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EXHIBIT 10.14
OFFICE BUILDING LEASE
TABLE OF CONTENTS
SECTION Page
1. Basic Lease Terms ......................... 1
2. Premises and Common Areas Leased .......... 2
3. Term ...................................... 2
4. Possession ................................ 2
5. Rent ...................................... 3
6. Rental Adjustment ......................... 3
7. Security Deposit .......................... 4
8. Use ....................................... 4
9. Notices ................................... 5
10. Brokers ................................... 5
11. Holding Over .............................. 5
12. Taxes on Tenant's Property ................ 5
13. Condition of Premises ..................... 5
14. Alterations ............................... 5
15. Repairs ................................... 6
16. Liens ..................................... 6
17. Entry By Landlord ......................... 6
18. Utilities and Services .................... 6
19. Bankruptcy ................................ 7
20. Indemnification and Exculpation of Landlord 7
21. Damage to Tenant's Property ............... 7
22. Tenant's Insurance ........................ 7
23. Damage or Destruction ..................... 8
24. Eminent Domain ............................ 9
25. Defaults and Remedies ..................... 9
26. Assignment and Subletting ................. 10
27. Subordination ............................. 10
28. Estoppel Certificate ...................... 11
29. Building Planning ......................... 11
30. Rules and Regulations ..................... 11
31. Conflict of Laws .......................... 11
32. Successors and Assigns .................... 11
33. Surrender of Premises ..................... 11
34. Professional Fees ......................... 11
35. Performance by Tenant ..................... 11
36. Mortgagee Protection ...................... 12
37. Definition of Landlord .................... 12
38. Waiver .................................... 12
39. Identification of Tenant .................. 12
40. Parking ................................... 12
41. Force Majeure ............................. 12
42. Terms and Headings ........................ 12
43. Examination of Lease ...................... 12
44. Time ...................................... 12
45. Prior Agreement or Amendments ............. 13
46. Separability .............................. 13
47. Recording ................................. 13
48. Limitation on Liability ................... 13
49. Modification For Lender ................... 13
50. Financial Statements ...................... 13
51. Quiet Enjoyment ........................... 13
52. Tenant as Corporation ..................... 13
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EXHIBITS
A Outline of Floor Plan or Premises
B The Project
C Notice of Lease Term Dates and Tenant's Percentage
D Standards for Utilities and Services
E Tenant Estoppel Certificate
F Rules and Regulations
G Parking Rules and Regulations
H Hazardous Materials
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OFFICE LEASE
1. BASIC LEASE TERMS.
a. DATE OF LEASE EXECUTION: March 22, 1994
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b. TENANT: STAC Electronics, a California corporation
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Trade Name:
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Address (leased Premises): 00000 Xxxx Xxxxx Xxxxx
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San Diego, CA 92130
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Floor(s) upon which the Premises are located: Fourth (4th) Suite Number(s): 400
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Address (For Notices): 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
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San Diego, CA 92130
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c. LANDLORD: Weyerhaeuser Mortgage Company, a California corporation and Fort Xxxxxx, Inc.
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Address (For Notices): c/o Weyerhaeuser Mortgage Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, XX 00000
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with a copy to Xxxx Management, 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 or to such other
place as Landlord may from time to time designate by notice to Tenant.
d. PREMISES AREA: Approximately Fourteen Thousand Twenty-Four (14,024) Rentable Square Feet
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e. PROJECT AREA: Fifty-Eight Thousand Ninety-Six (58,096) Rentable Square Feet
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f. TENANT'S PERCENTAGE: 24.14%
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g. TERM OF LEASE: The term of this Lease shall be for approximately thirty--eight (38) KB Months
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commencing upon the earlier of:
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(3) January 6, 1997, expiring on March 5, 2000
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Reference in this lease to a "Lease Year" shall mean each successive twelve month period commencing
with the first day of the month in which the term of this Lease commences.
h. BASE MONTHLY RENT: $Seventeen Thousand Five Hundred Thirty and No/100 Dollars ($17,530.00)
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j. ANNUAL OPERATING EXPENSE ALLOWANCE: See Addendum "2."
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k. PREPAID RENT: $ -0-
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l. TOTAL SECURITY DEPOSIT: $17,530.00 payable on January 6, 1997. ------------------------------------------
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m. TENANT IMPROVEMENT ALLOWANCE: $ -0- -------------------------------------------------------------------
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-----------------------------------------. The space shall be leased in "as is" condition.
n. TENANT'S USE OF PREMISES: General office
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o. PARKING: Fifty-eight (58) spaces, including six (6) covered and reserved, free of charge.
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p. BROKER(S): CB Commercial Real Estate Group, Inc. and Business Real Estate Brokerage Company, Inc.
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q. BROKERAGE COMMISSION PAYABLE BY: Landlord
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r. GUARANTOR(S) None
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s. ADDITIONAL SECTIONS
Additional Sections of this lease numbered Addenda "1" through "4" --- are attached hereto and made a part
hereof. ---
t. ADDITIONAL EXHIBITS
Additional exhibits letters H --- are attached hereto and made a part hereof. ---
* a Michigan corporation, tenants in common
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Section 1 represents a summary of the basic terms of this Lease. In the
event of any inconsistency between the terms contained in Section 1 and any
specific clause of this Lease, the terms of the more specific clause shall
prevail.
The parties hereto agree that said letting and hiring is upon and subject to
the terms, convenants and conditions herein set forth. Tenant covenants, as a
material part of the consideration for this Lease to keep and perform each and
all of said terms, convenants and conditions for which tenant is liable and that
this Lease is made upon the condition of such performance.
2. PREMISES AND COMMON AREAS LEASED.
a. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
those certain premises described in Section 1 and in Exhibit A attached hereto
(the "Premises"), * ----------------------------------------------------------
Landlord and Tenant stipulate that for purposes of this Lease the Premises
contain 14,024 rentable square feet and the Project contains 58,096 rentable
square feet.
b. The Premises are contained within the building at the address designated in
Section 1 located in the Project described on Exhibit B attached hereto (the
"Project").
c. Tenant's Percentage of the Project ** --------------------------------------.
d. Tenant shall have the nonexlusive right to use in common with other tenants
in the Building and the Project and subject to the Rules and Regulations
referred to in Paragraph 30 below the following areas ("Common Areas")
appurtenant to the Premises:
(1) The Building's common entrances, lobbies, restrooms, elevators,
stairways and accessways, loading docks, ramps, drives and platforms and any
passageways and serviceways thereto, and the common pipes, conduits, wires and
appurtenant equipment serving the Premises;
(2) Loading and unloading areas, trash areas, parking areas, roadways,
sidewalks, walkways, parkways, driveways and landscaped areas and similar areas
and facilities appurtenant to the Building.
e. Landlord reserves the right from time to time without unreasonable
interference with Xxxxxx's use:
(1) 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 or Project;
(2) To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas and walkways;
(3) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available:
(4) To designate other land outside the boundaries of the Building or
Project to be a part of the Common Areas;
(5) To add additional buildings and improvements to the Common Areas;
(6) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building or the Project, or any
portion thereof,
(7) To do and perform such other acts and make such other changes in,
to or with respect to the Common Areas, the Building or the Project as Landlord
may, in the exercise of sound business judgment, deem to be appropriate.
3. TERM.
The term of this Lease shall be for the period designated in Section 1,
commencing on the Commencement Date, and ending on the expiration of such
period, unless the term hereby demised shall be sooner terminated as hereinafter
provided. If not specifically designated in Section 1, the Commencement Date,
the date upon which the term of this Lease shall end, the rentable square feet
within the Premises and Tenant's Percentage shall be determined in accordance
with the provisions of Paragraph 2 and will be specified in Landlord's Notice of
Lease Term Dates and Tenant's Percentage ("Notice"), in the form of Exhibit "C"
which is attached hereto and is incorporated herein by this reference, and shall
be served upon Tenant as provided in Paragraph 9. The Notice shall be binding
upon Tenant unless Tenant objects to the Notice in writing, served upon Landlord
as provided for in Paragraph 9 hereof, within five (5) days of Tenant's receipt
of the Notice.
4. POSSESSION.
Tenant agrees that, if Landlord is unable to deliver possession of the
Premises to Tenant on the scheduled commencement of the term of this Lease, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, nor shall the expiration date of the
above term be in any way extended, but in such event Tenant shall not be liable
for any rent until Landlord tenders possession of the Premises to Tenant.------
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* "as is" and in the condition that will exist on the Commencement Date.
** is stipulated to be 24.14%.
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5. RENT.
a. Tenant shall pay Landlord monthly base rent in the initial amount set forth
in Section 1 which shall be payable monthly in advance on the first day of each
and every calendar month ("Base Monthly Rent") provided, however, the first
month's rent shall be due and payable upon execution of this lease.
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d. All rent shall be paid by Tenant to Landlord monthly in advance on the first
day of every calendar month, at the address shown in Section 1, or such other
place as Landlord may designate in writing from time to time. All rent shall be
paid without prior demand or notice and without any deduction or offset
whatsoever. All rent shall be paid in lawful currency of the United States of
America. All rent due for any partial month shall be prorated at the rate of
1/30th of the total monthly rent per day. Tenant acknowledges that late payment
by Tenant to Landlord of any rent or other sums due under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of such
costs being extremely difficult and impracticable to ascertain. Such costs
include, without limitation, processing and accounting charges and late charges
that may be imposed on Landlord by the terms of any encumbrance or note secured
by the Premises. Therefore, if any rent or other sum due from Tenant is not
received when due, Tenant shall pay to landlord an additional sum equal to 10%
of such overdue payment. Landlord and Tenant hereby agree that such late charge
represents a fair and reasonable estimate of the costs that Landlord will incur
by reason of any such late payment. Additionally, all such delinquent rent or
other sums, plus this late charge, shall bear interest at the then maximum
lawful rate permitted to be charged by Landlord. Any payments of any kind
returned for insufficient funds will be subject to an additional handling charge
of $25.00, and thereafter, Landlord may require Tenant to pay all future
payments of rent or other sums due by money order or cashiers check.
e. Upon the execution of the Lease, Tenant shall pay to Landlord the prepaid
rent set forth in Section 1 and if Tenant is not in default of any provisions of
the Lease, such prepaid rent shall be applied toward the rent due for the first
month of the term. Landlord's obligations with respect to the prepaid rent are
those of a debtor and not of a trustee, and Landlord can commingle the prepaid
rent with Landlord's general funds. Landlord shall not be required to pay Tenant
interest on the prepaid rent. Landlord shall be entitled to immediately endorse
and cash Xxxxxx's prepaid rent; however, such endorsement and cashing shall not
constitute Landlord's acceptance of this Lease. In the event Landlord does not
accept this Lease, Landlord shall return said prepaid rent.
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g. "For purposes of Section 467 of the Internal Revenue Code, the parties to
this lease agreement hereby agree to allocate the stated rents, provided herein,
to the periods which correspond to the actual rent payments as provided under
the terms and conditions of this agreement."
6. RENTAL ADJUSTMENT.
a. For the purposes of this Paragraph 6, the following terms are defined as
follows:
(1) Tenant's Percentage shall mean that portion of the total rentable
area of the Project occupied by Tenant as set forth as a percentage in Section
1.
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(3) Operating Expenses shall consist of all direct costs of operation
and maintenance of the Project and the Common Areas, including any expansions to
the Common Areas by Landlord ("Operating Expenses"), as determined by standard
accounting practices, calculated assuming the Project is fully occupied,
including the following costs by way of illustration, but not limitation: any
and all assessments Landlord must pay for the Project pursuant to any covenants,
conditions or restrictions, reciprocal easement agreements, tenancy-in-common
agreements or similar restrictions and agreements affecting the Building or the
Project; real property taxes and assessments and any taxes or assessments
hereafter imposed in lieu thereof; rent taxes, gross receipt taxes
(whether assessed against Landlord or assessed against Tenant and paid by
Xxxxxxxx, or both); water and sewer charges; accounting; legal and other
consulting fees; 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 connection with the
operation of the Project; utilities; janitorial services; security; labor;
parking charges, utilities surcharges, or any other costs levied, 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 or occupancy of the
Project or the Premises or the parking facilities serving the Project or the
Premises; the cost (amortized over such reasonable period as Landlord shall
determine together with Interest at the maximum rate allowed by law on the
unamortized balance) of any capital improvements made to the Project or the
Common Areas by the Landlord in order to comply with any governmental
requirements not in existence as of the date of this Lease or designed to
reduce Operating Expenses or replacement of any building equipment needed to
operate the Building or the Common Areas at the same quality levels as prior to
the replacement; costs incurred in the management of the Project, if any
(including supplies, wages and salaries of employees used in the management,
operation and maintenance of the Project, and payroll taxes and similar
governmental charges with respect thereto, Project management office rental, a
management fee and, in the event Landlord is directly participating in the
administration of the Project, an administrative fee in the amount of Landlord's
actual expenses, such administrative fee not to exceed fifteen percent (15%) of
the annual Operating Expenses excluding therefrom such fee); air conditioning;
waste disposal; heating; ventilating; elevator maintenance; supplies; materials;
equipment; tools; repair and maintenance of the structural portions of the
Project, including the plumbing, heating, ventilating, air conditioning and
electrical systems installed or furnished by Landlord; maintenance costs,
including utilities and payroll expenses, rental of personal property used in
maintenance, and all other upkeep of all parking and Common Areas; costs and
expenses of
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gardening and landscaping; maintenance of signs (other than Tenant's signs);
personal property taxes levied on or attributable to personal property used in
connection with the entire Project, including the Common Areas; reasonable 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. Operating Expenses shall not include
depreciation on buildings or equipment therein, Landlord's executive salaries or
real estate brokers' commissions.
(4) As used herein, the term "real property taxes" 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 Premises, including, but not limited to,
the following:
(a) any tax on Landlord's "right" to other income from the
Premises or as against Landlord's business of leasing the Premises;
(b) 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, including but not limited to,
any assessments, taxes, fees, levies and charges that 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 and increased assessments, taxes, fees,
levies and charges be included within the definition of "real property taxes"
for the purposes of this Lease;
(c) 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
Tenant of the Premises, or any portion thereof;
(d) any assessment, tax, fee, levy or charge upon this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises.
Notwithstanding any provision of this paragraph 6 expressed or implied
to the contrary, "real property taxes" shall not include Landlord's federal or
state income, franchise, inheritance or estate taxes.
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c. Even though the term has expired and Xxxxxx has vacated the Premises, when
final determination is made of Tenant's Percentage of Operating Expenses for
the year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated expenses paid and, conversely, any overpayment
made in the event said expenses decrease Shall be rebated by Landlord to Tenant.
7. SECURITY DEPOSIT.
Tenant shall deposit with Landlord the amount of the security deposit set forth
in Section 1 in part as security for the performance by Tenant of the provisions
of this Lease------------------. If Tenant is in default, Landlord can use the
security deposit or any portion of it to cure the default or to compensate
Landlord for all damage sustained by landlord resulting from Xxxxxx's default.
Upon demand, Xxxxxx shall immediately pay to Landlord a sum equal to the portion
of the security deposit expended or applied by Landlord to maintain the security
deposit in the amount initially deposited with Landlord. In no event will
Tenant have the right to apply any part of the security deposit to any rent or
other sums due under this Lease. If Tenant is not in default at the expiration
or termination of this Lease, Landlord shall return the entire security deposit
to Tenant. ----------------- Landlord's obligations with respect to the deposit
are those of a debtor and not of a trustee, and Landlord can commingle the
security deposit with Xxxxxxxx's general funds. Landlord shall not be required
to pay Tenant interest on the deposit. Landlord shall be entitled to immediately
endorse and cash Xxxxxx's prepaid deposit; however, such endorsement and cashing
shall not constitute Landlord's acceptance of this Lease. In the event Landlord
does not accept this Lease, Landlord shall return said prepaid deposit. Should
Landlord sell its interest in the Premises during the term hereof and if
Landlord deposits with the purchaser thereof the then unappropriated funds
deposited by Tenant as aforesaid, thereupon Landlord shall be discharged from
any further liability with respect to the Security Deposit.
8. USE.
Tenant shall use the Premises for the uses set forth in Section 1 above, and
shall not use or permit the Premises to be used for any other purpose without
the prior written consent of Landlord. Nothing contained herein shall be deemed
to give Tenant any exclusive right to such use in the Building. Tenant shall not
use or occupy the Premises in violation of law or of the Certificate of
Occupancy issued for the Building, and shall, upon written notice from Landlord,
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of law or of said Certificate of
Occupancy. 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
comply with all rules, orders, regulations and requirements of the Insurance
Service Office or any other organization performing a similar function. Tenant
shall promptly, upon demand, reimburse Landlord for any additional premium
charged for such policy by reason of Tenant's failure to comply with the
provisions of this Paragraph. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Project, or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about
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the Premises. Tenant shall comply with all restrictive covenants and obligations
(created by private contracts which affect the use and operation of the
Premises, the Building, the Common Area or the Project. Subject to Paragraph 23
hereof, 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,
normal wear and tear excepted. Landlord reserves the right to prescribe the
weight and position of all files, safes and heavy equipment which Tenant desires
to place in the Premises so as to properly distribute the weight thereof.
Further, Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the building structure or to any
other space in the building shall be so installed, maintained and used by Tenant
as to eliminate such Vibration or noise. Tenant shall be responsible all
structural engineering required to determine structural load.
9. NOTICES.
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 address(es) designated in Section 1 or to Landlord at
both of the addresses designated in Section 1. Either party may specify a
different address for notice purposes by written notice to the other.
10. BROKERS.
Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Lease, except for those
certain brokers whose names are set forth in Section 1 and that it knows of no
other real estate broker or agent who is or might be entitled to a commission in
connection with this Lease. If Tenant has dealt with any other person or real
estate broker with respect to leasing or renting space in the Project, Tenant
shall be solely responsible for the payment of any fee due said person or firm
and Tenant shall hold Landlord free and harmless against any liability in
respect thereto, including attorneys' fees and costs.
11. HOLDING OVER.
If Tenant holds over after the expiration or earlier termination of the
term hereof without the express written consent of Landlord, Tenant shall become
a Tenant at sufferance only, at a rental rate equal to the greater of Landlord's
scheduled rent for the space or one hundred twenty-five percent (125%) of the
rent in effect upon the date of such expiration (subject to adjustment as
provided in Paragraph 6 hereof and prorated on a daily basis), and otherwise
subject to the terms, covenants and conditions herein specified, so far as
applicable. Acceptance by Landlord of rent after such expiration or earlier
termination shall not result In a renewal of this Lease. The foregoing
provisions of this Paragraph 11 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise provided
by law. If Xxxxxx fails to surrender the Premises upon the expiration of this
Lease despite demand to do so by Landlord, Tenant shall indemnify and hold
Landlord harmless from all loss or liability, including without limitation, any
claim made by any succeeding tenant founded on or resulting from such failure to
surrender and any attorneys fees and costs.
12. TAXES ON TENANT'S PROPERTY.
a. Tenant shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessment, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall, upon demand, repay to Landlord the taxes so levied
against Landlord, or the portion of such taxes resulting from such increase in
the assessment.
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13. CONDITION OF PREMISES.
Tenant acknowledges that neither Xxxxxxxx nor any agent of Landlord has
made any representation or warranty with respect to the Premises, the building
or the Project or with respect to the suitability of either for the conduct of
Xxxxxx's business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the building were in satisfactory
condition at such time. Without limiting the foregoing, Xxxxxx's execution of
the Notice attached hereto as EXHIBIT "C" shall constitute a specific
acknowledgement and acceptance of the various start-up inconveniences that may
be associated with the use of the Common Areas such as certain construction
obstacles including scaffolding, delays in use of freight elevator service,
certain elevators not being available to Tenant, the passage of work crews using
elevators, uneven air conditioning services and other typical conditions
incident to recently constructed office buildings.
14. ALTERATIONS
a. Tenant shall make no alterations, additions or improvements in or to the
Premises without Landlord's prior written consent *, and then only by
contractors or mechanics approved by Landlord; such consents and approvals by
Landlord shall not be unreasonably withheld or delayed. Tenant shall submit to
Landlord plans and specifications for any proposed alterations, additions or
improvements to the Premises, and may not make such alterations, additions or
improvements until Landlord has approved of such plans and specifications.
Tenant shall construct such alterations, additions or improvements in accordance
with the plans and specifications approved by Landlord, and shall not amend or
modify such plans and specifications without Landlord's prior written consent.
If the proposed change requires the consent or approval of any lessor of a
superior lease, or the holder of a mortgage encumbering the Premises, such
consent or approval must be secured prior to the construction of such
alteration, addition or improvement and Landlord agrees to cooperate in
obtaining any such consent or approval. Tenant agrees that there shall be no
construction of partitions or other obstructions which might interfere with
Landlord's free access to mechanical installations or service facilities of the
building or interfere with the moving of Landlord's equipment to or from the
enclosures containing said installations or facilities. All such work shall be
done at such times and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
regulations and requirements of all governmental agencies, offices and boards
having jurisdiction, and in full compliance with the rules, regulations and
requirements of the Insurance Service Office, and of any similar body. Before
commencing any work, Tenant shall give Landlord at least ten (10) days written
notice of the proposed commencement of such work and shall, if required by
Landlord - secure at Tenant's own
*unless such alterations, additions, or improvements are less than a cost of
Five Thousand and No/100 Dollars
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cost and expense, a completion and lien indemnity bond satisfactory to Landlord
for said work if said work costs more than $100,000. 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 Xxxxxx, by bond or otherwise,
within (10) ten days after the filing thereof, at the cost and expense of
Xxxxxx. All alterations, 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,
---------------------- 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.---------------------------------------------------.
b. 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 ---------------------. If Tenant shall fail to remove all of its effects
from the Premises upon termination of this Lease for any cause whatsoever,
Landlord may, at its option, remove the same in any manner that Landlord shall
choose, and store said effects without liability to Tenant for loss thereof. In
such event, Xxxxxx agrees to pay Landlord upon demand any and all expenses
incurred in such removal, including court costs and attorneys' fees and storage
charges on such effects, for any length of time that the same shall be in
Landlord's possession. Landlord may, at its option, without notice, sell said
effects, or any of the same, at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
15. REPAIRS.
a. By entry hereunder, Xxxxxx accepts the Premises as being in good and sanitary
order, condition and repair. Subject to Paragraph 23 hereof, Tenant shall keep,
maintain and preserve the Premises in first class condition and repair normal
wear and tear excepted and shall, when and if needed, at Tenant's sole cost and
expense, make all repairs to the Premises and every part thereof. Tenant shall,
upon the expiration or sooner termination of the term hereof, surrender the
Premises to Landlord in the same condition as when received, usual and ordinary
wear and tear excepted. Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof. The parties
hereto affirm that Landlord has made no representations to Tenant respecting the
condition of the Premises, the building, the Project or the Common Area except
as specifically herein set forth.
b. Anything contained in Paragraph 15a above to the contrary notwithstanding,
Landlord shall repair and maintain the structural portions of the building and
the plumbing, heating, ventilating, air conditioning, elevator and electrical
systems installed or furnished by Landlord, unless such maintenance and repairs
are caused in part or in whole by the act, neglect 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 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 23
hereof, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Xxxxxx'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. Tenant waives the right to make repairs at Landlord's expense under any
law, statute or ordinance now or hereafter in effect.
16. LIENS.
Tenant shall not permit any mechanics', materialmens' or other liens to be filed
against the building or the Project nor against Xxxxxx'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 payments in satisfaction of the claim giving rise
to such lien. Tenant shall pay to Landlord at once, upon notice by Landlord, any
sum paid by Landlord to remove such liens, together with interest at the maximum
rate per annum permitted by law from the date of such payment by Landlord.
17. ENTRY BY LANDLORD.
Landlord reserves and shall at any and all times (except as provided below)
have the right to enter the Premises to inspect the same upon reasonable prior
notice to Tenant to supply janitor service and any other service to be provided
by Landlord to Tenant hereunder, to show the Premises to prospective purchasers
or tenants upon reasonable prior notice to Tenant, to post notice of
nonresponsibility, to alter, improve or repair the Premises or any other
portion of the Building * , all without being deemed guilty of any eviction of
Tenant and without abatement of rent. Landlord may, in order to carry out such
purposes, erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, provided that the
business of Tenant shall be interfered with as little as reasonably
practicable. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Xxxxxx's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss in, upon and about the
Premises. Landlord shall at all times have and retain a key with which to
unlock all doors in the Premises, excluding Xxxxxx's vaults and safes. Landlord
shall have the right to use any and all means which Landlord may deem proper to
open said doors in an emergency in order to obtain entry to the Premises. Any
entry to the Premises obtained by Landlord by any of said means, or otherwise,
shall not be construed or deemed to be a forcible or unlawful entry into the
Premises, or an eviction of Tenant from the Premises or any portion thereof,
and any damages caused on account thereof shall be paid by Xxxxxx. It is
understood and agreed that no provision of this Lease shall be construed as
obligating Landlord to perform any repairs, alterations or decorations except
as otherwise expressly agreed herein by Landlord.
18. UTILITIES AND SERVICES.
Provided that Tenant is not in default under this Lease, Xxxxxxxx agrees to
furnish or cause to be furnished to the Premises the utilities and services
described in the Standards for Utilities and Services, attached hereto as
EXHIBIT "D", subject to the conditions and in accordance with the standards set
forth therein. Landlord's failure to furnish any of the foregoing items when
such failure is caused by (i) accident, breakage or repairs; (ii) strikes,
lockouts or other labor disturbance or labor dispute of any character; (iii)
governmental regulation, moratorium or other governmental action; (iv) inability
despite the exercise of reasonable diligence to obtain electricity, water or
fuel; or by (v) any other cause beyond Landlord's reasonable control, shall not
result in any liability to Landlord. In addition, Tenant shall not be entitled
to any abatement or reduction of rent by reason of such failure, no eviction of
Tenant shall result from such failure and Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of such failure.
In the event of any failure, stoppage or interruption thereof, Landlord shall
diligently attempt to resume service promptly. If Tenant requires or utilizes
more water or electrical power than is considered reasonable or normal by
Landlord, Landlord may at its option require Tenant to pay, as additional rent,
the cost, as fairly determined by Landlord, incurred by such extraordinary
usage. In addition, Landlord may install separate meter(s) for the Premises at
Landlord's sole expense, and Tenant thereafter shall pay all charges of the
utility providing service and Landlord shall make an appropriate adjustment to
account for the fact Tenant is directly paying such metered charges.
* (with reasonable prior notice to Tenant for non-routine repairs and
maintenance)
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19. BANKRUPTCY.
If Tenant shall file a petition in bankruptcy under any provision of
the Bankruptcy Code as then in effect, or if Tenant shall be adjudicated a
bankrupt in involuntary bankruptcy proceedings and such adjudication shall not
have been vacated within thirty (30) days from the date thereof, or if a
receiver or trustee shall be appointed of Tenant's property and the order
appointing such receiver of trustee shall not be set aside or vacated within
thirty (30) days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, -------------------------------
then in any such event Landlord may terminate this Lease, if Landlord so elects,
with or without notice of such election and with or without entry or action by
Landlord. In such case, notwithstanding any other provisions of this Lease,
Landlord, in addition to any and all rights and remedies allowed by law or
equity, shall, upon such termination, be entitled to recover damages in the
amount provided in Paragraph 25b hereof. Neither Tenant nor any person claiming
through or under Tenant or by virtue of any statute or order of any court shall
be entitled to possession of the Premises but shall surrender the Premises to
Landlord. Nothing contained herein shall limit or prejudice the right of
Landlord to recover damages by reason of any such termination equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved; whether or
not such amount is greater, equal to or less than the amount of damages
recoverable under the provisions of this Paragraph 19.
20. INDEMNIFICATION AND EXCULPATION OF LANDLORD.
a. Tenant shall indemnity, defend and hold Landlord harmless from 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 in or about
the Premises, the Building, the Project or the Common Area **. Tenant shall
further indemnify, defend and hold Landlord harmless from all claims arising
from any breach or default in the performance of any obligation to be performed
by Tenant under the terms of this Lease, or arising from any act, neglect, fault
or omission of Tenant or of its agents or employees, and from and against all
costs, attorneys' fees, expenses and liabilities incurred in or about such claim
or any action or proceeding brought thereon. In case any action or proceeding
shall be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by counsel
approved in writing by Landlord. Tenant, as a material part of the consideration
to Landlord, hereby assumes all risk of damage to property or injury to person
in, upon or about the Premises from any cause whatsoever except that which is
caused by the failure of Landlord to observe any of the terms and conditions of
this Lease where such failure has persisted for an unreasonable period of time
after written notice of such failures. Tenant hereby waives all its claims in
respect thereof against Landlord.
b. Neither Landlord nor any partner, director, officer, agent or employee of
Landlord shall be liable to Tenant or its partners, directors, officers,
contractors, agents, employees, invitees, sublessees or licensees, for any
loss, injury or damage to Tenant or to any other person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
solely caused by or solely resulting from the gross negligence or willful
misconduct of Landlord or its employees or agents in the operation or
maintenance of the Premises, the building, or the Project without contributory
negligence on the part of Tenant or any of its sublessees or licensees or its
or their employees, agents or contractors, or any other lessees or occupants of
the building or Project. Further, neither Landlord nor any partner, director,
officer, agent or employee of Landlord shall be liable (i) for any such damage
caused by other lessees or persons in or about the building or Project, or
caused by quasi-public work; or (ii) for consequential damages arising out of
any loss of the use of the Premises of any equipment or facilities therein by
Tenant or any person claiming through or under Tenant.
21. DAMAGE TO TENANT'S PROPERTY.
* Notwithstanding the provisions of Paragraph 20 to the contrary, Landlord or
its agents shall not be liable for (i) any damage to any property entrusted to
employees of the building or Project, (ii) loss or damage to any property by
theft or otherwise, (iii) any injury or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity, water or rain
which may leak from any part of the building or from the pipes, appliances or
plumbing work therein or from the roof, street or sub-surface or from any other
place or resulting from dampness or any other cause whatsoever. Landlord or
its agents shall not be liable for interference with light or other incorporeal
hereditaments, nor shall Landlord be liable for any latent defect in the
Premises or in the building. Tenant shall give prompt notice to Landlord in
case of fire or accidents in the Premises or in the building or of defects
therein or in the fixtures or equipment.
22. TENANT'S INSURANCE.
a. Tenant shall, during the term hereof and any other period of occupancy, at
its sole cost and expense, keep in full force and effect the following
insurance:
(1) Standard from property insurance insuring against the perils of
fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be
upon all property owned by Tenant, for which Tenant is legally liable or that
was installed at Tenant's expense, and which is located in the Project
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant improvements installed by Landlord), and any other personal
property, in an amount not less than ninety percent (90%) of the full
replacement cost thereof. In the event that there shall be a dispute as to the
amount which comprises full replacement cost, the decision of Landlord or any
mortgagees of Landlord shall be conclusive. This insurance policy shall also be
upon direct or indirect loss of Xxxxxx's earnings attributable to Tenant's
inability to use fully or obtain access to the Premises, Building or Project in
any amount as will properly reimburse Tenant. Such policy shall name Xxxxxxxx
and any mortgages of Landlord as insured parties, as their respective interests
may appear.
(2) Comprehensive General Liability Insurance insuring Tenant against
any liability arising out of the lease, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $1,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of the Premises and Xxxxxx's Operations thereon, independent
contractors, contractual liability (covering the indemnity contained in
Paragraph 20 hereof) and shall (a) name Landlord as an additional insured, (b)
contain a cross liability provision and (c) contain a provision that the
insurance provided the Landlord hereunder shall be primary and non-contributing
with any other insurance available to the Landlord.
(3) Workers' Compensation and Employer's Liability insurance (as
required by state law).
(4) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of 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. All policies shall be written in a form satisfactory to Landlord and shall
be taken out with insurance companies holding a General Policyholders Rating of
"A" and a Financial Rating of "X" or better, as set forth in the most current
issue of Best's Insurance Reports. Within ten (10) days after the execution of
this Lease, Tenant shall deliver to Landlord copies of policies or certificates
evidencing the existence of the amounts and forms of coverage satisfactory to
Landlord. No such policy shall be cancellable or reducible in coverage except
after thirty (30) days prior written notice to Landlord. Tenant shall, within
ten (10) days prior to the expiration of such policies, furnish Landlord with
renewals or "binders" thereof, or Landlord may order such insurance and charge
the cost thereof to Tenant as additional rent. If Landlord obtains any
insurance that is the responsibility of Tenant under this Paragraph, Landlord
shall deliver to Tenant a written statement setting forth the cost of any such
insurance and showing in reasonable detail the manner in which it has been
computed.
* Except to the extent of Landlord's or its employees' or agents' gross
negligence or willful misconduct,
** Except to the extent or Landlord's or its employees' or agents' negligence
or willful misconduct,
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c. During the term of this Lease, Landlord shall insure the Building (excluding
any property which Tenant is obligated to insure under Subparagraphs 22a and b
hereof) against damage with All-Risk insurance and public liability insurance,
all in such amounts and with such deductions as Landlord considers appropriate.
Upon written request of Tenant with reference to this Subparagraph 22c,
Landlord shall provide Tenant with a copy of a certificate of Landlord's
insurance. Landlord may, but shall not be obligated to, obtain and carry any
other form or forms of insurance as it or Landlord's mortgagees may determine
advisable. Notwithstanding any contribution by Tenant to the cost of insurance
premiums, as provided herein, Tenant acknowledges that it has no right to
receive any proceeds from any insurance policies carried by Landlord.
d. Tenant will not keep, use, sell or offer for sale in or upon the Premises any
article which may be prohibited by any insurance policy periodically in force
covering the Building. If Xxxxxx's occupancy or business in, or on, the
Premises, whether or not Landlord has consented to the same, results in any
increase in premiums for the insurance periodically carried by Landlord with
respect to the Building, Tenant shall pay any such increase in premiums as
additional rent within ten (10) days after being billed therefore by Landlord.
In determining whether increased premiums are a result of Tenant's use of the
Premises, a schedule issued by the organization computing the insurance rate on
the Building or the Tenant Improvements 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 reasonable requirements of
the insurance authority or any present or future insurer relating to the
Premises.
e. If any of Landlord's insurance policies shall be cancelled or cancellation
shall be threatened or the coverage thereunder reduced or threatened to be
reduced in any way because of the use of the Premises or any part thereof by
Tenant or any assignee or subtenant of Tenant or by anyone Tenant permits on
the Premises and, if Tenant fails to remedy the condition giving rise to such
cancellation, threatened cancellation, reduction of coverage, threatened
reduction of coverage, increase in premiums, or threatened increase in
premiums, within forty-eight (48) hours after notice thereof, Landlord may, at
its option, either terminate this Lease or enter upon the Premises and attempt
to remedy such condition, and Tenant shall promptly 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 on the Premises
resulting from such entry. If Landlord is unable, or elects not 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. Notwithstanding the foregoing
provisions of this Subparagraph 22e, if Tenant fails to remedy as aforesaid,
Tenant shall be in default of its obligation hereunder and Landlord shall have
no obligation to remedy such default.
f. All policies of insurance required hereunder shall include a clause or
endorsement denying the insurer any rights of subrogation against the other
party to the extent rights have been waived by the insured before the
occurrence of injury or loss. Landlord and Tenant waive any rights of recovery
against the other for injury or loss due to hazards covered by policies of
insurance containing such a waiver of subrogation clause or endorsement to the
extent of the injury or loss covered thereby.
See Addendum "1" Item 8.
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24. EMINENT DOMAIN.
a. In case all of the premises, or such part thereof as shall substantially
interfere with Xxxxxx's use and occupancy thereof, shall be taken for any
public or quasi-public 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 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
of any estate or interest of Tenant, Landlord shall 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 shall be deemed to give Landlord any interest in any award made
to Tenant for the taking of personal property and fixtures belonging to Tenant
or for moving expenses or for the unamortized portion of tenant improvements
paid for by Xxxxxx.
b. In the event of taking of the Premises or any part thereof for temporary
use, (1) this Lease shall be and remain unaffected thereby and rent shall not
xxxxx, and (2) 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 15 with respect to surrender of the Premises and
upon such payment shall be excused from such obligations. For purpose of this
Subparagraph 24b, a temporary taking shall be defined as a taking for a period
of 270 days or less.
25. DEFAULTS AND REMEDIES.
a. The occurrence of any one or more of the following events shall constitute a
default hereunder by Xxxxxx:
(1) The ------------------- abandonment of the Premises by Xxxxxx.
Abandonment is herein defined to include, but is not limited to, any absence by
Tenant from the Premises for ten (10) business days or longer while in default
of any provision of this Lease.
(2) The failure by Tenant to make any payment of rent or additional
rent or any other payment required to be made by Tenant hereunder, ------------
within five days after notice to Tenant that such payment is due.
(3) The failure by Tenant to observe or perform any of the express
or implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Subparagraph 25a.(1) or (2) above, where
such failure shall continue for a period of ten (10) days after written notice
thereof from Landlord to Tenant. If the nature of Tenant's default is such that
more than ten (10) days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant shall commence such cure within said
ten (10) day period and thereafter diligently prosecute such cure to
completion. -------------------------------------------------------------------
(4) The making by Tenant of any general assignment for the benefit
of creditors; the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty (30) days); the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in the Lease where such seizure is not
discharged within thirty (30) days.
*
b. In the event of any such default by Xxxxxx, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder. In
the event that Landlord shall elect to so terminate this Lease then Landlord
may recover from Tenant:
(1) The worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus
(2) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonable avoided; plus
(3) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Xxxxxx's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom.
As used in Subparagraphs 25b (1) and (2) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted by law.
As used in Subparagraph 25b (3) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
c. In the event of any such default by Tenant, Landlord shall also have the
right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant. No re-entry or taking possession of the Premises by Landlord
pursuant to this paragraph 25c shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
d. In the event of the ---------------- abandonment of the Premises by Tenant
or in the event that Landlord shall elect to re-enter as provided above or shall
take possession of the Premises pursuant to legal proceedings or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this Lease
as provided above, Landlord may from time to time, without terminating this
Lease, either recover all rent as it becomes due and relet the Premises or any
part thereof for the term for this Lease on terms and conditions as Landlord in
its sole discretion may deem advisable with the right to make alterations and
repairs to the Premises.
In the event that Landlord shall elect to so relet, then rentals received
by Landlord from such reletting shall be applied: first, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord; second, to
the payment of any cost of such reletting; third, to the payment of the cost of
any alterations and repairs to the Premises, fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, shall be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rentals received from such reletting
during any month, which is applied to the payment of rent hereunder, be less
than the rent payable during that month by Tenant hereunder, then Xxxxxx
* (5) A default by Tenant under the lease of even date herewith with
Landlord for Suite 200.
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shall pay such deficiency to Landlord immediately upon demand therefore by
Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall
also pay to Landlord, as soon as ascertained, any costs and expenses incurred,
including but not limited to brokers' commissions, by Landlord in such reletting
or in making such alterations and repairs not covered by the rentals received
from such reletting.
e. All rights, options and remedies of Landlord contained in this Lease shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law, whether or
not stated in this Lease. No waiver of any default of Tenant hereunder shall be
implied from any acceptance by Landlord of any rent or other payments due
hereunder or any omission by Landlord to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect defaults other than as specified in said waiver. The consent or approval
of Landlord to or of any act by Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render unnecessary Landlord's consent to or
approval of any subsequent similar acts by Xxxxxx.
26. ASSIGNMENT AND SUBLETTING.
a. Tenant shall not voluntarily assign or encumber its interest in this Lease or
in the Premises or sublease all or any part of the Premises, or allow any other
person or entity to occupy or use all or any part of the Premises, without first
obtaining Landlord's prior written consent which shall not be unreasonably
withheld or delayed. Any assignment, encumbrance or sublease without Landlord's
prior written consent shall be voidable at Landlord's election and shall
constitute a default. ------------------------------------------------------- No
consent to an assignment, encumbrance or sublease shall constitute a further
waiver of the provisions of this Paragraph. Tenant shall notify Landlord in
writing of Xxxxxx's intent to assign, encumber or sublease this Lease, the name
of the proposed assignee or sublessee, information concerning the financial
responsibility of the proposed assignee or sublessee and the terms of the
proposed assignment or subletting, and Landlord shall, within thirty (30) days
of receipt of such written notice, and additional information requested by
Xxxxxxxx concerning the proposed assignee's or sublessee's financial
responsibility, elect one of the following: (1) consent to such proposed
assignment, encumbrance or sublease; or (2) refuse such consent, which refusal
shall be on reasonable grounds.-------------------------------- In addition, a
condition to Landlord's consent to any assignment, transfer or hypothecation of
this Lease shall be the delivery to Landlord of a true copy of the fully
executed instrument of assignment, transfer or hypothecation, and the delivery
to Landlord of an agreement executed by the assignee in form and substance
satisfactory to Landlord and expressly enforceable by Landlord, whereby the
assignee assumes and agrees to be bound by all of the terms and provisions of
this Lease and to perform all of the obligations of Tenant hereunder.
b. As a condition to Landlord's consent to any sublease, such sublease shall
provide that it is subject and subordinate to this Lease and to all mortgages;
that Landlord may enforce the provisions of the sublease, including collection
of rent; that in the event of termination of this Lease for any reason,
including without limitation a voluntary surrender by Xxxxxx, or in the event of
any reentry or repossession of the Premises by Landlord, Landlord may, at its
option, either (1) terminate the sublease or (2) take over all of the right,
title and interest of Tenant, as sublessor, under such sublease, in which case
such sublessee shall attorn to Landlord, but that nevertheless Landlord shall
not (1) be liable for any previous act or omission of Tenant under such
sublease, (2) be subject to any defense or offset previously accrued in favor of
the sublessee against Tenant, or (3) be bound by any previous modification of
any sublease made without Xxxxxxxx's written consent, or by any previous
prepayment by sublessee of more than one month's rent.
c. In the event that Landlord shall consent to an assignment or sublease under
the provisions of this Paragraph 26, Tenant shall pay Landlord's processing
costs and attorneys' fees incurred in giving such consent. If Landlord shall
consent to any assignment of this Lease, Tenant shall pay to Landlord, as
additional rent, * ----------- of all sums and other considerations payable to
and for the benefit of Tenant by the assignee on account of the assignment, as
and when such sums and other consideration** are due and payable by the assignee
to or for the benefit of Tenant (or, if Landlord so requires, and without any
release of Tenant's liability for the same, Tenant shall instruct the assignee
to pay such sums and other consideration directly to Landlord). If for any
proposed sublease Tenant receives rent or other consideration, either initially
or over the term of the sublease, in excess of the rent called for hereunder or,
in case of the sublease of a portion of the Premises, in excess of such rent
fairly allocable to such portion, after appropriate adjustments to assure that
all other payments called for hereunder are taken into account. Tenant shall pay
to Landlord as additional rent hereunder,*------------ of the excess of each
such payment of rent or other consideration received by Tenant** promptly after
its receipt. Landlord's waiver or consent to any assignment or subletting shall
not relieve Tenant or any assignee or sublessee from any obligation under this
Lease whether or not accrued. Occupancy of all or part of the Premises by parent
or subsidiary companies of Tenant shall not be deemed an assignment or
subletting.--------------------------------------------------------------------
* one-half (1/2)
27. SUBORDINATION.
***
a. 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 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:
(1) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the building or the land upon which the building
is situated or both; and
(2) the lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the building, land, ground leases
or underlying leases, or Landlord's interest or estate in any of said items is
specified as security.
***
b. 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
** after Xxxxxx's recovery of reasonable, actual, out-of-pocket expenses in
connection with such assignment or sublease (including, without limitation, a
subtenant improvement allowance) and other monetary concessions
*** Subject to Addendum 1, Item 2,
10
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for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Xxxxxxxx, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by Xxxxxxxx and in the form requested
by Landlord, any additional documents evidencing the priority of subordination
of this Lease with respect to any such ground leases or underlying leases or 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 request Tenant shall
be in default, 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 such documents. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record any such
document in the name and on behalf of Xxxxxx.
28. ESTOPPEL CERTIFICATE.
a. Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord a statement, in
a form substantially similar to the form of Exhibit "E", certifying: (1) the
date of commencement of this Lease; (2) 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, and stating the date and nature of such
modifications); (3) the date to which the rental and other sums payable under
this Lease have been paid; (4) that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and (5) such other matters requested by Landlord. Landlord and Xxxxxx 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. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (1) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (2) that there are no
uncured defaults in Landlord's performance, and (3) that not more than one (1)
month's rental has been paid in advance. Xxxxxx's failure to deliver said
statement to Landlord within ten (10) working days of receipt 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 Xxxxxxxx's receipt of said statement.
[------------------------------------------------------------------------------]
30. 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 or Project of any of said Rules and Regulations.
31. CONFLICT OF LAWS.
This Lease shall be governed by and construed pursuant to the laws of
the state in which the premises are located.
32. 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.
33. 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 the Premises, leave the Premises in good order, repair and
condition, reasonable wear and tear excepted, and comply with the provisions of
Paragraph 15. 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.
34. PROFESSIONAL FEES
a. If Landlord should bring suit for possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation or appeal between the parties with respect
to this lease, then all costs and expenses, including without limitation, its
actual professional fees such as appraisers', accountants' and attorneys' fees,
incurred by the prevailing, party therein shall be paid by the other party,
which obligation on the part of the other party shall be 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. If Landlord employs a collection
agency to recover delinquent charges, Xxxxxx agrees to pay all collection agency
fees charged to Landlord in addition to rent, late charges, interest and other
sums payable under this Lease. Tenant shall pay a charge of $75 to Landlord for
preparation of a demand for delinquent rent
b. If Landlord is named as a defendant in any suit or appeal brought against
Tenant in connection with or arising out of Xxxxxx's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
without limitation, its actual professional fees such as appraisers',
accountants' and attorneys' fees.
35. 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. If Tenant shall fail to pay any sum
of money owed to any party other than Landlord, for which it is liable
hereunder, or if Tenant shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, without waiving or releasing Tenant
from obligations of Tenant, but shall not be obligated to, making any such
payment or perform any such other act to be made or performed by Tenant. All
sums so paid by Xxxxxxxx and all necessary incidental costs together with
interest thereon at the maximum rate permissible by law, from the date of such
payment by Landlord, shall be payable to Landlord on demand. Tenant covenants to
pay any such sums, and Landlord shall have (in addition to any other right or
remedy of Landlord) all rights and remedies in the event of the non-payment
thereof by Xxxxxx as are set forth in Paragraph 25.
11
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36. MORTGAGEE PROTECTION.
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default, including time to obtain possession of the Premises by
power of sale or a judicial foreclosure, if such should prove necessary to
effect a cure.
37. 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 of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title,
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. Without further agreement, the transferee
of such title 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.
38. WAIVER.
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained, nor shall
any custom or practice which may grow up 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. No acceptance by
Landlord of a lesser sum than the basic rental and additional rent or other sum
then due shall be deemed to be other than on account of the earliest installment
of such rent or other amount due, nor shall any endorsement or statement on any
check or any letter accompanying any check 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 installment or other amount or pursue any
other remedy in this Lease provided.
39. IDENTIFICATION OF TENANT.
If more than one person executes this lease as Tenant, (1) 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 Xxxxxx, and (2) the term "Tenant" as used in
this Lease shall mean and include each of them jointly and severally. 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 of 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.
40. PARKING.
a. Tenant shall have the right to use the type and number of spaces indicated
in Section 1. [-------] All such spaces shall be provided to Tenant at no cost.
b. The use by Tenant, its employees and invitees, of the parking facilities of
the Project shall be on the terms and conditions set forth in Exhibit G attached
hereto and by this reference incorporated herein, and shall be subject to such
other agreement between Landlord and Tenant as may hereinafter be established.
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 parked in areas other than those designated by Landlord for
such activities. If Tenant permits or allows any of the prohibited activities
described in Exhibit G, 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.
41. FORCE MAJEURE.
Except as applied to Paragraph 23, Landlord shall have no liability
whatsoever to Tenant on account of (1) the inability of Landlord to fulfill, or
delay in fulfilling, any of Landlord's obligations under this Lease by reason of
strike, other labor trouble, governmental preemption of priorities or other
controls in connection with a national or other public emergency, or shortages
of fuel, supplies or labor resulting therefrom or any other cause, whether
similar or dissimilar to the above, beyond Xxxxxxxx's responsible control; or
(2) any failure or defect in the supply, quantity or character of electricity or
water furnished to the Premises, by reason of any requirement, act or omission
of the public utility or others furnishing the Project with electricity or
water, or for any other reason, whether similar or dissimilar to the above,
beyond Landlord's reasonable control. If this Lease specifies a time period for
performance of an obligation of Landlord, that time period shall be extended by
the period of any delay in Landlord's performance caused by any of the events of
force majeure described above.
42. 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.
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.
43. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Xxxxxx 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.
44. TIME.
Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
12
14
45. PRIOR AGREEMENT OR AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in the Lease, and no prior agreement
or understanding pertaining to any such matter shall be effective for any
purpose. No provisions 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.
46. 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.
47. RECORDING.
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
48. LIMITATION ON LIABILITY.
In consideration of the benefits accruing hereunder, Xxxxxx and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by Xxxxxxxx:
(1) The sole and exclusive remedy shall be against the Landlord's
interest in the Project;
(2) No partner of Landlord shall be sued or named as a party in any
suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(3) No service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(4) No partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(5) No judgment will be taken against any partner of Landlord;
(6) Any judgment taken against any partner of Landlord may be vacated
and set aside at any time nunc pro tunc;
(7) No writ of execution will ever be levied against the assets of any
partner of Landlord;
(8) 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;
(9) These covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
49. MODIFICATION FOR LENDER.
If, in connection with obtaining construction, interim or permanent
financing for the Project 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 adversely
affect the leasehold interest hereby created or Xxxxxx's rights hereunder.
50. FINANCIAL STATEMENTS.
At any time during the term of this Lease, 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.
51. 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.
52. TENANT AS CORPORATION.
Covenant 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 Xxxxxx'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 bylaws of
Tenant and that this Lease is binding upon Tenant in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD: WEYERHAEUSER MORTGAGE COMPANY,
a California corporation and
FORT XXXXX, INC., a Michigan corporation,
tenants in common
ADDRESS: Weyerhaeuser Mortgage Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
By: WEYERHAEUSER MORTGAGE COMPANY,
managing tenant in common
ADDRESS: 00000 Xxxx Xxxxx
Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx, Vice President
TENANT: STAC ELECTRONICS,
a CALIFORNIA corporation
By: /s/ XXXX X. XXXXXX
---------------------------------
Xxxx X. Xxxxxx
15
ADDENDUM "1"
1. NON-DISTURBANCE - Xxxxxxxxxx Xxxxxx/Stac Sublease. Concurrently with
the parties' execution of this Lease, Xxxxxx is entering into a sublease with
the existing tenant in Suite 400, Xxxxxxxxxx Xxxxxx (the "Xxxxxxxxxx Xxxxxx/Stac
Sublease"). Xxxxxxxx agrees that, in the event of any termination of Landlord's
master lease with Xxxxxxxxxx Xxxxxx for Suite 400 prior to the Commencement Date
of this Lease, so long as Tenant attorns to Landlord, Xxxxxx's quiet possession
of Suite 400 under the Xxxxxxxxxx Xxxxxx/Stac Sublease will not be disturbed and
its rights and obligations under the Xxxxxxxxxx Xxxxxx/Stac Sublease will not be
altered.
2. Non-Disturbance - Section 27. Notwithstanding the provisions of
Section 27, in the event of a foreclosure of any mortgage or deed of trust or
termination of any ground lease, so long as Tenant attorns to the successor fee
owner or ground tenant, Xxxxxx's quiet possession of the Premises will not be
disturbed and its rights and obligations under this Lease will not be altered.
3. Early Termination. Tenant shall have the right to terminate this
Lease by providing Landlord written notice at least six (6) months prior to the
Commencement Date of this Lease, accompanied by a payment in the amount of the
six (6) months' rent abatement provided to Tenant in the lease for the space
located at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, and the lease
commission for this Lease.
4. Building Signage. Tenant, at Tenant's expense, shall have the right
to place its name and/or logo on one (1) side of the exterior of the Building in
a location to be selected by Tenant, subject to approval by Landlord (not to be
unreasonably withheld or delayed provided such signage complies with the signage
criteria contained in the CC&R's affecting the Project) and all governmental
agencies. This sign is in addition to the signage provided in the lease for
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000.
5. Hazardous Materials. The following provisions are added to Exhibit H
(Hazardous Materials): (i) Landlord's consent under clause (b) of Exhibit H
shall not be required for (1) Hazardous Materials, in reasonable quantities,
customarily used in business offices, and (2) Hazardous Materials used in
reasonable quantities in connection with the construction of repair of
Improvements in the Premises, provided such Hazardous Materials are used and
handled in accordance with all applicable laws. In addition, Landlord will not
unreasonably withhold or delay its consent required under said clause (b) of
Exhibit H for any other Hazardous Materials reasonably needed by Tenant in the
ordinary course of Tenant's business, provided such Hazardous Materials are used
and
16
handled in accordance with all applicable laws.
(ii) Landlord warrants to its actual knowledge Tenant that neither the
Premises nor any other part of the Building in which the Premises are located
contain any asbestos. Xxxxxxxx also agrees that Tenant shall have no
responsibility for any Hazardous Materials on or under the Premises, the
Building, or the Project existing at the time of commencement of the Lease, or
any such Hazardous Materials thereafter released on or under the Project by
anyone other than Tenant, its employees or agents.
6. Building Codes: ADA. Any work that is required by applicable law now
or hereafter in effect to be done within the Premises (excluding structural
components (except to the extent caused by Tenant) and restrooms, elevators, and
other common areas) shall be the sole responsibility of Tenant. Except as
provided in the preceding sentence, and notwithstanding any other provision of
this Lease, Tenant shall have no responsibility to make or pay for improvements
or other alterations to the Building to correct deficiencies under existing
building codes or other applicable laws, restrictions or requirements, or to
comply with future changes in building codes or other applicable laws,
restrictions or requirements. Without limiting the foregoing, in the event that
any improvements or alterations to the Building are required during the term of
the Lease to comply with requirements of the Americans With Disabilities Act or
applicable building codes relating to access to or within the Building (except
for the Premises) by disabled persons, Landlord will be solely responsible for
any such improvements or alterations.
7. Security. With Landlord's prior written approval, not to be
unreasonably withheld or delayed, Tenant at its cost and expense and not as part
of the costs described in Addendum "5" may install additional reasonable
security devices for the Premises.
8. Damage or Destruction. The following is inserted into the Lease as
Paragraph 23:
23. DAMAGE OR DESTRUCTION
If the Premises or any Common Areas providing access thereto shall be
damaged by fire or other casualty, Landlord shall restore the same subject to
the terms and conditions set forth in this Paragraph 23. Such restoration shall
be to substantially the condition prior to the casualty, except for
modifications required by zoning and building codes and other laws or by any
mortgagee, any other modifications to the Common Areas deemed desirable by
Landlord (provided access to the Premises is not materially impaired), and
except that Landlord shall not be required to repair or replace any of Tenant's
furniture, furnishings, fixtures or equipment, or any alterations or
improvements in excess of Tenant's improvements installed at a cost of up to $30
per usable square
17
foot. Landlord shall not be liable for any inconvenience or annoyance
to Tenant or its visitors, or injury to Tenant's business resulting in any way
from such damage or the repair thereof. However, as Xxxxxx's sole compensation
for such damage or destruction Landlord shall allow Tenant a proportionate
abatement of rent, during the time and to the extent the Premises are unfit for
occupancy for the purposes permitted under this Lease and not occupied by Tenant
as a result thereof (unless Tenant or its employees or agents caused the
damage). Notwithstanding the foregoing to the contrary, Landlord may elect to
terminate this Lease by notifying Tenant in writing of such termination within
sixty (60) days after the date of damage (such termination notice to include a
termination date providing at least ninety (90) days for Tenant to vacate the
Premises), if the Property shall be damaged by fire or other casualty or cause
such that: (a) repairs to the Premises and Building and access thereto cannot
reasonably be substantially completed within three hundred (300) days after the
date of casualty without the payment of overtime or other premiums; (b) more
than twenty-five percent (25%) of the Premises is substantially destroyed by the
damage and fewer than twenty-four (24) months remain in the Term, subject to
Tenant's right to avoid or limit such termination as set forth below; (c) the
cost of the repairs, alterations, restoration or improvement work would exceed
twenty-five percent (25%) of the replacement value of the Building and Landlord
determines in good faith not to repair or rebuild the Building in substantially
the same configuration as before the casualty; (d) the aggregate proceeds
available from insurance fall short of the reasonable cost of the restoration
required under this Paragraph 23 by an amount greater than $100,000 and Landlord
determines in good faith not to repair or rebuild the Building in substantially
the same configuration as before the casualty; or (e) as a result of the lawful
application of insurance proceeds by any mortgagee to retire the mortgage debt,
the insurance proceeds available for restoration fall short of the reasonable
cost of the restoration required under this Paragraph 23 by an amount greater
than $100,000 and Landlord determines in good faith not to repair or rebuild the
Building in substantially the same configuration as before the casualty. If
Landlord elects to terminate this Lease under the circumstances described in
Clause (b) of the preceding sentence, provided that the damage to the Property
was not caused by the willful misconduct or reckless disregard for life or
property of Xxxxxx, Tenant may, by written notice to Landlord, given within
thirty (30) days after receipt of Landlord's termination notice, avoid such
termination by exercising a then available option to extend the term of this
Lease upon the terms and conditions set forth in Addendum "3".
Further, notwithstanding the foregoing, Tenant may terminate this Lease
if Tenant is unable to use all or any portion of the Premises as a result of
fire or other casualty not caused by the willful misconduct or reckless
disregard for life or property of Tenant, and: (a) Landlord fails to commence
restoration work to
18
the Building and access thereto within sixty (60) days after the damage occurs
(Landlord's negotiation with insurance companies and consultation with
architects, engineers and contractors shall be deemed to be restoration work);
or (b) Landlord fails to substantially complete such work within three hundred
sixty five (365) days after the date of the casualty, or such additional time as
may be necessary due to strikes, lockouts or other labor troubles, shortages of
equipment or materials, governmental requirements, power shortages or outages or
other causes beyond Landlord's reasonable control; or (c) such work is
reasonably estimated (which estimate Landlord shall provide within sixty (60)
days following the casualty), to take more than three hundred sixty five (365)
days to substantially complete after the date of the casualty. In addition,
Tenant may terminate this Lease if Tenant is unable to use more than twenty-five
percent (25%) of the Premises as a result of fire or other casualty not caused
by the willful misconduct or gross negligence of Tenant or its employees or
agents, and fewer than twenty-four (24) months remain in the Term. In order to
exercise any of the foregoing termination rights, Tenant must send Landlord at
least sixty (60) but not more than one hundred twenty (120) days advance notice
specifying the basis for termination, and such notice must be given no later
than thirty (30) days following the occurrence of the condition serving as the
basis for the termination right invoked by Xxxxxx. Such termination right shall
not be available to Tenant if Landlord substantially completes the repairs to
the Premises and access thereto within sixty (60) days after Xxxxxx's notice.
Notwithstanding anything to the contrary contained herein, if Tenant, or its
officers, employees, contractors, invitees, partners, or agents delay Landlord
in performing the repairs, Landlord shall have additional time to complete the
work equal to such delay, and Tenant shall pay Landlord all Rent for the period
of such delay. If this Lease is terminated pursuant to this Paragraph 23, Tenant
shall have the right, to be exercised within 10 days of such termination, to
terminate any other lease it has for space within the Project.
Tenant agrees that Xxxxxxxx's obligation to restore, and the abatement
of rent and the termination right provided herein, shall be Tenant's sole
recourse in the event of such damage, and waives any other rights Tenant may
have under any applicable Law to terminate the Lease by reason of damage to the
Premises, Project or Building, including all rights under California Civil Code,
Sections 1932(2), 1933(4), and 1942, as the same may be modified or replaced
hereafter. Tenant acknowledges that this Paragraph 23 represents the entire
agreement between the parties respecting damage to the Premises, Project or
Building.
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ADDENDUM "2"
OPERATING EXPENSES. For the purposes of this Section, the following
terms are defined as follows:
Base Year-The calendar year in which this Lease Term commences. For the
purposes of this Lease, the Base Year is defined as 1997.
Comparison Year-Each calendar year of the term after the Base Year.
Tenant's *----- Share of Operating Expenses shall be payable by Tenant
to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for
each calendar year thereafter ("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's *----- Share of the Operating Expenses incurred by
Landlord in the Comparison Year which exceeds the total amount of Operating
Expenses payable by Landlord for the Base Year. This excess is referred to as
the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall,
at Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's *----- Share of the Excess Expenses payable during
such Comparison Year, as estimated by Landlord from time to time. Such payments
shall be made in monthly installments, commencing on the first day of the month
following the month in which Landlord notifies Tenant of the amount it is to pay
hereunder and continuing until the first day of the month following the month in
which Landlord gives Tenant a new notice of estimated Excess Expenses. It is the
intention hereunder to estimate from time to time the amount of the Excess
Expenses for each Comparison Year and Tenant's *----- Share thereof, and then
to make an adjustment in the following year based on the actual Excess Expenses
incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical), Landlord shall deliver
to Tenant a statement setting forth Tenant's *----- Share of the Excess Expenses
for the preceding Comparison Year. If Tenant's *----- Share of the actual Excess
Expenses for the previous Comparison Year exceeds the total of the estimated
monthly payments made by Tenant for such year, Tenant shall pay Landlord the
amount of the deficiency within thirty (30) days of the receipt of the
statement. If such total exceeds Tenant's *----- Share of the actual Excess
Expenses for such Comparison Year, then Landlord shall credit against Xxxxxx's
next ensuing monthly installment(s) of additional rent an amount equal to the
difference until the credit is exhausted. If a credit is due from Landlord on
the Expiration Date, Landlord shall pay Tenant the amount of the credit. The
obligations of Tenant and Landlord to make payments required under this Section
shall survive the Expiration Date.
(d) Tenant's *----- Share of Excess Expenses in any Comparison Year
having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at reasonable
times to inspect Landlord's accounting records at Landlord's accounting office
and, if after such inspection Tenant still disputes the amount of additional
rent owed, a certification as to the proper amount shall be made by Landlord's
certified public accountant, which certification shall be final and conclusive.
Xxxxxx agrees to pay the cost of such certification unless it is determined that
Xxxxxxxx's original statement overstated Operating Expenses by more than five
percent (5%).
(f) Operating Expenses including any additional real estate taxes will
be based on a ninety-five percent (95%) leased project for the entire base year
and other years regardless of the current occupancy.
(g) In no event shall Tenant be responsible for increases in Operating
Expenses in excess of six percent (6%) per year on a cumulative basis.
* Percentage
20
ADDENDUM "3"
OPTION TO RENEW. Tenant shall have the right to extend the term of this
Lease for one (1) consecutive five (5) year period (the "Option Term"), on the
following terms and conditions:
(a) Each Option Term shall commence when the prior term expires. Tenant
must give written notice of its exercise of the option, and Landlord must
actually receive such notice, no earlier than twelve (12) months and no later
than six (6) months prior to the time that the Option Term would commence.
(b) The option(s) to extend this Lease for any Option Term must be
exercised consecutively.
(c) All terms and conditions of this Lease shall apply during the
Option Terms except as expressly provided in this Addendum.
(d) Tenant shall have no right to exercise an option, notwithstanding
any other provision of this Lease to the contrary, during the time commencing
from the date of any default *----- and continuing until the default is cured.
(e) The period of time within which Tenant may exercise an option to
extend the term of this Lease shall not be extended or enlarged by reason of
Tenant's inability to exercise an option because of the provisions of Section
(d) above.
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(g) The options granted to Tenant may not be voluntarily or
involuntarily exercised by or assigned to any person or entity other than
Tenant, without the prior written consent of Landlord.
(h) The Base Monthly Rent during each option term shall be adjusted as
of the commencement of each option term to ninety-five percent (95%) of the fair
rental value of the Premises on the terms and conditions contained in this Lease
as mutually agreed by Landlord and Tenant or, if they cannot agree on or before
such commencement date, then as determined by an appraiser mutually selected by
Landlord and Tenant. If Landlord and Tenant cannot agree on a single appraiser
within five (5) days, then each shall select an appraiser. If the two appraisers
cannot agree on said fair rental value within thirty (30) days, then the two
appraisers shall appoint a third appraiser, and said fair rental value of the
Premises shall be deemed to be the average of the two closest appraisals. Each
appraiser shall be a disinterested member of the American Institute of Real
Estate Appraisers, or a body of comparable standing, with at least five years'
experience in commercial real estate appraisal. Landlord and Tenant shall each
bear the cost of the appraiser appointed by them, and shall share equally the
cost of the appraiser mutually selected by them or of the third appraiser
appointed, if any.
(i) Landlord will provide Tenant with a Ten Dollars ($10.00) per usable
square foot refurbishment allowance.
* in the payment of Base monthly Rent or Operating Expenses
21
ADDENDUM "4"
RIGHT OF REFUSALS.
(a) At any time that Landlord determines to lease any space at 00000
Xxxx Xxxxx Xxxxx or 00000 Xxxx Xxxxx Xxxxx, subject to any other existing
tenants' rights of refusal or extension options, Landlord shall notify Tenant in
writing. Within five (5) business days after receipt of Landlord's notice,
Tenant shall have the option, to be exercised by delivery of written notice to
Landlord, to lease the respective space. In the event Landlord notifies Tenant
for multiple contiguous suites, then Tenant shall either lease none of the
suites or all of the suites being offered. In the event Tenant timely exercises
such option, the suites shall be added to the Premises, effective as of the date
specified in Landlord's notice. In the event Tenant does not timely exercise
such option, Xxxxxx's rights shall terminate and shall not apply to any
subsequent leasing of the space unless Landlord does not execute a lease for the
space by a third party, in which case Xxxxxx's rights shall be reinstated.
(b) In the event Tenant timely exercises such option, such space shall
be tendered to Tenant in "as is" condition.
(c) In the event Tenant timely exercises such option, such space shall
be subject to all of the terms and conditions of this Lease, provided that the
Base Monthly Rent shall be One and 25/100 Dollar ($1.25) per square foot per
month, plus electricity, and the Tenant's Share shall be proportionately
increased to reflect the inclusion of such space in the Premises, and provided
further that no free rent, abatement, discount, or other concession shall apply
with respect to the space except if Tenant is currently in the free rent period,
at which time the remaining free rent will apply.
(d) Tenant shall have no right to exercise its right of refusal,
notwithstanding any other provision of this Lease to the contrary, during the
time commencing from the date of any default* under Section 25 of this Lease and
continuing until the default is cured.
(e) The period of time within which Tenant may exercise its right of
refusal shall not be extended or enlarged by reason of Tenant's inability to
exercise such right of refusal because of the provisions in Section (d) above.
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(g) The right of refusal granted to Tenant may not be voluntarily or
involuntarily exercised by or assigned to any person or entity other than Tenant
without the prior written consent of Landlord.
* in the payment of Base Monthly Rent or Operating Expenses
22
EXHIBIT A
OUTLINE OF FLOOR
PLAN OR PREMISES
[MAP OF CORPORATE PLAZA II FLOOR 4]
23
EXHIBIT B
THE PROJECT
[MAP]
24
EXHIBIT C
NOTICE OF LEASE TERM DATES AND
TENANT'S PERCENTAGE
To: Date:
----------------------------------- ------------------
-----------------------------------
-----------------------------------
Re: Lease dated ______________________________ 19__,
between_______________, Landlord, and_____________________________________
Tenant, concerning Suite ______________________________ located
at__________________
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted herewith by the Tenant as being
substantially complete in accordance with the subject Lease and that there is no
deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease the term of said
Lease shall commence as of ______________________ for a term of
_____________________ ending on _____________________________.
3. That in accordance with the subject Lease, rental commenced to
accrue on _______________________________.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata adjustment.
Each billing thereafter shall be for the full amount of the monthly installment
as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should be made
payable to _________________________________ at_______________________________.
6. The exact number of rentable square feet within the Premises is
_________________________________ square feet.
7. Tenant's Percentage, as adjusted based upon the exact number of
rentable square feet within the Premises, is __________________ %.
25
AGREED AND ACCEPTED
LANDLORD: TENANT
__________________________________ ______________________________
By: By:
__________________________________ ______________________________
By:
______________________________
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EXHIBIT D
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect.
Landlord reserves the right to adapt nondiscriminatory modifications and
additions hereto.
As long as Tenant is not in default under any of the terms, conditions,
provisions or agreements of this Lease, Landlord shall:
1. Provide non-attended automatic elevator facilities Monday through
Friday, except holidays from 8 A.M. to 6 P.M., and have one elevator
available at all other times.
2. On Monday through Friday, except holidays from 7 A.M. to 6 P.M., and
on Saturday mornings from 7 A.M. to 4 P.M. (and other times for an
agreed upon rate of $15.00 per hour), ventilate the Premises and
furnish air conditioning or heating on such days and hours, when in the
reasonable judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The air conditioning system achieves maximum
cooling when the window coverings are closed. Landlord shall not be
responsible for room temperatures if Tenant does not keep all window
coverings in the Premises closed whenever the system is in operation.
Xxxxxx agrees to cooperate fully at all times with Landlord, and to
abide by all reasonable regulations and requirements which Landlord may
prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus,
device, conduit or pipe to the building chilled and hot water air
conditioning supply lines. Tenant further agrees that neither Tenant
nor its servants, employees, agents, visitors, licensees or contractors
shall at any time enter mechanical installations or facilities of the
building or adjust, tamper with, touch or otherwise in any manner
affect said installations or facilities. The cost of maintenance and
service calls to adjust and regulate the air conditioning system shall
be charged to Tenant if the need for maintenance work results from
either Tenant's adjustment of room thermostats or Tenant's failure to
comply with its obligations under this section, including keeping
window coverings closed as needed. Such work shall be charged at hourly
rates equal to then-current journeymen's wages for air conditioning
mechanics.
3. Landlord shall furnish to the Premises, during the usual business
hours on business days, electric current as required by the building
standard office lighting and fractional horsepower office business
machines in an amount not to exceed .025 KWH per square foot per normal
business day. Tenant agrees, should its electrical installation or
electrical consumption be in excess of the aforesaid quantity or extend
beyond normal business hours, to reimburse Landlord monthly for the
measured consumption at the average cost per kilowatt hour charged to
the building during the period. If a separate meter is not installed at
Tenant's cost, such excess cost will be established by an estimate
agreed upon by Landlord and Tenant, and if the parties fail to agree,
as established by an independent licensed engineer. Tenant agrees not
to use any apparatus or device in, or upon, or about the Premises which
may in any way increase the amount of such services usually furnished
or supplied to said Premises, and Xxxxxx further agrees not to connect
any apparatus or device with wires, conduits or pipes, or other means
by which such services are supplied, for the purpose of using
additional or unusual amounts of such services without written consent
of Landlord. Should Tenant use the same to excess, the refusal on the
part of Tenant to pay upon demand of Landlord the amount established by
Landlord for such excess charge shall constitute a breach of the
obligation to pay rent under this Lease and shall entitle Landlord to
the rights therein granted for such breach. At all times Tenant's use
of electric current shall never exceed the capacity of the feeders to
the building or the risers or wiring installation and Tenants shall not
install or use or permit the installation or use of any computer or
electronic data processing equipment in the Premises without the prior
written consent of Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any
purposes in addition to ordinary drinking and lavatory purposes, of
which fact Tenant constitutes Landlord to be the sole judge, Landlord
may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Landlord for the cost of
the meter and the cost of the installation thereof and throughout the
duration of Xxxxxx's occupancy Tenant shall keep said meter and
installation equipment in good working order and repair at Tenant's own
cost and expense, in default of which Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof from
Tenant. Xxxxxx agrees to pay for water consumed, as shown on said
meter, as and when bills are rendered, and on default In making such
payment, Landlord may pay such charges and collect the same from
Tenant. Any such costs or expenses incurred, or payments made by
Landlord for any of the reasons or purposes hereinabove stated shall be
deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
5. Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant, and
if to be kept clean by Tenant, no one other than persons approved by
Landlord shall be permitted to enter the Premises for such purposes. If
the Premises are not used exclusively as offices, they shall be kept
clean and in order by Tenant, at Tenant's expense, and to the
satisfaction of Landlord, and by persons approved by Landlord. Tenant
shall pay to Landlord the cost of removal of any of Tenant's refuse and
rubbish to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason of
accident or emergency or for repairs, alterations or improvements, in the
judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements, shall have been completed, and shall further have
no responsibility or liability for failure to supply elevator facilities,
plumbing, ventilating, air conditioning or electric service, when prevented from
so doing by strike or accident or by any cause beyond Landlord's reasonable
control, or by laws, rules, orders, ordinances, directions, regulations or
requirements of any federal, state, county or municipal authority or failure of
gas, oil or other suitable fuel supply or inability by exercise of reasonable
diligence to obtain gas, oil or other suitable fuel. It is expressly understood
and agreed that any convenants on Landlord's part to furnish any service
pursuant to any of the terms, covenants, conditions, provisions or agreements of
this Lease, or to perform any act or thing for the benefit of Tenant, shall not
be deemed breached if Xxxxxxxx is unable to furnish or perform the same by
virtue of a strike or labor trouble or any other cause whatsoever beyond
Landlord's control.
6. This Lease is a "plus electricity" lease in which Tenant shall pay for
their use of electricity throughout the term of the Lease. Each floor
of the project is separately metered, and Tenant shall pay directly to
the utility company each month for their electrical consumption.
D-1
27
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
The undersigned,______________________________________ ("Landlord"),
with a mailing address c/o ______________________________________ 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 demises premises located at _____________________. 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 commenced 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. Xxxxxx 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.
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.
IN WITNESS WHEREOF, this certificate has been duly executed and
delivered by the authorized officers of the undersigned as of_________________,
19___.
LANDLORD:
By: _________________
TENANT:
By: _________________
By: _________________
E-1
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EXHIBIT F
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement,
name or notice shall be installed or displayed on any part of the
outside or inside of the building or Project 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 and
walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant
shall immediately discontinue such use. 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, escalators or stairways of the Project. The
halls, passages, exits, entrances, shopping malls, elevators,
escalators and stairways are not open to the general public, but are
open, subject to reasonable regulations, to Tenant's business invitees.
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
interest of the Project 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 or unlawful activities. No
tenant and no employee or invitee of any tenant shall go upon the
roof(s) of the Project.
4. The directory of the building or Project 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 Project and the Premises
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 Project 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.
6. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge for
any additional keys. Tenant shall not make or have made additional
keys, and Tenant shall not alter any lock or install a new additional
lock or bolt on any door of its Premises. 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 therefor.
7 If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
8. Freight elevator(s) shall be available for use 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. Tenant's initial
move in and subsequent deliveries of bulky items, such as furniture,
safes and similar items shall, unless otherwise agreed in writing by
Landlord, be made during the hours of 6:00 p.m. to 6:00 a.m. or on
Saturday or Sunday. Deliveries during normal office hours shall be
limited to normal office supplies and other small items. No deliveries
shall be made which impede or interfere with other tenants or the
operation of the building.
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 shall, if
considered necessary by Landlord, stand on such platforms as determined
by Landlord to be necessary to properly distribute the weight, which
platforms shall be provided at Tenant's expense. 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 objectionable to
Landlord 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 by 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. 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.
11. Tenant shall not use any method of heating or air conditioning other
than that supplied 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
Xxxxxx has actual notice, and shall refrain from attempting to adjust
controls. Tenant shall keep corridor doors closed, and shall close
window coverings at the end of each business day.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the
building.
14. Landlord reserves the right to exclude from the building between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as
may be established from time to time by Landlord, and on 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 electricity, gas or
air outlets 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.
F1
29
16. Tenant shall not obtain for use on the Premises ice, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under
such regulations as may be fixed by Landlord.
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 Project. 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 install any radio or television antenna, loudspeaker
or other devices on the roof(s) or exterior walls of the building or
Project. Tenant shall not interfere with radio or television
broadcasting or reception from or in the Project or elsewhere.
20. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises, or any part
thereof, except in accordance with the provisions of the Lease
pertaining to alterations. 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 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.
21. Tenant shall not install, maintain or operate upon the premises any
vending machines without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Project are prohibited, and
Tenant shall cooperate to prevent such activities.
23. Landlord reserves the right to exclude or expel from the Project any
person who, in Landlord's judgement, 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.
24. Tenant shall store all its trash and garbage within its premises or in
other facilities provided by Landlord. 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.
25. 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
objectional purpose. No cooking shall be done or permitted on the
Premises without Landlord's consent, except that use by Tenant of
Underwriters' Laboratory approved equipment for brewing coffee, tea,
hot chocolate and similar beverages or use of microwave ovens for
employee use 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.
26. Tenant shall not use in any space or in the public halls of the Project
any hand truck 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
or Project.
27. Without the written consent of Landlord, Tenant shall not use the name
of the building or Project in connection with or in promoting or
advertising the business of Tenant except as Xxxxxx's address.
28 Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
29. 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.
30. Tenant's requirements will be attended to only upon appropriate
application to the Project management office 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.
31. 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 Project.
32. 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 the Lease.
33. 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 Project and for
the preservation of good order therein. Xxxxxx agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules
and regulations which are adopted.
34. 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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EXHIBIT G
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking
facilities which are appurtenant to the Project.
1. All claimed damage or loss must be reported and itemized in writing
delivered to the Management Office within ten (10) business days after
any claimed damage or loss occurs. Any claim not so made is waived.
Landlord has the option to make repairs at its expense of any claimed
damage within two business days after filing of any claim. In all court
actions the burden of proof to establish a claim remains with Xxxxxx.
Court actions by Xxxxxx for any claim must be filed within ninety days
from date of parking in court of jursidiction where a claimed loss
occurred. Landlord is not responsible for damage by water, fire, or
defective brakes, or parts, or for the act or omissions of others, or
for articles left in the car. The total liability of Landlord is
limited to $250.00 for all damages or loss to any car. Xxxxxxxx is not
responsible for loss of use.
2. Tenant shall not park or permit the parking of any vehicle under its
company in any parking areas designated by Landlord as areas for
parking by visitors to the Project. Tenant shall not leave vehicles in
the parking areas overnight nor park any vehicles in the parking areas
other than automobiles, motorcycles, motor driven or non-motor driven
bicycles or fourwheeled trucks.
3. Parking stickers or any other device or form of identification supplied
by landlord as a condition of use of the Parking Facilities 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.
4. No overnight or extended term storage of vehicles shall be permitted.
5. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross-hatched areas; and
(f) in such other areas as may be designated by Landlord or
Landlord's Parking Operator.
9. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the xxxxxx.
10. Loss or theft of parking identification devices from automobiles must
be reported to the Management Office immediately, and a lost or stolen
report must be filed by the customer at that time. Landlord has the
right to exclude any car from the parking facilities that does not have
an identification device.
11. Any parking identification devices reported lost or stolen found on any
unauthorized car will be confiscated and the illegal holder will be
subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported to the
Management Office immediately to avoid confusion.
13. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
14. Parking Facility managers or attendants are not authorized to make or
allow any exceptions to these Rules and Regulations.
15. Xxxxxxxx reserves the right to refuse the sale of monthly stickers or
other parking identification devices to any tenant or person and/or his
agents or representatives who willfully refuse to comply with these
Rules and Regulations and all unposted City, State or Federal
ordinances, laws or agreements.
16. Landlord reserves the right to establish and change parking fees and to
modify and/or adopt such other reasonable and non-discriminatory rules
and regulations for the parking facilities as it deems necessary for
the operation of the parking facilities. Landlord may refuse to permit
any person who violates these rules to park in the parking facilities,
and any violation of the rules shall subject the car to removal.
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EXHIBIT H
HAZARDOUS MATERIALS
THE FOLLOWING PROVISIONS DEALING WITH HAZARDOUS MATERIALS ARE MEANT TO BE IN
ADDITION TO, AND NOT SUPERSEDE OR LIMIT, ANY OTHER PROVISIONS OF THIS LEASE
WHICH MAY DEAL WITH THE SAME SUBJECT MATTER.
(a) DEFINITION. "Hazardous Materials" shall mean any hazardous or toxic
substance, material, or waste which is or becomes regulated by any local
governmental authority, the State of California, or the United States
Government, including, but not limited to, substances defined as "hazardous
substances," "hazardous materials," "toxic substances," or "hazardous wastes" in
the Comprehensive Environmental Responses, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq; the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq; the Resource Conversation
and Recovery Act, 42 U.S.C. Section 6901, et seq; the California Health & Safety
Code; and any law, ordinance, or regulation dealing with underground storage
tanks; and in the regulations adopted, published, and/or promulgated pursuant to
said laws, and in any other environmental law, regulation, or ordinance now
existing or hereinafter enacted (hereinafter "Hazardous Materials Laws").
(b) USE AND REMOVAL.
(1) Tenant hereby agrees that Tenant shall not use, generate,
manufacture, refine, process, store, or dispose of on, under, or about the
Premises or transport to or from the Premises any Hazardous Materials, except
with the written consent of Landlord in Landlord's sole discretion and in full
compliance with applicable Hazardous Materials Laws. Tenant further acknowledges
that Xxxxxx does not intend to use the Premises in the future for the purpose of
generating, manufacturing, refining, producing, storing, handling, transferring,
processing, or transporting of Hazardous Materials.
(2) If at any time during the term of this Lease, Hazardous
Materials are used, or placed by Tenant on the Premises or Hazardous Materials
are discovered by Tenant on the Premises where no prior consent of Landlord was
obtained or otherwise in violation of any Hazardous Materials Laws, or if any
contamination of the Premises shall occur, Tenant, at Tenant's sole cost and
expense, shall immediately remove such Hazardous Materials from the Premises or
from the ground or groundwater underlying the Premises in accordance with
requirements of the appropriate governmental entity. Furthermore, Tenant shall,
at its own expense, procure, maintain in effect, and comply with all conditions
of any and all permits, licenses, and other governmental and regulatory
approvals required for Tenant's use of the Premises, including, without
limitation, discharge of (appropriately treated) materials or wastes into and
through any sanitary sewer serving the Premises.
(3) Except for discharges into the sanitary sewer in strict
accordance and conformity with all applicable Hazardous Materials Laws, Tenant
shall cause any and all permitted Hazardous Materials removed from the Premises
to be removed and transported solely by duly licensed haulers to duly licensed
facilities for final disposal of such materials and wastes. Tenant shall in all
respects handle, treat, deal with, and manage any and all Hazardous Materials
in, on, under, or about the Premises in total conformity with all applicable
Hazardous Materials Laws and prudent industry practices regarding management of
such Hazardous Materials. Tenant shall not take any remedial action in response
to the presence of any Hazardous Materials in or about the Premises nor enter
into any settlement agreement, consent, decree, or other compromise in respect
to any claims relating to any Hazardous Materials in any way connected with the
Premises 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 interest with respect thereto. In
addition to all other rights and remedies of Landlord hereunder, if such
Hazardous Materials are not removed from the Premises or the ground or
groundwater underlying the Premises by Tenant within fifteen (15) days after
Landlord or Tenant discovers such Hazardous Materials, Landlord, at its sole
discretion, may, but shall not be obligated to, pay to have the same removed,
and Tenant shall reimburse Landlord within five (5) days of Landlord's demand
for payment.
(c) NOTICE.
(1) Tenant shall immediately notify Landlord in writing of (i)
any enforcement, cleanup, removal, or other governmental or regulatory action
instituted, completed, or threatened pursuant to any Hazardous Materials Laws;
(ii) any claim made or threatened by any person against Tenant, or the Premises
relating to damage contribution, cost recovery, compensation, loss, or injury
resulting from or claimed to result from any Hazardous Materials; and (iii) any
reports made to any environmental agency arising out of or in connection with
any Hazardous Materials in or removed from the Premises, including any
complaints, notices, warnings, or asserted violations in connection therewith,
upon Xxxxxx's receipt of actual knowledge of the above. Tenant shall also supply
to Landlord as promptly as possible, and in any event within five (5) business
days after Tenant first
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receives or sends the same, with copies of all claims, reports, complaints,
notices, warnings, or asserted violations relating in any way to the Premises,
or Xxxxxx's use thereof. Tenant shall promptly deliver to Landlord copies of
hazardous waste manifests reflecting the legal and proper disposal of all
Hazardous Materials removed from the Premises.
(2) Tenant acknowledges that Tenant has been informed that
Section 25359.7 of the California Health and Safety Code provides that any
tenant of real property who knows, or has reasonable cause to believe, that any
release of hazardous substances has come to be located on or beneath the real
property shall, upon discovery by the tenant of the presence or suspected
presence of a hazardous substance release, give notice of that condition to the
owner of the real property. Failure of the tenant to provide written notice as
required to the owner shall make the lease voidable at the discretion of the
owner. The Health and Safety Code provides that if the tenant has actual
knowledge of the presence of any hazardous substance release and knowingly or
willingly fails to provide written notice as required by the owner, the tenant
is liable for a civil penalty not to exceed $5,000.00 for each violation.
(d) INDEMNIFICATION. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect, and hold Landlord, and each and any
of Landlord's shareholders, partners, officers, directors, employees, agents,
attorneys, successors, and assigns, free and harmless from and against any and
all claims, liabilities, penalties, forfeitures, losses, or expenses (including
actual attorneys fees and costs) or death of or injury to any person or damage
to any property whatsoever, arising from or caused in whole or in part, directly
or indirectly, by (i) the presence in, on, under, or about the Premises or
discharge in or from the Premises of any Hazardous Materials placed or
discharged in, on, or under the Premises by Tenant or Tenant's use, analysis,
storage, transportation, disposal, release, threatened release, discharge, or
generation of Hazardous Materials to, in, on, under, about, or from the
Premises; or (ii) Tenant's failure to comply with any Hazardous Materials Laws.
Tenant's obligation hereunder shall include, without limitation, and whether
foreseeable or unforeseeable, all costs of any required or necessary repair,
cleanup, or detoxification or decontamination of the Premises and the
preparation and implementation of any closure, remedial action, or other
required plans in connection therewith. For purpose of the indemnity provisions
hereof, any acts or omissions of Tenant, or by employees, agents, assignees,
subtenant, concessionaire, contractors, or subcontractors of Tenant or others
acting for on behalf of Tenant (whether or not they are negligent, intentional,
willful, or unlawful) shall be strictly attributable to Tenant.
(e) SURVIVAL. All representations, warranties, obligations, and
indemnities with respect to Hazardous Materials shall survive the termination of
this Lease.
SECTION 10.2. WASTE MANAGEMENT REQUIREMENTS. Without limiting any other
obligations of Tenant under this Lease, Tenant covenants and agrees to comply
with all laws, rules, regulations, and guidelines now or hereafter made
applicable to the Premises respecting the disposal of waste, trash, garbage, and
other matter (liquid or solid), generated by Tenant, the disposal of which is
not otherwise the express obligation of Landlord under this Lease, including,
but not limited to, laws, rules, regulations, and guidelines respecting
recycling and other forms of reclamation (all of which are herein collectively
referred to as "Waste Management Requirements"). Tenant hereby covenants and
agrees to comply with all rules and regulations established by Landlord to
enable Landlord from time to time to comply with Waste Management Requirements
applicable to Landlord (i) as owner of the Premises, and (ii) in performing
Landlord's obligations under this Lease, if any. Tenant covenants and agrees to
indemnify, defend, protect, and hold Landlord harmless from and against all
liability (including costs, expenses, and attorneys' fees) that Landlord may
sustain by reason of Tenant's breach of its obligations under this Section 10.2.
Tenant obligations under this Section 10.2 shall survive the termination of this
Lease.
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