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EXHIBIT 10.4
[CB COMMERCIAL LETTERHEAD]
TABLE OF CONTENTS
PAGE
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Article 1 LEASE OF PREMISES . . . . . . . . . . . . . . . . . . . . 1
Article 2 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
Article 3 EXHIBITS AND ADDENDA . . . . . . . . . . . . . . . . . . 2
Article 4 DELIVERY OF POSSESSION . . . . . . . . . . . . . . . . . 2
Article 5 RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Article 6 INTEREST AND LATE CHARGES . . . . . . . . . . . . . . . . 4
Article 7 SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . 4
Article 8 TENANTS USE OF THE PREMISES . . . . . . . . . . . . . . . 4
Article 9 SERVICES AND UTILITIES . . . . . . . . . . . . . . . . . 5
Article 10 CONDITION OF THE PREMISES . . . . . . . . . . . . . . . . 5
Article 11 CONSTRUCTION, REPAIRS AND MAINTENANCE . . . . . . . . . . 5
Article 12 ALTERATIONS AND ADDITIONS . . . . . . . . . . . . . . . . 6
Article 13 LEASEHOLD IMPROVEMENTS; TENANTS PROPERTY . . . . . . . . 6
Article 14 RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . 7
Article 15 CERTAIN RIGHTS RESERVED BY LANDLORD . . . . . . . . . . . 7
Article 16 ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . 7
Article 17 HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . 8
Article 18 SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . 8
Article 19 DESTRUCTION OR DAMAGE . . . . . . . . . . . . . . . . . . 8
Article 20 EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . 8
Article 21 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . 9
Article 22 TENANT'S INSURANCE . . . . . . . . . . . . . . . . . . . 9
Article 23 WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . 10
Article 24 SUBORDINATION AND ATTORNMENT. . . . . . . . . . . . . . . 10
Article 25 TENANT ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . 10
Article 26 TRANSFER OF LANDLORD'S INTEREST . . . . . . . . . . . . 10
Article 27 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 10
Article 28 BROKERAGE FEES . . . . . . . . . . . . . . . . . . . . . 11
Article 29 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 30 GOVERNMENT ENERGY OR UTILITY CONTROLS . . . . . . . . . . 11
Article 31 RELOCATION OF PREMISES. . . . . . . . . . . . . . . . . . 11
Article 32 QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . 12
Article 33 OBSERVANCE OF LAW . . . . . . . . . . . . . . . . . . . . 12
Article 34 FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . 12
Article 35 CURING TENANT'S DEFAULTS . . . . . . . . . . . . . . . . 12
Article 36 SIGN CONTROL . . . . . . . . . . . . . . . . . . . . . . 12
Article 37 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 12
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[CB COMMERCIAL LETTERHEAD]
This Lease between Hacienda Park Associates
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a California general partnership
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("Landlord"), and Pro Business, Inc.
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a California corporation , ("Tenant"), is
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dated November 13 , 1995
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1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A", and further described at Section 2l. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with Landlord,
other tenants, subtenants and invitees, to use of the Common Areas (as defined
at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent (initial): $ 166,047.12 per year.
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b. Base Year: The calendar year of 1996 .
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c. Broker(s)
Landlord's: CB Commercial Real Estate Group, Inc. .
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Tenant's: Colliers Parrish International .
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In the event that CB Commercial Real Estate Group, Inc. represents both
Landlord and Tenant, Landlord and Tenant hereby confirm that they were timely
advised of the dual representation and that they consent to the same, and that
they do not expect said broker to disclose to either of them the confidential
information of the other party.
d. Commencement Date February 1, 1996 .
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e. Common Areas: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have the right
to regulate or restrict the use of the Common Areas.
g. Expiration Date: January 31, 2001 , unless otherwise
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sooner terminated in accordance with the provisions of this Lease.
i. Landlord's Mailing Address: c/o CB Commercial Real Estate Group, Inc.
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5667-B Gibraltar Drive, Pleasanton, CA 94588
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Tenant's Mailing Address: 5934 Gibraltar Drive, Pleasanton, CA 94588
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j. Monthly Installments of Base Rent (initial): $ 13,837.26 per month.
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k. Parking: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park forty-one
(41) cars on a non-exclusive basis in the area(s) designated by Landlord
for parking. Tenant shall abide by any and all parking regulations and
rules established from time to time by Landlord or Landlord's parking
operator. Landlord reserves the right to separately charge Tenant's guests
and visitors for parking.
l. Premises: that portion of the Building containing approximately 10,027
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square feet of Rentable Area, shown by diagonal lines on Exhibit "A" located
on the first floor of the Building, and known as 4696 Willow Road.
m. Project: the building of which the Premises are a part (the "Building") and
any other buildings or improvements on the real property (the "Property")
located at 4696 and 4698 Willow Road and further described at Exhibit "B."
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The Project is known as Saratoga Center, which includes the building located
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at 5934 Gibraltar Drive.
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n. Rentable Area: as to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
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o. Security Deposit (Section 7): $14,000.00
p. State: the State of California
q. Tenant's First Adjustment Date (Section 5.2): the first day of the
calendar month following the Commencement Date plus ___________ months.
r. See Addendum #1.
s. Tenant's Use Clause (Article 8): Payroll services.
t. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A" -- Floor Plan showing the Premises.
b. Exhibit "B" -- Site Plan of the Project.
d. Exhibit "D" -- Rules and Regulations.
f. Addenda:
Addendum #1
5. RENT.
5.1 Payment of Base Rent. Tenant agrees to pay the Base Rent for the
Premises. Monthly Installments of Base Rent shall be payable in advance on
the first day of each calendar month of the Term. If the Term begins (or
ends) on other than the first (or last) day of a calendar month, the Base
Rent for the partial month shall be prorated on a per diem basis. Tenant
shall pay Landlord the first Monthly Installment of Base Rent when Tenant
executes the Lease.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase
in Project Operating Costs, Tenant agrees to pay to Landlord as Rent,
Tenant's Proportionate Share of all increases in costs, expenses and
obligations attributable to the Project and its operation, all as provided
below.
b. If, during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay
to Landlord, in addition to the Base Rent and all other payments due
under this Lease, an amount equal to Tenant's Proportionate Share of such
excess Project Operating Costs in accordance with the provisions of this
Section 5.3b.
(2)
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(1) The term "Project Operating Costs" shall include all those items
described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or Project
or their operation, including without limitation, (i) real property taxes
or assessments levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the Building or Project
by any redevelopment agency, (iii) any tax measured by gross rentals
received from the leasing of the Premises, Building or Project, excluding
any net income, franchise, capital stock, estate or inheritance taxes
imposed by the State or federal government or their agencies, branches or
departments; provided that if at any time during the Term any governmental
entity levies, assesses or imposes on Landlord any (1) general or special,
ad valorem or specific, excise, capital levy or other tax, assessment,
levy or charge directly on the Rent received under this Lease or on the
rent received under any other leases of space in the Building or Project,
or (2) any license fee, excise or franchise tax, assessment, levy or
charge measured by or based, in whole or in part, upon such rent, or (3)
any transfer, transaction, or similar tax, assessment, levy or charge based
directly or indirectly upon the transaction represented by this Lease or
such other leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the Building or
Project, then any such taxes, assessments, levies and charges shall be
deemed to be included in the term Project Operating Costs. If at any time
during the Term the assessed valuation of, or taxes on, the Project are
not based on a completed Project having at least eighty-five percent (85%)
of the Rentable Area occupied, then the "taxes" component of Project
Operating Costs shall be adjusted by Landlord to reasonably approximate
the taxes which would have been payable if the Project were completed and
at least eighty-five percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating
the Building and Project, including without limitation the following:
costs of (1) common area utilities; (2) supplies; (3) insurance (including
public liability, property damage, earthquake, and fire and extended
coverage insurance for the full replacement cost of the Building and
Project as required by Landlord or its lenders for the Project; (4)
services of independent contractors; (5) compensation (including
employment taxes and fringe benefits) of all persons who perform duties
connected with the operation, maintenance, repair or overhaul of the
Building or Project, and equipment, improvements and facilities located
within the Project, including without limitation engineers, painters,
window washers, security and parking personnel and gardeners (but excluding
persons performing services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation and
maintenance of a room for delivery and distribution of mail to tenants of
the Building or Project as required by the U.S. Postal Service (including,
without limitation, an amount equal to the fair market rental value of the
mail room premises); (7) management of the Building or Project, whether
managed by Landlord or an independent contractor (including, without
limitation, an amount equal to the fair market value of any on-site
manager's office); (8) rental expenses for (or a reasonable depreciation
allowance on) personal property used in the maintenance, operation or
repair of the Building or Project; (9) costs, expenditures or charges
(whether capitalized or not) required by any governmental or
quasi-governmental authority; (10) amortization of capital expenses
(including financing costs) (i) required by a governmental entity for
energy conservation or life safety purposes, or (ii) made by Landlord to
reduce Project Operating Costs; and (11) any other costs or expenses
incurred by Landlord under this Lease and not otherwise reimbursed by
tenants of the Project. If at any time during the Term, less than
eighty-five percent (85%) of the Rentable Area of the Project is occupied,
the "operating costs" component of the Project Operating Costs shall be
adjusted by Landlord to reasonably approximate the operating costs which
would have been incurred if the Project had been at least eighty-five
percent (85%) occupied. *
(2) Tenant's Proportionate Share of Project Operating Costs shall be payable
by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for
each calendar year thereafter ("Comparison Year"), Tenant shall pay
Landlord an amount equal to Tenant's Proportionate Share of the Project
Operating Costs incurred by Landlord in the Comparison Year which exceeds
the total amount of Project Operating Costs payable by Landlord for the
Base Year. This excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall,
at Landlord's request, pay as additional rent during each Comparison
Year, an amount equal to Tenant's Proportionate Share of the Excess
Expenses payable during such Comparison Year, as estimated by Landlord
from time to time. Such payments shall be made in monthly installments,
commencing on the first day of the month following the month in which
Landlord notifies Tenant of the amount it is to pay hereunder and
continuing until the first day of the month following the month in which
Landlord gives Tenant a new notice of estimated Excess Expenses. It is the
intention hereunder to estimate from time to time the amount of the Excess
Expenses for each Comparison Year and Tenant's Proportionate Share
thereof, and then to make an adjustment in the following year based on the
actual Excess Expenses incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical), Landlord shall
deliver to Tenant a statement setting forth Tenant's Proportionate Share
of the Excess Expenses for the preceding Comparison Year. If Tenant's
Proportionate Share of the actual Excess Expenses for the previous
Comparison Year exceeds the total of the estimated monthly payments made
by Tenant for such year, Tenant shall pay Landlord the amount of the
deficiency within ten (10) days of the receipt of the statement. If such
total exceeds Tenant's Proportionate Share of the actual Excess Expenses
for such Comparison Year, then Landlord shall credit against Tenant's next
ensuing monthly installment(s) of additional rent an amount equal to the
difference until the credit is exhausted. If a credit is due from
Landlord on the Expiration Date, Landlord shall pay Tenant the amount of
the credit. The obligations of Tenant and Landlord to make payments
required under this Section 5.3 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison
Year having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. Tenant agrees to pay the
cost of such certification unless it is determined that Landlord's
original statement overstated Project Operating Costs by more than five
percent (5%).
* (12) repair, maintenance and replacement of the HVAC system, roof system,
and parking areas. Tenant shall contract for and pay for its own janitorial
service and supplies for the Premises. Landlord shall separately meter the
Premises for electricity and gas. Tenant shall pay for electricity and gas
service for the Premises directly to the utility supplier.
(3)
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(f) If this Lease sets forth an Expense Stop at Section 2f, then during
the Term Tenant shall be liable for Tenant's Proportionate Share of any
actual Project Operating Costs which exceed the amount of the Expense
Stop. Tenant shall make current payments of such excess costs during
the Term in the same manner as is provided for payment of Excess
Expenses under the applicable provisions of Section 5.3b(2)(b) and (c)
above.
5.4 DEFINITION OF RENT. All costs and expenses which Tenant assumes or agrees
to pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money to the United States
of America.
5.5 RENT CONTROL. If the amount of Rent or any other payment due under this
Lease violates the terms or any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon
termination of the restrictions, Landlord shall, to the extent it is legally
permitted, recover from Tenant the difference between the amounts received
during the period of the restrictions and the amounts Landlord would have
received had there been no restrictions.
5.6 TAXES PAYABLE BY TENANT. In addition to the Rent and any other charges to
be paid by Tenant hereunder. Tenant shall reimburse Landlord upon demand for
any and all taxes payable by Landlord (other than net income taxes) which are
not otherwise reimbursable under this Lease, whether or not now customary or
within the contemplation of the parties, where such taxes are upon, measured by
or reasonably attributable to (a) the cost or value of Tenants equipment,
furniture, fixtures and other personal property located in the Premises, or
the cost or value of any leasehold improvements made in or to the Premises by
or for Tenant, other than Building Standard Work made by Landlord, regardless
of whether title to such improvements is held by Tenant or Landlord; (b) the
gross or net Rent payable under this Lease, including, without limitation, any
rental or gross receipts tax levied by any taxing authority with respect to the
receipt of the Rent hereunder; (c) the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof: or (d) this transaction or any document to
which Tenant is a party creating or transferring an interest or an estate in
the Premises. If it becomes unlawful for Tenant to reimburse Landlord for any
costs as required under this Lease, the Base Rent shall be revised to net
Landlord the same net Rent after imposition of any tax or other charge upon
Landlord as would have been payable to Landlord but for the reimbursement
being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant
acknowledges that the late payment of any Monthly Installment of Base Rent will
cause Landlord to lose the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact amount of
which is extremely difficult to ascertain. Therefore, in addition to interest,
if any such installment is not received by Landlord within ten (10) days from
the date it is due, Tenant shall pay Landlord a late charge equal to ten
percent (10%) of such installment. Landlord and Tenant agree that this late
charge represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by Tenant.
Acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent Landlord
from exercising any other rights or remedies available to Landlord under this
Lease.
7. SECURITY DEPOSIT.
Tenant agrees to deposit with Landlord the Security Deposit set forth at
Section 2.0 upon execution of this Lease, as security for Tenant's faithful
performance of its obligations under this Lease. Landlord and Tenant agree
that the Security Deposit may be commingled with funds of Landlord and Landlord
shall have no obligation or liability for payment of interest on such deposit.
Tenant shall not mortgage, assign, transfer or encumber the Security Deposit
without the prior written consent of Landlord and any attempt by Tenant to do so
shall be void, without force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may appropriate
and apply or use all or any portion of the Security Deposit for Rent payments
or any other amount then due and unpaid, for payment of any amount for which
Landlord has become obligated as a result of Tenant's default or breach, and
for any loss or damage sustained by Landlord as a result of Tenant's default or
breach, and Landlord may so apply or use this deposit without prejudice to any
other remedy Landlord may have by reason of Tenant's default or breach. If
Landlord so uses any of the Security Deposit, Tenant shall, within ten (10)
days after written demand therefor, restore the Security Deposit to the full
amount originally deposited; Tenant's failure to do so shall constitute an act
of default hereunder and Landlord shall have the right to exercise any remedy
provided for at Article 27 hereof. Within fifteen (15) days after the Term (or
any extension thereof) has expired or Tenant has vacated the Premises,
whichever shall last occur, and provided Tenant is not then in default on any
of its obligations hereunder, Landlord shall return the Security Deposit to
Tenant, or, if Tenant has assigned its interest under this Lease, to the last
assignee of Tenant. If Landlord sells its interest in the Premises, Landlord
may deliver this deposit to the purchaser of Landlord's interest and thereupon
be relieved of any further liability or obligation with respect to the Security
Deposit.
8. TENANTS USE OF THE PREMISES.
Tenant shall use the Premise solely for the purposes set forth in Tenant's Use
Clause. Tenant shall not use or occupy the Premises in violation of law or any
covenant, condition or restriction affecting the Building or Project or the
certificate of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
law or the certificate of occupancy. Tenant, at Tenant's own cost and expense,
shall comply with all laws, ordinances, regulations, rules and/or any
directions of any governmental agencies or authorities having jurisdiction
which shall, by reason of the nature of Tenant's use or occupancy
of the Premises, impose any duty upon Tenant or Landlord with respect to the
Premises or its use or occupation. A judgment of any court of competent
jurisdiction or the admission by Tenant in any action or proceeding against
Tenant that Tenant has violated any such laws, ordinances, regulations, rules
and/or directions in the use of the Premises shall be deemed to be a
conclusive determination of that fact as between Landlord and Tenant. Tenant
shall not do or permit to be done anything which will invalidate or increase
the cost of any fire, extended coverage or other insurance policy covering the
Building or Project and/or property located therein and shall comply with all
rules, orders, regulations, requirements and recommendations of the Insurance
Services Office or any other organization performing a similar function.
Tenant shall
(4)
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promptly upon demand reimburse Landlord for any additional premium charged for
such policy by reason of Tenant's failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or Project, or injure or annoy them, or use
or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purposes, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Tenant shall pay for the electricity and gas for office equipment and normal
copying equipment, and heating, ventilation and air conditioning ("HVAC") as
required for the comfortable use and occupancy of the Premises. Landlord shall
maintain and keep lighted the common stairs, common entries and restrooms in the
Building. Landlord shall not be default hereunder or be liable for any damages
directly or indirectly resulting from, nor shall the Rent be abated by reason of
(i) the installation, use or interruption of use of any equipment in connection
with the furnishing of any of the foregoing services, (ii) failure to furnish or
delay in furnishing any such services where such failure or delay is caused by
accident or any condition or event beyond the reasonable control of Landlord, or
by the making of necessary repairs or improvements to the Premises, Building or
Project, or (iii) the limitation, curtailment or rationing of, or restrictions
on, use of water, electricity, gas or any other form of energy serving the
Premises, Building or Project. Landlord shall not be liable under any
circumstances for a loss of or injury to property or business, however
occurring, through or in connection with or incidental to failure to furnish any
such services, if Tenant uses heat generating machines or equipment in the
Premises which affect the temperature otherwise maintained the HVAC system.
Landlord reserves the right to install supplementary air conditioning units in
the Premises and the cost thereof, including the cost of installation, operation
and maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
Tenant shall not, without the written consent of Landlord use any apparatus or
device in the Premises including without limitation, electronic data processing
machines, punch card machines or machines using in excess of 120 volts. Tenant
shall not connect any apparatus with electric current except through existing
electrical outlets in the Premises. Tenant shall not consume water in excess of
that usually furnished or supplied for the use of premises as general office
space (as determined by Landlord), without first procuring the written consent
of Landlord, which Landlord may refuse, and in the event of consent. Landlord
may have installed a water meter in the Premises to measure the amount of water
consumed. The cost of any such meter and of its installation, maintenance and
repair shall be paid for the Tenant and Tenant agrees to pay to Landlord
promptly upon demand for all such water consumed as shown by said meters, at the
rates charged for such services by the local public utility plus any additional
expense incurred in keeping account of the water so consumed. If a separate
meter is not installed, the excess cost for such water shall be established by
an estimate made by a utility company at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right to require
at any time separate metering of utilities furnished to the Premises. In the
event utilities are separately metered, Tenant shall pay promptly upon demand
for all utilities consumed at utility rates charged by the local public utility
plus any additional expense incurred by Landlord in keeping account of the
utilities so consumed. Tenant shall be responsible for the maintenance and
repair of any such meters at its sole cost. Tenant shall furnish janitorial
services and supplies for the leased Premises.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed conclusive evidence
that as of the date of taking possession the Premises are in good order and
satisfactory condition, except of such matters as to which Tenant gave Landlord
notice on or before the Commencement Date. No promise of Landlord to alter,
remodel, repair or improve the Premises, the Building or the Project and no
representation, express or implied, respecting any matter or thing relating to
the Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made to
Tenant by Landlord or its Broker or Sales Agent, other than as may be
contained herein or its Broker or Sales Agent, other than as may be contained
herein or in a separate exhibit or addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall maintain in good order,
condition and repair the Building and all other portions of the Premises
not the obligation of Tenant or of any other tenant in the Building,
including the heating, ventilating and air conditioning systems subject
to reimbursement as provided for in Article 5.3.
b. Tenant's Obligations.
(This section deleted. Initialed by _____.)
(2) Tenant at Tenant's sole expense shall, except for services furnished
by Landlord pursuant to Article 9 hereof, maintain the Premises in good
order, condition and repair, including the interior surfaces of the
ceilings, walls, and floors, all interior windows, all plumbing pipes
and fixtures, electrical wiring, switches and fixtures. Building
Standard furnishings and special items and equipment installed by or
at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and
to the Premises, Building and Project and the facilities and systems
thereof, the need for which arises out of (i) Tenant's use or occupancy
of the Premises, (ii) the installation, removal, use or operation of
Tenant's Property (as defined in Article 13) in the Premises, (iii) the
moving of Tenant's Property into or out of the Building, or (iv) the
act, omission, misuse or negligence of Tenant, its agents, contractors,
employees or invitees.
*Landlord shall furnish window washing services subject to reimbursement as
provided for in Article 5.3.
(5)
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(4) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails to
promptly commence such work and diligently prosecute it to completion,
then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform
such work. Any amount so expended by Landlord shall be paid by Tenant
promptly after demand with interest at the prime commercial rate then
being charged by Bank of America NT & SA plus two percent (2%) per
annum, from the date of such work, but not to exceed the maximum rate
then allowed by law. Landlord shall have no liability to Tenant for
any damage, inconvenience, or interference with the use of the
Premises by Tenant as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any
public authority relating to their respective maintenance obligations as
set forth herein.
d. Waiver by Tenant. Tenant expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford the Tenant the
right to make repairs at Landlord's expense or to terminate this Lease
because of Landlord's failure to keep the Premises in good order, condition
and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon demand. Tenant shall
not install business machines or mechanical equipment which cause noise or
vibration to such a degree as to be objectionable to Landlord or other
Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant nor shall Tenant's obligations under this Lease
be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or required by law
to make in or to any portion of the Project, Building or the Premises.
Landlord shall nevertheless use reasonable efforts to minimize any
interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical,
electrical, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
h. Upon the expiration or earlier termination of this Lease. Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage
to the Premises, including any structural damage, resulting from Tenant's
use or from the removal of Tenant's fixtures, furnishings and equipment
pursuant to Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or improvements to the
Premises without obtaining the prior written consent of Landlord.
Landlord's consent may be conditioned on Tenant's removing any such
additions, alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall
be diligently prosecuted to completion. Landlord may, at Landlord's
option, require that any such work be performed by Landlord's contractor,
in which case the cost of such work shall be paid for before commencement
of the work. Tenant shall pay to Landlord upon completion of any such
work by Landlord's contractor, an administrative fee of fifteen percent
(15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the Premises pursuant to
Section 12a, and shall keep the Premises, Building and Project free and
clear of liens of any kind. Tenant shall indemnify, defend against and
keep Landlord free and harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account of claims by any
person performing work or furnishing materials or supplies for Tenant or
any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this
Lease, free and clear of all attachment or judgment liens. Before the
actual commencement of any work for which a claim or lien may be filed,
Tenant shall give Landlord notice of the intended commencement date a
sufficient time before that date to enable Landlord to post notices of
non-responsibility or any other notices which Landlord deems necessary for
the proper protection of Landlord's interest in the Premises, Building or
the Project, and Landlord shall have the right to enter the Premises and
post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in an amount
equal to at least one and one-half (1 1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for mechanic's and
materialmen's liens and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its obligation under
Section 12b to keep the Premises, Building and, Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section 12a,
all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject to
the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section
13b.
(6)
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b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense
to Landlord, which can be removed without structural damage to the
Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Premises
(collectively "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the
Term: provided that if any of Tenant's Property is removed, Tenant shall
promptly repair any damage to the Premises or to the Building resulting
from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other tenants or
occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to Tenant
for (a) damage or injury to property, person or business, (b) causing an actual
or constructive eviction from the Premises, or (c) disturbing Tenant's use or
possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior notice to Tenant, to
inspect the Premises, and to show the Premises to any prospective purchaser
or mortgagee of the Project, or to any assignee of any mortgage on the
Project, or to others having an interest in the Project or Landlord, and
during the last six months of the Term, to show the Premises to prospective
tenants thereof; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use its
best efforts (except in an emergency) to minimize interference with
Tenant's business in the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises
or any part thereof, or permit the use of the Premises by any party other
than Tenant. Any of the foregoing acts without such consent shall be void
and shall, at the option of Landlord, terminate this Lease. This Lease
shall not, nor shall any interest of Tenant herein, be assignable by
operation of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises. Tenant
shall give notice to Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the proposed assignee
or subtenant. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall
have the option, exercisable by notice given to Tenant within twenty (20)
days after Tenant's notice is given, either to sublet such space from
Tenant at the rental and on the other terms set forth in this Lease for the
term set forth in Tenant's notice, or, in the case of an assignment, to
terminate this Lease. If Landlord does not exercise such option, Tenant may
assign the Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in
the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i) the total
sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the
Premises subleased), plus (ii) any real estate brokerage commissions or
fees payable in connection with such assignment or subletting, shall be
paid to Landlord as additional rent under this Lease without affecting
or reducing any other obligations of Tenant hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination option
to Landlord, to any corporation which controls, is controlled by or is under
common control with Tenant, or to any corporation resulting from a merger or
consolidation with Tenant, or to any person or entity which acquires all the
assets of Tenant's business as a going concern, provided that (i) the
assignee or sublessee assumes, in full, the obligations of Tenant under this
Lease, (ii) Tenant remains fully liable under this Lease, and (iii) the use
of the Premises under Article 8 remains unchanged.
(7)
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d. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to
pay the Rent and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of
default by an assignee or subtenant of Tenant or any successor of Tenant
in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies
against such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or sublettings or amendments or
modifications to the Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto and any such actions shall not relieve Tenant of
liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant proposes to do,
then Tenant shall, upon demand, pay Landlord an administrative fee of
One Hundred Fifty and No/100ths Dollars ($150.00) plus any attorneys'
fees reasonably incurred by Landlord in connection with such act or
request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied). Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
term and Base Rent), but the "Monthly Installments of Base Rent" payable by
Tenant shall be increased to one hundred fifty percent (150%) of the Monthly
Installments of Base Rent payable by Tenant at the expiration of the Term. Such
monthly rent shall be payable in advance on or before the first day of each
month. If either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance written
notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as
when Tenant took possession, except for (i) reasonable wear and tear,
(ii) loss by fire or other casualty, and (iii) loss by condemnation.
Tenant shall, on Landlord's request, remove Tenant's Property on or
before the Expiration Date and promptly repair all damage to the
Premises or Building caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the
Premises shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a bill of sale. If
Landlord elects to remove all or any part of such Tenant's Property, the
cost of removal, including repairing any damage to the Premises or
Building caused by such removal, shall be paid by Tenant. On the
Expiration Date Tenant shall surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the
elements of other casualty, Landlord shall, subject to the provisions of
this Article, promptly repair the damage, if such repairs can, in
Landlord's opinion, be completed within (90) ninety days. If Landlord
determines that repairs can be completed within ninety (90) days, this
Lease shall remain in full force and effect, except that if such damage
is not the result of the negligence or willful misconduct of Tenant or
Tenant's agents, employees, contractors, licensees or invitees, the Base
Rent shall be abated to the extent Tenant's use of the Premises is
impaired, commencing with the date of damage and continuing until
completion of the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion
of the Building necessary for Tenant's occupancy cannot be completed
within ninety (90) days, Landlord may elect, upon notice to Tenant given
within thirty (30) days after the date of such fire or other casualty,
to repair such damage, in which event this Lease shall continue in full
force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not so elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
c. If any other portion of the Building or Project is totally destroyed
or damaged to the extent that in Landlord's opinion repair thereof
cannot be completed within ninety (90) days. Landlord may elect upon
notice to Tenant given within thirty (30) days after the date of such
fire or other casualty, to repair such damage, in which event this Lease
shall continue in full force and effect, but the Base Rent shall be
partially abated as provided in Section 19a. If Landlord does not elect
to make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord
shall repair at its cost any injury or damage to the Building and
Building Standard Work in the Premises. Tenant shall be responsible at
its sole cost and expense for the repair, restoration and replacement of
any other Leasehold Improvements and Tenant's Property. Landlord shall
not be liable for any loss of business, inconvenience or annoyance
arising from any repair or restoration of any portion of the Premises,
Building or Project as a result of any damage from fire or other
casualty.
e. This Lease shall be considered an express agreement governing any
case of damage to or destruction of the Premises, Building or Project
by fire or other casualty, and any present or future law which purports
to govern the rights of Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public
purpose, this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
Building or Premises is so taken, this Lease shall be unaffected
by such taking, provided that (i) Tenant shall have the right to
terminate this Lease by notice to Landlord given within ninety (90)
days after the date of such taking if twenty percent (20%) or more of
the Premises is taken and the remaining area of the Premises is not
reasonably sufficient for Tenant to continue operation of its business,
and (ii) Landlord shall have the right to terminate this Lease by
notice to Tenant given within ninety (90) days after the date of such
taking. If either Landlord or Tenant so elects to terminate this Lease,
the Lease shall terminate on the thirtieth (30th) day after either such
notice. The Rent shall be prorated to the date of termination. If this
Lease continues in force upon such partial taking, the Base Rent and
Tenant's Proportionate Share shall be equitably adjusted according to
the remaining Rentable Area of the Premises and Project.
(8)
10
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assigns to
Landlord all of its right, title and interest in any award, judgment or
settlement from the condemning authority. Tenant, however, shall have the
right, to the extent that Landlord's award is not reduced or prejudiced,
to claim from the condemning authority (but not from Landlord) such
compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior to
the condemnation or taking, but only to the extent of Building Standard
Work. Tenant shall be responsible at its sole cost and expense for the
repair, restoration and replacement of any other Leasehold Improvements
and Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of Tenant
or any other person, or for any injury to or death of any person, arising
out of; (1) Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to be done in, on
or about the Premises; (2) any breach or default by Tenant of any of
Tenant's obligations under this Lease; or (3) any negligent or otherwise
tortious act or omission of Tenant, its agents, employees, invitees or
contractors. Tenant shall at Tenant's expense, and by counsel satisfactory
to Landlord, defend Landlord in any action or proceeding arising from any
such claim and shall indemnify Landlord against all costs, attorneys'
fees, expert witness fees and any other expenses incurred in such action
or proceeding. As a material part of the consideration for Landlord's
execution of this Lease, Tenant hereby assumes all risk of damage or
injury to any person or property in, on or about the Premises from any
cause.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees or
customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may leak
or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, whether such
damage or injury results from conditions arising upon the Premises or upon
other portions of the Building or Project or from other sources.
Landlord shall not be liable for any damages arising from any act or
omission of any other tenant of the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name Landlord, and at Landlord's request any mortgagee of Landlord,
as an additional insured, as their respective interests may appear. Each
policy shall contain (i) a cross-liability endorsement, (ii) a provision
that such policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and
that any coverage carried by Landlord shall be excess insurance, and
(iii) a waiver by the insurer of any right of subrogation against
Landlord, its agents, employees and representatives, which arises or
might arise by reason of any payment under such policy or by reason of
any act or omission of Landlord, its agents, employees or
representatives. A copy of each paid up policy (authenticated by the
insurer) or certificate of the insurer evidencing the existence and
amount of each insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of possession of
the Premises, and thereafter within thirty (30) days after any demand by
Landlord therefor. Landlord may, at any time and from time to time,
inspect and/or copy any insurance policies required to be maintained by
Tenant hereunder. No such policy shall be cancellable except after
twenty (20) days written notice to Landlord and Landlord's lender.
Tenant shall furnish Landlord with renewals or "binders" of any such
policy at least ten (10) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out and maintain such insurance,
Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together with a
twenty-five percent (25%) handling charge, payable upon demand. Tenant
shall have the right to provide such insurance coverage pursuant to
blanket policies obtained by the Tenant, provided such blanket policies
expressly afford coverage to the Premises, Landlord, Landlord's mortgagee
and Tenant as required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise and
other personal property from time to time in, on or about the Premises,
in an amount not less than one hundred percent (100%) of their actual
replacement cost from time to time, providing protection against any peril
included within the classification "Fire and Extended Coverage" together
with insurance against sprinkler damage, vandalism and malicious mischief.
The proceeds of such insurance shall be used for the repair or replacement
of the property so insured. Upon termination of this Lease following a
casualty as set forth herein, the proceeds under (i) shall be paid to
Landlord, and the proceeds under (ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in,
on or about the Premises, providing personal injury and broad form
property damage coverage for not less than combined single limit for
bodily injury, death and property damage liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and Tenant cannot mutually agree upon
the amounts of said increases, then Tenant agrees that all insurance
policy limits as set forth in this Article shall be adjusted for increases
in the cost of living in the same manner as is set forth in Section 5.2
hereof for the adjustment of the Base Rent.
(9)
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23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the other
and against the officers, employees, agents and representatives of the other,
on account of loss by or damage to the waiving party of its property or the
property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage. Tenant shall, upon
obtaining the policies of insurance required under this Lease, give notice to
its insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or first deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in
writing, subordinate its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any lease in which
Landlord is lessee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement, Tenant shall
have the right to obtain from any lender or lessor or Landlord requesting such
subordination, an agreement in writing providing that, as long as Tenant is not
in default hereunder, this Lease shall remain in effect for the full Term. The
holder of any security interest may, upon written notice to Tenant, elect to
have this Lease prior to its security interest regardless of the time of the
granting or recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee. Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and accepts
the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall execute
and deliver to Landlord or Landlord's designee, a written statement certifying
(a) that this Lease is unmodified and in full force and effect, or is in full
force and effect as modified and stating the modifications; (b) the amount of
Base Rent and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d) that
Landlord is not in default hereunder or, if Landlord is claimed to be in
default stating the nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at Landlord's election be
a default under this Lease and shall also be conclusive upon Tenant that; (1)
this Lease is in full force and effect and has not been modified except as
represented by Landlord: (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim or deduction
against Rent; and (3) not more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant,
Landlord may transfer the security deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
27. DEFAULT.
27.1 Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be
paid by Tenant under this Lease and such failure continues for five
(5) days after such payment is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure
continues for thirty (30) days after written notice thereof from
Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this Lease or on
any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of creditors,
or provides for an arrangement, composition, extension or adjustment
with its creditors; or
f. If Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed
within forty-five (45) days thereafter, or if under the provisions
of any law providing for reorganization or winding up of
corporations, any court of competent jurisdiction assumes
jurisdiction, custody or control of Tenant or any substantial part
of its property and such jurisdiction, custody or control of Tenant
or any substantial part of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a
trustee, receiver, agent or custodian is appointed to take charge of
the Premises or Tenant's Property (or has the authority to do so)
for the purpose of enforcing a lien against the Premises or Tenant's
Property; or
h. If Tenant is a partnership or consists of more than one (1) person
or entity, if any partner of the partnership or other person or
entity is involved in any of the acts or events described in
subparagraphs d through g above.
27.2 Remedies. In the event of Tenant's default hereunder, then in addition
to any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to possession of the
Premises and reenter the Premises and take possession thereof, and
Tenant shall have no further claim to the Premises or under this
Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other charges
which have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and Tenant's right to
possession of the Premises.
(10)
12
If Landlord reenters the Premises under the provisions of subparagraphs b or c
above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any reentry or retaking of possession by Landlord,
Landlord shall have the right, but not the obligation, to remove all or any
part of Tenant's Property in the Premises and to place such property in storage
at a public warehouse at the expense and risk of Tenant. If Landlord elects to
relet the Premises for the account of Tenant, the rent received by Landlord
from such reletting shall be applied as follows: first, to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; second, to
the payment of any costs of such reletting; third, to the payment of the cost
of any alterations or repairs to the Premises; fourth, to the payment of Rent
due and unpaid hereunder; and the balance, if any, shall be held by Landlord
and applied in payment of future Rent as it becomes due. If that portion of
rent received from the reletting which is applied against the Rent due
hereunder is less than the amount of the Rent due, Tenant shall pay the
deficiency to Landlord promptly upon demand by Landlord. Such deficiency shall
be calculated and paid monthly. Tenant shall also pay to Landlord, as soon as
determined, any costs and expenses incurred by Landlord in connection with such
reletting or in making alterations and repairs to the Premises, which are not
covered by the rent received from the reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the award of the
amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided;
plus
3. Rent After Award. 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 rental loss that Tenant proves
could be reasonably avoided; plus
4. Proximately Caused Damages. 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 the
ordinary course of things would be likely to result therefrom,
including, but not limited to, any costs or expenses (including
attorneys' fees), incurred by Landlord in (a) retaking possession
of the Premises, (b) maintaining the Premises after Tenant's
default, (c) preparing the Premises for reletting to a new tenant,
including any repairs or alterations, and (d) reletting the
Premises, including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above, is
to be computed by allowing interest at the rate of ten percent (10%) per
annum. "The worth at the time of the award" as used in subparagraph 3 above,
is to be computed by discounting the amount at the discount rate of the Federal
Reserve Bank situated nearest to the Premises at the time of the award plus one
percent (1%).
The waiver by Landlord of any breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such term, covenant or condition or of
any subsequent breach of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach
at the time of such acceptance of Rent. Landlord shall not be deemed to have
waived any term, covenant or condition unless Landlord gives Tenant written
notice of such waiver.
27.3 Landlord's Default. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease within thirty (30) days after
receipt of written notice from Tenant specifying such default, or if such
default cannot reasonably be cured within thirty (30) days, if Landlord fails
to commence to cure within that thirty (30) day period, then Landlord shall be
liable to Tenant for any damages sustained by Tenant as a result of Landlord's
breach; provided, however, it is expressly understood and agreed that if Tenant
obtains a money judgment against Landlord resulting from any default or other
claim arising under this Lease, that judgment shall be satisfied only out of
the rents, issues, profits, and other income actually received on account of
Landlord's right, title and interest in the Premises, Building or Project, and
no other real, personal or mixed property of Landlord (or of any of the partners
which comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgment. If, after notice to Landlord of default, Landlord (or
any first mortgagee or first deed of trust beneficiary of Landlord) fails to
cure the default as provided herein, then Tenant shall have the right to cure
that default at Landlord's expense. Tenant shall not have the right to
terminate this Lease or to withhold, reduce or offset any amount against any
payments of Rent or any other charges due and payable under this Lease except
as otherwise specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except those
noted in Section 2.c. Tenant shall indemnify and hold Landlord harmless from
any cost, expense or liability (including costs of suit and reasonable
attorneys' fees) for any compensation, commission or fees claimed by any other
real estate broker or agent in connection with this Lease or its negotiation by
reason of any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be given under this
Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and to
the Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and Tenant may from
time to time by notice to the other designate another place for receipt of
future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and Landlord shall have
the right to enforce compliance therewith, including the right of entry into the
Premises to effect compliance.
31. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another part of the
Building in accordance with the following:
(11)
13
a. The new premises shall be substantially the same in size,
dimensions, configuration, decor and nature as the Premises
described in this Lease, and if the relocation occurs after the
Commencement Date, shall be placed in that condition by Landlord at
its cost.
b. Landlord shall give Tenant at least thirty (30) days written notice
of Landlord's intention to relocate the Premises.
c. As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the
following Monday. If the physical relocation has not been completed
in that time, Base Rent shall abate in full from the time the
physical relocation commences to the time it is completed. Upon
completion of such relocation, the new premises shall become the
"Premises" under this Lease.
d. All reasonable costs incurred by Tenant as a result of the
relocation shall be paid by Landlord.
e. If the new premises are smaller than the Premises as it existed
before the relocation, Base Rent shall be reduced proportionately.
f. The parties hereto shall immediately execute an amendment to this
Lease setting forth the relocation of the Premises and the reduction
of Base Rent, if any.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms of
this Lease and to any mortgage, lease, or other agreement to which this Lease
may be subordinate.
33. OBSERVANCE OF LAW.
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 now in force or which may hereafter be in force, and 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 related to
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 is a party thereto or not, that Tenant has violated any law,
ordinance or governmental rule, regulation or requirement, shall be conclusive
of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Article 34 shall
excuse or delay Tenant's obligation to pay Rent or other charges under this
Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant
shall pay Landlord all costs of such performance promptly upon receipt of a
bill therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord shall have the right
to remove any signs or other matter, installed without Landlord's permission,
without being liable to Tenant by reason of such removal, and to charge the
cost of removal to Tenant as additional rent hereunder, payable within ten (10)
days of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this Lease
shall be deemed to be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of the Rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses,
including reasonable attorneys' fees, incurred on account of such action or
proceeding.
d. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles
and Sections in this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
lender on Landlord's interest, so long as these changes do not alter the basic
business terms of this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom consent to such
charge or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance
with the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to any claim
against Landlord for money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction, and
in such event, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, etc.
(12)
14
h. Corporate Authority. If Tenant is a corporation, each individual
signing this Lease on behalf of Tenant represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of the corporation,
and that this Lease is binding on Tenant in accordance with its terms. Tenant
shall, at Landlord's request, deliver a certified copy of a resolution of its
board of directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all
of which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant
shall be for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
of Tenant in the Premises or any other premises within the Building or
Project. Execution of this Lease by Tenant and its return to Landlord shall not
be binding on Landlord notwithstanding any time interval, until Landlord has in
fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations. In order
to induce Landlord to enter into this Lease Tenant agrees that it shall
promptly furnish Landlord, from time to time, upon Landlord's written request,
with financial statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease are
true, correct and complete in all respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or registered
mail to any first mortgagee or first deed of trust beneficiary of Landlord
whose address has been furnished to Tenant, a copy of any notice of default
served by Tenant on Landlord. If Landlord fails to cure such default within
the time provided for in this Lease, such mortgagee or beneficiary shall have
an additional thirty (30) days to cure such default; provided that if such
default cannot reasonably be cured within that thirty (30) day period, then
such mortgagee or beneficiary shall have such additional time to cure the
default as is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the
agreements of the parties with respect to any matter covered or mentioned in
this Lease, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provisions of this Lease may be
amended or added to except by an agreement in writing signed by the parties or
their respective successors in interest.
o. Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of Landlord, shall execute and
acknowledge a "short form" memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall not affect the
validity of any other provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
t. Compliance. The parties hereto agree to comply with all applicable
federal, state and local laws, regulations, codes, ordinances and
administrative orders having jurisdiction over the parties, property or the
subject matter of this Agreement, including, but not limited to, the 1964
Civil Rights Act and all amendments thereto, the Foreign Investment in Real
Property Tax Act, the Comprehensive Environmental Response Compensation and
Liability Act, and The Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent shall not constitute a
wavier of any other default; it shall constitute only a waiver of timely
payment for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance of the surrender of
the Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Date: Date: 11-16-95
----------------------------------- ----------------------------
Landlord: Hacienda Park Associates, a Tenant: Pro Business, Inc., a
------------------------------ ---------------------------------
California general partnership California corporation
------------------------------ ---------------------------------
By: Peter Canny, Jr. By: Mitch Everton
----------------------------------- ---------------------------
Title: Vice President Title: EVP - Operations
----------------------------------- ---------------------------
By: By:
----------------------------------- ---------------------------
Title: Title:
----------------------------------- ---------------------------
CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by CB Commercial as to the
legal sufficiency or tax consequences of this document or the transaction to
which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
(13)
15
ADDENDUM #1 TO LEASE
38. TENANT'S PROPORTIONATE SHARE:
Upon completion of tenant improvements, Tenant's proportionate share of
the building containing the Premises shall be 24.10%. Such share is a
fraction, the numerator of which is the Rentable Area of the Premises,
and the denominator of which is the Gross Area of the Building (Building
B), as determined by the Landlord from time to time. The Building
consists of 41,574 square feet. Tenant's proportionate share of the
Project shall be 12.05%. The Project consists of two buildings
situated on a total land area of 5.575 acres. The Project's land
value, related assessments, Outside Area Expenses and other expenses
allocated on the basis of land are allocated 50.01% to Building A and
49.99% to Building B. Tenant's proportionate share of the Project is a
product of Tenant's Building share multiplied by Building B's share of
the Project.
39. TENANT IMPROVEMENT ALLOWANCE:
(a) Landlord shall enter into a contract with a contractor of
Landlord's choice for the construction of the tenant improvements in
accordance with the Space Plan to be completed by Tenant. All tenant
improvement work shall be completed in accordance with all applicable
laws and in compliance with the Americans with Disabilities (ADA) as
interpreted by the City of Pleasanton in its review of the construction
documents for said tenant improvement work.
Landlord shall provide a tenant improvement allowance of Twelve and
No/100 Dollars ($12.00) per rentable square foot for said tenant
improvement work. The tenant improvement costs shall include all space
planning fees, architectural and engineering drawings and governmental
permit fees which will be deducted from the tenant improvement
allowance. Except for Tenant change-orders, Landlord shall not charge
Tenant a supervision fee or administrative fee in connection with the
tenant improvements. In the event that Tenant requests change-orders,
Landlord will charge Tenant as supervision fee for work connected to the
change-order(s).
In the event that the actual tenant improvement cost is greater than the
Twelve and No/100 Dollars ($12.00) per rentable square foot tenant
improvement allowance, Tenant shall pay to Landlord the difference
between the allowance and the actual cost. Tenant shall pay Landlord
said difference at the completion of tenant improvement work. Tenant
accepts the Premises in its current condition and Landlord has no
obligation to Tenant with respect to the Premises except as defined
herein. The Landlord shall diligently complete the tenant improvements,
however, in the event the space is not substantially completed by
the lease commencement date, the lease term shall still commence as
defined in paragraph 2.d. and rent shall be payable pursuant to
paragraph 2.j.
16
FIRST AMENDMENT TO LEASE DATED
NOVEMBER 13, 1995
This Amendment, dated the 23rd day of February, 1996, between Hacienda Park
Associates, a California general partnership, ("Landlord") and Pro Business,
Inc., a California Corporation, ("Tenant"), is for the premises located in the
City of Pleasanton, County of Alameda, State of California, commonly known as
4696 Willow Road.
Landlord and Tenant being parties to that certain Lease dated November 13, 1995
hereby express their mutual desire and intent to amend the Lease as herein
after provided.
1. COMMENCEMENT: February 15, 1996
2. TERMINATION: January 31, 2001
3. BASE RENT:
PERIOD (RATE/SQ.FT./MO. RENT/MO.
February 15, 1996 to January 31, 2001 $1.38 $13,837.26
4. CONTINUING OBLIGATIONS: Except as expressly set forth to the contrary in
this First Amendment, the Lease remains unmodified and in full force and
effect. To the extent of any conflict between the terms of the First Amendment
and the terms of the Lease, the terms of the First Amendment shall control.
In witness whereof, the parties have executed this First Amendment on the
date(s) set forth below, effective as of the day and year first above written
in one (1) or more copies.
AGREED AND ACCEPTED
LESSOR: Hacienda Park Associates, LESSEE: ProBusiness, Inc., a
a Delaware limited partnership California corporation
By: Peter Canny, Jr. By: Mitch Everton
----------------------- ---------------------------
Its: Vice President Its: EVP-OPERATIONS
----------------------- ---------------------------
Dated: 4-29-96 Dated: 4-24-96
----------------------- ---------------------------
17
EXHIBIT A
THE PREMISES
SARATOGA CENTER
4696 WILLOW ROAD
PLEASANTON, CALIFORNIA
18
EXHIBIT B
GIBRALTAR DRIVE NORTH
PAINEWEBBER PROPERTIES HACIENDA PARK ASSOCIATES
SARATOGA CENTER (30A)
5934 GIBRALTAR DR. (2 STORY)
4696 - 4698 WILLOW RD. (1 STORY)
PLEASANTON, CA
19
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building
without the prior written consent of the Landlord. Landlord shall have the
right to remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on doors
and walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person chosen by Landlord.
2. Except as consented to in writing by Landlord, or in accordance with
Building Standard Improvements, no curtains, blinds, shades, screens or hanging
plants or other similar objects attached to or used in connection with any
window or door of the Premises, Tenant shall immediately discontinue such use,
No awning shall be permitted on any part of the Premises. Tenant shall not
place anything against or near glass partitions or doors or windows which may
appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Building. No Tenant and
no employee or invitee of any tenant shall go upon the roof of the Building or
make any roof penetrations without the prior written consent of Landlord.
4. The main lobby directory of the Building will be provided exclusively
for the display of the name and location of the Building's tenants only, and
Landlord reserves the right to exclude any other names therefrom. Landlord
shall provide Tenant with a building standard wall or door mounted sign at or
adjacent to Tenant's main entrance to its Premises which shall identify Tenant
and its suite number.
5. All cleaning and janitorial services for the Building shall be provided
by Landlord in accordance with Landlord's specifications for said services, and
except with the written consent of Landlord, no person or persons other than
those approved by Landlord shall be employed by Tenant or permitted to enter
the Building for the purposes of cleaning. Tenant shall not cause any
unnecessary labor by carelessness or indifference to the good order and
cleanliness of the Premises or the Building. Landlord shall not in any way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage to any of Tenant's property by the janitor or any
other employee or any other person.
6. Landlord will furnish Tenant, free of charge, with two keys to each
door in the Premises that contains a lock set. Landlord may make a reasonable
charge for any additional keys and for having the locks changed. Tenant shall
not make or have made additional keys, and Tenant shall not alter any lock or
install any additional locks or bolts on any door of its Premises without the
prior written consent of Landlord. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys to all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay Landlord
therefor.
7. If Tenant requires telegraphic, telephonic burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
8. The elevators shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. No equipment, materials, furniture, packages, supplies,
merchandise
1
20
or other property will be received in the Building or carried in the elevators
except between such hours and in such elevators as may be designated by
Landlord.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Business machines and mechanical equipment belonging
to Tenant, which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate the impacts of noise or vibration on the
Building.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
flammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant shall
not use or permit to be used in the Premises any foul or noxious gas or
substance, or permit or allow the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors or vibrations. No animals, with the exception of
seeing eye dogs when in the company of their masters, may be brought into or
kept in the Building.
11. Tenant shall not use any method of heating or air-conditioning other
than that supplied by Landlord.
12. Tenant shall cooperate with Landlord to assure the most effective
operation of the Building's heating and air-conditioning and shall comply with
any governmental energy-saving rules, laws or regulations of which Tenant has
actual notice. Tenant shall refrain from attempting to adjust the Building's
heating, ventilating or air-conditioning controls other than the room
thermostats installed for Tenant's use. Tenant shall keep all corridor access
doors to its Premises closed and shall close window coverings at the end of
each business day.
13. Tenant shall be responsible for all persons for whom it requests access
to the Building's security system, and shall be liable to Landlord for all acts
of such persons. Landlord shall not be liable for damages resulting from the
admission to or exclusion from the Building of any person.
14. Tenant shall close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and turn off all lights and
other equipment which are not required to be continuously run at the close of
its business day. Tenant shall be responsible for any damages or injuries
sustained by other tenants or occupants of the Building or Landlord for
noncompliance with this rule.
15. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expenses of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant, or its employees or
invites.
16. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof or exterior walls of the Building. Tenant shall
not interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
17. Except as required to facilitate normal office occupancy, Tenant shall
not mark, drive nails, screw or drill into the partitions, woodwork or plaster
or in any way deface the Premises or any part thereof without the prior written
consent of Landlord. Tenant shall not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord. Tenant shall
repair any damage resulting from noncompliance with this rule at its sole cost
and expense.
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18. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the prior written consent of Landlord. In the event
Landlord so approves such installation Tenant shall be responsible for all
costs associated with such installation and shall remove the vending machines
at the end of such Term.
19. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or other substance or who is in violation of any of the Rules
or Regulations of the Building.
20. Tenant shall store all its trash and garbage within its Premises or in
such central facilities as may be provided by Landlord for Tenant's
non-exclusive use in the Outside Area. Tenant shall not place in any trash box
or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
21. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Premises be used for any improper, immoral, illegal or
objectional purpose.
22. Use of Underwriters' Laboratory (UL) approved equipment for brewing
coffee, tea, hot chocolate and similar beverages, (and refrigeration of such
products) shall be permitted provided that Tenant may utilize a UL approved
microwave oven to prepare prepackaged foods for its employees. No other than
as expressly provided herein no other food preparation shall be permitted.
Tenant's use of such equipment shall be in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and regulations
and shall not cause a nuisance to other Tenants in the building due to odors.
23. Tenant shall not use in any space or in the public halls of the
Building any hand truck except those equipped with rubber tires and side guards
or such other material-handling equipment as Landlord may approve, Tenant shall
not bring any other vehicles of any kind into the Building.
24. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the business of Tenant without the written consent of
Landlord except as to Tenant's address for its Premises.
25. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency
having jurisdiction over the Property. Tenant shall be responsible for any
increased insurance premiums attributable to Tenant's use of the Premises,
Building, or Property.
26. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked during
non-business hours and said means of entry to the Premises closed during normal
business entrance hours.
27. Tenant's request for assistance will be attended to only upon
appropriate application to Landlord by an authorized individual. Employees of
Landlord shall not perform any work on the Premises, other than that associated
with the provision of services to Tenant required of Landlord under the Lease
for the Premises, or implement a request of Tenant, unless that employee
receives written instructions from Landlord.
28. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building or other reserved
parking spaces. Tenant shall not leave vehicles in the building parking areas
overnight, nor park any vehicles in the Building parking areas other than
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automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks. Tenant, its agents, employees and invitees shall not park
any one (1) vehicle in more than one (1) parking space.
29. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other Tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or
any other Tenant, nor prevent Landlord from thereafter enforcing any such Rules
and Regulations against any or all of the tenants of the Building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of Premises in the Building.
31. Landlord reserves the right to make such other reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for the
safety, security, care and cleanliness of the Building and the Property and
preservation of good order therein. Tenant agrees to abide by all such Rules
and Regulations hereinabove stated and any additional rules and regulations
which are published by Landlord.
32. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
33. The scheduling and manner of all Tenant move-ins and move-outs shall be
subject to the discretion and approval of Landlord, and move-ins and move-outs
shall take place only after 6:00 p.m. on weekdays, on weekends or at other
times as Landlord may designate. Landlord shall have right to approve or
disapprove the movers or moving company employed by Tenant, and Tenant shall
cause the movers to use only the entry doors and elevators designated by
Landlord. if Tenant's movers damage the elevator or any other part of the
Property, Tenant shall pay to Landlord the amount required to repair the
damage.
34. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
35. Canvassing, soliciting, and distribution of handbills or other written
material and peddling in the Building are prohibited and each Tenant shall
cooperate to prevent these activities.
36. As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) On Monday through Friday, except holidays, from 7:00 a.m. to
7:00 p.m. (and other times for a reasonable additional charge to be fixed by
Landlord), ventilate the Premises and furnish air conditioning or heating on
such days and hours when in the judgment of Landlord it may be required for
the comfortable occupancy of the Premises. After hours usage shall be monitored
by the override meter which shall be installed in the Premises and the actual
cost of such usage shall be paid by Tenant.
(b) Furnish to the Premises, Monday through Friday, from 7:00 a.m.
to 7:00 p.m. electrical current as required by the Building Standard office
lighting and fractional horsepower office business machines in the amount of
approximately two and one-half (2.5) watts per square foot. Tenant agrees,
should its electrical installation or electrical consumption be in excess of
the aforesaid quantity or extend beyond normal business hours, to reimburse
Landlord monthly for the measured consumption at the terms, classifications and
rate charges to similar consumers by the public utility serving the
neighborhood in which the Building is located.
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COMPREHENSIVE DISCLOSURE AND AGREEMENT
DATE: November 13, 1995
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LESSOR: Hacienda Park Associates
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LESSEE: Pro Business, Inc.
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PROPERTY: 4696 Willow Road, Pleasanton, CA
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Street Address, City, State
Also known as: Saratoga Center
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BROKERS: CB Commercial Real Estate Group, Inc. representing Lessor
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Colliers Parrish International representing Lessee
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BROKER REPRESENTATION
- -- Check if applicable. Lessor and Lessee hereby acknowledge that Broker
represents both parties hereto; and both parties consent thereto.
NOTIFICATION RE: NATIONAL FLOOD INSURANCE PROGRAM
This property is or may be located in a Special Flood Hazard Area on United
States Department of Housing and Urban Development (HUD) "Special Flood Zone
Area Maps." Federal law requires that as a condition of obtaining federally
related financing on most properties located in "flood zones," banks, savings
and loan associations, and some insurance lenders require flood insurance to be
carried where the property, real or personal, is security for a loan. This
requirement is mandated by the National Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973. The purpose of the program is to
provide flood insurance to property owners at a reasonable cost. Cities or
counties participating in the National Flood Insurance Program may have adopted
building or zoning restrictions, or other measures, as part of their
participation in the program. You should contact the city or county in which
the property is located to determine any such restrictions. The extent of
coverage available in your area and the cost of this coverage may vary, and for
further information, you should consult your lender or insurance carrier.
FLOOD ZONE DESIGNATION: ZONE B SOURCE F.I.R.M. Panel #060012 0001 D,
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September 19, 1984
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HAZARDOUS WASTES OR SUBSTANCES AND UNDERGROUND STORAGE TANKS
Comprehensive federal and state laws and regulations have been enacted in the
past several years in an effort to control the use, storage, handling,
clean-up, removal and disposal of hazardous wastes or substances. Some of
these laws and regulations (such as, for example, the Comprehensive
Environmental Response Compensation and Liability Act [CERCLA]) provide for
broad liability on the part of owners, tenants, or other users of property for
clean-up costs and damages, regardless of fault. Other laws and regulations
set standards for the handling of asbestos, and establish requirements for the
use, modification, abandonment, and closure of underground storage tanks.
It is not practical or possible to list all such laws and regulations in this
Notice. Therefore, Lessors and Lessees are urged to consult legal counsel to
determine their respective rights and liabilities with respect to the issues
described in this Notice, as well as all other aspects of the proposed
transaction. If hazardous wastes or substances have been, or are going to be
used, stored, handled or disposed on the Property, or if the Property has been
or may have underground storage tanks, it is essential that legal and technical
advice be obtained to determine, among other things, the nature of permits and
approvals which have been obtained or may be required; the estimated costs and
expenses associated with the use, storage, handling, clean-up, disposal or
removal of hazardous wastes or substances; and the nature and extent of
contractual provisions necessary or desirable in this transaction. Broker
recommends expert assistance and site investigation to determine past uses of
the property, which may provide valuable information as to the likelihood of
hazardous wastes or substances, or underground storage tanks, being on the
Property.
Lessor agrees to disclose to Broker and to Lessee any and all information which
he/she/it has regarding present and future zoning and environmental matters
affecting the Property and regarding the condition of the Property, including,
but not limited to structural, mechanical and soils conditions, the presence
and location of asbestos, PCB transformers, other toxic, hazardous or
contaminated substances, and underground storage tanks, in, on, or about the
Property.
Broker has conducted no investigation regarding the subject matter hereof,
except as may be contained in a separate written document signed by Broker.
Broker makes no representations concerning the existence or nonexistence of
hazardous wastes or substances, or underground storage tanks, in, on, or about
the Property. Lessee should contact a professional, such as a civil engineer,
industrial hygienist or other persons with experience in these matters, to
advise on these matters.
The term "hazardous wastes or substances" is used herein in its very broadest
sense and includes, but is not limited to, petroleum based products, paints and
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonium
compounds, asbestos, PCBs and other chemical products. Hazardous wastes or
substances and underground storage tanks
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may be present on all types of real property. This Notice is intended to apply
to any transaction involving any type of real property, whether improved or
unimproved.
BROKER DISCLOSURE
The parties hereby expressly acknowledge that Broker has made no independent
determination or investigation regarding the following: present or future use
or zoning of the property; environmental matters affecting the Property; the
condition of the Property, including, but not limited to structural, mechanical
and soils conditions, as well as issues surrounding hazardous wastes or
substances as set out above; violations of the Occupational Safety and Health
Act or any other federal, state, county or municipal laws, ordinances, or
statutes; measurements of land and/or buildings. Lessee agrees to make its own
investigation and determination regarding such items.
A REAL ESTATE BROKER IS QUALIFIED TO ADVISE ON REAL ESTATE. IF YOU DESIRE
LEGAL ADVICE, CONSULT YOUR ATTORNEY.
AMERICANS WITH DISABILITIES ACT (ADA)
Owners or tenants of real property may be subject to the Americans with
Disabilities Act (ADA), a federal law codified at 42 USC Section 12101 et seq.
Among other requirements of the ADA that could apply to your property, Title
III of the Act requires owners and tenants of "public accommodations" to remove
barriers to access by disabled persons and provide auxiliary aids and services
for hearing, vision or speech impaired persons. The regulations under Title
III of the ADA are codified at 28 CFR Part 36.
Broker recommends that you and your attorney review the ADA and the
regulations, and, if appropriate, your proposed lease agreement, to determine
if this law would apply to you and the nature of the requirements. These are
legal issues. You are responsible for conducting your own independent
investigation of these issues.
COMPLIANCE WITH LAWS
The parties hereto agree to comply with all applicable federal, state and local
laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
ALQUIST-PRIOLO NOTIFICATION: ALQUIST-PRIOLO SPECIAL EARTHQUAKE STUDIES ZONE ACT
(CALIFORNIA ONLY)
The Property described above is or may be situated in a Special Studies Zone as
designated under the Alquist-Priolo Special Studies Zone Act, Sections
2621-2630, inclusive, of the California Public Resources Code; and, as such,
the construction or development on the Property of any structure for human
occupancy may be subject to the findings of a geologic report prepared by a
geologist registered in the State of California, unless such report is waived
by the city or county under the terms of that Act. No representations on the
subject are made by Lessor or by CB COMMERCIAL REAL ESTATE GROUP, INC. or its
agents or employees, and the Lessee should make his/her/its own inquiry or
investigation.
SPECIAL STUDIES ZONE YES XX NO SOURCE Special Studies Zone Map, Dublin
--- --- ------------------------------------
Quadrangle, Jan. 1, 1982
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For further information you may wish to contact appropriate city or county
agencies:
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RECEIPT OF A COPY OF THIS NOTICE AND AGREEMENT IS HEREBY ACKNOWLEDGED.
Dated November 13, 1995 ProBusiness, Inc.
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By: Mitch Everton
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Dated , 199
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By: PD
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CONSULT YOUR ADVISORS: NO REPRESENTATION OR RECOMMENDATION IS MADE BY CB
COMMERCIAL REAL ESTATE GROUP, INC. OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
EFFECT, INTERPRETATION, OR ECONOMIC CONSEQUENCES OF THE NATIONAL FLOOD
INSURANCE PROGRAM AND RELATED LEGISLATION, NOR OF OTHER LEGISLATION REFERRED TO
HEREIN. THESE ARE QUESTIONS THAT YOU SHOULD ADDRESS WITH YOUR CONSULTANTS AND
ADVISORS.
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