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EXHIBIT 10.03
COMMERCIAL LEASE
LEASE SUMMARY
The following information is set forth for convenience only and shall
not supersede or modify the terms of the attached Lease.
LANDLORD: Broderick Way Partners, LLC.
TENANT: Intuit Inc.
LEASED PREMISES: The entirety of the Property described below, which
consists of approximately 28,500 rentable square feet.
PROPERTY: That certain real property situated in the City of Mountain
View, County of Santa Clara, State of California as presently improved
with one building, which real property is described on Exhibit A, and is
commonly known as 2700 Broderick Way, Mountain View, California.
TERM: Ten (10) years.
OPTION TO RENEW: A five (5) year option to extend the lease term upon
twelve (12) months notice at fair market value.
COMMENCEMENT DATE: The later of July 15, 2000 or sixty (60) days after
Landlord makes the Building available to Tenant.
BASE MONTHLY RENTAL: Three and 65/100 Dollars ($3.65) per rentable
square foot per month (i.e., $104,025 per month as of the Commencement
Date), and starting on the second anniversary date of the Commencement
Date and each year thereafter through the fifth anniversary, Base
Monthly Rental shall increase by eleven cents ($.11) per rentable square
foot (i.e., $3,135 per year); and each year thereafter Base Monthly
Rental shall increase twelve cents ($.12) per rentable square foot
(i.e., $3,420 per year). Tenant shall deliver the initial month of Base
Monthly Rental upon execution of the Lease.
OPERATING EXPENSES: Tenant shall pay one hundred percent (100%) of the
Operating Expenses of Landlord related to the Property, however, Tenant
is expected to pay directly all utilities and janitorial services.
TAXES: Tenant shall pay one hundred percent (100%) of the Real Property
Taxes on the Property unless and until Tenant leases less than the
entire Building. Tenant shall pay all taxes on its personal property and
fixtures.
INSURANCE:
Landlord: Landlord shall maintain property insurance providing
protection against fire, extended coverage, vandalism, malicious
mischief and special extended perils (all risk), excluding
earthquake.
Tenant: Tenant shall maintain a policy or policies of
comprehensive general liability insurance, including property
damage, with combined single limit coverage of not less than
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Three Million Dollars ($3,000,000) and an all-risk policy of
insurance insuring Tenant's alterations, trade fixtures and
personal property on the Property against loss or damage by fire
and extended coverage hazards, for full replacement value,
subject to reasonable deductibles described below.
UTILITIES: Tenant shall pay for utilities associated with the Leased
Premises.
MAINTENANCE:
Landlord. Maintains at its own expense footings, foundations,
load-bearing posts and beams, the roof structure, concrete floor
and load bearing walls. Landlord will also maintain, at Tenant's
expense, non-structural portions of the roof.
Tenant. Maintains at its expense, all plumbing and sewage
facilities, HVAC for its Leased Premises, all electrical
facilities and equipment, including without limitation, lighting
fixtures, lamps, fans, exhaust equipment and systems, automatic
fire extinguisher equipment, electrical motors and all other
electrical equipment and appliances of every kind within the
premises, windows, doors, elevators, entrances, plate glass,
skylights and showcases.
IMPROVEMENTS: Landlord shall deliver the Leased Premises "as is" subject
to Landlord's obligations under Section 2.2. All improvements, if any,
will be performed by and be the responsibility of Tenant. Any
improvements by Tenant, including plans, construction drawings and
contractors, are subject to Landlord's prior approval, which shall not
be unreasonably withheld or delayed.
SECURITY DEPOSIT: Cash in the amount of One Hundred Four Thousand
Twenty-Five Dollars ($104,025), which Tenant shall deliver to Landlord
upon execution of this Lease.
BUILDING: That certain Building within the Property in which the Leased
Premises are located, commonly known as 2700 Broderick Way, Mountain
View, CA.
TENANT's REPRESENTATIVE: Tony Lautmann, The Staubach Company.
TENANT's ADDRESSES FOR NOTICE:
Intuit Inc.
2550 Garcia Avenue, 2nd Floor
Mountain View, CA 94043
Attn.: Vice President for Finance and Administration
Intuit Inc.
2550 Garcia Avenue, 2nd Floor
Mountain View, CA 94043
Attn.: General Counsel
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COMMERCIAL LEASE
This Lease, is made this 31st day of January, 2000 by and between
Broderick Way Partners, LLC, a California limited liability company
("Landlord"), and Intuit Inc., a Delaware corporation ("Tenant").
SECTION 1
DEFINITIONS RELATED TO PREMISES
1.1 Property and Building. The term "Property" shall mean that
certain real property with all improvements constructed thereon, consisting of
one (1) commercial building (the "Building"), with a net leasable area of
approximately Twenty-Eight Thousand Five Hundred (28,500) square feet, commonly
known as 2700 Broderick Way, Mountain View, CA. A description of the Property
and a map of the Building is attached as Exhibit A to this Lease.
1.2 Leased Premises. The term "Leased Premises" shall mean
approximately Twenty-Eight Thousand Five Hundred (28,500) square feet of net
leasable area of the Building, which constitutes the entirety of the Building.
Any dimensions of the Leased Premises stated in this Lease are approximate and
are for identification purposes only and are not representations as to actual
square footage of the Leased Premises.
1.3 Common Area. The term "Common Area" shall mean all areas and
facilities within the Property that are provided and designated for general use
and convenience of the lessees and occupants of all or any part of the Property,
which include only the parking lot, access roads, sidewalks and exterior
landscaped areas.
1.4 Tenant's Pro Rata Share. "Tenant's Pro Rata Share" shall mean
the square footage (described in Section 1.2) of the rentable area of the Leased
Premises as a percentage of the square footage of the total rentable square
footage of the Building (described in Section 1.2), i.e., 100% as of the
Commencement Date.
1.5 Lease Term. "Lease Term" shall have the meaning set forth in
Section 3.1.
1.6 Base Monthly Rental. The term "Base Monthly Rental" shall mean
an amount equal to Three and 65/100 Dollars ($3.65) per square foot multiplied
by the amount of the net leasable area (described in Section 1.2) leased by
Tenant (i.e., $104,025 per month as of the Commencement Date), subject to the
increases described in this Lease.
SECTION 2
LEASE AND ACCEPTANCE OF PREMISES
2.1 Lease of Leased Premises. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord for Tenant's own use in the conduct of
Tenant's business and not for any other purposes (including speculating in real
estate) for the Lease Term, upon the terms and conditions of this Lease, the
Leased Premises. Tenant's lease of the Leased Premises shall be conditioned
upon and subject to Tenant's continuing compliance with (a) all terms and
conditions of the Lease, (b) all laws governing the use of the Leased Premises,
the Building and the Property, and (c) all reasonable rules and regulations from
time to time established by Landlord.
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2.2 Delivery and Acceptance of Leased Premises. Landlord shall
deliver to Tenant possession of the Leased Premises on the later of (a) July 15,
2000 or (b) sixty (60) days after Landlord makes the Building available to
Tenant (the "Commencement Date"). The Leased Premises must be delivered to
Tenant in broom clean condition, with all building, fire protection, HVAC,
glazing, plumbing, electrical, elevators and roof systems serving the Leased
Premises in good operating condition and repair. By taking possession of the
Leased Premises, subject to the preceding sentence, Tenant accepts the Leased
Premises in its "As Is" condition.
2.3 Tenant Improvements. Subject to Section 2.2 above, Landlord
shall deliver the Premises "As Is" and will not perform any Improvements
(defined below). Tenant is responsible for any Improvements of the Premises,
which will be subject to Landlord's approval, not to be unreasonably withheld or
delayed, prior to Tenant's commencement of construction. Any Improvements
(including Specialized Improvements (defined in Section 2.4), and the
Improvements described in Sections 5.2 and 14.16) shall be performed by Tenant
in accordance with the plans and specifications approved by Landlord. Landlord
will review and respond to Tenant's proposed plans and specifications within ten
(10) business days of receipt, and will cooperate with Tenant to achieve final
approved plans and specifications as soon as reasonably practicable. At such
time as Tenant delivers to Landlord a request for approval of any Improvement,
Tenant shall also request Landlord's determination as to whether such
Improvement is a Standard Improvement, Reserved Improvement or Specialized
Improvement (defined in Section 2.4). Landlord will not require the use of any
specific general contractor or subcontractors (so long as they are reasonably
acceptable to Landlord). Landlord will not require any payment or performance
bonds (unless at Landlord's sole expense). Further, Landlord will not charge a
construction management fee, supervision charge or any plan review fees in
conjunction with Tenant's improvements in the Leased Premises. Tenant shall have
sole responsibility to arrange for and pay the costs of all items included as
part of any Improvements. All construction work required or permitted by this
Lease shall be done in a good and workmanlike manner, and in compliance with all
applicable laws and ordinances, regulations, and orders of governmental
authority and insurers of the Property, the Building and Leased Premises.
Landlord may inspect the work of Tenant at reasonable times and shall give
notice to Tenant of any observed defects. Tenant shall have reasonable access to
the Leased Premises, subject to prior notice, prior to the date of delivery to
Tenant, for space planning purposes. For purposes of this Lease, "Improvement"
means any improvements to the Leased Premises, Building and Property, and
includes all Standard Improvements, Reserved Improvements and Specialized
Improvements.
2.4 Surrender of Possession. Immediately prior to the expiration or
upon the sooner termination of this Lease, Tenant shall remove all of Tenant's
signs from the exterior of the Building and shall remove all of Tenant's
equipment, trade fixtures, furniture, supplies, wall decorations and other
personal property from within the Leased Premises, the Building and the
Property, and shall vacate and surrender the Leased Premises, the Building and
the Property to Landlord in the same condition, broom-cleaned, as existed on the
date of completion of the Tenant's Improvements described in Section 2.3,
together with such changes (including Standard Improvements) as are permitted to
remain pursuant to this Lease, reasonable wear and tear excepted. Tenant shall
repair all damage to the Leased Premises, the exterior of the Building and to
the Property caused by Tenant's removal of Tenant's property. Tenant shall patch
and refinish, to Landlord's reasonable satisfaction, all penetrations made by
Tenant or its employees to the floor, walls or ceiling of the Leased Premises
and Building, whether such penetrations were made with Landlord's approval or
not. Tenant shall repair or replace all stained or damaged ceiling tiles, wall
coverings and floor coverings to the reasonable satisfaction of Landlord. Tenant
shall repair all damage caused by Tenant to the exterior surface of the Building
and the paved surfaces of the Property and, where necessary, replace or
resurface the same. Notwithstanding the foregoing, Landlord reserves the right
to require Tenant to remove at the end of the Lease Term any Specialized
Improvements installed in the Building or on the Property as part of initial or
subsequent Tenant improvements, including, but not limited to, raised floor
computer areas,
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vaults, and other improvements of such a nature as not likely to be generally
usable (in Landlord's reasonable determination) by likely future tenants of the
Building (collectively, the "Specialized Improvements"); provided that if Tenant
shall request of Landlord, in writing, at the time of approval of Tenant's plans
for Tenant's improvements or alterations whether such improvements or
alterations constitute Specialized Improvements for purposes of this Section
2.4, Landlord shall use good faith efforts to promptly determine at that time,
if reasonably possible, whether such improvements or alterations constitute
Specialized Improvements, Reserved Improvements or Standard Improvements. If
Landlord determines, in good faith, that it cannot make such "Specialized
Improvement" determination at such time, then Landlord may reserve such
determination until the expiration or termination of the Lease (each, a
"Reserved Improvement"). If Landlord subsequently requires removal of the
Reserved Improvement, Tenant shall, upon expiration or termination of the Lease,
remove any such Reserved Improvements and repair all damage caused by such
removal. (If after receiving a request from Tenant for a classification of
certain Improvement Landlord determines that such improvements are not
Specialized Improvements or Reserved Improvements, then such improvement shall
be a standard improvement that Tenant is not required to remove (each, a
"Standard Improvement"). Tenant shall be liable to Landlord for all costs
incurred by Landlord in returning the Leased Premises, the Building and the
Property to the required condition, together with interest (at the maximum rate
allowed by law) on all costs so incurred from the date paid by Landlord until
paid by Tenant. Tenant shall pay to Landlord the amount of all costs so incurred
plus such interest thereon within ten (10) days after Landlord's delivery to
Tenant of a bill for the same. Tenant shall indemnify Landlord against loss or
liability resulting from delay by Tenant in surrendering the Leased Premises,
Building, and Property, including, without limitation, any claims made by any
succeeding tenant or any losses to Landlord with respect to lost opportunities
to lease to succeeding tenants.
SECTION 3
TERM OF THE LEASE
3.1 Lease Term. The term "Initial Lease Term" shall mean the term of
this Lease, which shall be for a period of One Hundred Twenty (120) full
calendar months (plus the partial month, if any, immediately following the
Commencement Date), commencing on the Commencement Date and ending at midnight
on the last day of the One Hundred Twentieth (120th) full calendar month
thereafter, unless this Lease is extended or sooner terminated according to its
terms or by mutual agreement. The term "Lease Term" shall mean the Initial Lease
Term and any extensions thereof.
3.2 Postponement. If, for any reason, Landlord is unable to deliver
possession of the Premises to Tenant on the Commencement Date, the commencement
of the Lease Term will be postponed, without liability to either party or
affecting the validity of this Lease, and the term shall begin on such date as
Landlord is able to deliver possession of the Leased Premises to Tenant;
provided, that Tenant shall have the right to terminate this Lease without
further liability of Landlord or Tenant if Landlord is unable to deliver
possession of the Leased Premises within one hundred twenty (120) days after the
scheduled Commencement Date of July 15, 2000.
3.3 Lease Extension.
(a) Extension. Tenant may, at its option (if it is not then in
default under the Lease beyond any applicable notice and cure period), extend
the Initial Lease Term for an additional sixty (60) month period commencing at
the end of the Initial Lease Term (the "Extended Term"). This option shall be
exercised, if at all, by Tenant's written notice (the "Option Notice") to
Landlord stating Tenant's exercise of its option, delivered not less than one
(1) year (nor more
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than 15 months) prior to the end of the Initial Lease Term. The Extended Term
shall be upon all terms and conditions of this Lease (but with no further option
to extend) other than the Base Monthly Rental, which shall be the then fair
rental value of the Premises as determined in accordance with Section 3.3(b) and
adjusted in accordance with this Section 3.3(a). The Base Monthly Rental
determined in accordance with Section 3.3(b) shall be increased on the first day
of the second year of the Extended Term and each anniversary thereafter during
the Extended Term by three percent (3%).
(b) Extended Monthly Rent. If within thirty (30) days after the
Landlord receives the Option Notice the parties agree to what the fair rental
value is, they shall immediately execute an Addendum to this Lease stating the
Base Monthly Rental during the Extended Term. If the parties are unable to agree
on the minimum monthly rent for the Extended Term within such 30-day period,
then within fifteen (15) days after the expiration of that period each party, at
its cost and by giving notice to the other party, shall appoint a commercial
real estate broker ("Appraiser") with at least five years full time commercial
appraisal or brokerage in the Mountain View, California area to appraise and set
the minimum monthly rent for the Extended Term. Each Appraiser shall deliver
their appraisal within thirty (30) days after expiration of the selection of the
Appraisers. If the higher appraisal of rental value is not more than 105% of the
lowest as to the fair rental value, then the average of their appraised value
shall be adopted by the parties. If the higher appraisal is greater than 105% of
the lower then the two Appraisers shall appoint a third Appraiser with similar
qualifications who has not previously represented either party, and who shall
appraise the Leased Premises to determine its fair rental value, and the two
closest in dollar terms of the three offered values shall be averaged and
adopted by the parties as the fair rental value for the purposes of determining
the Base Monthly Rental during the Extended Term. The parties shall equally
share the costs and expenses of the third Appraiser.
SECTION 4
RENT
4.1 Base Monthly Rental/Prepaid Rent. Subject to the increases
described in Section 4.2, Tenant shall pay Landlord One Hundred Four Thousand
Twenty-Five Dollars ($104,025) as "Base Monthly Rental", in advance, on the
first (1st) day of each calendar month commencing on the Commencement Date and
continuing throughout the Lease Term. The Base Monthly Rental is based on an
amount equal to Three and 65/100 Dollars ($3.65) per square foot multiplied by
the Leased Premises (i.e., initially, agreed and deemed to be 28,500 square
feet). Upon execution of the Lease, Tenant shall deliver to Landlord a check in
the amount of the Base Monthly Rental which Landlord shall apply towards
Tenant's prepayment of the first payment of Base Monthly Rental. For purposes of
the calculation of the Base Monthly Rental (and other amounts under this Lease),
Landlord and Tenant acknowledge and agree that the approximate square footage of
the Leased Premises set forth in Section 1.2 is deemed to be the actual square
footage of the Leased Premises.
4.2 Annual Adjustment/Adjustment Of Base Monthly Rental. The Base
Monthly Rental shall be increased during the Initial Lease Term as follows: (a)
on the first day of the second year of the Initial Lease Term and each
anniversary thereafter through the fifth year of the Initial Lease Term, Eleven
Cents ($.11) per rentable square foot per year (i.e., $3,135); and (b) on the
first day of the sixth year of the Initial Lease Term and each anniversary
thereafter during the Initial lease Term, Twelve Cents ($.12) per rentable
square foot per year (i.e., $3,420).
4.3 Additional Rent. In addition to the Base Monthly Rental, Tenant
shall pay to Landlord as additional rent ("Additional Rent") the amounts
described in Sections 4.3, 4.4, 4.5 and 4.6.
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(a) Billing. Tenant shall pay, as Rent, Tenant's Pro Rata Share
of Operating Expenses. At Landlord's election, Tenant shall pay Operating
Expenses by one or more of the following methods: (i) paying the invoice for
such expenses submitted to Tenant by Landlord; (ii) Landlord may bill Tenant on
a periodic basis, and Tenant shall pay such bill within thirty (30) days after
receipt thereof; and/or (iii) Landlord may deliver to Tenant a written estimate
of any such expenses which Landlord anticipates will be paid or incurred for the
ensuing calendar or fiscal year, and Tenant shall pay such estimated expenses in
equal monthly installments along with the payment of installments of Base
Monthly Rent. Landlord may change the billing method from time to time in
Landlord's sole discretion on not less than thirty (30) days' notice.
(b) Operating Expenses. The term "Operating Expenses" shall
mean: (i) all of Landlord's reasonable costs and expenses of operation, repair
and maintenance of the Property (including the Common Area) as determined by
Landlord in accordance with generally accepted accounting principles or other
recognized accounting principles, consistently applied, including, without
limitation, (1) maintenance and other services, (2) power, water, waste disposal
and other utilities (to the extent not paid directly by Tenant), (3) materials
and supplies, (4) maintenance and repairs (including, but not limited to,
non-structural repairs and maintenance of the roof), and (5) the cost of all
insurance (excluding earthquake), which Landlord or Landlord's lender deems
necessary for the Property and any deductible portion of an insured loss; (ii)
costs, or a portion thereof, properly allocable to the Building of any capital
improvements made to the Property by Landlord which comprise labor-saving
devices or other equipment intended to improve the operating efficiency of any
system within the Building (such as an energy management computer system), which
costs shall be amortized over the useful life thereof without interest; and
(iii) costs properly allocable to the Property of any capital improvements made
to the Property by Landlord that are required under any governmental law or
regulation that was not applicable to the Property at the time of the
Commencement Date, or that are reasonably required for the health and safety of
tenants in the Building, the costs, or allocable portion thereof, to be
amortized over the useful life thereof (as determined by generally accepted
accounting principles), together with interest upon the unamortized balance at
the prime rate as announced from time to time by the Wall Street Journal at the
commencement of such capital improvement plus one (1) basis point or such higher
rate as may have been paid by Landlord on funds borrowed for the purpose of
constructing the capital improvements; and (iv) the management fee described in
Section 4.5. Operating Expenses shall not include any of the following items:
depreciation on the Property, including personal property; costs of tenant
improvements; real estate brokers' commissions; professional and administrative
fees (excluding fees to the extent arising from the acts or omissions of
Tenant); and work other than that caused by the acts or omissions of Tenant or
Tenant's agents, employees or contractors, and capital items other than those
referred to in clauses (ii) and (iii) above. For purposes of this Lease,
"capital items" shall mean those items which would be capitalized pursuant to
generally accepted accounting principles.
(c) Estimated Operating Expenses. During December of each
calendar year during the Term, or as soon thereafter as practicable, Landlord
may give Tenant written notice of Landlord's good faith estimate of the Tenant's
Pro Rata Share of Operating Expenses for the ensuing calendar year. On or before
the first day of each month during the ensuing calendar year, Tenant shall pay
to Landlord one-twelfth (1/12) of the estimated amount; provided, that if notice
is not given in December, Tenant shall continue to pay on the basis of the then
applicable Rent until the month after the notice is given. If at any time it
appears to Landlord that the increased amount payable for the current calendar
year will vary from Landlord's estimate by more than five percent (5%), Landlord
may give notice to Tenant of Landlord's revised estimate for the year, and
subsequent payments by Tenant for the year shall be based on the revised
estimate; provided, that Landlord shall not give notice of a revised estimate
for any year more frequently than once a calendar quarter.
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(d) Adjustments To Operating Expenses. Within one hundred twenty
(120) days after the close of each calendar year of the Lease Term, or as soon
after the one hundred twenty (120) day period as practicable, Landlord shall
deliver to Tenant a statement of the adjustment to the Operating Expenses for
the prior calendar year. If, on the basis of the statement, Tenant owes an
amount that is less than the estimated payments for the calendar year previously
made by Tenant, Landlord shall apply the excess to the next payment of Tenant's
Pro Rata Share of Operating Expenses due (or refund such excess to Tenant within
thirty (30) days if the Lease has terminated). If, on the basis of the
statement, Tenant owes an amount that is more than the estimated payments for
the calendar year previously made by the Tenant, Tenant shall pay the deficiency
to Landlord within thirty (30) days after delivery of the statement. The
statement of the Tenant's Pro Rata Share of Operating Expenses shall be presumed
correct and shall be deemed final and binding upon Tenant unless (i) Tenant in
good faith objects in writing thereto within sixty (60) days after delivery of
the statement to Tenant (which writing shall state, in reasonable detail, all of
the reasons for the objection); and (ii) Tenant pays in full, within thirty (30)
days after delivery of the statement to Tenant, any amount owed by Tenant with
respect to the statement which is not in dispute. Landlord shall provide Tenant
with such supporting information as Tenant may reasonably request in connection
with such statement, at Tenant's sole cost. If Tenant objects to Landlord's
allocation to this Property of the cost of self-insurance or blanket insurance,
such allocation shall nonetheless be presumed correct and shall be deemed final
and binding upon Tenant unless Tenant's timely written objection includes
credible evidence that Landlord could have obtained substantially comparable
insurance coverage for this Property alone at lower cost. If the Tenant objects
in good faith, then such dispute shall be resolved by accountants selected by
the procedure set forth in Section 3.3(b), except that three accountants
selected shall (i) be certified public accountants with at least five (5) years
experience in the commercial real estate industry and (ii) determine by majority
vote whether the Landlord's or Tenant's statement is deemed correct.
4.4 Additional Rent/Real Property Taxes. Tenant shall pay, as Rent,
the Tenant's Pro Rata Share of Real Property Taxes in accordance with Section 6,
which Tenant's Pro Rata Share is initially agreed to be One Hundred Percent
(100%) unless and until Tenant leases less than 100% of the Building. Tenant
shall also pay as Additional Rent to Landlord an amount equal to Landlord's
share of consideration received by Tenant for assignments and sublettings, legal
fees and costs that Tenant is obligated to pay or reimburse to Landlord, and any
other reimbursement items under this Lease.
4.5 Property Management Fee. Landlord shall provide property
management services, including management of the Common Area (if any),
supervision of Operating Expenses and general management and administrative
services. In consideration for Landlord's property management services, Tenant
shall pay Landlord a property management fee equal to three and one-half percent
(3.5%) of the Base Monthly Rental (the "Property Management Fee"). The Property
Management Fee shall be paid in accordance with Section 4.8.
4.6 Late Payment. Any sum of Base Monthly Rental or Additional Rent
payable under this Lease by Tenant that is not paid on or before the fifth (5th)
day of the month shall be subject to a late charge equal to five percent (5%) of
the late payment; provided that Landlord shall provide Tenant with one (1)
written notice of nonpayment per calendar year before imposing the late charge,
which charge shall be applied on the fifth (5th) day after the date of such
written notice.
4.7 Security Deposit. Upon the execution of this Lease, Tenant shall
deliver to Landlord as a security deposit One Hundred Four Thousand Twenty-Five
Dollars ($104,025) (the "Security Deposit"). Landlord shall hold the Security
Deposit as security for Tenant's faithful performance of all the terms of this
Lease by it to be observed and performed. Tenant shall not mortgage, assign,
transfer, or encumber the Security Deposit without Landlord's prior written
consent. Any of these acts by Tenant shall be without effect and shall not be
binding upon
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Landlord. If Tenant is in default pursuant to Section 12 of this Lease beyond
the applicable notice and cure period, then Landlord may, at Landlord's option
and without prejudice to any other remedy, appropriate and apply the entire
Security Deposit or so much of it as may be necessary to remedy such default or
to compensate Landlord for loss or damage sustained by Landlord as a result of
such default. Under such circumstances, Landlord may require Tenant to restore
the Security Deposit to its original amount. If Tenant complies with all of the
terms and promptly pays all amounts when due under the Lease, the Security
Deposit, shall be returned in full to Tenant within thirty (30) days after the
end of the Lease Term. If bankruptcy or other debtor-creditor proceedings
against Tenant occur, the Security Deposit shall be offset against any unpaid
amounts due under this Lease. Landlord shall not be deemed a trustee of the
Security Deposit, and Landlord may use the Security Deposit in Landlord's
ordinary business and shall not be required to segregate it from general
accounts. Tenant shall not be entitled to any interest on the Security Deposit.
If Landlord transfers the Building and/or Property during the Lease Term,
Landlord shall pay the Security Deposit to Landlord's successor in interest in
accordance with Civil Code Sec. 1950.7 or any successor statute, in which event
the transferring Landlord shall be released from all liability for the return of
the Security Deposit.
4.8 Payment of Rent. All rent and Property Management Fees required
to be paid in monthly installments shall be paid in advance on the first (1st)
day of each calendar month during the Lease Term. All rent shall be paid in
lawful money of the United States, without any abatement, deduction or offset
whatsoever, except to the extent expressly permitted hereunder and without any
prior demand therefor. Tenant's failure to timely pay Additional Rent shall be
treated the same as the failure to timely pay Base Monthly Rent, and Landlord
shall have the same rights and remedies as Landlord would have for failure to
pay Base Monthly Rent when due. All rent shall be paid by check delivered to
Landlord at 105 South Drive, Suite 200, Mountain View, California 94040 or at
such other place as Landlord may designate from time to time. Tenant's
obligation to pay rent shall be prorated at the commencement and expiration of
the Lease Term.
SECTION 5
USE AND UTILITIES
5.1 Common Area Use. Tenant and its employees, invitees and
customers may, together with other tenants in the Building, if any, make
reasonable use of any Common Area (if any). This right shall terminate upon the
termination of this Lease. Landlord reserves the right to, from time to time,
make changes to the shape, size, location, extent and amount of Common Area (if
any); provided that such changes shall not materially decrease Tenant's
available parking area or otherwise materially adversely affect Tenant's
occupancy. Tenant and its employees and customers shall comply with all
regulations reasonably promulgated by Landlord for use of the Common Area (if
any), and such regulations shall become a part of this Lease when received by
Tenant. The rules and regulations shall be binding upon Tenant upon delivery to
Tenant of a copy of such rules, and Tenant shall observe and abide by such
rules. Such rules may be reasonably amended by Landlord from time to time, with
or without advance notice, and all amendments shall be effective upon delivery
to Tenant. Tenant shall have the exclusive use of one hundred percent (100%) of
the parking spaces on the Property. Tenant shall not abandon, and shall not
permit to be abandoned, any inoperative vehicles or equipment on any portion of
the Property. Tenant shall make no alterations, improvements or additions to the
Common Area (if any) without Landlord's prior written consent. No portion of the
Property outside of the Leased Premises may be used by Tenant for storage of any
materials without Landlord's prior written consent.
5.2 Use of Leased Premises. Tenant shall use the Premises for
general office purposes, including research and development, and for no other
purposes except as permitted by applicable law and not otherwise inconsistent
with the first class nature of the Building. Without
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regard to such business use, Tenant shall permit no activity on the Premises
that would increase the premium on any fire or casualty insurance policy carried
by Landlord, create or constitute a nuisance or be incompatible with the general
usage of the Property. Tenant shall not conduct, or allow to be conducted on the
Property, any auction, insolvency or bankruptcy sale without Landlord's prior
consent. Tenant acknowledges that Landlord has made no representations with
respect to the Leased Premises, Property or the Building regarding suitability
for the conduct of Tenant's business. All noise generated by Tenant shall be
confined or muffled so as not to annoy users or occupants of adjacent
properties. All dust, fumes, odors and other emissions generated by Tenant shall
be dissipated in accordance with sound environmental practices so as not to
annoy or interfere with users of adjacent properties. Tenant shall not do or
permit anything to be done in or about the Leased Premises, the Building, or the
Property which does or could (a) jeopardize the structural integrity of the
Building or (b) cause damage to any part of the Leased Premises, the Building,
or the Property. Tenant shall not operate any equipment within the Leased
Premises which does or could (i) injure, vibrate or shake the Leased Premises or
the Building, (ii) damage, overload or impair the efficient operation of any
electrical, plumbing, heating, ventilation or air conditioning system within or
servicing the Leased Premises or the Building, or (iii) damage or impair the
efficient operation of the sprinkler system (if any) within or servicing the
Leased Premises, the Building or the Property. Tenant shall not install any
equipment or antennas on or make any penetrations of the exterior walls or roof
of the Building without Landlord's prior written approval, which will not be
unreasonably withheld. However, the parties acknowledge and agree that Landlord
shall cooperate with Tenant to facilitate any required use of the Building's
roof for the installation (at Tenant's cost) of antennas or satellite dishes,
such use to be at no additional charge to Tenant. Tenant hereby acknowledges and
agrees that, notwithstanding the provisions contained in Section 2.4 or
elsewhere in this Lease, Tenant is required to remove such
improvements/alterations at the expiration or termination of this Lease and to
restore the Building to Landlord's complete satisfaction, as determined in
Landlord's sole discretion. In all events, Tenant shall, after removal of such
items at the end of the Lease Term, fully restore the applicable portions of the
roof or exterior walls of the Building, without exception for reasonable wear
and tear. Tenant shall not fix any equipment to or make any penetrations or cuts
in the floor, ceilings, walls, or roof of the Leased Premises. Tenant shall not
place any loads upon the floors, walls, ceiling or roof system which could
endanger the structural integrity of the Building or damage its floors,
foundations or supporting structural components. Tenant shall not place any
explosive, flammable or harmful fluids or other waste materials in the drainage
system of the Leased Premises, the Building, or the Property. Tenant shall not
drain or discharge any fluids in the landscaped areas or cross the paved areas
of the Property. Tenant shall not use any of the Property for the storage of its
materials, supplies, inventory or equipment and all such materials, supplies,
inventory or equipment shall at all times be stored within the Leased Premises.
Tenant shall not commit nor permit to be committed any waste in or about the
Leased Premises, the Building or the Property.
5.3 Utilities. Tenant shall arrange, at its sole cost and in its own
name, for the supply of gas and electricity to the Leased Premises. Landlord
shall maintain water meter(s) in its own name; provided that Landlord may cause
Tenant to put the water service in Tenant's name at Tenant's cost. Tenant shall
be responsible for insuring that the utilities are adequate for Tenant's needs.
Tenant shall promptly pay as they become due, all charges for the utility
services consisting of gas, electricity, telephone, and water service for the
Leased Premises.
5.4 Utility Requirements. Landlord shall comply with all rules,
regulations and requirements promulgated by national, state or local
governmental agencies or utility suppliers concerning the use of utility
services, including any rationing, limitation or other control. Tenant shall
not be entitled to terminate this Lease or to any abatement in rent by reason of
such compliance or for any other interruption in the service or supply of such
utilities.
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5.5 Janitorial Services. Tenant shall provide janitorial services
for the Leased Premises which shall include providing trash bins and removing
trash, vacuuming carpets, and cleaning restrooms. All trash, garbage and waste
temporarily stored in the Leased Premises or Building or on the Property shall
be stored in a manner so that it is not visible to the public, and subject to
the foregoing, Tenant shall cause the Property to be kept in a neat, clean and
safe condition, free and clear of trash, garbage, boxes, containers, etc. at all
times.
5.6 Access. Tenant shall have access to and use of the Leased
Premises twenty-four (24) hours per day, three hundred sixty-five (365) days per
year.
SECTION 6
REAL PROPERTY TAXES
6.1 Real Property Taxes Defined. The term "Real Property Taxes", as
used in this Lease, shall mean: (i) all taxes, assessments, levies and other
charges of any kind or nature whatsoever, general and special, foreseen and
unforeseen (including all installments of principal and interest required to pay
any general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership) now or hereafter
imposed by any governmental or quasi-governmental authority or special district
having the direct or indirect power to tax or levy assessments, which are levied
or assessed against, or with respect to the value, occupancy or use of all, or
any portion of the Property (as now constructed or as may at any time hereafter
be constructed, altered or otherwise changed), or Landlord's interest therein;
the fixtures, equipment and other property of Landlord, real or personal, that
are an integral part of and located on the Property; the gross receipts, income
or rentals from the Property; or the use of parking areas, public utilities or
energy within the Property and (ii) all charges, levies or fees imposed by
reason of environmental regulation or other governmental control of the
Property. If any Real Property Tax is based upon property or rents unrelated to
the Property, then only that part of such Real Property Tax that is fairly
allocable to the Property shall be included within the meaning of the term "Real
Property Taxes". Notwithstanding the foregoing, the term "Real Property Taxes"
shall not include estate, inheritance, transfer, gift or franchise taxes of
Landlord, or the federal or state net income tax imposed on Landlord's income
from all sources.
6.2 Payment of Real Property Taxes by Tenant.
(a) Tenant shall pay, as Rent, the Tenant's Pro Rata Share of
Real Property Taxes.
(b) Landlord may cause Tenant to pay Real Property Taxes in
accordance with any of the methods set forth in Section 4.4, or at Landlord's
election, as provided in this Section 6.2. During December of each calendar year
during the Lease Term, or as soon thereafter as practicable, Landlord may give
Tenant written notice of the amount of Real Property Taxes for the ensuing
calendar year. On or before the first day of each month during the ensuing
calendar year, Tenant shall pay to Landlord one-twelfth (1/12) of the estimated
amount; provided, that if notice is not given in December, Tenant shall continue
to pay on the basis of the then applicable Rent until the month after the notice
is given. If at any time it appears to Landlord that the increased amount
payable for the current calendar year will vary from Landlord's estimate by more
than five percent (5%), Landlord may give notice to Tenant of Landlord's revised
estimate for the year, and subsequent payments by Tenant for the year shall be
based on the revised estimate; provided, that Landlord shall not give notice of
a revised estimate for any year more frequently than once a calendar quarter.
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(c) Within one hundred twenty (120) days after the close of each
calendar year of the Lease Term, or as soon after the one hundred twenty (120)
day period as practicable, Landlord may deliver to Tenant a statement of the
adjustment to the Real Property Taxes for the prior calendar year; the statement
shall be final and binding upon Landlord and Tenant. If, on the basis of the
statement, Tenant owes an amount that is less than the estimated payments for
the calendar year previously made by Tenant, Landlord may apply the excess to
the next payment of increased Real Property Taxes due (or refund such excess to
Tenant within thirty (30) days if the Lease has terminated). If, on the basis of
the statement, Tenant owes an amount that is more than the estimated payments
for the calendar year previously made by Tenant, Tenant shall pay the deficiency
to Landlord within thirty (30) days after delivery of the statement.
(d) Notwithstanding any other provision hereof, Tenant shall pay
the full amount of any Real Property Taxes during the Lease Term resulting from
any and all alterations and tenant improvements of any kind whatsoever placed
in, on or about the Property for the benefit of, at the request of, or by
Tenant. Tenant shall pay, prior to delinquency, all taxes assessed or levied
against Tenant's personal property in, on or about the Property. When possible,
Tenant shall cause its personal property to be assessed and billed separately
from the real or personal property of Landlord.
(e) Upon request by Tenant, Landlord shall provide Tenant with a
copy of the most recent tax bill for the Property. Tenant shall have the right
to contest the validity or amount of any Real Property Taxes payable for the
Property by appropriate proceeding diligently conducted in good faith. Under no
circumstances shall Tenant join Landlord as a party to such proceedings. If
Tenant undertakes any such contest, Tenant may withhold or defer payment or pay
under protest; provided, that upon the request of the Landlord, prior to
delinquency of the Real Property Taxes in question Tenant shall obtain and
deliver to Landlord a good and sufficient surety bond or other assurance of
payment protecting Landlord and the Property from any lien, claim, demand, loss,
cost, liability or expense which Landlord or the Property might suffer or incur
as a consequence of the withheld or protested payment. Upon termination of any
contest, Tenant shall pay the amount finally determined to be payable, together
with all fines, interest, penalties or other charges incurred or payable as a
result thereof. Landlord shall not be subject to any liability for the payment
of any costs or expenses in connection with any such proceedings, and Tenant
will indemnify, protect, defend by counsel reasonably satisfactory to Landlord
and hold Landlord harmless from any such costs and expenses, reimbursing
Landlord therefor upon demand unless Landlord has initiated the proceedings.
Tenant shall be entitled to any refund of any Real Property Taxes and penalties
or interest from any governmental authority to the extent the refund represents
monies paid to the governmental authority by Tenant or paid by Landlord and
fully reimbursed by Tenant. In addition, Tenant shall be entitled to recover
from any Real Property Taxes the reasonable cost (but in no event greater than
the savings obtained) in obtaining such refund.
6.3 Taxes on Tenant's Property. Tenant shall pay, before
delinquency, any and all taxes, assessments, license fees and public charges
levied, assessed or imposed against Tenant or Tenant's estate in this Lease, or
the property of Tenant situated within the Leased Premises, which become due
during the Lease Term. On demand by Landlord, Tenant shall furnish Landlord with
satisfactory evidence of these payments.
SECTION 7
INSURANCE, SUBROGATION AND INDEMNIFICATION
7.1 Tenant's Insurance. Tenant shall maintain in full force and
effect during the Lease Term the following insurance:
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(a) A policy or policies of comprehensive general liability
insurance, including property damage, against liability for personal injury,
bodily injury, death and damage to property occurring in or about, or resulting
from an occurrence in or about the Leased Premises or resulting from Tenant's
use or occupancy of the Leased Premises, with combined single limit coverage of
not less than Three Million Dollars ($3,000,000).
(b) A policy or policies of fire and property damage insurance
in so called "fire and extended coverage" form with a sprinkler leakage
endorsement (if the Building contains fire sprinklers) insuring its personal
property, inventory, trade fixtures and leasehold improvements within the Leased
Premises for the full replacement value thereof. The proceeds from any of such
policies shall be used for the repair or replacement of such items so insured;
provided that if the Lease shall terminate as a result of such insured loss, the
proceeds shall be the property of Tenant.
(c) (intentionally omitted].
(d) Workers' compensation and any other employee benefit
insurance sufficient to comply with all laws.
(e) Landlord, and such others it designates, shall be named as
additional insured on the policies of insurance described in this Section 7.1
(a) and (b). All insurance required by this Section 7.1 shall: (i) as to the
liability insurance only, be primary insurance which provides that the insurer
shall be liable for the full amount of the loss, up to and including the total
amount of liability set forth in the declarations without the right of
contribution from any other insurance coverage of Landlord; (ii) provide that
such policies shall not be subject to cancellation or change, except after at
least thirty (30) days prior written notice to Landlord; and (iii) not have a
"deductible" in excess of Fifty Thousand Dollars ($50,000) on property insurance
and Twenty-Five Thousand Dollars ($25,000) on liability insurance per
occurrence. Each such policy shall also contain a waiver of any right of
subrogation against Landlord. Copies of such policy or policies, or duly
executed certificates for them, together with satisfactory evidence of the
payment of the premium thereon, shall be deposited with Landlord prior to the
time Tenant enters into possession of the Leased Premises, and upon renewal of
such policies, but not less than thirty (30) days prior to the expiration of the
term of such coverage.
(f) Any insurance coverage required of Tenant in this Section
7.1 may be satisfied by a blanket policy or policies of insurance, provided that
the total amounts of insurance available with respect to the Property and
Tenant's liability under this Lease shall be at least the equivalent of separate
policies carried in the amounts required in this Lease.
7.2 Landlord's Insurance.
(a) Landlord shall maintain, as the minimum coverage required of
it by this Lease, a policy or policies of fire and property damage insurance, in
so-called "fire and extended coverage" form, insuring Landlord (and such others
as Landlord may designate) from physical damage to the Building including the
leasehold improvements made thereto at the commencement of the Lease Term, with
coverage of not less than one hundred percent (100%) of the full replacement
value thereof; provided, that such insurance may have a deductible in a
commercially reasonable amount. Landlord may so insure the Building separately,
or may insure the Building with other buildings and improvements within the
Property which Landlord elects to insure together under the same policy or
policies. Landlord shall not be required to cause such insurance to cover any
trade fixtures, leasehold improvements (except as provided above) or any
inventory or other personal property of Tenant.
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(b) Landlord shall maintain, as minimum coverage, comprehensive
general liability insurance, including property damage, against liability for
personal injury, bodily injury, death and damage occurring in or about, or
resulting from, an occurrence in or about the Leased Premises, with combined
single-limit coverage of not less than Three Million Dollars ($3,000,000).
7.3 Release and Waiver of Subrogation: Notwithstanding anything to
the contrary in this Lease, the parties hereto release each other, and their
respective agents, employees and contractors, from any claims for injury to any
persons or damage to property that are caused by or result from risks insured
against under any insurance policies carried by the parties and in force at the
time of such damage, but only to the extent such claims are covered by such
insurance. This release shall be in effect only so long as the applicable
insurance policies contain a clause to the effect that this release shall not
affect the right of the insured to recover under such policies. Each party shall
cause each insurance policy obtained by it to provide that the insurance company
waives all rights of recovery by way of subrogation against either party in
connection with any damage covered by such policy, so long as such waiver is
available without unreasonable, additional cost. In the event any party is
unable to so obtain such waiver, such party shall notify the other, in writing,
and the other party may, if it so desires, obtain such waiver by payment of any
additional premium therefor.
7.4 Limitation on Landlord's Liability and Indemnity. Except to the
extent of Landlord's active neglect or greater culpability, Landlord shall not
be liable to Tenant for, and Tenant hereby releases Landlord and its members,
managers, officers, employees, agents and representatives from any liability for
(a) any injury to or damage suffered by Tenant, Tenant's agents,
representatives, employees, contractors or invitees; (b) any damage to Tenant's
property or business due to any reason whatsoever, including, but not limited
to, the failure or destruction of any utilities such gas, electrical, water,
mechanical systems (e.g., HVAC), etc.; and (c) the failure to provide security
or the blockage of the Property. Tenant hereby waives the application of Civil
Code Section 1542, which provides that:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which, if known by him, must have
materially affected his settlement with the debtor."
Commencing upon Tenant's entry on the Leased Premises, Tenant shall indemnify
Landlord and its officers, members, agents, representatives and employees, and
hold them harmless from all losses, claims, liabilities, costs, expenses
(including, but not limited to, attorneys' fees and costs) and damages
(collectively, "Losses" or, separately, a "Loss") arising out of the use,
occupancy or enjoyment of the Leased Premises by Tenant or any licensee,
invitee, employee, contractor, representative, or agent of Tenant, except that
which is caused by the active neglect or greater culpability of Landlord, or
arising out of Tenant's failure to perform any of its obligations under this
Lease. Tenant waives any right to recover from Landlord for any such Loss to any
person or property, including loss of income; it being Tenant's right and
obligation to insure against such Loss, by reason of the use, occupancy or
enjoyment of the Premises by Tenant, or any licensee, invitee, agent or employee
of Tenant. This indemnity shall survive the termination or expiration of this
Lease.
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SECTION 8
REPAIR AND MAINTENANCE
Except in the case of damage or destruction of the Leased Premises,
Building or Property caused by an act of God or other peril, in which case
Section 10 shall control, the parties shall have the repair and maintenance
obligations set forth in this Section 8.
8.1 "As-Is Condition. Tenant accepts the Property "As-Is", subject
to the qualifications set forth in Section 2.2 above.
8.2 Landlord's Obligations. Landlord shall repair and keep in good
condition the structural components, concrete floor and load bearing walls of
the Building at Landlord's sole cost (unless damaged by Tenant). The term
"structural components" shall be defined as follows: footings, foundations,
load-bearing posts and beams, floor slabs and the roof structure. Tenant shall
be responsible for maintaining and repairing the roof, including damage
resulting in leaks. This Section shall in no way limit Landlord's right to
charge Tenant the costs of such repairs as Additional Rent. Landlord shall
maintain the Common Areas (if any) in good condition at all times. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the reasonable discretion of Landlord, consistent with
other first class office building in the same geographic area. Landlord shall
have the right to establish and enforce reasonable rules and regulations
applicable to all tenants concerning maintenance, management, use, and operation
of the Common Areas; and to close temporarily any of the Common Areas for
maintenance purposes. Landlord shall bill Tenant for Tenant's share of Operating
Expenses for the Common Area as provided in Section 4.3. 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 receipt of
notice of the need of such repairs.
8.3 Tenant's Obligations. Tenant shall have the following
obligations with respect to the Leased Premises:
(a) Except as provided in Section 8.2 of this Lease, Tenant
shall, at its sole cost, repair, regularly clean and continuously keep and
maintain in good order the Leased Premises and the Building including, without
limitation: (i) all interior walls, floors and ceilings; (ii) all windows,
doors, door hardware, and skylights; (iii) all plumbing (including sinks,
toilets, faucets and drains); (iv) sewage facilities; (v) all electrical
facilities and equipment, including without limitation, lighting fixtures,
lamps, fans, exhaust equipment and systems, automatic fire extinguisher
equipment, electrical motors and all other electrical equipment and appliances
of every kind within the premises (including conduits and connectors); (vi) the
walls and partitions, entrances, plate glass, showcases; (vii) heating,
ventilation and air conditioning systems and equipment; and (viii) landscaping.
Tenant shall promptly replace and pay for any broken glass, both exterior and
interior, with the same kind, size, and quality of glass, but only to the extent
that the damage was caused by the acts or omissions of Tenant, its agents,
employees or visitors. "Repair" includes replacement and/or renewals where
necessary, as well as painting.
(b) Tenant shall promptly repair all damage or injury to the
Leased Premises or the Property caused by the act or negligence of Tenant, its
employees, agents, licensees or visitors, and shall make such repairs in
accordance with the reasonable specifications established by Landlord.
(c) Tenant shall repair any damage to the Property caused by
installation. or removal of any machinery, equipment, trade fixtures, movable
partitions, furniture or articles of personal property including, without
limitation, repairing the floor and patching and painting the walls.
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(d) Tenant shall obtain and pay for a heating, ventilating and
air conditioning system maintenance contract with quarterly service and which
shall provide for and include replacement of filters, oiling and lubricating of
machinery, replacement parts, adjustment of drive belts, oil changes and other
preventive maintenance. Tenant shall have the benefit of all warranties
available to Landlord regarding the equipment and such systems. Tenant shall
provide Landlord with a copy of such service contract and all periodic service
reports. At Landlord's request, Tenant, at Tenant's sole cost, shall hire a
licensed contractor to regularly and periodically inspect and perform
maintenance on the HVAC, or Landlord may contract for such services itself and
charge such costs to Tenant as Additional Rent.
(e) Tenant waives all rights to make repairs at the expense of
the Landlord and to deduct the cost of such repairs from the Rent and
specifically waives all rights under Sections 1941 and 1942 of the California
Civil Code or any similar law regarding a Tenant's right to make repairs and
deduct the cost of such repairs from the Rent. (Without in any way limiting the
effect of the foregoing waiver, the parties acknowledge and agree that in the
case of an emergency, Tenant may make a repair that Landlord is otherwise
required to make and Landlord shall reimburse Tenant for the reasonable costs
thereof. In the absence of an "emergency", Tenant shall not be reimbursed. For
purposes of this Section 83(e), "emergency" shall mean (i) material damage to
the Leased Premises (not caused by Tenant) which results in an immediate threat
to life, serious bodily injury or material damage to a substantial portion of
Tenant's personal property or fixtures and (ii) Tenant has made repeated and
reasonable, but unsuccessful, attempts to notify Landlord. However, if Tenant
successfully notifies Landlord, then Landlord shall, in good faith, determine
whether an emergency exists. For purposes of an emergency under this Section
83(e), notice shall be deemed proper if notice is given by telephone and
promptly confirmed in writing by fax by an authorized officer.) There shall be
no allowance to Tenant for diminution of rental value, and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from the making of or the failure to make, any repairs, alterations,
decorations, additions or improvements in or to any portion of the Leased
Premises or the Building or Common Area (or any of the areas used in connection
with the operation thereof, or in or to any fixtures, appurtenances or
equipment), or by reason of the negligence of Tenant or any other tenant or
occupant of the Property. In no event shall Landlord be responsible for any
consequential damages arising or alleged to have arisen from any of the
foregoing matters. Tenant hereby agrees that Landlord shall not be liable for
injury to Tenant's business or any loss of income therefrom or for damage to the
goods, wares, merchandise or other property of Tenant, Tenant's employees,
invitees, customers, or any other person in or about the Leased Premises, the
Building, or the Common Area, nor shall Landlord be liable for injury to the
person of Tenant, Tenant's employees, agents or contractors whether such damage
or injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether such damage or injury results from any other
cause, whether such damage or injury results from conditions arising upon the
Property or upon other portions of the Building, or from other sources or places
and regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant, except to the extent any of the
foregoing arises from the gross negligence of Landlord. Landlord shall not be
liable for any damages arising from any act or neglect of any other tenant, if
any, of the Building or the Property.
(f) Tenant shall obtain and pay for all permits required for
Tenant's occupancy of the Property, other than permits relating to the physical
condition of the Property, and shall take all actions necessary to comply with
all applicable statutes, ordinances, rules, regulations, orders and requirements
regulating the use by Tenant of the Property, including any occupational safety
and health laws, provided that Tenant shall not be obligated to make any
physical changes in, or improvements to, the Property unless such changes or
improvements are required solely by reason of the unique nature of Tenant's use
of the Property (as opposed to standard office and research and development
usage).
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(g) Tenant will cause all exposed plumbing, heating,
ventilating, air conditioning and electrical equipment within the Leased
Premises to be operated in accordance with the manufacturers' recommendations
and specifications.
(h) At the end of the Lease Term or any extension period, Tenant
shall surrender to Landlord the Leased Premises broom clean, in the same
condition as they existed on the date of completion of the Tenant Improvements
described in Section 2.3, together with such changes as are permitted to remain
pursuant to this Lease, excepting only such ordinary wear and tear as could not
have been avoided by routine maintenance.
(i) It is the intention of Landlord and Tenant that, at all
times during the Term, Tenant shall maintain the Property in an attractive first
class and fully operative condition. Tenant's repair obligation is unconditional
and does not depend on whether the repairs are necessitated by Tenant's use or
whether the means of repair or item needing repair is readily accessible to
Tenant. If Tenant fails to perform proper maintenance or repair, including
preventative maintenance where appropriate, Landlord may, after seven (7) days
written notice to Tenant (or without notice for emergency repairs), cause the
same to be performed, and the cost thereof will promptly be paid by Tenant upon
receipt of a statement from Landlord setting forth the amount due. Any such
amount shall be deemed additional rent.
Landlord shall have no maintenance or repair obligations whatsoever with
respect to the Leased Premises except as expressly provided in Section 8.2.
Tenant shall, upon Landlord's request, provide Landlord with copies of all
maintenance and service reports and records, including, but not limited to,
electrical and HVAC reports.
8.4 Hazardous Materials.
(a) Except in accordance with the relevant statutes and
regulations, Tenant shall not cause or permit to be discharged from or about the
Property or the Building, any hazardous, toxic, or radioactive materials,
including, but not limited to, those materials (i) identified in Section 66680
or within the criteria set forth in Section 66693 et seq. of Title 22 of the
California Code of Regulations, Division 4, Chapter 30, (ii) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), or
(iii) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq. (42 U.S.C. Section 9601) as amended from time to time, or
petroleum distillates (collectively, "Hazardous Materials"). Tenant shall at its
sole expense comply with all applicable governmental rules, regulations, codes,
ordinances, statutes and other requirements respecting Hazardous Materials in
connection with Tenant's activities on or about the Property or the Building.
Tenant shall at its sole cost perform all clean-up and remedial actions which
may be required of Tenant by any governmental authority pertaining to any
storage, handling use, generation or discharge of Hazardous Materials by Tenant.
(b) Tenant shall indemnify, defend and hold harmless Landlord
and its members, officers, employees, agents and representatives, from and
against all Losses relating to the illegal storage handling, use, generation or
discharge of Hazardous Materials by Tenant on or about the Property or the
Building. Tenant shall reimburse Landlord for (i) losses in or reductions to
rental income resulting from Tenant's storage, handling, use, generation or
discharge of Hazardous Materials; (ii) all costs of clean-up or other
alterations to the Property necessitated by Tenant's storage, handling, use,
generation or discharge of Hazardous Materials; and (iii) any diminution in the
fair market value of the Building caused by Tenant's use, storage, handling,
generation or discharge of Hazardous Materials. The obligations of Tenant under
this Section shall survive the expiration of the Lease Term.
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(c) Landlord shall indemnify, defend and hold harmless Tenant
and its officers, employees, agents and representatives, from and against all
Losses relating to the illegal storage, handling, use, generation or discharge
of Hazardous Materials on or about the Property or the Building, except as
provided in Section 8.4(b) above. Landlord shall reimburse Tenant for (i) losses
in or reductions to rental income resulting from such storage, handling, use,
generation or discharge of Hazardous Materials; (ii) all costs of clean-up or
other alterations to the Property necessitated by such storage, handling, use,
generation or discharge of Hazardous Materials; and (iii) any diminution in the
fair market value of the Building caused by such use, storage, handling,
generation or discharge of Hazardous Materials. The obligations of Landlord
under this Section shall survive the expiration of the Lease Term.
SECTION 9
TRADE FIXTURES AND LEASEHOLD IMPROVEMENTS
9.1 Trade Fixtures and Leasehold Improvements. Tenant shall not
construct any leasehold improvements or additions or otherwise alter the Leased
Premises without Landlord's prior written approval, which approval may be
withheld in Landlord's reasonable discretion; provided that Tenant may make
non-structural improvements of up to Twenty-Five Thousand Dollars ($25,000) to
the Leased Premises without Landlord's consent, if Tenant has provided Landlord
with (a) copies of all such plans and specifications and (b) a certificate of an
authorized officer of Tenant certifying that all permits, consents and required
approvals for such Improvements have been obtained and do not violate any laws
or this Lease. In no event shall Tenant make any alterations to the Leased
Premises which could affect the structural integrity or the design of the
Building without Landlord's prior consent. All such approved leasehold
Improvements shall be installed by Tenant at Tenant's expense using a licensed
contractor. All construction done by Tenant shall be done in accordance with all
laws (including valid building permits issued by the appropriate governmental
authority) and in a good and workmanlike manner, using new materials of good
quality. All leasehold Improvements shall remain the property of Tenant during
the Lease Term. At the termination of this Lease, the alterations, additions and
improvements made by Tenant shall remain on the Leased Premises and become the
property of Landlord, except that at Landlord's option, Specialized Improvements
and Reserved Improvements (as described in Section 2.4), shall be removed by
Tenant at Tenant's sole cost and expense, and Tenant shall restore the portions
of the Leased Premises affected by such Reserved Improvements and/or Specialized
Improvements to their prior condition. (Tenant and Landlord acknowledge and
agree that the items described in Sections 5.2 and 14.16 shall be removed and
the Leased Premises, Building and Property shall be restored to Landlord's
complete satisfaction, determined in Landlord's sole discretion.) Without
limiting the generality of the foregoing, all heating, lighting, electrical
(including all wiring, conduit, outlets, drops, buss, ducts, main and
subpanels), air conditioning, partitioning, drapery, and carpet installations
made by Tenant regardless of how affixed to the Leased Premises, together with
all other additions, alterations and improvements that have become an integral
part of the Building, shall be and become the property of the Landlord upon
termination of the Lease, and shall not be deemed trade fixtures, and shall
remain upon and be surrendered with the Leased Premises at the termination of
this Lease. If during the Lease Term, any alteration, addition or change to the
Common Area is required by law, regulation, ordinance or order of any public
agency, Landlord shall make the same and the costs of such alteration, addition
or change shall be a Common Area charge and Tenant shall pay its share of its
costs as provided in Section 4.3 above. Landlord may require Tenant to post a
payment and performance bond for one and one-half (1.5) times the estimated cost
of all work prior to commencement of any work by Tenant on the Leased Premises,
provided Tenant shall not be required to post such a bond if Tenant has a net
worth in excess of $11,000,000 or otherwise provides adequate assurance that
Tenant's share of any improvement costs will be timely paid.
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9.2 Landlord's Improvements. All fixtures, improvements or equipment
which are installed, constructed on or attached to the Property by Landlord, at
its expense, shall become a part of the realty and belong to Landlord.
9.3 Liens. Tenant shall keep the Leased Premises and the Property
free from any liens and shall pay when due all bills arising out of any work
performed, materials furnished, or obligations incurred by Tenant, its agents,
employees or contractors relating to the Leased Premises. If any claim of lien
is recorded, Tenant shall bond against or discharge the same within ten (10)
days after the same has been recorded against the Leased Premises and/or the
Property. Tenant shall indemnify, defend, protect and hold Landlord and the
Property harmless and free from any liens, claims, liabilities, demands,
encumbrances, or judgments created or suffered by reason of any labor or
services performed for, materials used by or furnished to, Tenant or any
contractor employed by Tenant with respect to the Property. Tenant shall give
notice to Landlord in writing five (5) days prior to employing any laborer or
contractor to perform services related to, or receiving materials for use upon
the Property. Tenant shall permit Landlord to post a notice of
non-responsibility in accordance with the statutes or requirements of California
Civil Code Section 3094 or any amendment thereof.
9.4 Signs. Tenant may, at Tenant's sole cost and expense, install
and maintain on the Property during the Lease Term a monument and building
facade sign with Tenant's name and logo, subject to compliance with the
requirements of the City of Mountain View and Landlord's consent, which consent
will not be unreasonably withheld. Tenant will not install any exterior signs
except in conformance with Landlord's reasonable rules and regulations. Signs
installed by Tenant not conforming to Landlord's rules and regulations may be
removed and/or replaced by Landlord at Tenant's cost.
SECTION 10
DAMAGE TO LEASED PREMISES
10.1 Landlord's Duty to Restore. If the Leased Premises and Building
are damaged by any peril after the Commencement Date of this Lease, Landlord
shall restore the same to a similar condition as existed prior to such damage,
unless the Lease is terminated by Landlord pursuant to Section 10.2, or by
Tenant, pursuant to Section 10.3. All insurance proceeds available from the fire
and property damage insurance carried by Landlord pursuant to Section 7.2, shall
be paid to and become the property of Landlord. If this Lease is not terminated,
then upon receipt of the insurance proceeds (if the loss is covered by
insurance) and the issuance of all necessary governmental permits, Landlord
shall commence and diligently proceed to complete the restoration of the Leased
Premises and/or Building, to the extent then allowed by law, to substantially
the same condition in which the Leased Premises and/or Building were immediately
prior to such damage. Landlord's obligation to restore shall be limited to the
Leased Premises and/or Building approved as they existed as of the Commencement
Date, leasehold improvements, trade fixtures and/or personal property
constructed or installed by Tenant in the Leased Premises; provided that
Landlord shall restore such leasehold improvements, trade fixtures and/or
personal property to the extent covered by the insurance policies described in
Section 7.2. Tenant shall forthwith replace or fully repair all leasehold
improvements and trade fixtures installed by Tenant and existing at the time of
such damage or destruction, to the extent not covered by Landlord as described
in the preceding sentence.
10.2 Landlord's Right to Terminate. Landlord shall have the option
to terminate this Lease in the event any of the following occurs, which option
may be exercised only by
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delivery to Tenant of a written notice of election to terminate within thirty
(30) days after the date of discovery of such damage:
(a) The Building is damaged by any peril to such an extent that
the estimated cost to restore the Building exceeds the lesser of (i) the
insurance proceeds available from insurance actually carried by Landlord (unless
Tenant, at its option, agrees to pay the differential) or (ii) fifty percent
(50%) of the then replacement value thereof.
(b) The Building is damaged by any peril both (i) not covered by
the type of insurance Landlord is required to carry pursuant to Section 7.2 and
(ii) not covered by valid and collectible insurance actually carried by Landlord
and in force at the time of such damage or destruction.
(c) The Leased Premises are materially damaged by any peril
within six (6) months of the last day of the Lease Term. For purposes of this
Section 10.2(c), "material" means that the damage, based on Landlord's good
faith estimate, cannot be completely repaired within sixty (60) days after the
date such damage occurs.
(d) The Building is damaged by any peril and, because of the
laws then in force, the Building: (i) may not be restored at reasonable cost to
substantially the same condition in which it was prior to such damage (unless
Tenant, at its option, agrees to pay the differential); or (ii) may not be used
for the same use being made thereof before such damage, whether or not restored
as required by this Section 10.2.
10.3 Tenant's Right to Terminate. If the Leased Premises are damaged
by any peril, and Landlord does not elect to terminate this Lease, or is not
entitled to terminate this Lease pursuant to Section 10.2, then as soon as
reasonably practicable (using good faith efforts to expedite the matter),
Landlord shall furnish Tenant with the written opinion of Landlord's architect
or construction consultant as to when the restoration work required of Landlord
may be completed. Tenant shall have the option to terminate this Lease in the
event any of the following occurs, which option may be exercised only by
delivery to Landlord of a written notice of election to terminate within thirty
(30) days after Tenant receives from Landlord the estimate of the time needed to
complete such restoration:
(a) The Leased Premises are damaged by any peril and, in the
reasonable opinion of Landlord's architect or construction consultant, the
restoration of the Leased Premises cannot be substantially completed within one
hundred eighty (180) days after the date of such damage.
(b) The Leased Premises are materially damaged by any peril
within six (6) months of the last day of the Lease Term. For purposes of this
Section 10.3(b), "material" shall have the same meaning as set forth in Section
10.2(c) above.
10.4 Abatement of Rent. In the event of damage to the Leased
Premises which does not result in the termination of this Lease, the Base
Monthly Rental and Additional Rent as then adjusted shall be temporarily abated
during the period of restoration in proportion to the degree to which Tenant's
use of the Leased Premises is impaired by such damage. Tenant shall not be
entitled to any compensation or damages from Landlord for loss of Tenant's
property or any inconvenience or annoyance caused by such damage or restoration;
provided that Landlord shall use commercially reasonable efforts to minimize the
disruption to the operation of Tenant's business in the Leased Premises.
Landlord and Tenant hereby waive the provisions of Section 1932, Subdivision 2,
and Section 1933, Subdivision 2, and Section 1933, Subdivision 4, of the
California Civil Code and the provisions of similar laws hereinafter enacted.
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SECTION 11
EMINENT DOMAIN
If a public authority acquires all or any portion of the Premises
through eminent domain, or under threat thereof, and if Tenant's business may
not reasonably be continued on the portion of the Leased Premises not taken,
then this Lease shall terminate as of the date that the public authority becomes
entitled to possession of the property taken. In such event, Tenant shall be
entitled to receive such portion of the condemnation award as is designated by
the public authority as compensation for Tenant's trade fixtures, moving
expenses or loss of goodwill, and the balance of the condemnation award shall be
paid to Landlord.
SECTION 12
DEFAULT AND REMEDIES
12.1 Tenant's Default and Landlord's Remedies. The following
breaches by Tenant shall constitute material defaults entitling Landlord to the
remedies described in this Section:
(i) abandonment of the Leased Premises;
(ii) failure to pay rental or any other sum due Landlord within
five (5) business days after written notice by Landlord that such sum is past
due;
(iii) a general assignment by Tenant for the benefit of
creditors or the commencement of any proceedings by or against Tenant under the
federal bankruptcy Code; or
(iv) failure by Tenant to cure its breach of any other term,
condition or covenant of this Lease within a period of thirty (30) days after
the date of Landlord's written notice to Tenant of such breach is given;
provided if such default shall not be curable within such thirty (30) day
period, Tenant shall not be in default if Tenant shall have, within such thirty
(30)-day period, commenced cure of such default and shall thereafter pursue such
cure to completion. Upon any such default, Landlord may elect to terminate this
Lease and Tenant's right to possession of the Leased Premises, whereupon
Landlord may recover from Tenant: (a) the worth at the time of award of the
unpaid rent that had been earned at the time of termination; (b) 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 reasonably been avoided; (c) 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 reasonably be avoided; 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%); or (d) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under the Lease, or which, in the ordinary course of things,
would be likely to result therefrom. If Landlord does not specifically elect, in
writing, to terminate Tenant's right to possession after Tenant has defaulted,
Landlord may enforce all its rights and remedies under the Lease, including the
right to recover the rent as it comes due.
12.2 Landlord's Default and Tenant's Remedies. If Landlord fails to
perform its obligations under this Lease, Landlord shall nevertheless not be in
default under the terms of this Lease until such time as Tenant shall have first
given Landlord written notice specifying the nature of such failure to perform
its obligations, and then only after Landlord shall have had thirty (30) days
after its receipt of such notice within which to perform such obligations;
provided that, if
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longer than thirty (30) days is reasonably required in order to perform such
obligations, Landlord shall have such longer period as is reasonably necessary
so long as Landlord makes a good faith effort to commence such cure within such
thirty (30) day period and diligently pursue the cure to completion thereafter.
In the event of Landlord's default as described above, then, and only then,
Tenant may then proceed in equity or at law to compel Landlord to perform its
obligations and/or to recover damages approximately caused by such failure to
perform (except as and to the extent Tenant has waived its right to damages as
provided in this Lease). Tenant's recourse shall be limited to Landlord's
interest in the property.
12.3 Waiver. One party's consent to or approval of any act by the
other party requiring consent or approval shall not be deemed to waive or render
unnecessary the other party's consent to or approval of any subsequent similar
act. No delay or omission in the exercise of any right or remedy accruing to
either party upon any breach by the other party under this Lease shall impair
such right or remedy or be construed as a waiver of any such breach theretofore,
or hereafter occurring. The waiver by either party of any breach of any
provision of this Lease shall not be deemed to be a waiver of any subsequent
breach of the same or any other provisions herein contained.
12.4 Holding Over. The Lease shall terminate and become null and
void without notice upon the expiration of the Lease Term. If Tenant holds over
for any period after the Lease Term, Landlord may, at its option, treat Tenant
as a tenant from month-to-month commencing on the first day after the Lease
Term, subject to the conditions in the Lease at a rental amount of one hundred
and fifty percent (150%) of the last Base Monthly Rental, plus all other charges
(if any). If Tenant fails to surrender the Property, Tenant shall indemnify,
defend and hold harmless Landlord from and against any and all losses, claims
and liabilities resulting therefrom or thereafter.
SECTION 13
ASSIGNMENT AND SUBLETTING, SUBORDINATION
13.1 Assignment and Subletting. Tenant shall not perform any of the
following acts without Landlord's prior written consent, which consent shall not
be unreasonably withheld: (a) assign or sublet all or any portion of Tenant's
interest in this Lease or in the Leased Premises; (b) pledge, mortgage or
hypothecate its interest in the Leased Premises; and (c) perform or suffer any
other act whereby any right of Tenant under this Lease is transferred (which act
shall be deemed to be an assignment for the purposes of this Section 13.1).
Notwithstanding the foregoing, Tenant may, without Landlord's consent, assign
this Lease or sublet all or any portion of the Premises to an Affiliate of
Tenant if Tenant guarantees the obligations of such Affiliate's performance of
this Lease (in a form of guaranty reasonably acceptable to Landlord and Tenant)
or remains primarily liable under this Lease, at Landlord's option. A change in
control of Tenant shall be deemed an assignment subject to Landlord's consent.
For purposes of this Lease, "change in control" shall mean the sale or transfer
of substantially all of Tenants assets to an entity which has a net worth less
than the net worth of Tenant as of the Commencement Date; provided that Tenant
shall have the burden of establishing the net worth of the proposed assignee.
"Affiliate" means any entity directly or indirectly controlled by Tenant with
the power to direct the policies and management of such entity (including, but
not limited to, subsidiaries) or the surviving entity after the merger of Tenant
with or into another entity. Landlord's consent to any one assignment,
subletting, or other transfer shall not constitute consent to any subsequent
transfer. Any attempted subletting or assignment without Landlord's prior
written consent, at Landlord's election, shall constitute a default by Tenant
under the terms of this Lease. The acceptance of rent by Landlord from any
person or entity other than Tenant, or the acceptance of rent by Landlord from
Tenant with knowledge of a violation of this Section 13.1, shall not be deemed
to be a waiver by Landlord
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of any provision of this Section 13.1 of this Lease or to be a consent to any
such subletting or assignment by Tenant. Without limiting the circumstances in
which it may be reasonable for Landlord to withhold its consent to an assignment
or subletting, Landlord and Tenant acknowledge that it shall be reasonable for
Landlord to withhold its consent in the following instances:
(a) the proposed assignee or sublessee is a governmental agency;
(b) in Landlord's reasonable judgment, the use of the Leased
Premises by the proposed assignee or sublessee will involve occupancy by other
than primarily general office personnel, would entail any alterations which
would lessen the value of the leasehold improvements in the Leased Premises, or
would require increased services by Landlord;
(c) in Landlord's reasonable judgment, the proposed assignee
does not meet the credit standards supplied by Landlord;
(d) the proposed assignee (or any other of its Affiliates) has
been in material default under a lease, has been in litigation with a previous
landlord, or in the ten (10) years prior to the assignment, has filed for
bankruptcy protection or has otherwise been involved in an insolvency
proceeding;
(e) Landlord has experienced a previous default by or is in
litigation with the proposed assignee or sublessee;
(f) in Landlord's reasonable judgment, the Leased Premises will
be used in a manner that will violate any negative covenant as to use contained
in this Lease;
(g) the use of the Leased Premises will violate any applicable
law;
(h) the proposed assignment or sublease fails to include all of
the terms and provisions reasonably required to be included by the Landlord;
(i) Tenant is then in default of any obligation under this Lease
beyond the applicable notice and cure period, or Tenant has defaulted under this
Lease on three (3) or more occasions beyond the applicable notice and cure
period during the twelve (12) months preceding the date that Tenant requests
such consent; or
(j) in the case of a subletting of less than the entire Leased
Premises, if the subletting will require improvements to be made which are
unacceptable to Landlord, in Landlord's reasonable discretion.
13.2 Additional Rent. If Tenant assigns this Lease or subleases the
Premises, Tenant shall, in consideration therefor, pay to Landlord, as
additional rent:
(a) In the case of an assignment (excluding an assignment to an
Affiliate), an amount equal to fifty percent (50%0) of all sums and other
consideration paid to Tenant by the assignee for, or by reason of, such
assignment (including, without limiting the generality of the foregoing, all
sums paid for the sale of Tenant's fixtures or leasehold improvements, less the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's Federal income tax returns) less the costs actually incurred by Tenant
for commissions (at fair market rates) and reasonable attorneys' fees; and
(b) In the case of a sublease (excluding subleases to
Affiliates), fifty percent (50%) of any rents, additional charges, or other
consideration payable under the sublease by the subtenant to Tenant that are in
excess of the rent and expenses accruing during the term of
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the sublease in respect of the subleased space (at the rate per square foot
payable by Tenant under this lease) pursuant to the terms hereof (including,
without limiting the generality of the foregoing, all sums paid for the sale or
rental of Tenant's fixtures or leasehold improvements, less, in the case of the
sale thereof, the then net unamortized or undepreciated cost thereof determined
on the basis of Tenant's federal income tax returns) less the costs actually
incurred by Tenant for commissions (at fair market rates) and reasonable
attorneys' fees, all such costs to be amortized without interest over the length
of the sublease term.
The sums payable under Section 13.2(a) above shall be paid to
Landlord as and when received by Tenant. The sums payable under Section 13.2(b)
above shall be paid to Landlord as and when paid by the sublessee to Tenant.
Within thirty (30) days after written request therefor by Landlord, Tenant shall
at any time and from time to time furnish evidence to Landlord of the amount of
all such sums or other consideration received or expected to be received.
13.3 Assignment By Landlord. Landlord and its successors in interest
shall have the right to transfer their interest in the Leased Premises and the
Property at any time and to any person or entity. In the event of any such
transfer, but only in the event the transferee, in writing, delivered to Tenant,
shall have assumed all liability of Landlord hereunder, the Landlord originally
named herein (and in the case of any subsequent transfer, the transferor) from
the date of such transfer, shall be automatically relieved, without any further
act by any person or entity, of all liability for the performance of the
obligations of Landlord hereunder which may accrue after the date of such
transfer.
13.4 Subordination. This Lease is subject and subordinate to all
mortgages and deeds of trust which affect the Property and are of public record
as of the date of this Lease, and to all renewals, modifications,
consolidations, replacements and extensions thereof. However, if any lender
holding such mortgage or deed of trust shall advise Landlord that it desires or
requires this Lease to be prior and superior thereto, then, upon written request
of Landlord to Tenant, Tenant shall promptly execute, acknowledge and deliver
any and all documents or instruments which Landlord or such Lender reasonably
deems necessary to make this Lease prior thereto (provided no such document
shall alter, amend or modify any provision of this Lease). At Landlord's
election, this Lease shall become and thereafter remain subject and subordinate
to any and all future mortgages or deeds of trust affecting the Property which
may hereafter be executed and placed on public record after the effective date
of this Lease, or any renewals, modifications, consolidations, replacements or
extensions thereof, for the full amount of all advances made or to be made
thereunder and without regard to the time or character of such advances, so long
as the Lender holding the mortgage or deed of trust to which this Lease is to be
subordinated agrees in writing that it will recognize Tenant's rights under this
Lease and not disturb its quiet possession of the Leased Premises so long as
Tenant is not in default hereunder. Tenant will, within fifteen (15) days after
Landlord's written request therefor, execute, acknowledge and deliver upon
request of Landlord any and all documents or instruments as described above.
Landlord shall use its best efforts to provide Tenant current lender information
and a nondisturbance and attornment agreement.
13.5 Landlord's Recapture Right. Despite any other provision of this
Section 13, Landlord has the option, by written notice to Tenant (the "Recapture
Notice") within thirty (30) days after receiving notice of Tenant's desire to
sublet fifty percent (50%) or more of the Premises for a term in excess of three
(3) years, to recapture the Premises by terminating this Lease or taking an
assignment or sublease of the Premises from Tenant. A timely Recapture Notice
terminates this Lease or creates an assignment or a sublease for the Premises
for the same term as proposed by Tenant, effective as of the date specified in
Tenant's notice. If Landlord declines or fails to timely deliver a Recapture
Notice, Landlord shall have no further right under this Section 13.5 unless and
until Tenant's subsequent attempt to sublet such Premises. Notwithstanding
anything to the contrary in this Lease, this Section 13.5 shall not apply to a
transfer to an Affiliate.
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SECTION 14
GENERAL PROVISIONS
14.1 Landlord's Right to Enter. Landlord and its agents may enter
the Leased Premises at any reasonable time, but only upon twenty-four (24) hours
prior notice delivered during regular business hours, for the purpose of: (a)
inspecting the same; (b) posting notices of non-responsibility; (c) supplying
any service to be provided by Landlord to Tenant; (d) showing the Leased
Premises to prospective purchasers, mortgagees or, during the last nine (9)
months of the Lease Term, tenants; (e) making necessary alterations, additions
or repairs; (f) performing Tenant's obligation when Tenant has failed to do so
after written notice from Landlord; and for (g) placing upon the Leased Premises
ordinary "for lease" or "for sale" signs during the last nine (9) months of the
Lease Term. In case of an emergency, Landlord may enter the Leased Premises
without prior written notice, but shall notify Tenant as soon as possible and
shall take reasonable precautions to protect the security of Tenant's Premises.
14.2 Surrender of the Leased Premises. Immediately prior to the
expiration, or upon the sooner termination of this Lease, Tenant shall vacate
and surrender the Leased Premises to Landlord in the condition required pursuant
to Section 2.4 above.
14.3 Estoppel Certificates. At all times during the Lease Term,
Tenant will, following any request by Landlord, promptly execute and deliver to
Landlord an Estoppel Certificate: (a) certifying that this Lease is unmodified
and in full force and effect, or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect; (b) stating the date to which the rent and other charges are paid in
advance, if any; (c) acknowledging that there are not, to Tenant's knowledge,
any uncured defaults on the part of Landlord hereunder, or if there are uncured
defaults on the part of Landlord, stating the nature of such uncured defaults;
(d) the amount of Base Monthly Rent then in effect; and (e) certifying such
other information about the Lease as may be reasonably required by Landlord.
Tenant's failure to deliver an Estoppel Certificate within fifteen (15) days
after delivery of Landlord's request therefore shall be a conclusive admission
by Tenant that, as of the date of the request for such statement: (i) this Lease
is unmodified, except as may be represented by Landlord in such request and is
in full force and effect; (ii) there are no uncured defaults in Landlord's
performance; and (iii) no rent has been paid in advance.
14.4 Notices. Any notice required or desired to be given regarding
this Lease shall be in writing and shall be personally served, or in lieu of
personal service, may be given by nationally recognized overnight courier
service or by certified mail addressed to the other party at the following
address:
If to Tenant: Intuit Inc.
2550 Garcia Avenue, 2nd Floor
Mountain View, CA 94043
Attn.: Vice President for Finance
and Administration
with a copy to: Intuit Inc.
2550 Garcia Avenue, 2nd Floor
Mountain View, CA 94043
Attn.: General Counsel
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If to Landlord: Broderick Way Partners, LLC
c/o California Bavarian Corporation
105 S. Drive, Suite 200
Mountain View, CA 94040
Attn.: Mark D. Mordell, President
with a copy to: Doty Sundheim & Gilmore
260 Sheridan Ave., Suite 200
Palo Alto, CA 94306
Attn.: Rodney C. Gilmore, Esq.
If served by mail, such notice shall be deemed to have been given: (i)
on the third (3rd) business day after mailing if such notice was deposited in
the United States mail, certified and postage prepaid, addressed to the party to
be served at its address first above set forth; and (ii) in all other cases when
actually received. Either party may change its address by giving notice of same
in accordance with this Section 14.4.
14.5 Attorneys' Fees. In the event either party brings any action or
legal proceeding (including arbitration) for an alleged breach of any provision
of this Lease, to recover rent, to terminate this Lease or to otherwise enforce,
protect or establish any term or covenant of this Lease, or right of either
party, the prevailing party shall be entitled to recover as a part of such
action or proceedings, or in a separate action brought for that purpose,
reasonable attorneys' fees and court costs as may be fixed by the court or
arbitration. The prevailing party shall be determined by the court or
arbitrator, as the case may be.
14.6 Prevention of Performance. If either party to this Lease is
prevented in any way from performing its responsibilities under the Lease
because of intervening circumstances substantively beyond its control -- such as
labor relations actions, failures of transmission of supplies or utilities,
physical governmental or military preemptions, civil disturbances, or the like
- -- such performance will be excused for the period during which the interruption
takes place, but must be resumed immediately after the end of the intervening
period. To the extent that such interruption does not physically prevent the
payment of any sums falling due and owing during such period, making of such
payments will not be excused. If any governmental body or agency imposes
structural improvement or other requirements which substantially increase the
cost of maintaining the Building in compliance with applicable laws and
regulations, Landlord may terminate this Lease upon sixty (60) days notice to
Tenant, unless Tenant, at its option, elects to pay that portion of the cost
which is in excess of what Landlord would be willing to pay.
14.7 Tenant's Remedy. If, as a consequence of a default by Landlord
under this Lease, Tenant recovers a money judgment against Landlord, such
judgment shall be satisfied only out of the proceeds of sale received upon
execution of such judgment and levied thereon against the right, title and
interest of Landlord in the Building and out of Rent or other income from the
Building received by Landlord or out of consideration received by Landlord from
the sale of other disposition of all or any part of Landlord's right, title or
interest in the Building, and neither Landlord nor its members, partners,
owners, representatives or agents shall be liable for any deficiency.
14.8 Mortgagee Protection. If Landlord defaults under this Lease,
Tenant will notify by registered or certified mail to any beneficiary of a deed
or trust or mortgagee covering the Building or the Property, of whom Tenant has
been notified in writing, and offer such beneficiary or mortgagee a reasonable
opportunity to cure the default, including time to obtain possession of the
Building by power of sale or a judicial foreclosure, or control of the Building
via appointment of a receiver if such should prove necessary to effect a cure.
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14.9 Acceptance. Delivery of this Lease, duly executed by Tenant,
constitutes an offer to lease the Leased Premises, and under no circumstances
shall such delivery be deemed to create an option or reservation to lease the
Leased Premises for the benefit of Tenant. This Lease shall only become
effective and binding upon full execution hereof by Landlord and delivery of a
signed copy to Tenant.
14.10 Recording. Neither party shall record this Lease.
14.11 Rules of Construction.
(a) Time is of the essence.
(b) The liability of multiple tenants or multiple landlords
shall be joint and several.
(c) The rent payable under this Lease has been determined in
light of all other provisions hereof. The parties have had an equal opportunity
to review and comment upon the terms and provisions of this Lease; accordingly,
neither party shall be deemed the draftsman of this Lease, and there shall be no
presumption that it is to be interpreted for or against either party. Section
headings do not define or limit the operative provisions hereof.
(d) This Lease, and its Exhibits, constitute the entire
agreement between the parties and there have been no promises or understandings
concerning the Leased Premises or the subject matter of this Lease that are not
set forth herein.
(e) Acceptance by either party of late performance by the other
shall not constitute a waiver of the right to demand timely performance in the
future and Landlord's acceptance of rent does not waive any default by Tenant,
other than a prior default in the payment of such rent.
(f) Each of the parties executing this Lease has authority to
execute this Lease.
(g) This Lease shall be governed by the laws of the State of
California.
14.12 Addendum. If an Addendum containing additional provisions is
attached to this Lease it is incorporated herein and the provisions thereof
supersede the provisions of this Lease to the extent they are inconsistent
therewith.
14.13 Brokerage Commissions. Except for Tory Corporate Real Estate
Advisors dba The Staubach Company, Tenant warrants that it has not had any
dealing with any real estate brokers, leasing agents, or salespersons, or
incurred any obligations for the payment of real estate brokerage commissions or
finder's fees which would be earned or due and payable by reason of the
execution of this Lease. Pursuant to the terms and conditions of that certain
agreement between Cornish & Carey Commercial and Landlord, Landlord shall pay
only the commissions specified in such agreement. Tenant shall indemnify and
hold harmless Landlord from any claims for fees or commissions not covered by
such agreement.
14.14 Financial Statements. Tenant will provide Landlord, within
thirty (30) days after written request from Landlord, if Landlord reasonably
requires such statements for purposes of sale or refinancing of the Property
or similar purposes, but no more often than twice per year, Tenant's most recent
audited 10-K statement and Tenant's most recent unaudited 10-Q statement (which
latter statement will be accompanied by a certificate from Tenant's chief
financial officer certifying that there has been no material change in Tenant's
financials since the date of issuance of
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the 10-Q. Landlord may disclose such information to its lender or any investor,
prospective purchaser or investor, or any other person with an actual need to
know. Any such financial information which is marked "confidential" will be
confidential and shall not be disclosed to any third party except as set forth
in this Section 14.14.
14.15 Indemnification. Each party and its successors and assigns,
shall indemnify, defend and hold harmless the other party, its members,
officers, employees, agents, representative, successors and assigns
(collectively, "Indemnified Persons") from and against any and all losses
(excluding special or consequential losses) which any one of the Indemnified
Persons may sustain or incur as a result of, in connection with or arising out
of the first party's breach of any covenant, obligation or representation of
such party in this Lease.
14.16 Backup Generator. Tenant, at its sole cost, shall have the
right to install, at a mutually acceptable location on the Property, a backup
generator; provided that Tenant complies with all applicable laws.
Notwithstanding anything to the contrary in Section 2.4 or any other provision
of this Agreement, Tenant hereby acknowledges and agrees that Tenant shall
remove the backup generator upon the termination or expiration of the Lease
Term, and shall restore the Property to the complete satisfaction of Landlord,
determined in Landlord's sole discretion. Landlord shall be reasonable in
participating in the determination of a mutually acceptable location.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the date set forth on Page 1 of this Lease.
Landlord:
Broderick Way Partners, LLC, a California
limited liability company
By: California Bavarian Corporation, its Manager
By:
--------------------------------------------
Mark D. Mordell, President
Tenant:
Intuit Inc., a Delaware corporation
By:
------------------------------------------------
Greg Santora, Chief Financial Officer
and Senior Vice President
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Exhibit A
REAL PROPERTY in the City of Mountain View, County of Santa Clara, State of
California, described as follows:
A portion of Rancho Rincon de San Francisquito, described as follows:
Beginning at the intersection of the Easterly line of that 18 acre parcel of
land conveyed to Herbert Kertz, et ux. by deed recorded April 27, 1954, Book
2862 of Official Records, page 109, and the Southerly line of Terminal Boulevard
as established in the Deed to the City of Mountain View, a municipal
corporation, recorded June 13, 1963 in Book 6062 Official Records, page 578;
thence from said point of beginning along said Southerly line and along the
Easterly line of Broderick Way and Northerly line of Casey Avenue, all as
established by said deed to the City of Mountain View, the following courses and
distances: N. 84" 00' 179 feet to a tangent curve to the left; thence along said
curve with a radius of 20 feet, through a central angle of 90(degree) for an arc
distance of 31.42 feet; thence S. 84" 00' E. 179 feet to the Easterly line of
said 18 acre parcel of land; thence North 6" 00' E. along said Easterly line 420
feet to the point of beginning.
APN: 116-19-001
ARB: 116-02-047
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