EXHIBIT 10.2
INDUSTRIAL BUILDING LEASE
3294 WEST BAYSHORE, PALO ALTO, CALIFORNIA
TABLE OF CONTENTS
PARTIES.................................................................................... 1
PREMISES................................................................................... 1
TERM....................................................................................... 1
HOLDOVER................................................................................... 2
RENT....................................................................................... 2
LATE CHARGES............................................................................... 3
SECURITY DEPOSIT........................................................................... 4
USE OF PREMISES............................................................................ 4
COMPLIANCE WITH LAW........................................................................ 5
ALTERATIONS AND ADDITIONS.................................................................. 6
LIENS...................................................................................... 7
REPAIRS AND MAINTENANCE.................................................................... 7
ASSIGNMENT AND SUBLETTING.................................................................. 8
HOLD HARMLESS.............................................................................. 11
RELEASE FROM LIABILITY/WAIVER OF SUBROGATION............................................... 12
INSURANCE.................................................................................. 13
SERVICES AND UTILITIES..................................................................... 13
PERSONAL PROPERTY TAXES.................................................................... 14
RULES AND REGULATIONS...................................................................... 14
ENTRY BY LANDLORD.......................................................................... 14
DESTRUCTION/RECONSTRUCTION................................................................. 14
DEFAULT.................................................................................... 16
REMEDIES................................................................................... 17
EMINENT DOMAIN............................................................................. 18
ESTOPPEL CERTIFICATE....................................................................... 18
SUBORDINATION/NONDISTURBANCE .............................................................. 18
PARKING.................................................................................... 19
AUTHORITY.................................................................................. 19
GENERAL PROVISIONS......................................................................... 20
BROKERS.................................................................................... 22
NONRECOURSE OBLIGATIONS.................................................................... 22
RIGHT OF FIRST OFFER TO LEASE ADJACENT PREMISES............................................ 22
LIST OF EXHIBITS........................................................................... 23
INDUSTRIAL BUILDING LEASE
PARTIES
1. THIS LEASE, dated for reference purposes only, December 16, 1999, is
made by and between West Bayshore Associates, a general partnership, Sigrid S.
Banks, Frank Lee Crist, Jr., Allen W. Koering and George O. McKee (herein
collectively "Landlord") and Respond.com, Inc., a Delaware corporation (herein
"Tenant").
PREMISES
2. Landlord leases to Tenant and Tenant hires from Landlord for the
term, at the rental and upon the conditions in this Industrial Building Lease
(herein "Lease") a portion of the real property commonly known as 3290 West
Bayshore Avenue, Palo Alto, Santa Clara County, California as shown on Exhibit
A, attached hereto, and incorporated herein by this reference. The Premises
consists of approximately Twenty Eight Thousand Nine Hundred Sixty Eight
(28,968) rentable square feet in a building which contains approximately Forty
Two Thousand Four Hundred Thirty Two (42,432) rentable square feet. Tenant shall
also have the non exclusive right to use the walkways and parking lot adjacent
to the building, and the land on which they are situated. It is further
understood and agreed that the area set forth in this Paragraph 2 is approximate
only and that neither party shall have a claim against the other for any
variance between the actual area and that set forth above.
TERM
3. (a) The term of the Lease shall be a period of sixty (60) months
(plus the partial month, if any, immediately following the Commencement Date
defined below) and expiring (unless sooner terminated as provided herein) at
midnight on the last day of the sixtieth (60th) full calendar month thereafter,
herein called the "lease term" or "term".
(b) The Commencement Date shall be three (3) months after the
Early Possession Date defined below.
(c) Landlord shall deliver the Premises to Tenant on January 1,
2000 (the "Early Possession Date") with the Landlord work items described in
Section 13 (a) completed. Notwithstanding said Early Possession Date, if for any
reason beyond Landlord's control, Landlord cannot deliver possession of the
Premises to Tenant on said date, Landlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder, but in such case Tenant shall not be obligated
to pay rent until the Commencement Date; provided however, that if Landlord
shall not have delivered possession of the Premises by April 1, 2000, Tenant
may, at Tenant's option, by written notice to Landlord within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder.
(d) Landlord shall permit Tenant to occupy the Premises or a
portion thereof on the Early Possession Date for the purpose of installing
Tenant's improvements, fixtures, furniture and equipment, such occupancy shall
be subject to all the provisions of this Lease. Said early possession shall not
advance the commencement or termination dates set forth above. No Base Rent
shall be due from Tenant, however, commencing on the date of commencement of
Tenant's construction of its tenant improvements, Tenant shall pay to Landlord
or directly to the utility service providers, the cost of the utilities utilized
in the Premises.
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(e) Landlord shall give Tenant five (5) days prior written
notice of the date on which Landlord intends to deliver possession of the
Premises and Tenant shall deliver to Landlord the insurance certificates
required by Paragraph 17 hereof prior to taking possession of the Premises.
4. Intentionally omitted.
HOLDOVER
5. (a) Holding over after the expiration of the term of this Lease, or
any oral extension thereof, with the consent of Landlord, shall be a tenancy
from month to month, and the rentals and additional rentals upon the covenants,
conditions, limitations, and agreements are subject to the exceptions and
reservations contained in this Lease. The rental rate is to be the same rate
last charged hereunder.
(b) If Tenant remains in possession without Landlord's consent
after termination of the Lease, by lapse of time or otherwise, Tenant shall pay
Landlord for each day of such retention one-fifteenth (1/15th) of the amount of
the monthly rental for the last month prior to such termination and Tenant shall
also pay all costs, expenses and damages sustained by Landlord by reason of such
retention, including, without limitation, claims made by a succeeding tenant
resulting from Tenant's failure to surrender the Premises.
RENT
6. (a) Tenant agrees to pay Landlord as Base Rent for the Premises
during the term of this Lease, the following sums per month:
Months Base Rent/Month
- ------ ---------------
01-12 (and partial
month, if any) $86,904.00/28,968=$300
During the next twelve (12) month period of the term hereof, as well as
for each subsequent twelve (12) month period of the term hereof, the monthly
Base Rent shall be adjusted ("CPI Adjustment") as herein provided. The CPI for
December, 1999 shall be utilized for purposes of calculating the increase in the
monthly Base Rent for the twelve (12) month period beginning on the first day of
the thirteenth (13th) full calendar month of the term and each twelve month
period thereafter. The monthly Base Rent for the twelve (12) month period
beginning on the first day of the thirteenth (13th) full calendar month of the
term shall be the same as the first twelve (12) months of the term hereof, PLUS
the percentage of increase in the CPI as hereinafter set forth. The CPI shall be
the Consumer Price Index for all Urban Consumers (All Items) for San
Francisco-Oakland San Jose, California. The monthly Base Rent shall be increased
by the same percentage increase as the percentage increase in the CPI from
December, 1999 to December of the year prior to the adjustment date. In no
event, however, shall the monthly Base Rent be increased more than 7% nor less
than 4% from year to year.
When the annual adjusted monthly Base Rent is determined, Landlord shall
give Tenant written notice to that effect indicating how the adjusted monthly
Base Rent was computed. Pending receipt of such notice from the Landlord as to
the new monthly Base Rent, Tenant shall continue to pay the monthly Base Rent in
effect during the preceding twelve (12) month period.
The Base Rent for the first month of the term shall be payable on
execution of this lease. All other rents shall be payable in advance and due on
the first day of each and every month of the term of this Lease.
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Rent for any period which is for less than one (1) month shall
be a prorated portion of the monthly installment stated herein, based upon a
thirty (30) day month. Said rental shall be paid, without prior notice or demand
and without deduction or offset, except as otherwise provided herein, in lawful
money of the United States of America at 800 El Camino Real, Suite 175, Menlo
Park, California 94025 or at such other place as Landlord may from time to time
designate in writing.
(b) As additional rent, Tenant shall pay to Landlord all real
property taxes and assessments (general and special), in lieu real property
taxes, rent taxes, gross receipt taxes (whether assessed against Landlord or
assessed against Tenant and collected by Landlord, or both) attributable to the
Premises. Such taxes shall be pro-rated if the commencement and termination
dates of this Lease do not correspond to the tax year.
As additional rent, Tenant shall pay to Landlord the
cost of the insurance policy or policies referred to in Paragraph 17(b)
attributable to the Premises, pro-rated if the commencement and termination
dates of this Lease do not correspond to the periods covered by such policy or
policies.
The above additional rents shall be due and payable
fifteen (15) business days after Landlord has furnished Tenant with a photocopy
of the tax bill or premium notice, as the case may be, but in no event earlier
than fifteen (15) calendar days prior to delinquency. Landlord will furnish
Tenant such photocopies promptly upon receipt of the tax bill or premium notice,
as the case may be. Any sums not paid on or before such due date shall bear
interest as the highest rate allowed by law or the penalties that are imposed by
the taxing authorities for delinquent payments, whichever is greater.
Additionally, if Tenant fails to pay such additional rent on or before the due
dates described above, Landlord reserves the right to require Tenant to pay the
delinquent payment and future payments of these additional rents by cashier's
checks or other certified funds.
As further additional rent Tenant shall reimburse
Landlord for the cost of maintenance of the landscaping on a monthly basis.
Other maintenance provided for the Premises by Landlord, including, but not
limited to, the parking lot sweeping and maintenance shall be billed to Tenant
on a monthly basis as such expenses are incurred by Landlord and Tenant shall
pay such additional rent to Landlord with its Base Rent. Tenant shall pay to
Landlord as additional rent, such amounts expended by Landlord for parking lot
paving, sealing and striping as billed by Landlord to Tenant when such work is
actually completed, which work shall be carried out by Landlord from time to
time as necessary, but not more often than every three years. Such work shall
also be done prior to the commencement date of this Lease (at no cost to
Tenant). It is understood that this is a "Triple Net" lease and all direct
expenses, including a management fee equal to 2% of the Base Rent, incurred in
connection with the operation of the Premises shall be charged to Tenant as
additional rent.
It is agreed that any taxes, insurance, and maintenance expenses for the
building of which the Premises are a part shall be allocated on the basis of
rentable square feet and that Tenant's prorata share of such expenses is 68.27%.
Landlord reserves the right to reallocate any item of the maintenance expenses
on a equitable basis should Tenant or any other tenant of the building cause
such expense to be disproportionate to Tenant's or any other tenant's prorata
share of the rentable square feet.
LATE CHARGES
7. Tenant agrees that all Base Rent not received by Landlord
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within five (5) calendar days of the due date shall be considered delinquent and
agrees to pay a late charge equal to ten percent (10%) of the delinquent payment
within five (5) business days after receipt of written notice of non receipt of
payment. Rent mailed and bearing a U. S. Postal Service postmark of the third
(3rd) of a month shall not be considered delinquent no matter when received.
Additionally, any delinquent payments not paid within thirty (30) days of the
original due date shall bear interest at the lower of the maximum rate then
allowed by law or two points over the reference rate (prime rate) charged by the
San Francisco Main Branch of the Bank of America.
SECURITY DEPOSIT
8. (a) Tenant shall deposit with Landlord the total sum of Three Hundred
Four Thousand Nine Hundred Ninety Six and 16/100 Dollars ($304,996.16) on
execution of this Lease. Said sum shall be held by Landlord as security for the
faithful performance by Tenant of all of the terms, covenants, and conditions of
this Lease. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of rent,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this security deposit for the payment of any rent or any other sum in
default, or for the payment of any reasonable amount which Landlord may spend or
become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
tenant's default. If any portion of said deposit is so used or applied, Tenant
shall, within five (5) days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the security deposit to its original
amount and Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep this security deposit separate from its
general funds, and Tenant shall not be entitled to any interest on said deposit.
As additional security, Tenant shall deliver to the Landlord on
execution of this Lease an irrevocable Letter of Credit issued by a reputable
financial institution reasonably satisfactory to Landlord in the amount of Nine
Hundred Fourteen Thousand Nine Hundred Eighty Eight and 49/100 Dollars
($914,988.49). So long as Tenant is not then in default and has not been in
material default during the previous twelve (12) months, has its stock publicly
traded, has positive net operating income determined in accordance with
generally accepted accounted principals for six (6) consecutive quarters, and
its net worth computed in accordance with generally accepted accounting
principles has exceeded $30,000,000.00 for six (6) consecutive quarters, said
letter of credit may be cancelled. Additionally, said letter of credit may be
reduced by One Hundred One Thousand Six Hundred Sixty Five and 39/100 Dollars
($101,665.39) at the end of every month during the last twelve (12) month period
of the term of this Lease provided that Tenant is not then in default and has
not been in material default during the previous twelve (12) months.
(b) If Landlord's interest in this Lease is terminated, Landlord
shall transfer said deposit to Landlord's successor in interest and Landlord's
successor shall agree in writing to be bound by the terms of this Lease.
USE OF PREMISES
9. (a) Tenant shall use the Premises for general office use and other
legally related uses and shall not use or permit the Premises to be used for any
other purpose without the prior written consent of Landlord.
(b) Tenant shall not knowingly do or permit anything to
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be done in or about the Premises nor bring or keep anything therein which will:
(i) increase the existing rate of or affect any fire or
other insurance upon the building or any of its contents unless Tenant agrees to
pay such increased rate, or
(ii) cause cancellation of any insurance policy covering
said building or any part thereof or any of its contents.
Tenant shall not knowingly use or allow the Premises to be used
for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not knowingly commit or suffer to be committed any waste in or upon the
Premises. Tenant shall not place any loads upon the floors, walls, or roof which
endanger the structure or place any harmful liquids or other toxic waste in the
drainage system of the Premises or in any other place in on or about the
Premises. No materials, supplies, equipment, finished products or semi-finished
products, raw materials or articles of any nature shall be stored upon or
permitted to remain on any portion of the Premises outside of the building,
except as approved by the City of Palo Alto.
COMPLIANCE WITH LAW
10. Tenant shall not use the Premises or permit anything to be done in
or about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances, and governmental rules, regulations
or requirements, pertaining to the specific use of the Premises by Tenant,
including, but not limited to, those relating to the protection of the
environment and storage and disposal of toxic materials, now in force or which
may hereafter be in force except that Tenant shall not be required to make
structural changes unrelated to or affected by Tenant's improvements or acts. In
the event any alterations made by Tenant, when combined with alterations made by
others in the building in which the Premises are located, triggers a requirement
to upgrade the building to comply with new flood control ordinances and codes,
Tenant shall be responsible for the costs of such upgrades in the same
proportion as the value of Tenant's permits bears to the total value of all
permits issued by the City of Palo Alto for all the alterations which trigger
the requirement up to a maximum of Forty Five Thousand Dollars ($45,000.00).
Except as set forth herein, Landlord shall be responsible for all costs and
expenses necessary to comply with all laws, statutes, ordinances, and
governmental rules, regulations or requirements where the need for such
compliance was not caused by Tenant's specific use of the Premises or Tenant's
acts in connection with the Premises. Notwithstanding the above, Landlord shall
not be responsible for any costs or expenses necessary to comply with the
Americans with Disabilities Act other than as the same relates to the parking
lot, landscaping areas, walkways, driveways, sidewalks, and other areas of the
Premises outside of the building in which the Premises are located. Except as
set forth above, Tenant shall be responsible for compliance with the Americans
with Disabilities Act, including, but not limited to, all exterior doors. Tenant
shall also comply with the requirements of any board of fire insurance
underwriters or other similar bodies now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Premises, excluding structural
changes not required or affected by Tenant's improvements or acts. The judgment
of any court of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any law, statute, ordinance or governmental rule, regulation or
requirement, shall be conclusive of that fact as
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between the Landlord and Tenant.
ALTERATIONS AND ADDITIONS
11. (a) Landlord shall provide to Tenant an allowance of Seven Hundred
Twenty Four Thousand Two Hundred and no/100 Dollars ($724,200.00) for Tenant's
initial tenant improvements. Tenant shall be responsible for the design,
permits, and cost of construction of its tenant improvements, including all
governmental permits and approvals, including any flood proofing measures as may
be required, subject to the provision set forth above in Paragraph 10. Landlord
and Tenant shall agree on said tenant improvements prior to obtaining estimates
or bids. If the estimated cost of the work approved by Landlord exceeds the
allowance, Tenant shall pay the excess amount to the contractor on a prorata
basis as the costs are incurred. For example if, the estimated costs are 1-1/2
times the allowance, Tenant shall pay 1/3rd of each billing and Landlord shall
pay 2/3rds of each billing out of the allowance. Tenant shall not make or allow
any further alterations, additions or improvements of or to the Premises without
Landlord's prior written consent, which consent shall not unreasonably be
withheld or delayed. Landlord's consent shall not be required for any non
structural tenant improvements costing less than Twenty Five Thousand Dollars
($25,000.00). Any equipment installed by Tenant, other than normally roof
mounted equipment, shall be contained within the building. Any such alterations,
additions or improvements, including, but not limited to, wall covering,
paneling and built-in cabinet work, but excepting movable furniture, and trade
fixtures, shall become a part of the realty, shall belong to Landlord and shall
be surrendered with the Premises at expiration or termination of the Lease. If
Landlord consents to any such alterations, additions or improvements by Tenant,
they shall be made by Tenant at Tenant's sole cost and expense, and any
contractor or person selected by Tenant to perform the work shall first be
approved of, in writing, by Landlord, which approval shall not be unreasonably
withheld. Landlord further reserves the right to require all plans for
structural improvements and alterations to be reasonably approved by its
structural engineer. No such work shall be allowed to commence until three (3)
days have elapsed from the date of Landlord's consent. One Hundred Eighty (180)
days prior to the termination of this Lease, Tenant shall provide to Landlord a
complete and accurate set of "As Built" tenant improvement drawings showing any
material alterations and additions made by Tenant, including, but not limited to
floor plan drawings, HVAC drawings, electrical drawings, sprinkler system
drawings, and plumbing system drawings. Upon expiration, or sooner termination,
of the term hereof, Tenant shall, upon written demand by Landlord given at least
one hundred twenty (120) days prior to the end of the term, promptly remove any
alterations, additions or improvements made by Tenant and designated by Landlord
to be removed at the time Landlord gave its written consent to the installation
of such alterations, additions or improvements. If no such consent was required,
Landlord shall have the right to direct Tenant to remove same provided Landlord
gives written notice to Tenant within the above the above time period. Such
removal and repair of any damage to the Premises caused by such removal shall be
at Tenant's sole cost and expense.
(b) Tenant shall not place or permit to be placed in, upon, or
about the Premises any signs not approved by the City of Palo Alto or other
governing authority. Tenant shall not place, or permit to be placed, upon the
Premises, any signs, advertisements or notices without the written consent of
Landlord first had and obtained. Landlord agrees to allow Tenant to place one
sign on the building, subject, however, to Landlord's approval, which approval
shall not be unreasonably withheld or delayed. Any sign so placed on the
Premises shall be placed upon the understanding and agreement that Tenant shall
remove same at the termination of the tenancy created herein and repair any
damage or injury to the Premises
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caused thereby, and if not so removed by Tenant then Landlord may have the same
so removed at Tenant's expense. Tenant shall have the right to use the lower
portion of the existing or new monument sign(s) at its own expense, subject to
approval by the City of Palo Alto or other governing authority.
LIENS
12. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. In the event a mechanic's
lien is recorded against the Premises and is not removed within ten (10)
business days after Landlord gives written notice to Tenant to cause the removal
of same, Landlord may require Tenant to provide Landlord, at Tenant's sole cost
and expense, a lien and completion bond in an amount equal to one and one-half
(1-1/2) times the estimated cost of any improvements, additions, or alterations
by Tenant, to insure Landlord against liability for mechanic's and materialmen's
liens and to insure completion of the work if the estimated cost exceeds Twenty
Five Thousand Dollars ($25,000.00). Landlord shall also have the right to post
and maintain on the Premises such notices of nonresponsibility as may be
required by law to protect Landlord's rights herein.
REPAIRS AND MAINTENANCE
13. (a) Landlord shall reroof the building, add five (5) exterior
windows, replace one (1) roll-up door with a glass storefront, paint the
exterior of the building, add awnings, refurbish the landscaping, and provide a
new HVAC system for the Premises prior to the commencement of this Lease at
Landlord's sole cost and expense. Landlord's responsibility for the HVAC system
is limited to that portion of the system from the roof up (structural support
units and utility hook ups) and Tenant is responsible for that portion of the
system from the roof down (distribution and zoning). Said HVAC system shall have
sufficient capacity for general office space typical of an R & D building. Any
excess capacity required by Tenant for special uses such as a computer room
shall be the responsibility of Tenant. Additionally as set forth in Paragraph 6
(b), Landlord shall repave, seal, and stripe the parking lot at Landlord's
expense prior to the commencement date of this Lease. Landlord shall also
deliver the Premises to Tenant at the commencement of this Lease with all
building systems, including, but not limited to electrical, plumbing, and
exterior lighting systems, but excluding the restrooms (which are being
delivered in their "As-Is" condition), in good working condition. Landlord shall
assign to Tenant any and all warranties given to Landlord related to any new
construction Landlord provides and any mechanical, electrical, plumbing, HVAC,
and roof warranties it may have. Except as to the work which Landlord is
required to perform pursuant to Section 13 (b) below and elsewhere in this
Lease, during the Term of this Lease Tenant shall at Tenant's sole cost and
expense, keep the Premises and every part thereof including, but not limited to,
exterior painting, roof covering (unless it is not feasible to repair the
existing roof covering and a new roof covering is required and Tenant has not
penetrated the roof causing the damage requiring replacement) the glazing,
plumbing, and electrical systems in good condition and repair, unless caused by
a casualty required to be insured pursuant to Paragraph 17 hereof or by any
inherent defects. Tenant further agrees to maintain the Premises and make minor
repairs thereto in conformance with any reasonable requirements of any
institutional lender of Landlord. Should Tenant at any time during the term of
this Lease or any renewal or extension of the term fail to maintain the Premises
or make any repairs or replacements as required herein after reasonable written
notice to Tenant, Landlord may, at its option, enter the Premises and perform
such maintenance or make such repairs or replacements for the
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account of Tenant. Any sums expended by Landlord in so doing, together with
interest thereon at the highest rate allowed by law from the date expended by
Landlord until the date repaid by Tenant, shall be due and payable by Tenant to
Landlord within fifteen (15) business days after demand of Landlord. Tenant
shall upon the expiration or sooner termination of this Lease surrender the
Premises to the Landlord in good condition, damage from causes beyond the
reasonable control of the Tenant and normal wear and tear excepted. Unless
specifically provided herein or in an addendum to this Lease, Landlord shall
have no obligation to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof and the parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the Premises or
the building in which the Premises are located except as specifically herein set
forth.
(b) As set forth in Paragraph 6(b), Landlord shall cause the
roof, landscaping, and parking lot to be maintained and Tenant shall reimburse
Landlord as provided therein. Additionally, notwithstanding the above provisions
of Paragraph 13(a), Landlord shall maintain the structural integrity of the
building, including, without limitation, the foundation, exterior walls, and
roof (except as provided in Paragraph 13(a)) in which the Premises are located,
unless such maintenance and repairs are caused in part or in whole by the act,
neglect, fault or omission of any duty by the Tenant, its agents, servants,
employees or invitees, in which case Tenant shall pay to Landlord the reasonable
cost of such maintenance and repairs to the extent not covered by insurance.
Landlord will replace the roof covering if repairs to said covering are no
longer economically feasible in the judgment of roofing experts provided that
Tenant has not penetrated the roof causing the replacement or done any other
acts causing such necessary replacement. Tenant shall give Landlord written
notice of any required repairs or maintenance. Landlord shall not be liable for
any failure to repair or to perform any maintenance unless such failure shall
persist for an unreasonable time after written notice. Except as provided in
Paragraph 22 hereof, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
arising from the making of any repairs, alterations or improvements to any
portion of the building or the Premises or to fixtures, appurtenances and
equipment therein. Tenant waives the right to make repairs at Landlord's expense
or terminate this Lease under any law, statute or ordinance now or hereafter in
effect for Landlord's failure to maintain the Premises, provided Landlord
commences or arranges for commencement of the required repairs or maintenance
within five (5) business days of receipt of Tenant's written notice; provided,
however, that Tenant may make emergency repairs if necessary to prevent a
disruption in Tenant's business or imminent danger to its employees property. In
no event shall Tenant's costs of such repairs or maintenance be deducted or
offset from any amounts due from Tenant to Landlord unless Landlord fails to
make such repairs for an unreasonable period of time following written notice.
Landlord shall reimburse Tenant for the reasonable costs of such repairs or
maintenance within fifteen (15) days after receipt of copies of invoices for
same.
ASSIGNMENT AND SUBLETTING
14. (a) Tenant shall not, voluntarily or by operation of law, assign, or
transfer Tenant's interest under this Lease or in the Premises nor sublease all
or any part of the Premises or allow any other person or entity (except Tenant's
employees, agents and invitees) to occupy or use all or any part of the Premises
without the prior written consent of Landlord. Landlord's consent shall not be
unreasonably withheld or delayed. Landlord shall respond in writing ten (10)
business days after receipt of the last information required under subparagraph
14(d). Without in any way limiting Landlord's right to refuse to give consent
under this Paragraph 14,
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Landlord's refusal to give consent shall not be deemed unreasonably withheld if:
(i) The character, reputation and financial responsibility of
the proposed new Tenant is not reasonably satisfactory in Landlord's
judgment. In connection with any such assignment Tenant shall deliver to
Landlord certified financial statements of Tenant and the new proposed
tenant showing their then financial condition as required hereunder.
(ii) The character and reputation of the proposed sub-tenant is
not reasonably satisfactory in Landlord's judgment.
(iii) The proposed new tenant or sub-tenant fails to agree in
writing to assume and be bound by all the terms and provisions of this
Lease.
(b) Additionally, as a condition to Landlord's consent to an
assignment or subletting it is hereby agreed that there shall be paid to
Landlord the following: To the extent any rental or other payments under such
sublease or assignment exceed the Base Rental payments payable under the terms
of this Lease, after Tenant has recovered any assignment or subleasing
commissions, and other costs of assigning or subleasing, and tenant improvement
costs related to such assignment or subletting (with all of such commissions and
costs being amortized of the length of the sublease or remainder of the lease
term, as appropriate), 75% of such excess shall be paid to Landlord as such
rental or other rental payments under such sublease or assignment become due and
payable under the terms of the assignment or subletting.
(c) If Tenant hereunder is a corporation or at any time becomes
a corporation which, under the then current laws of the State of California, is
not deemed a public corporation, or is an unincorporated association or
partnership, the transfer, or assignment directly or indirectly of any stock or
interest in such corporation, association or partnership in the aggregate in
excess of forty-nine percent (49%) during the term hereof shall be deemed an
assignment within the meaning and provisions of Paragraph 14. Notwithstanding
the above, the issuance of stock in connection with venture capital financing or
the transfer of stock between and among venture capitalists shall not be deemed
such an assignment. Tenant shall immediately report in writing any such transfer
or assignment of any stock or interest to Landlord.
(d) In the event Tenant proposes to transfer, assign, or sublet
any of Tenant's interests herein or enter into any license or concession
agreement or effectuate any change of ownership, Tenant shall thirty (30) days
prior to the proposed transaction supply to Landlord the following in writing:
(i) The name and address of the proposed assignee, transferee,
or sub-lessee.
(ii) All details as to the proposed assignment, subletting or
change of ownership including without limitation all of the terms and
conditions thereof including all sums or considerations to be paid.
(iii) A financial statement certified by an officer dated within
thirty (30) days of the date of notification of the proposed transferee,
assignee, sub-lessee, or the person or persons or entities which will be
involved in the proposed or change of ownership.
Tenant shall also submit to Landlord with the above information a fee of
One Thousand ($1,000.00) Dollars or 5% of the current
9
monthly Base Rent applicable to the portion of the Premises which is the subject
of the proposed assignment or sublease (which 5% shall not exceed $5,000.00),
whichever is greater, as consideration for Landlord's considering and processing
said request.
Within ten (10) days of any assignment or sub-lease Tenant shall
deliver to Landlord true, correct and complete copies of all agreements,
assignments, subleases and material documents pertaining thereto, including any
sales agreements.
Anything contained in this Paragraph 14 to the contrary
notwithstanding, no transfer, assignment, sub-letting of any of Tenant's
interests herein shall be effective unless all of the above provisions are
complied with within the time limits provided.
(e) Notwithstanding any other provision contained in this Lease,
in the event Tenant desires to assign this Lease or sublet the entire Premises,
Landlord shall have the right, exercisable in Landlord's sole discretion by
written notice to Tenant within ten (10) days after receipt of Tenant's written
notice and the information described in subparagraph 14(d) above, to terminate
this Lease as of the date Tenant proposes to have its assignment or subletting
be effective and enter into a new lease with a third party, including, but not
limited to, Tenant's proposed assignee or sub-lessee, without any liability to
Tenant. On such termination, this Lease shall be null and void as of the
termination date set forth in Landlord's notice or as of the date Tenant
actually surrenders possession of the Premises to Landlord, whichever is later;
provided however, each party shall be liable to the other for any liabilities
accrued up to the later of the above dates. Landlord acknowledges that Tenant
will not occupy the entire Premises on the Commencement Date and therefore
agrees that the provisions of this subparagraph 14. (e) shall not apply to any
initial subletting of space within the Premises that Tenant has not previously
occupied itself.
(f) Any additional documentation reasonably required by Landlord
shall be prepared and executed by Tenant and its assignee or sub-lessee or
transferee as part of the assignment or sub-letting or transfer before it shall
be effected.
(g) Anything contained herein to the contrary notwithstanding,
regardless of whether or not Landlord's consent is required, no sub-letting or
assignment or transfer of any of Tenant's interests hereunder shall be deemed to
release Tenant or any guarantor from any liability under the terms of this
Lease, nor, after any such consent shall Landlord's failure to give Tenant or
guarantor notice of default under any of the terms and conditions of this Lease
release Tenant or guarantor from any liability hereunder. A consent to one
assignment, subletting, occupation or use shall not be deemed a consent to any
subsequent assignment, subletting, occupation or use. Any such purported
assignment, subletting, or permission to occupy or use without such consent from
Landlord shall be void and shall, at the option of Landlord, constitute a
default under this Lease.
(h) Anything contained herein to the contrary notwithstanding,
Tenant shall have the right to assign this Lease in its entirety or to sublease
all or any portions of the Premises without the consent of Landlord to: (a) any
entity resulting from a merger or consolidation with Tenant, or (b) any
subsidiary or affiliate of Tenant, or (c) any entity which acquires
substantially all of the assets of Tenant; provided the new entity has a net
worth equal to or greater than Tenant and the new entity's use in one that is
allowable pursuant to the provisions of this Lease ("Permitted Corporate
Transfers").
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HOLD HARMLESS
15. (a) Tenant shall indemnify Landlord against and hold Landlord and
Landlord's property harmless from any and all liability, claims, loss, damages,
or expense, including reasonable counsel fees and costs, arising by reason of
the death or injury of any person, including Tenant or any person who is an
employee, agent, or customer of Tenant, or by reason of damage to or destruction
of any property, including property owned by Tenant or any person who is an
employee, agent, or customer of Tenant, caused or allegedly caused by:
(i) Any cause whatsoever while such person or property is in or
on said Premises;
(ii) Some condition of said Premises for which Tenant is
responsible or for which Landlord is responsible and Landlord has not
been given notice thereof and reasonable time to correct;
(iii) Some act or omission on said Premises of Tenant or any
person in or on said Premises with the permission of Tenant;
(iv) Any matter connected with Tenant's occupation and use of
said Premises; or
(v) Tenant's use, storage, or disposal of hazardous wastes,
toxic substances, or related materials ("hazardous materials") on or
about the Premises. Hazardous materials shall include, but not be
limited to, substances defined as "hazardous substances", "hazardous
materials", or "toxic substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; the
Hazardous Materials Transportation Act; the Resource Conservation and
Recovery Act; and those substances defined as "hazardous wastes" in
Section 25117 of the California Health and Safety Code; in the
regulations adopted and publications promulgated pursuant to such laws;
and in the Hazardous Material Storage Ordinance of the City of Palo
Alto, if any, as amended.
Tenant's indemnity with respect to hazardous materials shall
include, without limitation: (i) any damage, liability, fine, penalty, punitive
damages, cost or expenses arising from or out of any claim, action, suit or
proceeding for personal injury (including, without limitation, sickness, disease
or death), tangible property damage, nuisance, pollution, contamination, leak,
spill, release or other effect on the environment; and (ii) the cost of any
required or necessary investigation, repair clean-up, or treatment of the
Premises and/or the Property, and the preparation and implementation of any
closure, disposal, remedial or other required action in connection with the
Premises and/or the Property.
The indemnity of Tenant provided above shall survive the
expiration or earlier termination of this Lease but shall not apply to any
damage: (1) covered by insurance; (2) caused by a defect in the Premises; (3)
caused by the willful misconduct, negligence or omission of Landlord, its agents
or employees; or (4) caused by a breach of this Lease by Landlord.
(b) Tenant hereby assumes all risk of damage to property or
injury to persons in or upon the Premises, from any cause other than the
following: (1) the willful misconduct, negligence or omission of Landlord, its
agents or employees; (2) defects in the
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Premises; and (3) a breach of this Lease by Landlord and Tenant hereby waives
all claims in respect thereof against Landlord. Landlord and its agents shall
not be liable for any damage to property entrusted to employees of the building,
nor for loss or damage to any property by theft or otherwise, nor from any
injury to or damage to persons or property resulting from any cause whatsoever,
unless caused by or due to the following: (1) the willful misconduct, negligence
or omission of Landlord, its agents or employees; (2) defects in the Premises;
and (3) a breach of this Lease by Landlord.
(c) If any action or proceeding is brought against Landlord by
reason of any claim for which Tenant has an obligation to indemnify Landlord as
set forth above, Tenant shall defend Landlord therein at Tenant's expense by
counsel reasonably satisfactory to Landlord.
(d) Landlord and its agents and employees shall not be liable
for interference with the light or other incorporeal hereditaments, or loss of
business by Tenant unless the same is caused by the gross negligence or willful
misconduct of Landlord, its agents, or employees. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or in the
buildings or of alleged defects in the building, fixtures or equipment, provided
that Tenant has actual knowledge of such matters.
(e) To the best knowledge of Landlord, as of the date of this
Lease there are no hazardous materials on, in, under or about the Premises or
the property on which the Premises are located (the "Property"). Except with
respect to hazardous materials released on or under the Premises or Property by
Tenant or adjacent or nearby landowners, tenants, or occupants, Landlord shall
indemnify, defend with counsel reasonably satisfactory to Tenant, protect and
hold Tenant harmless from and against any and all liabilities, claims, losses,
damages, or expense, including reasonable counsel fees and costs, arising out
of, or based upon: (i) the presence of any hazardous materials on, under, in or
about the Premises or the Property, unless such hazardous materials are released
onto the Premises or Property by Tenant or, after the date of this Lease, by
adjacent or nearby landowners, tenants, or occupants; or (ii) the violation or
alleged violation by Landlord of any laws, regulations, orders, or permits
relating to the use, generation, manufacture, installation, release, discharge,
storage or disposal of hazardous materials on, under, in or about the Premises
or the Property. This indemnity shall include, without limitation: (i) any
damage, liability, fine, penalty, punitive damages, cost or expenses arising
from or out of any claim, action, suit or proceeding for personal injury
(including, without limitation, sickness, disease or death), tangible property
damage, nuisance, pollution, contamination, leak, spill, release or other effect
on the environment; and (ii) the cost of any required or necessary
investigation, repair clean-up, or treatment of the Premises and/or the
Property, and the preparation and implementation of any closure, disposal,
remedial or other required action in connection with the Premises and/or the
Property, except for hazardous materials released on the Premises or the
Property by Tenant. Landlord shall also indemnify Tenant and hold Tenant
harmless from any and all liability, claims, loss, damages, or expense,
including reasonable counsel fees and costs, arising by reason of the gross
negligence of Landlord, its agents, or employees, a material breach of
Landlord's obligations under this Lease, and Landlord's breach of any
representation and/or warranty contained herein. Landlord's indemnity
obligations hereunder shall survive the expiration or earlier termination of
this Lease.
RELEASE FROM LIABILITY/WAIVER OF SUBROGATION
16. Landlord and Tenant hereby mutually waive their respective
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rights of recovery against each other for any loss of the type required by this
Lease to be insured against. Landlord and Tenant hereby agree to obtain any
special endorsements (including waivers of subrogation) required by their
insurance carriers in order to effectuate the foregoing mutual release.
INSURANCE
17. (a) Tenant shall, at Tenant's expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against claims occurring in, on or about
the Premises and all areas appurtenant thereto. The limit of said insurance
shall not, however, limit the liability of Tenant hereunder. Tenant may carry
said insurance under a blanket policy, providing however, said insurance by
Tenant shall name Landlord as an additional insured. If Tenant fails to procure
and maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Tenant shall deliver to
Landlord prior to occupancy of the Premises copies of policies of liability
insurance required herein or certificates evidencing the existence and amount of
such insurance with loss payable clauses satisfactory to Landlord. No policy
shall be cancelable or subject to reduction of coverage except after fifteen
(15) days prior written notice to Landlord. The minimum acceptable amount of
comprehensive liability insurance is $3,000,000 per accident, and property
damage in an amount of not less than $1,000,000.00 per occurrence. The above
stated minimum levels of coverage are subject to amendment by Landlord upon
ninety (90) days written notice should the economic conditions, in the
discretion of Landlord, warrant adjustment thereof. Tenant may, at its own
expense, also insure or self insure its inventory, fixtures, equipment,
furniture, and its own tenant improvements installed after the initial tenant
improvements. Tenant acknowledges that Landlord shall have no responsibility for
insuring such items.
(b) Landlord shall carry and maintain, during the entire term,
including extensions hereof, fire and all risk insurance insuring the Premises
and the initial tenant improvements for their full replacement cost. Said
insurance policy or policies shall cover at least the following risks: fire,
smoke damage, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, malicious mischief, vandalism, aircraft, earthquake (if available at
commercially reasonable rates) and sprinkler leakage. Except for earthquake
coverage, the maximum deductible shall be Five Thousand Dollars ($5,000.00). The
deductible on any earthquake coverage shall not exceed 10% of the face amount of
the earthquake coverage. Additionally, such policy or policies shall have a loss
of rents (12 months) endorsement; provided however, if any institutional lender
of Landlord allows a lower amount, said coverage may be reduced to such lower
amount. Tenant shall pay to Landlord as additional rent, its prorata share of
the cost of such policy or policies pursuant to Paragraph 6(b). Any loss payable
under such insurance shall be payable to Landlord and any Lender holding an
encumbrance on the Premises. The proceeds from any such policy or policies for
damages to the Premises shall be used for the repair of the Premises except as
set forth in Paragraph 22.
(c) Insurance required under this Paragraph 17 shall be in
companies rated A, Class VII or better in "Best's Insurance Guide".
SERVICES AND UTILITIES
18. (a) Tenant shall provide and pay for its own utilities, janitorial
services, trash removal and all other material and services it desires in
connection with its occupation and use of the Premises. Tenant acknowledges that
it understands that Landlord is not obligated to provide services, materials or
supplies, including
13
but not limited to janitorial services or maintenance services, except as
otherwise provided herein, to Tenant.
(b) Tenant shall not connect with electric current except
through approved electrical outlets in the Premises or such additional
electrical outlets as may be installed as part of Tenant's improvements by a
licensed electrical contractor in conformance with the then applicable building
codes, any apparatus or device, for the purpose of using electric current.
PERSONAL PROPERTY TAXES
19. Tenant shall pay before delinquency, all taxes levied or assessed
and which become payable during the term hereof upon all Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property located in
the Premises, except that which has been paid for by Landlord and is the
standard of the building. If any of the Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property are assessed and taxed with
the building, Tenant shall pay to Landlord its share of such taxes within ten
(10) days after delivery to Tenant by Landlord of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property.
RULES AND REGULATIONS
20. Landlord shall have the right to promulgate any reasonable rules or
regulations for the use and occupation of the Premises so long as they are
uniform for all buildings that are part of the project in which the Premises are
located and are not in conflict with the terms and provisions of this Lease.
ENTRY BY LANDLORD
21. (a) Landlord reserves the right, subject to Tenant's security
procedures, to enter the Premises at any time to inspect the Premises, to submit
the Premises to prospective purchasers or tenants, to post notice of
non-responsibility, and to alter, improve, maintain or repair the Premises that
Landlord deems necessary or desirable, all without abatement of rent. Except in
the cases of emergencies and to post notices of nonresponsibility, Landlord
shall give telephone notice twenty four (24) hours in advance, unless Tenant
waives such notice, prior to entering the Premises. Landlord may erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, but shall not block the entrance to the
Premises nor interfere with Tenant's business or parking, except as reasonably
required for the particular activity by Landlord. Landlord shall not be liable
in any manner for any inconvenience, disturbance, loss of business, nuisance,
interference with quiet enjoyment, or other damage arising out of Landlord's
entry on the Premises as provided in this paragraph, except damage, if any,
resulting from the willful misconduct or negligence of Landlord or its
authorized representatives.
(b) In an emergency, Landlord shall have the right to use any
means which Landlord deems reasonably necessary to obtain entry to the Premises
without liability to Tenant, except for any failure to exercise due care for
Tenant's property. Any such entry to the Premises by Landlord shall not be
construed or deemed to be forcible or unlawful entry into or a detainer of the
Premises or an eviction of Tenant from the Premises or any portion thereof.
DESTRUCTION/RECONSTRUCTION
22. (a) If ten percent (10%) or less of the Premises is damaged by a
peril not required to be insured pursuant to Paragraph 17 (b), Landlord shall
promptly and diligently proceed to repair and
14
restore the same to substantially the same condition as existed prior to such
damage or destruction; provided, however, that should such damage be caused by
the willful act, negligent act or omission of any duty with respect to the same
by Tenant, its agents, servants, employees or invitees, Tenant, and not
Landlord, shall be so obligated to repair and restore. If the Premises are
damaged by a peril not required to be insured pursuant to the provisions of
Paragraph 17 (b) rendering more than ten percent (10%) of the Premises unusable
for the conduct of Tenant's business, Landlord may, upon written notice, given
to Tenant within thirty (30) days after the occurrence of such damage, elect to
terminate this Lease (the effective date of such termination shall be as
mutually agreed upon and if the parties fail to agree on such a date, the
effective termination date shall be the date of the casualty); provided,
however, Tenant may, within thirty (30) days after receipt of such notice, elect
to make any required repairs and/or restoration, in which event this Lease shall
remain in full force and effect, and Tenant shall thereafter diligently proceed
with such repairs and/or restoration.
(b) If the Premises are damaged or destroyed by fire or other
peril required to be insured pursuant to Paragraph 17 (b), Landlord shall
promptly and diligently proceed to repair and restore the same to substantially
the same condition as existed prior to such damage or destruction; provided,
however, that Landlord shall not be obligated to repair and restore until either
the insurer acknowledges that the loss is covered by insurance and sufficient
proceeds of such insurance (plus the applicable deductible which Landlord shall
contribute) are available to Landlord to pay the costs (including a reasonable
allowance for contractor's profit and overhead not to exceed ten percent (10%)
of the repairs and/or restoration) or the Tenant agrees to pay such costs to
Landlord. If the existing laws do not permit the restoration, either party can
terminate this Lease immediately by giving notice to the other party.
If the cost of restoration exceeds the amount of insurance
proceeds (plus the applicable deductible), and Tenant has not agreed to pay the
cost of repairs and/or restoration to Landlord, either party can elect to
terminate this Lease by giving notice to the other within fifteen (15) days
after determining that the restoration cost will exceed the insurance proceeds
(plus the applicable deductible). In the case of destruction to the Premises, if
Landlord elects to terminate this Lease, Tenant, within fifteen (15) days after
receiving Landlord's notice to terminate, may agree to pay to Landlord the
difference between the amount of insurance proceeds (plus the applicable
deductible which Landlord shall pay) and the cost of restoration in which case
Landlord shall restore the Premises. Landlord shall give Tenant satisfactory
evidence that all sums contributed by Tenant as provided in this paragraph 22
have been expended by Landlord in paying the cost of restoration.
If Landlord elects to terminate this Lease and Tenant does not
elect to contribute toward the cost of restoration as provided herein, this
Lease shall terminate, and all of the proceeds of the insurance shall be paid to
Landlord; provided, however, that in the event such proceeds shall include any
amounts paid for damage to or destruction of property belonging to Tenant,
Landlord shall within ten (10) days of receipt, pay over such amounts to Tenant
in the following manner: Out of the gross proceeds paid by insurance to
Landlord, Landlord shall retain an amount equivalent to the current replacement
value of the building and improvements owned by Landlord; after Landlord has
been so paid from the insurance proceeds, if there remains a balance of such
insurance proceeds which represent payment for damages to or destruction of
improvements added by Tenant after the date of Tenant's occupancy of the
Premises, then, to the extent of any remaining balance of the insurance proceeds
and to the extent of Tenant's direct costs of
15
making such added improvements, Landlord shall be obligated to pay over to
Tenant such remaining insurance proceeds. During any such repairs or restoration
described in this Paragraph 22, rent shall abate from the date of the casualty
in proportion to the area of the Premises rendered unusable by such damage or
destruction; provided, however, that Landlord shall have no liability by reason
of injury to or interference with Tenant's business or property arising from the
making of any repairs, alterations, or improvements in or to any portion of the
Premises or in or to fixtures, appurtenances and equipment therein; and further
provided, that if the damage was caused by the willful act or gross negligence
of Tenant, its agents or employees, there shall be no such abatement of rent
unless covered by the loss of rents provisions of the insurance policy Landlord
is required to carry and maintain pursuant to the provisions of Paragraph 17
(b). If the Premises are destroyed or substantially damaged within one year of
the end of this Lease term or extensions thereof, or if Landlord cannot restore
the Premises within One Hundred Twenty (120) days from the date of the damage or
destruction, Landlord or Tenant shall each have the option to cancel the Lease
effective as of the date of the damage or destruction or such later date as the
electing party sets forth in its written notice of cancellation, and all
insurance proceeds on the real property shall be paid to Landlord.
In the event Tenant shall have paid all or a portion of the
costs of any repairs or restorations for which Landlord subsequently receives
insurance proceeds, then to the extent that such insurance proceeds and Tenant's
payments exceed Landlord's cost of repair and/or restoration, Landlord shall
reimburse Tenant to the extent of Tenant's payments.
(c) Landlord shall not be required to repair any damage by fire
or other cause, or to make any repairs or replacements of any panels,
decoration, office fixtures, railings, floor coverings, partitions, or any other
property installed in the Premises by Tenant.
DEFAULT
23. Occurrence of any of the following events shall constitute a default
and breach of this Lease by Tenant.
(a) The abandonment of the Premises by Tenant without giving
prior written notice to Landlord and providing adequate security for the
Premises.
(b) The failure by Tenant to make any payment of rent or any
other payment required of Tenant hereunder, as and when due, if such failure
continues for three (3) days after written notice thereof by Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease other than described in
Paragraph 23(b) above, where such failure continues for thirty (30) days after
written notice thereof by Landlord to Tenant; provided however, that if Tenant's
default is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant commences such
cure within said thirty (30) day period and thereafter diligently prosecutes
such cure to completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors or the filing by or against Tenant of a
petition to have Tenant adjudged bankrupt, or a petition, or reorganization or
arrangement under any law relating to bankruptcy (unless in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days); or
the appointment of a trustee or a receiver to take possession of substantially
all of
16
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged in thirty (30) days.
(e) The failure of Tenant or any employee or agent of Tenant to
occupy the Premises for ten (10) consecutive business days unless Tenant gives
prior written notice to Landlord, provides a security service for the Premises
and keeps all utility systems for the Premises functioning and in good
operation.
REMEDIES
24. Landlord shall have the following remedies if Tenant commits a
default. These remedies are not exclusive; they are cumulative and in addition
to any remedies now or later allowed by law.
(a) Landlord may continue this Lease in full force and effect,
as long as Landlord does not terminate Tenant's right to possession, and
Landlord shall have the right to collect rent when due. During the period Tenant
is in default, Landlord may enter the Premises and relet them, or any part of
them, to third parties for Tenant's account. Tenant shall be liable to Landlord
for all costs Landlord incurs in reletting the Premises, including, without
limitation, reasonable broker's commissions and expenses of remodeling the
Premises required by the reletting. Reletting may be for a period shorter or
longer than the remaining term of the Lease. Tenant shall pay to Landlord the
rent due under this Lease as and when due, less the rent Landlord receives from
any reletting. No act by Landlord allowed by this Paragraph shall terminate this
Lease unless Landlord notifies Tenant in writing that Landlord elects to
terminate Tenant's right to possession of the Premises. If Tenant obtains
Landlord's consent, Tenant shall have the right to assign or sublet its interest
in this Lease, but Tenant shall not be released from liability. Landlord's
consent to a proposed assignment or subletting shall not be unreasonably
withheld.
(b) Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's right to possession. On termination, Landlord has the right to recover
from Tenant:
(i) The worth, at the time of the award of the unpaid rent that
had been earned at the time of termination of this Lease;
(ii) The worth, at the time of the award of the amount by which
the unpaid rent that would have been earned after the date of
termination of this Lease until the time of award exceeds the amount of
the loss of rent that Tenant proves could have been reasonably avoided;
(iii) The worth, at the time of the award of the amount by which
the unpaid rent for the balance of the term after the time of award
exceeds the amount of the loss of rent that Tenant proves could have
been reasonably avoided; and
(iv) Any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in
17
the ordinary course of things would be likely to result therefrom.
"The worth, at the time of the award", as used in (i) and (ii) of this
subparagraph, is to be computed by allowing interest at the maximum rate
allowed by law. "The worth, at the time of the award", as referred to in
(iii) of this subparagraph, is to be computed by discounting the amount
at the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus one percent (1%).
EMINENT DOMAIN
25. If more than twenty-five percent (25%) of the building which is part
the Premises, or twenty-five percent (25%) of the parking spaces and Landlord
does not provide suitable replacement parking spaces within a reasonable
distance from the building, is taken or appropriated by any public or
quasi-public authority under powers of eminent domain, either party hereto shall
have the right at its option, to terminate this Lease effective as of the date
of taking. If less than twenty-five percent (25%) building or twenty-five
percent (25%) of the parking spaces, is taken (or neither party elects to
terminate as above provided if more than twenty-five percent (25%) of the
building a twenty five percent (25%) of the parking spaces is taken), the Lease
shall continue, and the rental thereafter to be paid shall continue, but the
rental thereafter to be paid shall be equitably reduced. Whether or not the
Lease is terminated by reason of any such taking or appropriation, Landlord
shall be entitled to the entire award and compensation for the taking which is
paid or made by the public or quasi-public agency, and Tenant shall have no
claim against said award; except for amounts paid directly to Tenant for its
moving expenses, interruption to its business or damage to personal property or
trade fixtures. A voluntary sale by Landlord to any public body or agency having
the power of eminent domain, either under threat of condemnation or while the
condemnation proceedings are pending shall be deemed to be a taking under the
power of eminent domain for the purposes of this Paragraph.
ESTOPPEL CERTIFICATE
26. Either party shall at any time and from time to time, upon not less
than ten (10) business days prior written notice from the other, execute,
acknowledge, and deliver to the other party a statement in writing, (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modifications and certifying that this
Lease as so modified, is in full force and effect), and the date to which the
rental and other charges are paid in advance, if any, and (b) acknowledging that
there are not, to the party's knowledge, any uncured defaults on the part of the
other party hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser, encumbrancer,
assignee, or subtenant of all or any portion of the Premises or any purchaser of
Tenant's assets.
SUBORDINATION/NONDISTURBANCE
27. Tenant agrees upon request of Landlord and the holder of any deed of
trust affecting the Premises to subordinate this Lease and its rights hereunder
to the lien of any mortgage, deed of trust or other encumbrance, together with
any conditions, renewals, extensions, or replacements thereof, now or hereafter
placed, charged or enforced against the Landlord's interest in this Lease and
the leasehold estate thereby created, the Premises or the land, building or
improvements included therein, and deliver (but without cost to Tenant) at any
time and from time to time upon demand by Landlord such documents as may be
required to effectuate such
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subordination; provided, however, that Tenant shall not be required to
effectuate such subordination, nor shall Landlord be authorized to effect such
subordination on behalf of Tenant, unless the mortgagee or trustee named in such
mortgage, deed of trust or other encumbrance shall first agree in writing, for
the benefit of Tenant, that so long as Tenant is not in default under any of the
provisions, covenants or conditions of this Lease on the part of Tenant to be
kept and performed, that neither this Lease nor any of the rights of Tenant
hereunder shall be terminated or modified or be subject to termination or
modification, nor shall Tenant's possession of the Premises be disturbed or
interfered with, by any trustee's sale or by an action or proceeding to
foreclose said mortgage, deed of trust or other encumbrance.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Premises, the Tenant shall attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as the
Landlord under this Lease.
In the event that the mortgagee or beneficiary of any such mortgage or
deed of trust elects to have this Lease prior to its mortgage or deed of trust,
then and in such event upon such mortgagee or beneficiary giving written notice
to Tenant to that effect, this Lease shall be deemed prior to such mortgage or
deed of trust whether this Lease is dated or recorded prior to or subsequent to
the date of recordation of such mortgage or deed of trust.
Landlord agrees to obtain for Tenant within 30 days after full execution
of this Lease with a non-disturbance agreement from any and all lenders holding
a mortgage, Deed of Trust, or other encumbrance on the Premises. Said
non-disturbance agreement shall be reasonably acceptable to Tenant and contain
the same provisions described above.
PARKING
28. Tenant shall have the right to use the parking facilities provided
by Landlord in common with other tenants of the building in which the Premises
are located subject to any recorded easements. Landlord shall have no obligation
to police the use of the parking facilities, however. Tenant acknowledges that
the parking facilities are shared with the occupants of the building adjacent to
the Premises. Landlord reserves the right to allocate and/or reserve parking
spaces for all tenants and agrees that Tenant shall be entitled to the use of at
least 4 parking spaces for each 1000 square feet of rentable space.
AUTHORITY
29. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms except as it may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws or by other laws affecting
creditors' or lessors' rights generally and except as to the availability of
equitable relief.
Partnership Authority. If Tenant is a partnership, each individual
executing this Lease on behalf of said partnership represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
partnership and that this Lease is binding upon said partnership and its
partners in accordance with its terms.
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GENERAL PROVISIONS
30. General Provisions.
(a) Clauses, plats and riders, if any, signed by the Landlord
and the Tenant and endorsed on or affixed to this Lease are a part hereof.
(b) The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition on any subsequent breach of the same or any other terms, covenant or
condition herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of the
Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of the acceptance of such rent.
(c) All notices and demands which may or are required to be
given by either party to the other hereunder shall be in writing. All notices
and demands by the Landlord to the Tenant shall be sufficient if delivered in
person or sent by United States Mail, certified or registered, postage prepaid,
addressed to the Tenant at the Premises or to such other place as Tenant may
from time to time designate in a written notice to the Landlord. All notices and
demands by the Tenant to the Landlord shall be sufficient if delivered in
person, by receipted courier service, or sent by United States Mail, postage
prepaid, addressed to the Landlord at 800 El Camino Real, Suite 175, Menlo Park,
California 94025 or to such other person or place as the Landlord may from time
to time designate in a notice to the Tenant. Any such notice is effective at the
time of delivery or if mailed, two (2) business days after mailing.
(d) If there be more than one Tenant, the obligations hereunder
imposed upon Tenants shall be joint and several.
(e) The paragraph titles to the paragraphs of this Lease are not
a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(f) Time is of the essence of this Lease and each of its
provisions in which performance is a factor.
(g) The time in which any act provided by this Lease is to be
done is computed by excluding the first day and including the last, unless the
last day is a Saturday, Sunday, or holiday, and then it is also excluded. The
term "holiday" shall mean all holidays specified in Sections 6700 and 6701 of
the Government Code.
(h) The covenants and conditions herein contained, subject to
the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of the parties hereto.
(i) Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the prior written consent of the other
party.
(j) Upon Tenant paying the rent reserved hereunder and observing
and performing all of the covenants, conditions and provisions on Tenant's part
to be observed and performed hereunder, Tenant shall have quiet possession of
the Premises for the entire term hereof, subject to all the provisions of this
Lease.
(k) This Lease contains all of the agreements of the parties
hereto with respect to any matter covered or mentioned in
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this Lease. No prior agreements or understandings pertaining to any such matters
shall be effective for any purpose. No provision of this Lease shall be amended
or added except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
(l) If either party shall be delayed or prevented from the
performance of any act required by this Lease by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive
governmental laws, or regulations or other cause, without fault and beyond the
reasonable control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay; and the
period for the performance of any such act shall be extended for a period
equivalent for the period of such delay, provided, however, nothing in this
section shall excuse Tenant from the prompt payment of any rental or other
charge required of Tenant except as may be expressly provided elsewhere in this
Lease.
(m) In the event of any action or proceeding brought by either
party against the other under this Lease, the prevailing party shall be entitled
to recover all costs and expenses including the fees of its attorneys in such
action or proceeding in such amount as the court may adjudge reasonable as
attorney's fees.
(n) In the event of any sale of the building, Landlord shall be
and is hereby entirely freed and relieved of all liability under any and all of
its covenants and obligations contained in or derived from this Lease arising
out of any act, occurrence or omission occurring after the consummation of such
sale if the purchaser, at such sale or any subsequent sale of the Premises shall
have assumed and agreed in writing to carry out all of the covenants and
obligations of the Landlord under this Lease.
(o) Tenant shall not use the name of the building or of the
development in which the building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
(p) Any provision of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other provision
hereof and such other provision shall remain in full force and effect.
(q) No remedy or election hereunder shall be deemed exclusive
but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
(r) This Lease shall be governed by the laws of the State of
California.
(s) Tenant shall not conduct any auction, on or at the Premises
or building without Landlord's prior written consent.
(t) Nothing contained in this Lease shall be deemed or construed
by the parties or by any third person to create the relationship of principal
and agent or of partnership or of joint venture or of any association between
Landlord and Tenant, and neither the method of computation of rent nor any other
provisions contained in this Lease nor any acts of the parties shall be deemed
to create any relationship between Landlord and Tenant other than the
relationship of Landlord and Tenant.
(u) (i) The language in all parts of this Lease shall in all
cases be simply construed according to its fair meaning and not strictly for or
against Landlord or Tenant. Unless otherwise provided in this Lease, or unless
the context otherwise requires,
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the following definitions and rules of construction shall apply to this
Lease.
(ii) In this Lease the neuter gender includes the feminine and
masculine, and the singular number includes the plural, and the word
"person" includes corporation, partnership, firm, or association
wherever the context so requires.
(iii) "Shall", "will", and "agrees" are mandatory, "may" is
permissive.
(iv) All references to the Term of this Lease or the Lease Term
shall include any extensions of such Term.
(v) Parties shall include the Landlord and Tenant named in this
Lease.
(vi) As used herein, the word "sublessee" shall mean and
include, in addition to a sublessee and subtenant, a licensee,
concessionaire, or other occupant or user of any portion of the leased
Premises or buildings or improvements thereon.
(vii) Whenever the written consent of a party is required under
any provision of this Lease, such consent shall not be unreasonably
withheld or unduly delayed.
BROKERS
31. Each party warrants to the other that it has had no dealings with
any real estate broker or agent in connection with the negotiation of this Lease
other than Cornish & Carey Commercial (who represents Landlord and Tenant) and
Renault & Handley (who represents Landlord) and it knows of no other real estate
broker or agent who is entitled to a commission in connection with this Lease.
Each party agrees to indemnify and hold the other harmless from any cost,
expense, or liability for any compensation, commissions, or charges claimed by
any other broker or agent who alleges he is owed a compensation through it.
Landlord agrees to pay any commissions owed to the above named brokers and shall
hold Tenant harmless from any cost, expense, or liability therefor.
NONRECOURSE OBLIGATIONS
32. It is expressly agreed by Tenant that all obligations of Landlord
accruing under this Lease (except for Landlord's obligations with respect to the
Security Deposit) shall not constitute personal obligations of Landlord or of
any other persons or entities constituting Landlord and Tenant shall not seek
recourse against any such entities, persons, or any of their assets for
satisfaction of any liabilities with respect to this Lease. In the event Tenant
obtains a judgment against Landlord resulting from any default or claim arising
under this Lease, such judgment may only be satisfied from Landlord's interest
in this Lease and the Premises, and no other real, personal, or mixed property
of Landlord or of any other persons or entities comprising Landlord, wherever
situated, shall be subject to levy to satisfy such judgment.
RIGHT OF FIRST OFFER TO LEASE ADJACENT PREMISES
33. Provided that Tenant is not in material default hereunder and shall
have made all previous rental payments in a timely manner (no more than one (1)
in each calendar year being delinquent), should the adjacent space of
approximately Thirteen Thousand Four Hundred sixty Four (13,464) rentable square
feet in the same building in which the Premises are located become available for
lease either due to the fact that the tenant of that space, Connetics
Corporation,
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did not elect to renew its term or, if it had elected to renew its term, said
renewal term expired, or, the lease with said tenant is terminated in any
manner, Tenant shall have a right of first offer to lease said space. Landlord
shall give Tenant written notice of the availability of said space together with
the proposed Base Rent and other terms. Tenant shall have fifteen (15) days from
receipt of Landlord's notice to give written notice that it desires to rent said
space on the terms and conditions contained in Landlord's written notice. Should
Tenant fail to so notify Landlord, Landlord shall be free to proceed to lease
the Premises to a third party on such terms and conditions as may be negotiated,
without regard to the terms and conditions offered to Tenant. Tenant's right of
first offer shall only apply to the first time said space becomes available.
The right of first offer granted to Tenant herein is personal, and
Tenant shall have no right to assign or transfer the right of first offer either
separately from or together with a transfer of Tenant's interest in this Lease
other than in connection with a Permitted Corporate Transfer.
LIST OF EXHIBITS
34. The following is a complete list of the documents attached hereto
and made a part of this Lease:
EXHIBIT DESCRIPTION
A Floor Plan
The parties hereto have executed this Lease and on the dates specified
immediately adjacent to their respective signatures.
LANDLORD:
West Bayshore Associates, a general partnership
By /s/ [SIGNATURE ILLEGIBLE] Date 12/16/99
------------------------------ --------------------------------
/s/ SIGRID S. BANKS
- ---------------------------------
Sigrid S. Banks
/s/ FRANK LEE CRIST, JR.
- ---------------------------------
Frank Lee Crist, Jr.
/s/ ALLEN W. KOERING
- ---------------------------------
Allen W. Koering
/s/ GEORGE O. MCKEE
- ---------------------------------
George O. McKee
TENANT:
Respond.com, Inc., a Delaware corporation
By /s/ [SIGNATURE ILLEGIBLE] Date 12/16/99
-------------------------------- --------------------------------
Title
By Date
-------------------------------- --------------------------------
Title
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