrounding environment. Tenant shall promptly take, at its sole
cost and expense, all actions required to restore the Property
and/or the other affected properties to their precontamination
condition ("Restoration"). Notwithstanding the foregoing, Tenant
shall undertake no Restoration respecting the Property without
first obtaining Landlord's written approval. Tenant shall carry
out any approved Restoration in compliance with all Regulations.
Tenant shall not undertake any Restoration, nor enter into any
settlement agreement, consent decree or other compromise with
respect to any claims, relating to any Hazardous Material in any
way connected with the Property without first notifying Landlord
of Tenant's intention to do so and affording Landlord ample
opportunity to appear, intervene or otherwise appropriately
assert and protect Landlord's interests.
(iv) Removal. Upon the termination of this Lease for any
reason, Tenant shall remove from the Property all Hazardous
Material Handled by Tenant and/or its Agents and shall cause
such Hazardous Material to be stored, treated, transported
and/or disposed of in compliance with all applicable
Regulations. Any Hazardous Material which Tenant removes from
the Property shall be removed solely by duly licensed haulers
and transported to and disposed of at duly licensed facilities
for the final disposal of such Hazardous Material. Tenant shall
deliver to Landlord copies of all manifests and other
documentation relating to the Handling of any Hazardous Material
reflecting its legal and proper removal, storage, treatment,
transportation and/or disposal. Tenant shall, at its sole cost
and expense, repair any and all damage to the Property resulting
from Tenant and/or its Agents' removal of Hazardous Material.
Tenant's obligation to pay rent shall continue until Tenant
completes such removal and effects such repairs.
(v) Tenant's Written Confirmation. Tenant shall, from
time to time throughout the term of this Lease, execute such
certificates or other documents as Landlord may request
concerning Tenant's best knowledge and belief regarding the
presence of Hazardous Material in, on, about or under the
Property.
(vi) Tenant's Duty to Notify Landlord. Tenant shall
notify Landlord in writing immediately on becoming aware of: (1)
any action threatened, instituted or completed by any
governmental or regulatory agency or private person with respect
to the Property or any adjoining property relating to Hazardous
Material; (2) any claim threatened or made by any person or
entity against Tenant, Landlord, the Property or any adjoining
landowner or property for personal injury, compensation or any
other matter relating to Hazardous Material; and (3) any reports
made by or to any governmental or regulatory agency with respect
to the Property or any adjoining property relating to Hazardous
Material, including without limitation, any complaints, notices
or asserted violations. Tenant shall supply to Landlord within
five Days after Tenant first receives or sends the same, copies
of all claims, reports, complaints, notices, warnings, asserted
violations or other documents relating in any way to the
Property.
(b) Landlord's Rights. Landlord and its Agents and
representatives shall have the right to communicate, verbally or in
writing, with any governmental or regulatory agency or any environmental
consultant on any matter with respect to the Property relating to
Hazardous Material. Landlord shall be entitled to copies of any and all
notices, inspection reports or other documents issued by or to any such
governmental or regulatory agency or consultant with respect to the
Property relating to Hazardous Material.
(c) Tenant's Duty to Indemnify. If the Handling by Tenant and/or
its Agents of Hazardous Material on or about the Property results in
contamination of the Property and/or the surrounding environment, or if
any lender or governmental agency requires an investigation to determine
whether there has been any contamination of the Property or any
adjoining property as a result of Tenant and/or its Agents Handling of
Hazardous Material, then Tenant shall indemnify, defend and hold
Landlord all partners or other affiliates of Landlord, and all
directors, officers, shareholders, employees, Agents, contractors,
attorneys and/or partners of any of the foregoing harmless from any and
all claims, damages, penalties, fines, costs, liabilities and losses
(including, without limitation, diminution in value of the Property,
damages for the loss or restriction on use of rental or usable space or
of any
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other amenity of the Property, damages arising from any adverse impact
on marketing of space in the Property, other consequential damages and
sums paid in settlement of claims, attorneys' fees, consultants' fees
and experts' fees) which arise during or after the lease term as a
result of such contamination. Tenant's indemnification of Landlord
includes, without limitation, costs incurred in connection with removal
or Restoration required by any governmental or regulatory agency and/or
private persons because of the presence of Hazardous Material in the
soil or ground water in, on, about or under the Property or any
adjoining property as a result of the acts of Tenant and/or its Agents
and any and all reasonable legal fees and expenses incurred by Landlord
with respect to such claims, demands, investigations and responses.
(d) Right of Entry. If contamination of the Property by
Hazardous Material occurs or if any lender or governmental agency
requires an investigation to determine whether there has been any
contamination of the Property or any adjoining property, Landlord and
its Agents shall have the right, at any reasonable time following notice
to Tenant and from time to time to enter upon the Premises to perform
monitoring, testing or other analyses, and to review all applicable
documents, notices, correspondence or other materials. If contamination
resulted from the conduct of Tenant and/or its Agents, Tenant shall pay
all costs and expenses reasonably incurred by Landlord in connection
with such investigation, monitoring, and testing. Such sums shall be due
and payable by Tenant when Landlord delivers its invoice to Tenant for
such charges.
(e) Allocation of Responsibilities. ALL LIABILITIES ARISING FROM
THE HANDLING OF HAZARDOUS MATERIAL IN, ON, UNDER, AND/OR ABOUT THE
PROPERTY OR ANY ADJOINING PROPERTY BY TENANT AND/OR ITS AGENTS, SHALL
REMAIN TENANT'S SOLE RESPONSIBILITY. NOTWITHSTANDING ANYTHING IN THIS
LEASE, NO ACT BY LANDLORD OR ITS AGENTS SHALL BE CONSTRUED TO TRANSFER
TO LANDLORD ANY OBLIGATIONS, DUTIES, LIABILITIES OR RESPONSIBILITIES
PERTAINING TO TENANT'S COMPLIANCE WITH ANY REGULATION RELATING TO THE
HANDLING OF HAZARDOUS MATERIALS. NOTWITHSTANDING THE EXPIRATION OR
TERMINATION OF THIS LEASE AND NOTWITHSTANDING ANY OTHER PROVISION OF
THIS LEASE, TENANT SHALL RETAIN ALL LIABILITY AND RESPONSIBILITY FOR
COMPLIANCE WITH REGULATIONS CONCERNING TENANT AND ITS AGENT'S HANDLING
OF HAZARDOUS MATERIAL. TENANT SHALL INDEMNIFY, DEFEND AND HOLD LANDLORD
AND ITS AGENTS, REPRESENTATIVES, PARTNERS, EMPLOYEES, SUCCESSORS AND
ASSIGNS HARMLESS FROM ALL SUCH COSTS AND EXPENSES AS MAY BE ASSOCIATED
WITH SUCH COMPLIANCE.
(f) Inspections. Tenant warrants that Tenant will cooperate as
reasonably necessary and not interfere with completion of any and all
governmental inspections of the Property as required by applicable
Regulation. Tenant shall provide to Landlord a copy of the reports for
each such inspection within 15 Days of Tenant's receipt of such reports.
(g) Survival. Tenant's and Landlord's covenants, agreements and
indemnities set forth in this Section shall survive the expiration or
termination of this Lease and shall not be affected by any
investigation, or information obtained as a result of any investigation,
by or on behalf of Landlord or any prospective Tenant.
(h) Landlord's Obligations.
(i) Restrictions on Hazardous Material. Landlord shall
not cause or permit Hazardous Material to be Handled on, about
or under the Property except in compliance with all Regulations
respecting such Hazardous Material.
(ii) Compliance With Regulations. If any Hazardous
Material is Handled on or about the Property by Landlord,
Landlord shall bear all financial and other responsibility for
ensuring that the Handling of such material complies with all
Regulations respecting such Hazardous Material and with the
highest standards prevailing in the industry for the Handling of
such Hazardous Material.
(iii) Restoration. If, as a result of Landlord's
Handling Hazardous Material upon the Property or any adjoining
property, prior to or during the Term, any contamination of the
Property occurs, Landlord shall promptly take all actions as are
necessary to return the Property and/or the surrounding
environment to their pre-contamination condition.
(iv) Duty to Notify Tenant. Landlord shall notify Tenant
in writing within ten days of becoming aware of: (1) any
enforcement, cleanup, remediation or other action threatened,
instituted or completed by any governmental or regulatory agency
or private person with respect to the Property relating to
Hazardous
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Material; (2) any claim threatened or made against Landlord with
respect to the Property, Tenant or the Property for personal
injury, compensation or any other matter relating to Hazardous
Material; and (3) any reports made by or to any governmental Or
regulatory agency respecting the Property, any complaints,
notices or asserted violations in connection therewith. Landlord
shall also supply to Tenant copies of all claims, reports,
complaints, notices, warnings, asserted violations or other
documents relating to the foregoing.
(v) Landlord's Indemnity of Tenant. If, as a result of
Landlord's or its Agent's acts, the presence of Hazardous
Material on the Property results in contamination of the
Property, or if any contamination of the Property exists as of
the date of the commencement of this lease, then Landlord shall
indemnify, defend and hold Tenant, its Agents and
representatives harmless from and against any and all claims,
damages, penalties, fines, costs, liabilities and losses,
damages for the loss of or restriction on the use of space or
of any other amenity of the Property and sums paid in settlement
of claims, attorneys' fees, consultants' fees and experts' fees)
paid by Tenant as a result of such contamination.
Notwithstanding any other provision of this Agreement, no
indemnification imposed by this paragraph shall be effective to
the extent that such indemnification violates the provisions of
any insurance policy obtained by Landlord or Tenant with respect
to the Property.
(vi) Landlord represents and warrants that as of the
date hereof, (which warranty and representation shall be deemed
to be remade as of the Commencement Date) to the best of
Landlord's knowledge, no known Hazardous Materials exist on,
under or about the Property.
57. Arbitration of Disputes.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE, THE PROVISIONS OF
THIS SECTION APPLY TO ALL DISPUTES ARISING OUT OF THE LEASE SAVE AND EXCEPT
UNLAWFUL DETAINER PROCEEDINGS; NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED TO
REQUIRE LANDLORD TO SUBMIT UNLAWFUL DETAINER PROCEEDINGS TO ARBITRATION. IF A
CONTROVERSY, CLAIM OR DISPUTE OTHER THAN UNLAWFUL DETAINER PROCEEDINGS AND
ISSUES RAISED IN CONNECTION THEREWITH (COLLECTIVELY "DISPUTE") BETWEEN THE
PARTIES ARISES OUT OF THIS LEASE, THE DISPUTE SHALL BE SUBMITTED TO BINDING
ARBITRATION TO BE CONDUCTED UNDER THE COMMERCIAL ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION; JUDGMENT ON THE ARBITRATOR'S AWARD MAY BE
ENTERED IN ANY COURT OF COMPETENT JURISDICTION. CALIFORNIA CODE OF CIVIL
PROCEDURE Section 1283.05 SHALL APPLY TO SUCH ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISIONS DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
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Initial Initial
58. Notices.
All notices or demands of any kind required or desired to be given
hereunder shall be in writing and mailed postage prepaid by certified or
registered mail, return receipt requested, by personal delivery, or by overnight
delivery via a nationally recognized courier, to the appropriate address
indicated in Paragraph 2 of the Basic Lease Terms or at such other place or
places as either Landlord or Tenant may, from time to time, designate in a
written notice given to the other. Notice shall be
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deemed to be delivered four (4) days after the date of mailing thereof, or upon
earlier receipt, if sent by certified or registered mail, upon delivery or
attempted delivery, if sent by personal delivery, and one (1) business day after
delivery to a nationally recognized courier, if sent by overnight delivery.
TENANT: LANDLORD:
VISION SOFTWARE TOOLS, INC. XXXXXXX STREET PARTNERS, LTD.
a California corporation a California limited partnership
BY: /s/ X. X. XXXXXX, XX. By: CHASKOW FOUR ASSOCIATES, LTD.
--------------------------------- a California limited partnership
its general partner
Its: VP & CFO By: CHASKOW FOUR,
------------------------------- a California limited partnership
its general partner
Print Name: X. X. Xxxxxx, Xx. By: XXXXXX HOLDINGS, INC.
------------------------ a California corporation
its general partner
By: /s/ XXXX X. XXXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxxx
Vice President
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RIDER NO. 1 TO OFFICE LEASE
This Rider No. 1 To Office Lease ("Rider No. 1") is made and entered into
by and between Xxxxxxx Street Partners, Ltd. a California limited partnership
("Landlord") and Vision Software Tools, Inc. a California corporation
("Tenant"), and is dated as of the date set forth on the cover page of the
Office Lease between Landlord and Tenant ("Lease") of which Rider No. 1 is
attached. The promises, covenants, agreements and declarations made and set
forth herein are intended to have the same force and effect as if set forth at
length in the body of the Lease. To the extent that the provisions of this Rider
are inconsistent with the terms and conditions of the Lease, the terms and
conditions hereof shall control.
1. Extension Options. Provided Tenant is not in default hereof, Tenant
shall have one (1) option to renew the Lease for the entire Premises for three
(3) years subject to the following terms and conditions:
A. Notice. Tenant shall give written notice to the Landlord no less than
twelve (12) months in advance of the expiration of the Term, or any
extension thereof, of its intention to exercise this Extension Option.
Tenant shall then have three (3) months to negotiate, on an exclusive
basis, the terms of the extension. Landlord and Tenant shall negotiate
in good faith the terms of the Extension Option. If the parties are
unable to agree on the terms of the extension during said three (3)
month period, the initial term shall terminate as provided for in this
Lease and the parties shall have no further obligations to one
another.
B. Monthly Basic Rent. The Monthly Basic Rent for the Extension Option
term shall be the then prevailing market rates for comparable space in
the Building (but, if no comparable space exists in the Building, in
similar buildings located in downtown Oakland). In no event shall the
Monthly Basic Rent be less than the rent being paid in the last month
of the initial term of the Lease.
C. Tenant Improvements. Landlord shall make available up to three
dollars ($3.00) per rentable square foot for tenant improvement
refurbishment at the commencement of the extended term.
2. Expansion Option. Provided Tenant is not in default hereof, Tenant
shall have the Right of First Offer to lease expansion space on floors 2
through 11, subordinated only to tenants with a priority right. Tenant shall
have ten (10) working days after receipt of Landlord's notice to respond. In
the event of an expansion of the Premises, the parking allotment shall be
increased proportionately. Terms of the expansion premises shall be the then
prevailing market conditions at the time the space is leased and subject to the
following terms and conditions:
A. If the expansion premises is less than 5,500 rentable square feet and
can be accommodated on an existing multiple-tenant floor, the term of
the expansion premises shall be co-terminus with the initial premises.
B. If the expansion premises can be accommodated on an existing
multiple-tenant floor and is greater than 5,501 rentable square feet
and less than the smaller of 11,500 rentable square feet or the
balance of the remaining space available on a multiple-tenant floor,
the term of the initial premises shall be extended by three (3) years
and the term of the expansion premises shall be co-terminus with the
extended term of the initial premises. The rental rate for the
extended portion of the term for the initial premises shall be the
same as the expansion premises.
C. If the expansion premises is greater than 11,501 rentable square feet
or the expansion premises is located on an available full floor, the
term of the expansion premises shall be for five (5) years and the
term of the initial premises shall extended to be co-terminus with the
expansion premises. The rental rate for the extended portion of the
term of the initial premises shall be the same as the expansion
premises.
3. Special Sublease and Assignment Rights. Provided Tenant is not in
default hereof, and notwithstanding anything to the contrary contained in
section 24 of the Lease, Tenant shall have the right to assign in its entirety
or sublease all or any portion of the Premises without consent of the Landlord
to (a) any entity resulting from a merger or consolidation with Tenant, or (b)
any subsidiary or affiliate of Tenant, and (c) any subcontractor performing
duties related to a contract with Tenant subject to the following terms and
conditions:
A. In case of an assignment, the assignee shall demonstrate to Landlord
financial strength of at lease equal to that of Tenant at the time of
the assignment.
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B. In the case of a sublease, the use of the sublessee shall be
reasonably the same as Tenant and falls under the classification
of General Office Use and will be subject to section 24(m) of
the Lease.
C. All other assignments and subleasing shall be subject to section
24 of the Lease.
4. Non-Disturbance Agreement. Within sixty (60) days following the
Commencement Date of the Lease, Landlord shall deliver to Tenant
Non-Disturbance, Attornment and Subordination Agreements in the form of Exhibit
G, attached hereto from all lenders and ground lessors of the Property.
5. Parking.
A. To the extent Landlord is operating a valet service from the
2101 Xxxxxxx Basement Garage to the Multi-Story Parking
Structure, Tenant may lease up to seven (7) of the spaces
allocated to the Multi-Story Parking Structure in paragraph 25
of the Basic Lease Terms for the valet spaces from the 2101
Xxxxxxx Basement Garage to the Multi-Story Parking Structure at
prevailing market rates.
B. Notwithstanding anything to the contrary in Section 39(c) of the
Lease, on an annual basis, Landlord will offer to Tenant any
available parking in the Multi-Story Parking Facility at
prevailing market rates.
C. Secured bicycle parking is available at no charge to Tenant on
the first deck of the Multi-Story Parking Facility.
D. To the extent such services are available, Tenant may purchase
up to two (2) parking passes to access the Basement Garage
during off-hours and weekends at prevailing market rates. The
current prevailing market rate for this service is $25.00 per
month.
6. Courtesy Shuttle. Landlord will operate a Courtesy Shuttle
between the Multi-Story Parking Facility and the Building between the hours of
7:00am to 9:00am on normal workdays. In addition, Landlord will operate the
Courtesy Shuttle between the Building, the 00xx Xxxxxx BART Station and the
Multi-Story Parking Facility between 4:00pm and 8:00pm on normal workdays.
7. Landlord Warranties. Landlord warrants that the Building, Site
and Multi-Story Parking Facility comply with governmental laws and regulations
that are applicable to the Building, Site and Multi-Story Parking Facility, and
except for Tenant's obligations described in Section 55 of the Lease, Landlord
shall be responsible for the costs of compliance with such laws and regulations.
8. Existing Improvements. Reference is made to the improvements
existing in the Premises as of the Commencement Date plus the improvements to be
installed by Landlord as Landlord's Work (collectively hereinafter referred to
as the "Existing Improvements"). Notwithstanding anything to the contrary in
this Lease, Tenant shall have no obligation to remove any portion of the
Existing Improvements upon the termination of this Lease.
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39
IN WITNESS WHEREOF, Landlord and Tenant have executed this Rider
No. 1 as of the date first above written.
TENANT: LANDLORD:
VISION SOFTWARE TOOLS, INC. XXXXXXX STREET PARTNERS, LTD.
a California corporation a California limited partnership
BY: /s/ X. X. XXXXXX, XX. By: CHASKOW FOUR ASSOCIATES, LTD.
--------------------------------- a California limited partnership
its general partner
Its: VP & CFO By: CHASKOW FOUR,
------------------------------- a California limited partnership
its general partner
Print Name: X. X. Xxxxxx, Xx. By: XXXXXX HOLDINGS, INC.
------------------------ a California corporation
its general partner
By: /s/ XXXX X. XXXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxxx
Vice President
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June 16, 1997
39
40
EXHIBIT A
OUTLINE OF FLOOR PLAN OF PREMISES
(Attached)
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40
41
EXHIBIT "A"
VISION SOFTWARE TOOLS, INC.
[FLOOR PLAN]
42
EXHIBIT B
SITE PLAN
(To Be Provided - Including 2101 Xxxxxxx and Multi-Story Parking Facility)
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41
43
EXHIBIT "X-x"
LEGAL DESCRIPTION AND SITE PLAN
OF OFFICE BUILDING AND BASEMENT GARAGE
CITY OF OAKLAND, COUNTY OF ALAMEDA, STATE OF CALIFORNIA
PARCEL ONE:
Beginning at the point or intersection of the southern line of 21st, formerly
Walnut or 22nd, Street, with the western line of Xxxxxxx Street; running thence
southerly along said line of Xxxxxxx Street 145 feet; thence at right angles
westerly 100 feet; thence at right angles northerly 145 feet to said line of
21st Street, and thence easterly along said line of 00xx Xxxxxx 100 feet to the
point of beginning.
Being a portion of Lots 1 and 4, Block 3, Map of the Pacific Homestead situated
in Oakland, Alameda Co., recorded July 23, 1886, in Book "W" of Deeds, Page 2,
in the office of the County Recorder of Alameda County.
PARCEL TWO:
Beginning at a point on the western line of Xxxxxxx Street distant thereon 145
feet southerly from the point of intersection thereof, with the southern line of
21st Street, formerly 22nd or Walnut Street, running thence at right angles
westerly, 100 feet; thence at right angles southerly, 137 feet, more or less, to
the northern line of Hobart Street, as now opened; thence easterly along said
northern line of Hobart Street, as now opened, 100 feet, more or less, to the
western line of Xxxxxxx Street, and thence northerly along said last named
line, 125 feet to the point of beginning.
Being portions of Xxxx 0, 0 xxx 0, Xxxxx 0, Xxx of the Pacific Homestead,
situated in Oakland, Alameda Co., surveyed by X.X. Xxxxxxxx, Esq., recorded July
23; 1866, in Book "W" of Deeds, Page 2, in the office of the County Recorder of
Alameda County.
44
[MAP OF THE PACIFIC HOMESTEAD]
45
EXHIBIT "B-2"
LEGAL DESCRIPTION AND SITE PLAN
OF MULTI-STORY PARKING FACILITY
CITY OF OAKLAND, COUNTY OF ALAMEDA, STATE OF CALIFORNIA
PARCEL ONE:
BEGINNING AT A POINT ON THE EASTERN LINE OF BROADWAY, WHERE THE SAME IS
INTERSECTED BY THE DIVIDING LINE BETWEEN LOTS 6 AND 7 IN BLOCK 13, AS SAID LOTS
AND BLOCK ARE SHOWN ON THE MAP HEREINAFTER REFERRED TO; WHICH SAID POINT IS
DISTANT ON SAID LINE OF BROADWAY 179.60 FEET, MORE OR LESS, NORTHERLY FROM THE
NORTHERN LINE OF 00XX, XXXXXXXX XXXXXX, XXXXXX; RUNNING THENCE EASTERLY ALONG
THE NORTHERN BOUNDARY LINE OF LOTS 7 AND 8 IN SAID BLOCK 13, AS SAID LOTS AND
BLOCK ARE SHOWN ON THE MAP HEREINAFTER REFERRED TO PARALLEL WITH SAID LINE OF
23RD STREET 59 FEET; THENCE AT RIGHT ANGLES SOUTHERLY 43 FEET; 6 INCHES; THENCE
AT RIGHT ANGLES WESTERLY 15 FEET; THENCE AT RIGHT ANGLES SOUTHERLY 43 FEET, 6
INCHES; THENCE WESTERLY ALONG THE SOUTHERN BOUNDARY LINE OF XXXX 0 XXX 0 XX
XXXXX 00, XXXXXXXX WITH SAID LINE OF 23RD STREET 66 FEET, MORE OR LESS, TO THE
EASTERN LINE OF BROADWAY; AND THENCE NORTHERLY ALONG SAID LAST NAMED LINE 89.80
FEET TO THE POINT OF BEGINNING.
BEING THAT PORTION OF LOT 7 LYING EASTERLY OF THE EASTERN LINE OF BROADWAY, AND
A PORTION OF XXX 0 XX XXXXX 00, XX XXXX XXXX XXX XXXXX ARE SHOWN ON THE "MAP OF
THE PACIFIC HOMESTEAD, SITUATED IN OAKLAND, ALAMEDA COUNTY, SURVEYED BY X.X.
XXXXXXXX, ESQ." RECORDED JULY 23, 1866, IN BOOK "W" OF DEEDS AT PAGE 2 AND 3, IN
THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY.
PARCEL TWO:
BEGINNING AT A POINT ON THE WESTERN LINE OF XXXXXXX STREET, DISTANT THEREON 130
FEET, 6 INCHES, NORTHERLY FROM THE POINT OF INTERSECTION THEREOF, WITH THE
NORTHERN LINE OF 23RD STREET, FORMERLY CALLED LOCUST STREET, AS SAID STREETS ARE
SHOWN ON THE MAP HEREINAFTER REFERRED TO; RUNNING THENCE NORTHERLY ALONG SAID
LINE OF XXXXXXX STREET 43 FEET, 6 INCHES; THENCE AT RIGHT ANGLES WESTERLY 110
FEET; THENCE AT RIGHT ANGLES SOUTHERLY 43 FEET, 6 INCHES; AND THENCE AT RIGHT
ANGLES EASTERLY 110 FEET TO THE POINT OF BEGINNING.
BEING A PORTION OF XXX 0 XX XXXXX 00, XX XXXX XXX XXX XXXXX ARE SHOWN ON THE
"MAP OF THE PACIFIC HOMESTEAD SITUATED IN OAKLAND, ALAMEDA CO.," FILED JULY 23,
1866, IN BOOK "W" OF DEEDS AT PAGES 2 AND 3, IN THE OFFICE OF THE COUNTY
RECORDER OF ALAMEDA COUNTY.
46
PARCEL THREE:
COMMENCING AT A POINT ON THE WESTERLY LINE OF XXXXXXX STREET, DISTANT THEREON,
ONE HUNDRED AND SEVENTY-FOUR (174) FEET NORTHERLY FROM THE POINT OF
INTERSECTION OF SAID LINE OF XXXXXXX STREET WITH THE NORTHERLY LINE OF LOCUST
STREET, OR 23RD STREET; RUNNING THENCE NORTHERLY ALONG SAID LINE OF XXXXXXX
STREET, TWO HUNDRED AND SIXTY-ONE (261) FEET, MORE OR LESS TO THE SOUTHERLY LINE
OF TWENTY-FOURTH STREET (FORMERLY ELM STREET) THENCE WESTERLY ALONG SAID LINE OF
TWENTY-FOURTH STREET (FORMERLY ELM STREET), ONE HUNDRED AND THREE (103) FEET OR
THEREABOUTS TO THE EASTERLY LINE OF BROADWAY STREET, THENCE SOUTHERLY ALONG SAID
EASTERLY LINE OF SAID BROADWAY STREET, TWO HUNDRED AND SIXTY-NINE AND FORTY-ONE
ONE HUNDREDTHS (269.41) FEET MORE OR LESS TO A POINT ON SAID EASTERLY LINE OF
BROADWAY STREET FROM WHICH A LINE DRAWN EASTERLY AND PARALLEL WITH SAID LOCUST
OR 23RD STREET WILL STRIKE THE POINT OF COMMENCEMENT; THENCE EASTERLY AND
PARALLEL WITH SAID LOCUST STREET OR 23RD STREET, ONE HUNDRED AND SIXTY-NINE
(169) FEET AND SIX (6) INCHES MORE OR LESS, TO THE WESTERLY LINE OF XXXXXXX
STREET AND THE POINT OF COMMENCEMENT.
BEING A PORTION OF BLOCK NO. THIRTEEN (13) AS SAID BLOCK IS LAID DOWN AND
DELINEATED UPON A CERTAIN MAP ENTITLED "MAP OF THE PACIFIC HOMESTEAD, SITUATED
IN OAKLAND, ALAMEDA CO." RECORDED JULY 23RD, 866 IN LIBER "W" OF DEEDS AT PAGES
2 AND 3 THEREOF IN THE OFFICE OF THE COUNTY RECORDER OF SAID ALAMEDA COUNTY.
47
[MAP OF THE PACIFIC HOMESTEAD]
48
EXHIBIT C
LANDLORD'S WORK
This EXHIBIT "C" supplements the Office Lease (the "Lease") and is dated
as of the date set forth on the cover page of the Office Lease between Landlord
and Tenant of which this Exhibit "C" is attached covering certain premises
described in the Lease (the "Premises"). All terms not defined herein shall have
the same meaning as set forth in the Lease.
Tenant hereby accepts the Premises in as-is condition except that
Landlord shall be responsible for the cost of making the following modifications
to the existing condition of the Premises as of the execution date of this
Lease:
1. Install visual exit devices ("strobes") throughout the Premises.
2. Modify selected existing sinks so that upon completion, access to the
existing sinks within the Premises will be in compliance with ADA.
3. Repair the plumbing deficiencies to the existing private restroom at
the south end of the Premises.
4. Paint and patch as required for items 1 through 3 above and spot
painting as directed by Tenant for an aggregate total of two (2) man days.
Immediately following execution of this Lease, Landlord shall commence
and diligently prosecute the completion of Landlord's Work with a completion
target on the Commencement Date. All work is to be performed during normal work
hours and Tenant shall reasonably cooperate with Landlord's contractors to
execute Landlord's Work.
Tenant Landlord
----------- -----------
42
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EXHIBIT D
SAMPLE FORM OF NOTICE OF LEASE COMMENCEMENT
[Intentionally Deleted)
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43
50
EXHIBIT E
SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned, XXXXXXX STREET PARTNERS, LTD., A CALIFORNIA LIMITED PARTNERSHIP
("Landlord"), with a mailing address c/x Xxxxxx Development Corp., 0000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and, ("Tenant"), hereby certify to
________________________________________________________________________________
a_______________________________________________________________________________
as follows:
1. Attached hereto is a true, correct and complete copy of that certain
lease dated ________________, 19___, between Landlord and Tenant (the "Lease"),
which demised premises located at 0000 Xxxxxxx, Xxxxxxx, Xxxxxxxxxx. The Lease
is now in full force and effect and has not been amended, modified or
supplemented, except as set forth in Paragraph 4 below:
2. The term of the Lease commended on ________________, 19_____.
3. The term of the Lease shall expire on ________________, 19_____.
4. The Lease has (Initial One)
( ) not been amended, modified, supplemented, extended, renewed
or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned by the following described agreements, copies of which are
attached hereto:
_________________________________________________________________
_________________________________________________________________
5. Tenant has accepted and is now in possession of said premises.
6. Tenant and Landlord acknowledge that the Lease will be assigned to
and that no modification, adjustment, revision or cancellation of the Lease or
amendments thereto shall be effective unless written consent of _____________ is
obtained, and that until further notice, payments under the Lease may continue
as heretofore.
7. The amount of fixed monthly rent is $__________.
8. The amount of security deposits (if any) is $_________. No other
security deposits have been made.
9. Tenant is paying the full lease rental, which has been paid in full
as of the date hereof. No rent under the Lease has been paid for more than
thirty (30) days in advance of its due date.
10. All work required to be performed by Landlord under the Lease has
been completed.
11. There are no defaults on the part of the Landlord or Tenant under
the Lease.
12. Tenant has no defense as to its obligations under the Lease and
claims no set-off or counterclaim against Landlord.
13. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it occupies, except as
provided in the Lease.
All provisions of the Lease and the amendments thereto (if any) referred
to above are hereby ratified.
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The foregoing certification is made with the knowledge that
_____________ is about to fund a loan to Landlord, and that _____________ is
relying upon the representations herein made in funding such loan.
DATED:________, 19___
TENANT: LANDLORD:
___________________________________ XXXXXXX STREET PARTNERS, LTD.
___________________________________ a California limited partnership
By:________________________________ By: CHASKOW FOUR ASSOCIATES, LTD.
a California limited partnership
Its:_______________________________ its general partner
Print Name:________________________ By: CHASKOW FOUR,
a California limited partnership
its general partner
By:________________________________ By: XXXXXX HOLDINGS, INC.
a California corporation
Its:_______________________________ its general partner
Print Name_________________________
By:_________________________________
Xxxx X. Xxxxxxxxx
Vice President
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52
EXHIBIT F
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building
without the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or displayed
in violation of this rule. All approved signs or lettering on doors, windows and
walls shall be printed, painted, affixed or inscribed at the expense of Tenant
by a person approved by Landlord, using materials of Landlord's choice and in a
style and format approved by Landlord.
2. Tenant must use Landlord's window coverings on all exterior windows.
No awning shall be permitted on any part of the Premises except as approved by
Landlord. Tenant shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators or stairways of the Building. The halls, passages, exits,
entrances, elevators, and stairways are not for the general public, and Landlord
shall in all cases retain the right to control and prevent access thereto of all
persons whose presence in the judgment of Landlord would be prejudicial to the
safety, character, reputation and interests of the Building and its tenants;
provided that nothing herein contained shall be construed to prevent such access
to persons with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No tenant and
no employee or invitee of any tenant shall go upon the roof of the Building
without Landlord's consent.
4. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the
Premises generally consistent with cleaning and janitorial sources furnished in
other first-class office buildings in the City of Oakland shall be provided
exclusively through Landlord, and except with the written consent of Landlord,
no person or persons other than those approved by Landlord shall be employed by
Tenant or permitted to enter the Building for the purpose of cleaning the same.
Tenant shall not cause any unnecessary labor by carelessness or indifference to
the good order and cleanliness of the Premises. Landlord shall not in any way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage to any Tenant's property by the janitor or any
other employee or any other person.
6. Landlord may make a reasonable charge for any additional keys. If
Tenant alters any lock or installs a new lock or bolt on any door of its
Premises, such lock shall comply with Building standards and Tenant will furnish
Landlord a key to the new lock. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay Landlord
its actual reasonable cost therefore.
7. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere. If Tenant requires telegraphic, telephonic, burglar alarm
or similar services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
8. Elevators shall be available for special uses by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in the
elevators except between such hours and in such elevators as may be designated
by Landlord. The removal of any equipment, materials, furniture, packages,
supplies, merchandise or other property from the Building must be accompanied by
a signed Building Pass authorizing the removal of same.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects, if such objects are considered
necessary by Tenant, as determined by Landlord, shall stand on such platforms as
determined by Landlord to be necessary to properly distribute the weight.
Business machines and mechanical equipment belonging to Tenant, which cause
noise or vibration that may be transmitted to the structure of the Building or
to any space therein to such a degree as to be
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objectionable to Landlord (in its sole discretion) or to any tenants in the
Building, shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the Building
must be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all damage
done to the Building or maintaining or moving such equipment or other property
shall be repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment, with
the prior written approval of Landlord. Tenant shall not use or permit to be
used in the Premises any foul or noxious gas or substance, or permit or allow
the Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or
vibrations, nor shall Tenant bring into or keep in or about the Premises any
birds or animals, except seeing-eye dogs when accompanied by their masters.
11. Tenant shall not use any method of heating or air-conditioning other
than that supplied or approved by Landlord.
12. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air-conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls other than room
thermostats specifically installed for Tenant's use. Tenant shall keep corridor
doors closed, and shall close window coverings at the end of each business day.
Heat and air-conditioning shall be provided during ordinary business hours of
generally recognized business days, but not less than the hours of 8:00 A.M. to
6:00 P.M. on Monday through Friday (excluding in any event Saturdays, Sundays
and legal holidays, it being understood that legal holidays shall mean and refer
to those holidays of which Landlord provides Tenant with reasonable prior
written notice which shall in any event include those holidays on which the New
York Stock Exchange is closed). Requests for overtime heating and
air-conditioning must be submitted to the office of the Building by 12:00 noon
the prior day on normal weekdays and by 9:00 am on Friday for Saturday and
Sunday use and by 12:00 noon two days in advance of a holiday. Tenant agrees to
pay for said overtime services at the currently determined rate as set by
Building based on the actual cost for such services.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and address of the Building.
14. Landlord reserves the right to exclude from the Building between the
hours of 6:00 P.M. and 8:00 A.M. the following day, or such other hours as may
be established from time to time by Landlord, and on Saturdays, Sundays and
legal holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is properly identified. Tenant shall
be responsible for all persons for whom it requests passes and shall be liable
to Landlord for all acts of such persons. Landlord shall not be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access to the
Building in case of invasion, mob, riot, public excitement or other commotion by
closing the doors or by other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and, except with regard to
Tenant's computers and other equipment which requires utilities on a 24-hour
basis, all electrical appliances and equipment before Tenant and its employees
leave the Premises. Tenant shall be responsible for any damage or injuries
sustained by other tenants or occupants of the Building or by Landlord for
noncompliance with this rule.
16. (Intentionally Deleted]
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any room-to-room
solicitation of business from other tenants in the Building. Canvassing,
soliciting and distribution of handbills or any other written material, and
peddling in the Building or the Site are prohibited, and each tenant shall
cooperate to prevent same. Tenant shall not use the Premises for any business or
activity other than that specifically provided for in Tenant's Lease.
19. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof, except to install normal wall hangings. Landlord reserves the right to
direct electricians as to where and how telephone and telegraph wires are to be
introduced to the Premises. Tenant shall not cut or
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54
bore holes for wires. Tenant shall not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the written consent of Landlord.
21. Landlord reserves the right to exclude or expel from the Building
any person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
22. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
23. The Premises shall not be used for the storage of merchandise held
for sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by any tenant on the Premises,
except that used by Tenant of Underwriters' Laboratory-approved equipment for
brewing coffee, tea, hot chocolate and similar beverages shall be permitted, and
the use of a microwave oven shall be permitted, provided that such equipment and
use is in accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations.
24. Tenant shall not use in any space or in the public halls of the
Building any mailcarts or hand trucks except those equipped with rubber tires
and side guards or such other material handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into the
Building.
25. Without the written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
26. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
27. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
28. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
29. Landlord may waive any one or more of these Rules and Regulations
for the benefit of Tenant or any other tenant, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Building.
In the event these Rules and Regulations conflict with any provision of the
Lease, the Lease shall control.
31, Landlord reserves the right to make such other and reasonable Rules
and Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the preservation
of good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
32. [Intentionally Deleted]
33. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
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55
PARKING RULES AND REGULATIONS
1. Tenant and Authorized Users shall not park vehicles in any parking
areas designated by Landlord as areas for parking by visitors to the Building.
Tenant and Authorized Users shall not leave vehicles in the Building parking
areas overnight nor park any vehicles in the Building parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks. Landlord may, in its sole discretion, designate separate
areas for bicycles and motorcycles.
2. Cars must be parked entirely within the stall lines painted on the
floor.
3. All directional signs and arrows must be observed.
4. The speed limit shall be 5 miles per hour.
5. Parking is prohibited:
(a) In areas not striped for parking;
(b) In aisles;
(c) Where "No Parking" or "Handicap" signs are posted;
(d) On ramps;
(e) In crosshatched areas;
(f) In such other areas as may be designated by Landlord, its
agent, lessee, or licensee.
6. Parking stickers or any other device or form of identification
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may not be mutilated in
any manner. The serial number of the parking identification device may not be
obliterated. Devices are not transferable, and any device in the possession of
an unauthorized holder will be void. There will be a replacement charge to the
Tenant or Authorized User of $10.00 for loss of any magnetic parking card or
other parking identification device. Landlord acknowledges that Tenant shall be
entitled to a greater number of parking stickers or other devices or forms of
identification than parking spaces allotted to Tenant.
7. Garage managers or attendants are not authorized to make or allow any
exceptions to these Rules and Regulations.
8. Every Authorized User is requested to park and lock his own car. All
responsibility for damage to cars to be repaired is assumed by Authorized Users.
Tenant shall repair or cause to be repaired at its sole cost and expense any and
all damage to the Building parking facility or any part thereof caused by Tenant
or its Authorized Users or resulting from vehicles of Authorized Users.
9. Loss or theft of parking identification devices from automobiles must
be reported to the garage manager immediately. Any parking identification
devices found on any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution. Lost or stolen devices previously reported and
then found must be reported found to the office of the garage immediately.
10. Spaces are for the express purpose of one automobile per space.
Washing, waxing, cleaning or servicing of any vehicle by the Authorized User
and/or his agents is prohibited. Storage of vehicles for periods exceeding one
week is prohibited and said vehicles shall be subject to towing.
11. The garage management reserves the right to refuse the issuance of
monthly stickers or other parking identification devices to any Tenant,
Authorized User, or person and/or his agents or representatives who willfully
refuse to comply with the above Rules and Regulations or any City, State or
Federal ordinance, law or agreement.
-------------
June 16, 1997
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12. Authorized Users shall not load or unload in areas other than those
designated by Landlord for such activities.
13. Authorized Users and unauthorized users parked in prohibited areas
are subject to towing at their own expense.
-------------
June 16, 1997
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EXHIBIT G
FORM OF NON DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
-------------
June 16, 1997
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SUBORDINATION, ATTORNMENT AND
NON-DISTURBANCE AGREEMENT
This Subordination, Attornment and Non-Disturbance Agreement
("Agreement") is made as of _______________________, 1997, by and among
_______________________, a _______________________, whose address is
_______________________, Suite _____, _______________________ California
_____________ ("Tenant") XXXXXXX STREET PARTNERS, LTD., a California limited
partnership, whose address is 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000 ("Landlord"), CEP INVESTORS VI, LP., a Delaware limited
partnership, whose address is c/o Xxxxx Xxxxxxxx, Inc., 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 ("Lender") and Fleet National Bank, a
national banking association organized under the laws of the United States, as
agent for itself and certain other lenders, whose address is 000 Xxxxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 ("Lender's Assignee").
RECITALS
A. Landlord (or its predecessor-in-interest) and Tenant (or its
predecessor-in-interest) entered into a written lease agreement dated
_______________________, ___________ (hereafter referred to collectively with
all addenda, modifications, and amendments thereto existing as of
_______________, 1997 as the "Lease") covering certain real-property (the
"Premises") located in the City of Oakland, County of Alameda, State of
California, commonly known as Suite ____, 0000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, and constituting a portion of the real property described in Exhibit
A to this Agreement (the "Property"), for the term and on the conditions set
forth in the Lease.
B. Lender and Lender's Assignee each have an interest in a loan made to
Landlord which is evidenced by a promissory note (hereinafter referred to
collectively with all modifications and amendments thereto as the "Note") and
secured by that certain Deed of Trust, Assignment of Rents and Security
Agreement dated April 1, 1984, recorded on April 16, 1984 as Instrument No.
84-072545 together with all amendments and modifications thereto and
consolidations with other mortgages or deeds of trust heretofore or hereafter
made (collectively the "Deed of Trust").
C. The parties desire to expressly subordinate the Lease to the lien of
the Deed of Trust and make the representations and enter into the agreements set
forth below.
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AGREEMENT
NOW, THEREFORE, in consideration of the Recitals and other valuable
consideration, the parties agree as follows:
1. SUBORDINATION. Effective as of the date hereof, Tenant hereby agrees
that its leasehold interest in the Premises and all of Tenant's rights under the
Lease shall be subordinate to the Deed of Trust and to all terms, conditions and
provisions thereof, and to all extensions, renewals, amendments, modifications,
consolidations and replacements of the Note and the Deed of Trust.
2. NO RENT PREPAYMENT OR AMENDMENTS TO LEASE WITHOUT CONSENT OF LENDER.
Tenant agrees to pay any rent or other charges due under the Lease not more than
one month in advance of the date the same are due. No agreement between Landlord
and Tenant assigning, amending, modifying, renewing, extending or terminating
the Lease shall be binding upon any Successor Owner (as defined below) including
Lender or Lender's Assignee, without the prior written consent of Lender and
Lender's Assignee, which consent shall not be unreasonably withheld.
3. LENDER'S RIGHT TO CURE DEFAULTS. Tenant shall not be entitled to
exercise any rights or remedies it may have reason of any default or alleged
default by the lessor under the Lease (including without limitation any alleged
right to as abatement of rent or to cancel the Lease) unless and until (a)
Tenant has delivered to Lender, Lender's Assignee and to Landlord a written
notice describing with reasonable specificity each event of default claimed by
tenant to exist, and (b) such event of default is not cured within thirty (30)
days after the date of delivery of such written notice or, if the default cannot
reasonably be cured within such 30-day period, such longer period of time as may
be reasonably necessary to cure such default, so long as Lender commences
efforts to cure such default and prosecutes such efforts with reasonable
diligence. Nothing in this paragraph shall be deemed to obligate either Lender
or Lender's Assignee to cure any such defaults or to create any rights or
remedies upon the lessor's default.
4. ATTORNMENT AND NON-DISTURBANCE: LIMITED LIABILITY OF LENDER. In the
event Lender, Lender's Assignee or any other purchaser at a foreclosure sale or
under private power contained in the Deed of Trust succeeds to the interest of
the lessor under the Lease by reason of any foreclosure of the Deed of Trust or
the acceptance by Lender or Lender's Assignee of a deed in lieu of foreclosure
or by any other method (the "Successor Owner), it is agreed that:
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(a) Tenant shall be bound to the Successor Owner under all the
terms, covenants and conditions of the Lease for the remaining balance of the
term of the Lease, with the same force and effect as if the Successor Owner were
the lessor under the Lease, and Tenant does hereby agree to attorn to the
Successor Owner as its lessor; and such attornment shall be effective and
self-operative without the execution of any further instruments on the part of
any parties to this Agreement, immediately upon the Successor Owner's succeeding
to the interest of the lessor under the Lease;
(b) Subject to the observance and performance by Tenant of all of
the terms, covenants and conditions of the Lease to be observed and performed on
the part of the Tenant, the Successor Owner, shall recognize the leasehold
estate of Tenant under all of the terms, covenants and conditions of the Lease
for the remaining balance of the term with the same force and effect as if the
Successor Owner were the original lessor under the Lease;
(c) The Successor Owner succeeding to the interest of the lessor
under the Lease shall not interfere or otherwise interrupt Tenant in its use and
quiet enjoyment of the Premises pursuant to the Lease so long as Tenant is
current in the payment of all rentals and charges required under the Lease and
is otherwise not in default under the Lease;
(d) Any liability of the Successor Owner as the owner of the
Property shall be limited to the interests of the Successor Owner in the Lease
and Tenant shall look exclusively to such interest, if any, of Successor Owner
in the Lease and/or the Premises for the payment and discharge of any obligation
imposed upon Successor Owner under the Lease;
(e) The Successor Owner shall not be liable for (i) any rent or
additional rent that might have been paid in advance to Landlord for a period in
excess of one month; (ii) any act or omission of any prior landlord (including
Landlord); (iii) the return of any security deposit not actually received by the
Successor Owner; or (iv) the cost of or payment for any construction for
Tenant's occupancy; and
(f) The Successor Owner shall not be subject to any off-sets or
defenses by Tenant, which Tenant may have against any prior landlord (including
Landlord).
5. NOTICES. All notices expressly provided hereunder and all notices and
demands of any kind or nature whatsoever which any party may desire to give to
or serve shall be in writing and shall be served in person or by first class or
certified mail, return receipt requested, postage prepaid and addressed to the
party so to be served at its address above stated or at such other address of
which said party shall have theretofore notified In writing, as provided above,
the part giving such notice. Service of any such
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notice or demand so made shall be deemed effective on the day of actual delivery
as shown by the addressee's return receipt or the expiration of three (3)
business days after the date of mailing, whichever is the earlier in time,
except that service of any notice of default or notice of sale provided or
required by law shall, if mailed, be deemed effective on the date of mailing.
6. HEIRS, REPRESENTATIVE, SUCCESSORS AND ASSIGNS. The provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
parties to this agreement and their respective heirs, representative, successors
and assigns.
7. AGREEMENT SATISFIES LEASE. Tenant agrees that this Agreement
satisfies any requirements in the Lease relating to the granting of a
non-disturbance agreement.
8. TENANT'S EXECUTION AND DELIVERY OF AGREEMENT DULY CERTIFIED. The
execution and delivery of this Agreement by tenant has been duly authorized and
does not require any consent, vote or approval which has not been given or
taken.
9. PROVISIONS APPLICABLE TO LENDER'S ASSIGNEE. The provisions of
this Agreement with respect to the Lender's Assignee shall be binding upon and
shall inure to the benefit of Lender's Assignee only during such period that
Lender's Assignee has an interest in the Note and Deed of Trust. The provision
hereof with respect to the Lender's Assignee shall automatically cease at such
time as Lender's Assignee assigns its interest in the Note and Deed of Trust to
Lender or Lender's successor-in-interest.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the day and year first written above.
[SIGNATURES APPEAR ON PAGE 5]
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LENDER: LANDLORD:
CEP INVESTORS VI, X.X. XXXXXXX STREET
a Delaware limited partnership PARTNERS, LTD.,
a California limited partnership
By: EPI Investors VI, a By: CHASKOW FOUR
California limited partnership ASSOCIATES, LTD.,
General Partner a California limited partnership,
Its: General Partner
By: Xxxxx Xxxxxxxx, Inc., a By: CHASKOW FOUR,
California Corporation a California limited
General Partner partnership,
Its: General Partner
By: By: XXXXXX HOLDINGS
----------------------------- INC., a California
Its: corporation,
---------------------------- Its: General Partner
LENDER'S ASSIGNEE:
By:
-----------------------------
FLEET NATIONAL BANK, Xxxx Xxxxxxxxx
As Agent Vice President
By:
-----------------------------
Its:
----------------------------
[ALL SIGNATURES MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC]
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NOTICE TO
PARTIES EXECUTING THIS DOCUMENT ON BEHALF OF
TENANT: PLEASE, EXECUTE THIS DOCUMENT BEFORE A NOTARY
PUBLIC AND ATTACH THE APPROPRIATE NOTARIAL
ACKNOWLEDGMENT(S)
TENANT:
-----------------------------------
a
----------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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EXHIBIT A
(PROPERTY DESCRIPTION)
The Property referred to in this Agreement is located in the City of
____________, County of, State of California, and is more particularly described
as follows:
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65
STATE OF CALIFORNIA )
) ss.
COUNTY OF _____________________ )
On ____________________________, _________, before me, ________________
____________________________, Notary Public, personally appeared
______________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) ______________
subscribed to within the instrument and acknowledged to me that
___________________ executed the same in ______________________ authorized
capacity(ies), and that by ________________________ signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------------
Notary Public
My Commission Expires
----------------
8
66
STATE OF CALIFORNIA )
) ss.
COUNTY OF _____________________ )
On ____________________________, _________ before me, __________________
____________________________ Notary Public, personally appeared
______________________ personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) ______________
subscribed to within the instrument and acknowledged to me that
___________________ executed the same in ______________________ authorized
capacity(ies), and that by ________________________ signature(s) on the
instrument(s), or the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------------
Notary Public
My Commission Expires
----------------
9
67
STATE OF CALIFORNIA )
) ss.
COUNTY OF _____________________ )
On ____________________________, _________ before me, __________________
____________________________ Notary Public, personally appeared
______________________ personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) ______________
subscribed to within the instrument and acknowledged to me that
___________________ executed the same in ______________________ authorzed
capacity(ies), and that by ________________________ signature(s) on the
instrument(s), or the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------------
Notary Public
My Commission Expires
----------------
10
68
STATE OF CALIFORNIA )
) ss.
COUNTY OF _____________________ )
On ____________________________, _________ before me, __________________
____________________________ Notary Public, personally appeared
______________________ personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) ______________
subscribed to within the instrument and acknowledged to me that
___________________ executed the same in ______________________ authorzed
capacity(ies), and that by ________________________ signature(s) on the
instrument(s), or the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------------
Notary Public
My Commission Expires
----------------
11
