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EXHIBIT 10.51
LEASE AGREEMENT
(NNN)
BASIC LEASE INFORMATION
LEASE DATE: December 18, 1996
LANDLORD: Lincoln-Whitehall Realty (West), L.L.C.,
a Delaware limited liability company
LANDLORD'S ADDRESS: c/o Lincoln Property Company Management Services, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
TENANT: Cisco Systems, Inc., a California corporation
TENANT'S ADDRESS: 170 W. Tasman Drive
San Jose, California 95124
Attention: Chris Hampton, Director,
Real Estate Worldwide
PREMISES: Approximately 84,935 rentable square feet as shown on
Exhibit A
PREMISES ADDRESSES: Building C: 130 Baytech Drive, San Jose,
California 95134
Building D: 140 Baytech Drive, San Jose,
California 95134
BUILDINGS (C & D): Approximately 84,935
rentable square feet
LOT (PARK'S TAX PARCEL): APN 015-30-093
PARK (LINCOLN BAY TECH PARK): Approximately 188,825
rentable square feet
TERM: July 1, 1997 ("Commencement Date"), through June 30,
2001 ("Expiration Date"), subject to the
provisions of Section 2 hereof.
BASE RENT (Paragraph 3): One hundred twenty-three
thousand one hundred fifty-five and
75/100 dollars ($123,155.75) per month
($1.45 per rentable square foot)
commencing on the Commencement Date
through June 30, 1998.
ADJUSTMENTS TO BASE RENT: Effective July 1, 1998, Base Rent shall increase to
$127,402.50 per month ($1.50 per rentable square
foot).
Effective July 1, 1999, Base Rent shall
increase to $131,649.25 per month ($1.55
per rentable square foot).
Effective July 1, 2000, Base Rent shall increase to
$135,896.00 per month ($1.60 per rentable square
foot).
SECURITY DEPOSIT
(Paragraph 4): Waived
*TENANT'S SHARE OF OPERATING EXPENSES (Paragraph 6.1): 45% of the Park
*TENANT'S SHARE OF TAX EXPENSES (Paragraph 6.2): 45% of the Park
*TENANT'S SHARE OF COMMON AREA UTILITY COSTS (Paragraph 7): 45% of the Park
*TENANT'S SHARE OF UTILITY EXPENSES (Paragraph 7): 45% of the Park
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
PERMITTED USES
(Paragraph 9): General office, industrial, assembly, light
manufacturing and distribution of computer products,
but only to the extent permitted by the City of San
Jose and all agencies and governmental authorities
having jurisdiction thereof
UNRESERVED
PARKING SPACES: Three hundred nineteen (319) non-exclusive and
undesignated spaces
BROKERS (Paragraph 38): Dennis Chambers of CPS for Tenant
Wayne Mascia Associates for Landlord
EXHIBITS: Exhibit A - Premises, Building, Lot and/or Park
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Covenants, Conditions and Restrictions
(Intentionally Omitted)
Exhibit E - Hazardous Materials Disclosure
Certificate - Example
Exhibit F - Change of Commencement Date - Example
Exhibit G - Tenant's Initial Hazardous Materials
Disclosure Certificate
Exhibit H - Sign Criteria (Intentionally Omitted)
ADDENDA: Addendum 1: First Option to Extend the Lease
Addendum 2: Second Option to Extend the Lease
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TABLE OF CONTENTS
SECTION PAGE
1. PREMISES.............................................................. 3
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES............ 3
3. RENT.................................................................. 4
4. SECURITY DEPOSIT...................................................... 5
5. TENANT IMPROVEMENTS................................................... 5
6. ADDITIONAL RENT....................................................... 5
7. UTILITIES............................................................. 8
8. LATE CHARGES.......................................................... 9
9. USE OF PREMISES....................................................... 9
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES..................10
11. REPAIRS AND MAINTENANCE...............................................11
12. INSURANCE.............................................................12
13. WAIVER OF SUBROGATION.................................................14
14. LIMITATION OF LIABILITY AND INDEMNITY.................................14
15. ASSIGNMENT AND SUBLEASING.............................................15
16. AD VALOREM TAXES......................................................17
17. SUBORDINATION.........................................................17
18. RIGHT OF ENTRY........................................................17
19. ESTOPPEL CERTIFICATE..................................................18
20. TENANT'S DEFAULT......................................................18
21. REMEDIES FOR TENANT'S DEFAULT.........................................19
22. HOLDING OVER..........................................................20
23. LANDLORD'S DEFAULT....................................................20
24. PARKING...............................................................20
25. SALE OF PREMISES......................................................20
26. WAIVER................................................................21
27. CASUALTY DAMAGE.......................................................21
28. CONDEMNATION..........................................................22
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS.............................22
30. FINANCIAL STATEMENTS..................................................24
31. GENERAL PROVISIONS....................................................24
32. SIGNS.................................................................26
33. MORTGAGEE PROTECTION..................................................26
34. QUITCLAIM.............................................................26
35. MODIFICATIONS FOR LENDER..............................................26
36. WARRANTIES OF TENANT..................................................26
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT.......................27
38. BROKERAGE COMMISSION..................................................27
39. QUIET ENJOYMENT.......................................................28
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS........28
41. TENANT'S ABILITY TO PERFORM LANDLORD'S UNPERFORMED OBLIGATIONS........24
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LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date set forth on
Page 1. The Basic Lease Information set forth on Page 1 and this Lease
are and shall be construed as a single instrument.
1. PREMISES: Landlord hereby leases the Premises to Tenant upon the terms and
conditions contained herein. Landlord hereby grants to Tenant a license for the
right to use, on a non-exclusive basis, parking areas and ancillary facilities
located within the Common Areas of the Park, subject to the terms of this Lease;
provided, however, such license shall only be revocable (i) if Tenant is in
default of its obligations under this Lease beyond applicable cure periods, or
(ii) upon the expiration or earlier termination of this Lease. For purposes of
this Lease, the term "Premises" shall mean and refer to the entirety of both of
the Buildings, namely, Building A and Building B situated within the Park.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of the Premises, the Buildings, the
Lot and the Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information on Page 1; provided, however, within
fifteen (15) days after the date on which Landlord causes the Buildings to be
Substantially Completed (as such term is defined in Exhibit B hereto), Tenant
may have its architect verify the actual rentable square feet contained within
the Premises (i.e. the Buildings), provided that the basis of such measurement
shall be measured from drip line to drip line and not in accordance with BOMA
standards. Tenant hereby acknowledges that the rentable square footage of the
Premises may include a proportionate share of certain areas used in common by
all occupants of the Buildings (for example an electrical room or telephone
room). Landlord and Tenant hereby acknowledge and agree that as of the Lease
Date the Buildings have not been constructed on the Lot. After Landlord has
Substantially Completed (as such term is defined in Exhibit B hereto) the Shell
Improvements, Landlord and Tenant shall execute a written amendment to this
Lease, substantially in the form of Exhibit F hereto, wherein the parties shall
specify the (i) actual approximate rentable square footage of each of the
Premises, the Buildings and the Park, (ii) actual amount of Base Rent to be paid
by Tenant, which shall be based upon the amount of base rent per rentable square
foot as set forth in the Basic Lease Information, (iii) actual amount of
Tenant's Share of the expenses set forth in the Basic Lease Information, which
share shall be based upon such approximate rentable square footages, and (iv)
the Premises Addresses. Tenant further agrees that the number of rentable square
feet of the Buildings, the Lot and the Park may subsequently change after the
Lease Date commensurate with any modifications to any of the foregoing by
Landlord due to any casualty to, or condemnation of, any portion of the
Premises, and Tenant's Share shall accordingly change.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES:
2.1 If on the Commencement Date (a) Landlord has not delivered
possession of the Premises with only the Shell Improvements (defined in Exhibit
B hereto) Substantially Completed, and (b) Tenant has not Substantially
Completed the Tenant Improvements, Landlord shall not be subject to any
liability nor shall the validity of the Lease be affected; provided, subject to
the provisions set forth below, the Lease Term and the obligation to pay Rent
shall commence on the date which is the earlier to occur of (i) the date on
which Tenant has Substantially Completed the Tenant Improvements (defined in
Exhibit B hereto), or (ii) the date which is ninety (90) business days after
Landlord has Substantially Completed the Shell Improvements (provided, said
90-business day period may be extended by a maximum of an additional period of
30 days if Tenant is delayed from Substantially Completing the Tenant
Improvements wholly due either to delays attributable to Landlord's failure to
timely perform its obligations with respect to the Shell Improvements because of
events within Landlord's control (the "Landlord Delays") or events considered to
be Force Majeure Delays (defined in Exhibit B hereto). The Expiration Date shall
also be extended commensurately therewith. In addition to the foregoing and
notwithstanding anything to the contrary contained herein or in Exhibit B
hereto, if Landlord does not tender possession to Tenant of the Premises with
the Shell Improvements Substantially Complete by November 15, 1997 (the "Outside
Date") (subject to any Force Majeure Delays or Tenant Delays, in which event the
date of November 15, 1997 shall be extended commensurately by the period of time
attributable to such delays), then either Tenant or Landlord may terminate this
Lease by delivering written notice thereof to the other party no later than the
date which is ten (10) business days after the Outside Date, as extended by the
period of time attributable to any Force Majeure Delays and/or Tenant Delays. In
addition to the foregoing and notwithstanding anything to the contrary contained
herein or in Exhibit B hereto, if Landlord does not tender possession to Tenant
of the Premises with the Shell Improvements Substantially Complete by March 1,
1998 (the "Ultimate Outside Date") (subject to any Tenant Delays, in which event
the date of March 1, 1998 shall be extended commensurately by the period of time
attributable to such delays), then either Tenant or Landlord may terminate this
Lease by delivering written notice thereof to the other party no later than the
date which is ten (10) business days after the Ultimate Outside Date, as
extended by the period of time attributable to any Tenant Delays. If either
party fails to timely terminate the Lease as and when provided herein, or if
Landlord delivers to Tenant possession of the Premises with the Tenant
Improvements Substantially Complete at any time earlier than the Outside Date
(as such date may be extended due to Force Majeure Delays or Tenant Delays, as
the case may be) or the Ultimate Outside Date (as such date may be extended due
to Tenant Delays), as applicable, then upon the occurrence of any such events
the foregoing right given to Tenant and Landlord to terminate this Lease as
provided herein shall lapse and be null and void upon the earlier occurrence of
such event and the Lease shall remain in full force and effect with Tenant and
Landlord having no further right to terminate this Lease pursuant to the
foregoing provisions. If Landlord does so timely deliver to Tenant possession of
the Premises with the Shell Improvements Substantially Complete, Tenant shall
promptly deliver
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written notice to Landlord confirming same. In the event the commencement date
and/or the expiration date of this Lease is other than the Commencement Date
and/or Expiration Date provided on Page 1 in the Basic Lease Information, as the
case may be, Landlord and Tenant shall execute a written amendment to this
Lease, substantially in the form of Exhibit F hereto, wherein the parties shall
specify the actual commencement date, expiration date, the date on which Tenant
is to commence paying Rent and the other matters referred to in Section 1 above.
The word "Term" whenever used herein refers to the initial term of this Lease
and any extension thereof. Except as otherwise expressly set forth below with
regard to Punchlist Items, by taking possession of the Premises with only the
Shell Improvements Substantially Completed, Tenant shall be deemed to have
accepted the Premises in a good, clean and completed condition and state of
repair. Notwithstanding the foregoing, within three (3) business days after the
Substantial Completion (as such term is defined in Exhibit B hereto) of the
Shell Improvements representatives of Landlord and Tenant shall make a joint
inspection of the Shell Improvements and the results of each such inspection
shall be set forth in a written list specifying the incomplete items as well as
those items for which corrections need to be made (the "Punchlist Items").
Landlord and Tenant shall promptly (by no later than three (3) business days
thereafter) and in good faith approve the written list of Punchlist Items.
Landlord, at its sole cost and expense, shall use commercially reasonable
efforts to cause the Punchlist Items to be promptly completed and/or corrected,
as applicable. The performance of the work associated with the Punchlist Items
shall be performed in such a manner so as not to preclude or substantially
prevent Tenant's ability to construct the Tenant Improvements in the Premises.
Upon the completion of the Punchlist Items to Tenant's reasonable satisfaction
Tenant shall immediately notify Landlord in writing that such items have been
completed to Tenant's reasonable satisfaction. In addition to the Punchlist
Items, Landlord shall also use commercially reasonable efforts to cause the
general contractor to correct any other patent deficiencies or defects in the
Shell Improvements during the thirty (30) day period following Substantial
Completion of the Shell Improvements. If Tenant fails to timely deliver to
Landlord any such written notice of the aforementioned patent defects or
deficiencies within said 30-day period, Landlord shall have no obligation to
perform any such work thereafter, except as otherwise specifically provided in
Sections 5 and 14 of this Lease. Tenant hereby acknowledges and agrees that
neither Landlord nor Landlord's agents or representatives has made any
representations or warranties as to the suitability, safety or fitness of the
Premises for the conduct of Tenant's business, Tenant's intended use of the
Premises or for any other purpose.
2.2 Landlord shall permit Tenant to enter and occupy the Premises
prior to the Commencement Date for purposes of installing a portion of the
Tenant Improvements and to perform Tenant's Pre-Occupancy Work (as such term is
defined in Exhibit B hereto). Landlord shall consult with its general contractor
and shall notify Tenant, in writing, of the date on which Tenant may commence
such limited purpose occupancy. In no event may Tenant conduct its business or
operations from the Premises until after the Commencement Date. Such limited
purpose occupancy by Tenant shall be at Tenant's sole risk and shall also be
subject to all of the provisions of this Lease other than the requirement to pay
Rent (other than any Utility Expenses incurred during the time period Tenant is
constructing the Tenant Improvements), including, but not limited to, the
requirement to obtain the insurance required pursuant to this Lease (including
without limitation, the provisions of Exhibit B hereto) and to deliver insurance
certificates as required herein, and to pay for all utilities and Utility
Expenses to the extent incurred during the time period Tenant is constructing
the Tenant Improvements. In addition to the foregoing and the provisions of
Exhibit B hereto regarding such early occupancy, Landlord shall have the right
to impose such additional conditions on Tenant's early entry as Landlord shall
deem reasonably appropriate. If, at any time, Tenant is in default of any term,
condition or provision of this Lease, any such waiver by Landlord of Tenant's
requirement to pay rental payments shall be null and void and Tenant shall
immediately pay to Landlord all rental payments so waived by Landlord.
3. RENT: On the date that Tenant executes this Lease, Tenant shall deliver to
Landlord the original executed Lease, the Base Rent (which shall be applied
against the Rent payable for the first month Tenant is required to pay Base
Rent), and all insurance certificates or, alternatively, the letter required
pursuant to Section 12.5 hereof, evidencing the insurance required to be
obtained by Tenant under Section 12 of this Lease and under the provisions of
Exhibit B hereto. Tenant agrees to pay Landlord, without prior notice or demand,
or abatement (except as otherwise set forth in Sections 27 and 41 hereof),
offset, deduction or claim, the Base Rent described on Page 1, payable in
advance at Landlord's address shown on Page 1 on the Commencement Date and
thereafter on the first (1st) day of each month throughout the Term of the
Lease. In addition to the Base Rent set forth on Page 1, Tenant shall pay
Landlord in advance, on the Commencement Date and thereafter on the first (1st)
day of each month throughout the Term of this Lease, as Additional Rent,
Tenant's Share of Operating Expenses, Tax Expenses, Common Area Utility Costs,
and Utility Expenses. The term "Rent" whenever used herein refers to the
aggregate of all these amounts. If Landlord permits Tenant to occupy the
Premises to conduct business operations therein without requiring Tenant to pay
rental payments for a period of time, the waiver of the requirement to pay
rental payments shall only apply to waiver of the Base Rent and Tenant shall
otherwise perform all other obligations of Tenant required hereunder. The Rent
for any fractional part of a calendar month at the commencement or termination
of the Lease term shall be a prorated amount of the Rent for a full calendar
month based upon a thirty (30) day month. The prorated Rent shall be paid on the
Commencement Date and the first day of the calendar month in which the date of
termination occurs, as the case may be.
4. SECURITY DEPOSIT: Intentionally omitted.
5. TENANT IMPROVEMENTS: Upon Substantial Completion by Landlord of the Shell
Improvements and the completion by Landlord of any Punchlist Items, Tenant
hereby agrees to accept the Premises in its then current
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"AS IS" condition. Subject to the provisions of Exhibit B hereto, Tenant shall
install the improvements ("Tenant Improvements") in the Premises in accordance
with the terms, conditions, criteria and provisions set forth in Exhibit B
hereto. Tenant acknowledges that neither Landlord nor any of Landlord's agents,
representatives or employees has made any representations as to the suitability
or fitness of the Premises for the conduct of Tenant's business, including
without limitation, any storage incidental thereto, or for any other purpose,
and that neither Landlord nor any of Landlord's agents, representatives or
employees has agreed to undertake any alterations or construct any Tenant
Improvements to the Premises except for the construction of the Shell
Improvements as expressly provided in Exhibit B to this Lease. Notwithstanding
the foregoing, Landlord shall allow Tenant to, concurrently with Landlord (if
Landlord so desires, otherwise separately), make a claim against Landlord's
general contractor for any patent or latent defects in the initial design or
construction of the Shell Improvements for a period of five (5) years after the
date on which the Shell Improvements are Substantially Completed. In addition to
the foregoing, Tenant shall be entitled to enforce, concurrently with Landlord,
any warranties made or given to Landlord from the general contractor and any
major subcontractors with respect to the Shell Improvements. Notwithstanding
anything to the contrary contained herein, Tenant shall allow Landlord to,
concurrently with Tenant (if Tenant so desires, otherwise separately), or after
the expiration or earlier termination of this Lease, individually, make a claim
against Tenant's general contractor, namely Devcon Construction Inc. (the
"Tenant's General Contractor") for any patent or latent defects in the initial
design or construction of the Tenant Improvements for a period of five (5) years
after the date on which the Tenant Improvements are substantially completed. In
addition to the foregoing, Landlord shall be entitled to enforce, concurrently
with Tenant, or after the expiration or earlier termination of this Lease,
individually, any warranties made or given to Tenant from the Tenant's General
Contractor and any major subcontractors with respect to the Tenant Improvements.
Each of Landlord and Tenant shall be third party beneficiaries of the other
party's construction agreements, and accordingly, each party hereby agrees to
include a provision in their respective construction contracts to effectuate
same.
6. ADDITIONAL RENT : It is intended by Landlord and Tenant that this Lease be a
"triple net lease". The costs and expenses described in this Section 6 and all
other sums, charges, costs and expenses specified in this Lease other than Base
Rent are to be paid by Tenant to Landlord as additional rent (collectively,
"Additional Rent").
6.1 OPERATING EXPENSES: In addition to the Base Rent set forth in
Section 3, Tenant shall pay Tenant's Share, which is defined on Page 1, of all
Operating Expenses as Additional Rent. The term "Operating Expenses" as used
herein shall mean the total actual amounts paid or payable by Landlord in
connection with the ownership, maintenance, repair and operation of the
Premises, the Buildings and the Lot, and where applicable, of the Park referred
to on Page 1. The amount of Tenant's Share of Operating Expenses shall be
reviewed from time to time by Landlord and shall be subject to modification by
Landlord if there is a change in the rentable square footage of the Premises,
the Buildings and/or the Park due to any casualty or condemnation of any portion
of the Premises. These Operating Expenses may include, but are not limited to:
6.1.1 Landlord's cost of repairs to, and maintenance of,
the non-structural portions of the roof, the roof membrane and the
non-structural portions of the exterior walls of the Buildings;
6.1.2 Landlord's cost of maintaining the outside paved
area, landscaping and other common areas for the Park. The term
"Common Areas" shall mean all areas and facilities within the Park
exclusive of the Premises and the other portions of the Park leased
exclusively to other tenants. The Common Areas include, but are not
limited to, parking areas, access and perimeter roads, sidewalks,
landscaped areas and similar areas and facilities;
6.1.3 Landlord's annual cost of insurance insuring against
fire and extended coverage (including, if Landlord elects, "all risk"
or "special purpose" coverage) and all other insurance, including, but
not limited to, earthquake, flood and/or surface water endorsements
for the Buildings, the Lot and the Park (including the Common Areas),
rental value insurance against loss of Rent in an amount equal to the
amount of Rent for a period of no more than twelve (12) months
commencing on the date of loss, and subject to the provisions of
Section 27 below, any commercially reasonable deductible;
6.1.4 Landlord's cost of: (i) modifications and/or new
improvements to the Buildings, the Common Areas and/or the Park
occasioned by any rules, laws or regulations effective subsequent to
the date on which the Buildings are Substantially Completed; (ii)
reasonably necessary replacement improvements to the Buildings, the
Common Areas and the Park after the Commencement Date; and (iii) new
improvements to the Buildings, the Common Areas and/or the Park that
reduce operating costs or improve life/safety conditions, all as
reasonably determined by Landlord, in its sole discretion; provided,
however, if any of the foregoing are in the nature of capital
improvements, then the cost of such capital improvements shall be
amortized on a straight-line basis over a reasonable period, which
shall not be less than the lesser of fifteen (15) years or the
reasonably estimated useful life of such modifications, new
improvements or replacement improvements in question (at an interest
rate as reasonably determined by Landlord), and Tenant shall pay
Tenant's Share of the monthly amortized portion of such costs
(including interest charges) as part of the Operating Expenses herein;
6.1.5 If Landlord elects to so procure, Landlord's cost of
preventative maintenance, and repair contracts including, but not
limited to, contracts for elevator systems and heating, ventilation
and air conditioning systems, lifts for disabled persons, and trash or
refuse collection in the Buildings only;
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6.1.6 Landlord's cost of security and fire protection
services for the Buildings and/or the Park, as the case may be, if in
Landlord's reasonable discretion such services are provided;
6.1.7 Landlord's cost for the creation and negotiation of,
and pursuant to, any licenses, easements or other similar undertakings
benefitting the Buildings or Tenant's use of portions of the Park to
the extent incurred after the Commencement Date;
6.1.8 Landlord's cost of supplies, equipment, rental
equipment and other similar items used in the operation and/or
maintenance of the Park;
6.1.9 Landlord's cost for the repairs and maintenance items
set forth in Section 11.2 below; and
6.1.10 Landlord's cost for the management and
administration of the Premises, the Buildings, the Common Areas and
the Park, including without limitation, a property management fee,
accounting, auditing, billing, salaries for clerical and supervisory
employees (whether located within the Park or off-site) and all fees,
licenses and permits related to the ownership, operation and
management of any portion of the Park in an amount not to exceed three
percent (3%) of the Base Rent.
Notwithstanding anything to the contrary contained herein,
for purposes of this Lease, the term "Operating Expenses" shall not include the
following:
(a) Costs (including permit, license, and inspection fees)
incurred in renovating, improving, decorating, painting, or
redecorating vacant space or space for other tenants within the Park;
(b) Costs incurred because Landlord or another tenant
actually violated the terms of any lease for premises within the
Buildings and/or Park;
(c) Legal and auditing fees (other than those fees
reasonably incurred in connection with the maintenance and operation
of the Buildings and/or Park), leasing commissions, advertising
expenses, and other costs incurred in connection with the original
development or original leasing of the Buildings and/or Park or future
re-leasing of the Buildings and/or Park;
(d) Depreciation of the Buildings or any other improvements
situated within the Park;
(e) Any items for which Landlord is actually reimbursed by
insurance or by direct reimbursement by any other tenant of the
Buildings or Park;
(f) Costs of repairs or other work necessitated by fire,
windstorm or other casualty (excluding any commercially reasonable
deductibles) and/or costs of repair or other work necessitated by the
exercise of the right of eminent domain to the extent insurance
proceeds or a condemnation award, as applicable, is actually received
by Landlord for such purposes; provided such costs of repairs or other
work shall be paid by the parties in accordance with the provisions of
Sections 27 and 28 below;
(g) Other than any interest charges for capital
improvements referred to in Section 6.1.4 hereinabove, any interest or
payments on any financing for the Buildings or the Park, interest and
penalties incurred as a result of Landlord's late payment of any
invoice (provided that Tenant pays Tenant's Share of Operating
Expenses and Tax Expenses to Landlord when due as set forth herein),
and any bad debt loss, rent loss or reserves for same;
(h) Costs associated with the investigation and/or
remediation of Hazardous Materials (hereafter defined) present in, on
or about the Premises, the Buildings or the Park, unless such costs
and expenses are the responsibility of Tenant as provided in Section
29 of this Lease, in which event such costs and expenses shall be paid
solely by Tenant in accordance with the provisions of Section 29 of
this Lease;
(i) Costs of correcting defects in the initial design or
construction of the Shell Improvements or the repair or replacement of
any original materials and equipment as a result of such defects, as
long as such defects are covered by warranties from the contractors
performing such work and Landlord has actually received compensation
therefor; and
(j) Landlord's cost for the repairs and maintenance items
set forth in Section 11.3 below.
6.2 TAX EXPENSES: In addition to the Base Rent set forth in Section 3,
Tenant shall pay its share, which is defined on Page 1, of all real property
taxes applicable to the land and improvements included within the Lot on which
the Premises are situated and one hundred percent (100%) of all personal
property taxes now or hereafter assessed or levied against the Premises or
Tenant's personal property. The amount of Tenant's Share of Tax Expenses shall
be reviewed from time to time by Landlord and shall be subject to modification
by Landlord if there is a change in the rentable square footage of the Premises,
the Buildings and/or the Park. Tenant shall also pay one hundred percent (100%)
of any increase in real property taxes attributable, in Landlord's sole
discretion, to any and all alterations, Tenant Improvements or other
improvements of any kind, which are above standard improvements customarily
installed for similar buildings located within the Buildings or the Park (as
applicable), whatsoever placed in, on or about the Premises for the benefit of,
at the request
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of, or by Tenant. The term "Tax Expenses" shall mean and include, without
limitation, any form of tax and assessment (general, special, supplemental,
ordinary or extraordinary), commercial rental tax, payments under any
improvement bond or bonds, license fees, license tax, business license fee,
rental tax, transaction tax, levy, or penalty imposed by authority having the
direct or indirect power of tax (including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
district thereof) as against any legal or equitable interest of Landlord in the
Premises, the Buildings, the Lot or the Park, as against Landlord's right to
rent, or as against Landlord's business of leasing the Premises or the occupancy
of Tenant or any other tax, fee, or excise, however described, including, but
not limited to, any value added tax, or any tax imposed in substitution
(partially or totally) of any tax previously included within the definition of
real property taxes, or any additional tax the nature of which was previously
included within the definition of real property taxes. The term "Tax Expenses"
shall not include any (i) franchise, estate, inheritance, net income, or excess
profits tax imposed upon Landlord, or (ii) any interest or penalties resulting
solely from Landlord's failure to pay any Tax Expenses (excluding any failure on
the part of Landlord to so timely make such payments due to Tenant's failure to
timely make such payments to Landlord).
6.3 PAYMENT OF EXPENSES: Landlord shall estimate Tenant's Share of the
Operating Expenses and Tax Expenses for the calendar year in which the Lease
commences. Commencing on the Commencement Date, one-twelfth (1/12th) of this
estimated amount shall be paid by Tenant to Landlord, as Additional Rent, on the
first (1st) day of each month and throughout the remaining months of such
calendar year. Thereafter, Landlord may reasonably estimate such expenses as of
the beginning of each calendar year and Tenant shall pay one-twelfth (1/12th) of
such estimated amount as Additional Rent hereunder on the first day of each
month during such calendar year and for each ensuing calendar year throughout
the Term of this Lease. Tenant's obligation to pay Tenant's Share of Operating
Expenses and Tax Expenses shall survive the expiration or earlier termination of
this Lease.
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or as
soon thereafter as reasonably possible, Landlord shall endeavor to furnish
Tenant with an accounting prepared with reasonable detail of actual Operating
Expenses and Tax Expenses. Within thirty (30) days of Landlord's delivery of
such accounting, Tenant shall pay to Landlord the amount of any underpayment.
Notwithstanding the foregoing, failure by Landlord to give such accounting by
such date shall not constitute a waiver by Landlord of its right to collect any
of Tenant's underpayment at any time. Landlord shall credit the amount of any
overpayment by Tenant toward the next Base Rent falling due, or where the Term
of the Lease has expired, refund the amount of overpayment to Tenant. If the
Term of the Lease expires prior to the annual reconciliation of expenses
Landlord shall have the right to reasonably estimate Tenant's Share of such
expenses, and if Landlord determines that an underpayment is due, Tenant hereby
agrees to pay to Landlord the amount of such underpayment within thirty (30)
days after Landlord's delivery of a demand therefor. If Landlord reasonably
determines that an overpayment has been made by Tenant, Landlord shall refund
said overpayment to Tenant within thirty (30) days after Landlord has made such
determination. Notwithstanding the foregoing, failure of Landlord to accurately
estimate Tenant's Share of such expenses or to otherwise perform such
reconciliation of expenses, including without limitation, Landlord's failure to
make a written demand for any underpayment from Tenant, shall not constitute a
waiver of Landlord's right to collect any of Tenant's underpayment at any time
during the Term of the Lease during the one (1) year period following the last
day of the period to which such underpayment relates or at any time during the
one (1) year period following the expiration or earlier termination of this
Lease.
6.5 AUDIT: After delivery to Landlord of at least thirty (30) days
prior written notice, Tenant, at its sole cost and expense, shall have the right
to examine and/or audit the books and records evidencing such costs and expenses
for the previous one (1) calendar year, during Landlord's reasonable business
hours but not more frequently than once during any calendar year.
Notwithstanding the foregoing, Tenant may only audit the books and records of
Landlord with respect to the Premises and/or the Lease so long as Tenant fully
complies with all of the following requirements: (i) any audit by Tenant shall
be conducted by an accounting or audit firm or financial officer of Tenant; (ii)
any audit shall be conducted in Landlord's offices during reasonable business
hours, and after delivery to Landlord of at least thirty (30) days' prior
written notice; (iii) Tenant may only audit the books and records for the
previous one (1) year period in question and after the lapse of one (1) year
from the date on which Landlord delivers to Tenant any accounting or statement
regarding any rental payments to be made by Tenant under this Lease, Tenant
shall not have any right or ability to audit Landlord's books and records with
respect to such rental payments or charges; and (iv) if it is determined through
such audit that the amount of the expenses actually paid by Tenant to Landlord
for the period in question have not been overstated by an amount that is more
than seven percent (7%) of the aggregate of such expenses, then Tenant shall
immediately pay to Landlord, and reimburse Landlord for, the costs and expenses
incurred by Landlord in connection with such audit, including without
limitation, costs attributable to the time spent by Landlord's or Landlord's
property management company's staff in connection with such audit, as such costs
are reasonably determined by Landlord. Landlord and Tenant shall use their best
efforts to cooperate in such negotiations and to promptly resolve any
discrepancies between Landlord and Tenant in the accounting of such costs and
expenses.
7. UTILITIES: Utility Expenses, Common Area Utility Costs and all other sums or
charges set forth in this Section 7 are considered part of Additional Rent.
Tenant shall pay the cost of all water, sewer use, sewer discharge fees and
sewer connection fees, gas, heat, electricity, refuse pickup, janitorial
service, telephone and other utilities billed or metered separately to the
Premises and/or Tenant. Tenant shall also pay its share of any assessments or
charges for utility or similar purposes included within any tax bill for the Lot
on which the Premises are situated, including, without limitation, entitlement
fees related to Tenant's particular use of the
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Premises, allocation unit fees, and/or any similar fees or charges, and any
penalties related thereto to the extent any such penalties result from Tenant's
failure to so timely make such payments. For any such utility fees or use
charges that are not billed or metered separately to Tenant, Tenant shall pay to
Landlord, as Additional Rent, without prior notice or demand, on the
Commencement Date and thereafter on the first (1st) day of each month throughout
the balance of the Term of this Lease the amount which is attributable to
Tenant's use of the utilities or similar services, as reasonably estimated and
determined by Landlord based upon factors such as size of the Premises and
intensity of use of such utilities by Tenant such that Tenant shall pay the
portion of such charges reasonably consistent with Tenant's use of such
utilities and similar services ("Utility Expenses"). In addition, Tenant shall
pay to Landlord Tenant's Share, which is set forth on Page 1, as Additional
Rent, without prior notice or demand, on the Commencement Date and thereafter on
the first (1st) day of each month throughout the balance of the Term of this
Lease, of any Common Area utility costs, fees, charges or expenses ("Common Area
Utility Costs"). Tenant shall pay to Landlord one-twelfth (1/12th) of the
estimated amount of Tenant's Share of the Common Area Utility Costs in the same
manner and time periods as specified in Section 6.3 above and any reconciliation
thereof shall also be in the same manner as specified in Sections 6.3 and 6.4
above. The amount of Tenant's Share of Common Area Utility Costs shall be
reviewed from time to time by Landlord and shall be subject to modification by
Landlord if there is a change in the rentable square footage of the Premises,
the Buildings and/or the Park due to any casualty or condemnation of any portion
of the Premises. Tenant acknowledges that the Premises may become subject to the
rationing of utility services or restrictions on utility use as required by a
public utility company, governmental agency or other similar entity having
jurisdiction thereof. Notwithstanding any such rationing or restrictions on use
of any such utility services, Tenant acknowledges and agrees that its tenancy
and occupancy hereunder shall be subject to such rationing restrictions as may
be imposed upon Landlord, Tenant, the Premises, the Buildings or the Park, and
Tenant shall in no event be excused or relieved from any covenant or obligation
to be kept or performed by Tenant by reason of any such rationing or
restrictions. Tenant further agrees to timely and faithfully pay, prior to
delinquency, any amount, tax, charge, surcharge, assessment or imposition
levied, assessed or imposed upon the Premises, or Tenant's use and occupancy
thereof. Notwithstanding anything to the contrary contained herein, if due to
incidents, events or occurrences other than those arising from Tenant's or
Tenant's Representatives' negligent or intentional acts or omissions essential
utility services for the conduct of Tenant's operations in the Premises are
discontinued or interrupted for a consecutive period of one hundred eighty (180)
days or more, then such discontinuance or interruption of essential utility
services shall be considered to be a casualty and the provisions of Section 27
shall apply thereto.
8. LATE CHARGES: Any and all sums or charges set forth in this Section 8 are
considered part of Additional Rent. Tenant acknowledges that late payment (the
second day after Landlord's delivery of written notice that any sum has not been
paid when due or any time thereafter) by Tenant to Landlord of Base Rent,
Tenant's Share of Operating Expenses, Tax Expenses, Common Area Utility Costs,
and Utility Expenses or other sums due hereunder, will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include, without
limitation, processing and accounting charges, and late charges that may be
imposed on Landlord by the terms of any note secured by any encumbrance against
the Premises, and late charges and penalties due to the late payment of real
property taxes on the Premises. Therefore, if any installment of Rent or any
other sum due from Tenant is not received by Landlord within two (2) days after
Landlord's delivery of written notice that such sum is otherwise due, Tenant
shall promptly pay to Landlord all of the following, as applicable: (a) an
additional sum equal to seven percent (7%) of such delinquent amount as a late
charge for every month or portion thereof that such sums remain unpaid, and (b)
the amount of fifty dollars ($50) relating to checks for which there are not
sufficient funds; provided, however, the foregoing late charges shall only be
required to be paid by Tenant if Tenant has been late in making such payments
more than three (3) times during the Term of this Lease. If Tenant delivers to
Landlord a check for which there are not sufficient funds, Landlord may, at its
sole option, require Tenant to replace such check with a cashier's check for the
amount of such check and all other charges payable hereunder. The parties agree
that this late charge and the other charges referenced above represent a fair
and reasonable estimate of the costs that Landlord will incur by reason of late
payment by Tenant. Acceptance of any late charge or other charges shall not
constitute a waiver by Landlord of Tenant's default with respect to the
delinquent amount, nor prevent Landlord from exercising any of the other rights
and remedies available to Landlord for any other breach of Tenant under this
Lease. If a late charge or other charge becomes payable for any three (3)
installments of Rent within any twelve (12) month period, then Landlord, at
Landlord's sole option, can either require the Rent be paid quarterly in
advance, or be paid monthly in advance by cashier's check or by electronic funds
transfer.
9. USE OF PREMISES:
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND REGULATIONS:
The Premises are to be used solely for the uses stated on Page 1 and for no
other uses or purposes without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed so long as the proposed use (i)
does not involve the use of Hazardous Materials other than as expressly
permitted under the provisions of Section 29 below, (ii) does not require any
additional parking in excess of the parking spaces already licensed to Tenant
pursuant to the provisions of Section 24 of this Lease, and (iii) is compatible
and consistent with the other uses then being made in the Park and in other
similar type of buildings in the vicinity of the Park, as reasonably determined
by Landlord. The use of the Premises by Tenant and its employees,
representatives, agents, invitees, licensees, subtenants, customers or
contractors (collectively, "Tenant's Representatives") shall be subject to, and
at all times in compliance with, (a) any and all applicable laws, ordinances,
statutes, orders and regulations as same exist from time to time (collectively,
the "Laws"), (b) any and all documents, matters or instruments,
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including without limitation, any declarations of covenants, conditions and
restrictions, and any supplements thereto, each of which has been or hereafter
is recorded in any official or public records with respect to the Premises, the
Buildings, the Lot and/or the Park, or any portion thereof (collectively, the
"Recorded Matters"), provided, if any of the Recorded Matters which are
subsequently recorded after the Lease Date materially affect Tenant's rights and
obligations under this Lease (excluding any liens related to any mortgage, deed
of trust or similar type of security interest, and any easements, liens and
other recorded matters required or imposed in connection with the development
and construction of the Buildings and the other improvements to be made as part
of the Park), then Landlord shall obtain Tenant's prior written consent to same,
which consent shall not be unreasonably withheld or delayed, and (c) any and all
rules and regulations set forth in Exhibit C, attached to and made a part of
this Lease, and any other reasonable rules and regulations promulgated by
Landlord now or hereafter enacted relating to parking and the operation of the
Premises, the Buildings and the Park, provided same are enforced on a
non-discriminatory basis (collectively, the "Rules and Regulations"). Tenant
agrees to, and does hereby, assume full and complete responsibility to ensure
that the Premises are adequate to fully meet the needs and requirements of
Tenant's intended operations of its business within the Premises, and Tenant's
use of the Premises and that same are in compliance with all applicable Laws
throughout the Term of this Lease. Additionally, Tenant shall be solely
responsible for the payment of all costs, fees and expenses associated with any
modifications to the Premises, Buildings, the Common Areas and/or the Park
occasioned by the enactment of, or changes to, any Laws arising from Tenant's
particular use of, or alterations to, the Premises regardless of when such Laws
become effective.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything therein
which will in any way conflict with any of the requirements of the Board of Fire
Underwriters or similar body now or hereafter constituted or in any way increase
the existing rate of or affect any policy of fire or other insurance upon the
Buildings or any of its contents, or cause a cancellation of any insurance
policy. No auctions may be held or otherwise conducted in, on or about the
Premises, the Buildings, the Lot or the Park without Landlord's written consent
thereto, which consent may be given or withheld in Landlord's sole discretion.
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 Landlord, other tenants
or occupants of the Buildings, other buildings in the Park, or other persons or
businesses in the area, or injure or annoy other tenants or use or allow the
Premises to be used for any unlawful or objectionable purpose, as determined by
Landlord, in its reasonable discretion, for the benefit, quiet enjoyment and use
by Landlord and all other tenants or occupants of the Buildings or other
buildings in the Park; nor shall Tenant cause, maintain or permit any private or
public nuisance in, on or about the Premises, Buildings, Park and/or the Common
Areas, including, but not limited to, any offensive odors, noises, fumes or
vibrations. Tenant shall not damage or deface or otherwise commit or suffer to
be committed any waste in, upon or about the Premises. Except as may be
permitted under applicable Laws and as Landlord may otherwise approve in
writing, Tenant shall not place or store, nor permit any other person or entity
to place or store, any property, equipment, materials, supplies, personal
property or any other items or goods outside of the Premises for any period of
time except in outside enclosures that are fully fenced and screened in
compliance with all Recorded Matters and Laws, and which enclosures are designed
for such purpose, and which have been approved by Landlord for such use. Other
than seeing-eye dogs for the blind, Tenant shall not permit any animals,
including, but not limited to, any household pets, to be brought or kept in or
about the Premises. Tenant shall place no loads upon the floors, walls, or
ceilings in excess of the maximum designed load permitted by the applicable
Uniform Building Code or which may damage the Buildings or outside areas; nor
place any harmful liquids in the drainage systems; nor dump or store waste
materials, refuse or other such materials, or allow such to remain outside the
Building area, except for any non-hazardous or non-harmful materials which may
be stored in refuse dumpsters or in any enclosed trash areas provided. Tenant
shall honor the terms of all Recorded Matters relating to the Premises, the
Buildings, the Lot and/or the Park. Tenant shall honor the Rules and
Regulations. If Tenant fails to comply with such Laws, Recorded Matters, Rules
and Regulations or the provisions of this Lease, Landlord shall have the right
to collect from Tenant Landlord's costs and expenses, if any, to cure any of
such failures of Tenant, if Landlord, at its sole option, elects to undertake
such cure.
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES:
10.1 ALTERATIONS AND ADDITIONS: Tenant shall be permitted to make, at
its sole cost and expense, non-structural alterations and additions to the
Premises without obtaining Landlord's prior written consent provided the cost of
same does not exceed $75,000 cumulatively in any twelve-month period (the
"Permitted Improvements"). Tenant, however, shall first notify Landlord of such
alterations or additions comprising the Permitted Improvements so that Landlord
may post a Notice of Non-Responsibility on the Premises. Within ten (10)
business days of Landlord's receipt of Tenant's written notice of any item
comprising the Permitted Improvements, Landlord shall notify Tenant whether or
not Landlord will require Tenant to remove such item(s) from the Premises upon
the expiration or earlier termination of this Lease. Except for the Permitted
Improvements, Tenant shall not install any signs, fixtures (excluding trade
fixtures), improvements, nor make or permit any other alterations or additions
to the Premises without the prior written consent of Landlord. If any such
alteration or addition is expressly permitted by Landlord, including without
limitation, the Permitted Improvements, Tenant shall deliver at least twenty
(20) days prior notice to Landlord, from the date Tenant intends to commence
construction, sufficient to enable Landlord to post a Notice of
Non-Responsibility. At the time that Landlord notifies Tenant of its approval or
disapproval of any such request, Landlord shall advise Tenant in writing of
those fixtures (excluding trade fixtures), improvements, alterations and
additions which Landlord will require Tenant to remove upon the expiration or
earlier termination of the Lease. In all events, Tenant shall obtain all permits
or other governmental approvals prior to commencing any of such work and deliver
a copy of same to Landlord. All alterations and additions shall be installed by
a licensed contractor
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reasonably approved by Landlord (except with regard to any Permitted
Improvements the licensed contractor employed by Tenant therefor shall not be
subject to Landlord's prior approval), at Tenant's sole expense in compliance
with all applicable Laws (including, but not limited to, the ADA as defined
herein), Recorded Matters, and Rules and Regulations. Tenant shall keep the
Premises and the property on which the Premises are situated free from any liens
arising out of any work performed, materials furnished or obligations incurred
by or on behalf of Tenant. All alterations and additions performed by Tenant are
subject to Tenant obtaining all necessary building permits and shall be
performed in a first-class workmanlike manner by licensed and insured
contractors. As a condition to Landlord's consent to the installation of any
fixtures, additions or other improvements the cost of which exceeds $100,000 and
solely in the event that there has been a material change in the financial
condition of Tenant such that Tenant's net worth has fallen below
$100,000,000.00, Landlord may require Tenant to post and obtain a completion and
indemnity bond or a letter of credit in form reasonably acceptable to Landlord
for up to one hundred ten percent (110%) of the cost of the work. With respect
to the Tenant Improvements, except for any cafeteria and related items that are
part of the Tenant Improvements for which Landlord will require Tenant, at its
sole cost and expense, to demolish and/or remove from the Premises upon the
expiration or earlier termination of this Lease, Landlord shall not require
Tenant to demolish and/or remove any other items comprising the Tenant
Improvements from the Premises upon the expiration or earlier termination of
this Lease.
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease,
whether by forfeiture, lapse of time or otherwise, or upon the termination of
Tenant's right to possession of the Premises, Tenant will at once surrender and
deliver up the Premises, together with the fixtures (other than trade fixtures),
furnishings, additions and improvements which Landlord has not notified Tenant,
in writing, that Landlord will require Tenant to remove (including without
limitation, any items comprising the Tenant Improvements), to Landlord in good
condition and repair subject to Tenant's compliance with its obligations under
Sections 9, 29 and 37 hereof, including, but not limited to, replacing all light
bulbs and ballasts not in good working condition, except for reasonable wear and
tear, casualty damage and repairs which are Landlord's obligations pursuant to
the provisions of Sections 11.2 and 11.3 below. Reasonable wear and tear shall
not include any damage or deterioration to the floors of the Premises arising
from the use of forklifts in, on or about the Premises (including, without
limitation, any marks or stains of any portion of the floors), and any damage or
deterioration that would have been prevented by proper maintenance by Tenant or
Tenant otherwise performing all of its obligations under this Lease. Upon such
termination of this Lease, Tenant shall remove any cafeteria and related items
that are part of the Tenant Improvements, all tenant signage, trade fixtures,
furniture, furnishings, equipment, personal property, additions, and such other
improvements Landlord requests, in writing, at the time of Landlord's delivery
of its consent to such installation, that Tenant remove some or all of such
additions or improvements installed by, or on behalf of Tenant or situated in or
about the Premises; provided, however, such requirement is reasonably based upon
the nature and type of additions, improvements or alterations being
substantially different than that improved or altered thereby. Tenant shall
repair any damage caused by the installation or removal of any cafeteria and
related items that are part of the Tenant Improvements, and such signs, trade
fixtures, furniture, furnishings, fixtures (other than trade fixtures),
equipment, personal property, additions and improvements which are to be removed
from the Premises by Tenant hereunder. Tenant shall ensure that the removal of
such items and the repair of the Premises will be completed prior to such
termination of this Lease.
11. REPAIRS AND MAINTENANCE:
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Buildings to be maintained by Landlord as provided in Sections
11.2 and 11.3 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the interior non-structural portions of the Premises and the adjacent
dock and staging areas (including, without limitation, any portion of the Common
Areas used by Tenant or Tenant's Representatives) in good, clean and safe
condition and repair to the reasonable satisfaction of Landlord, reasonable wear
and tear and casualty excepted, including, but not limited to, repairing any
damage caused by Tenant or Tenant's Representatives and replacing any property
so damaged by Tenant or Tenant's Representatives. Without limiting the
generality of the foregoing, Tenant shall be solely responsible for maintaining,
repairing and replacing (a) all mechanical systems, heating, ventilation and air
conditioning systems serving the Premises, (b) all plumbing, electrical wiring
and equipment serving the Premises, (c) all interior lighting (including,
without limitation, light bulbs and/or ballasts) and exterior lighting serving
the Premises or immediately adjacent to the Premises, (d) all interior glass,
windows, window frames, window casements, skylights, interior and exterior
doors, door frames and door closers, (e) all roll-up doors, ramps and dock
equipment, including without limitation, dock bumpers, dock plates, dock seals,
dock levelers and dock lights, (f) all tenant signage, (g) lifts for disabled
persons serving the Premises, (h) sprinkler systems, fire protection systems and
security systems, (i) all partitions, fixtures, equipment, interior painting,
and interior walls and floors of the Premises and every part thereof (including,
without limitation, any demising walls contiguous to any portion of the
Premises), and (j) all interior lobbies and any mezzanines.
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to the
provisions of Sections 6 and 9 of this Lease and except for (i) the obligations
of Tenant set forth in Section 11.1 above, (ii) the repairs rendered necessary
by the intentional or negligent acts or omissions of Tenant or Tenant's
Representatives, and (iii) the obligations of Landlord set forth in Section 11.3
below, Landlord agrees, at Landlord's expense, subject to reimbursement pursuant
to Section 6 above, to keep in good repair the Common Areas, plumbing and
mechanical systems exterior to the Premises, the roof, roof membranes, exterior
walls of the Buildings, signage (exclusive of tenant signage), and exterior
electrical wiring and equipment, exterior lighting, exterior glass, exterior
doors/entrances and door closers, exterior window casements, exterior painting
of the Buildings
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(exclusive of the Premises), and underground utility and sewer pipes outside the
exterior walls of the Buildings. For purposes of this Section 11.2, the term
"exterior" shall mean exterior to, and not serving the Premises. Unless
otherwise notified by Landlord, in writing, that Landlord has elected to procure
and maintain the following described contract(s), Tenant shall procure and
maintain (a) the heating, ventilation and air conditioning systems preventative
maintenance and repair contract(s); such contract(s) to be on a quarterly basis,
as reasonably determined by Landlord, and (b) the fire and sprinkler protection
services and preventative maintenance and repair contract(s) (including, without
limitation, monitoring services); such contract(s) to be on a quarterly basis.
Landlord reserves the right, but without the obligation to do so, to procure and
maintain, on similar terms with the foregoing requirements, (i) the heating,
ventilation and air conditioning systems preventative maintenance and repair
contract(s), and/or (ii) the fire and sprinkler protection services and
preventative maintenance and repair contract(s) (including, without limitation,
monitoring services). If Landlord so elects to procure and maintain any such
contract(s), Tenant will reimburse Landlord for the cost thereof in accordance
with the provisions of Section 6 above. If Tenant procures and maintains any of
such contract(s), Tenant will promptly deliver to Landlord a true and complete
copy of each such contract and any and all renewals or extensions thereof, and
each service report or other summary received by Tenant pursuant to or in
connection with such contract(s).
11.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for
repairs rendered necessary by the intentional or negligent acts or omissions of
Tenant or Tenant's Representatives, Landlord agrees, at Landlord's sole cost and
expense, to (a) keep in good repair the structural portions of the floors,
foundations and exterior perimeter walls of the Buildings (exclusive of glass
and exterior doors), and (b) replace and repair the structural portions of the
roof of the Buildings (excluding the roof membrane) as, and when, Landlord
determines such replacement to be necessary in Landlord's reasonable discretion,
all of the foregoing to be performed in such a manner as is substantially
consistent with maintenance and repair of comparable buildings of similar type
and nature of construction in the San Jose area.
11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE OBLIGATIONS:
Except for normal maintenance and repair of the items described above, Tenant
shall have no right of access to or right to install any device on the roof of
the Buildings nor make any penetrations of the roof of the Buildings without the
express prior written consent of Landlord. If Tenant refuses or neglects to
repair and maintain the Premises and the adjacent areas properly as required
herein and to the reasonable satisfaction of Landlord, Landlord may, but without
obligation to do so, at any time make such repairs and/or maintenance without
Landlord having any liability to Tenant for any loss or damage that may accrue
to Tenant's merchandise, fixtures or other property, or to Tenant's business by
reason thereof, except to the extent any damage is caused by the willful
misconduct or negligence of Landlord or its authorized agents and
representatives. In the event Landlord makes such repairs and/or maintenance,
upon completion thereof Tenant shall pay to Landlord, as additional rent, the
Landlord's costs for making such repairs and/or maintenance, plus ten percent
(10%) for overhead, upon presentation of a bill therefor. The obligations of
Tenant hereunder shall survive the expiration of the Term of this Lease or the
earlier termination thereof. Subject to the provisions of Section 41 hereof,
Tenant hereby waives any right to repair at the expense of Landlord under any
applicable Laws now or hereafter in effect respecting the Premises.
12. INSURANCE:
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and
effect at all times during the Term of this Lease, at Tenant's sole cost and
expense, for the protection of Tenant and Landlord, as their interests may
appear, policies of insurance issued by a carrier or carriers with an A.M.
Best's rating (or similar publication) of A-:VIII or better which afford the
following coverages: (i) worker's compensation: statutory limits; (ii)
employer's liability, as required by law, with a minimum limit of $100,000 per
employee and $500,000 per occurrence; (iii) commercial general liability
insurance (occurrence form) providing coverage against claims for bodily injury
and property damage occurring in, on or about the Premises arising out of
Tenant's and Tenant's Representatives' use and/or occupancy of the Premises.
Such insurance shall include coverage for blanket contractual liability, fire
damage, premises, personal injury, completed operations, and products liability.
Such insurance shall have a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence with at least a Three Million Dollar
($3,000,000) aggregate limit. If the aggregate limit is exhausted, then so long
as Tenant satisfies the requirements of Section 12.5 below Tenant shall be
deemed to have self-insured all of such risks. If the aggregate limit is
exhausted but Tenant does not satisfy the requirements of Section 12.5 below,
Tenant shall provide for restoration of the aggregate limit, as reasonably
determined by Landlord; (iv) comprehensive automobile liability insurance: a
combined single limit of not less than $2,000,000 per occurrence and insuring
Tenant against liability for claims arising out of the ownership, maintenance,
or use of any owned, hired or non-owned automobiles; (v) "all risk" or "special
purpose" property insurance, including without limitation, sprinkler leakage,
boiler and machinery comprehensive form, if applicable, covering damage to or
loss of any personal property, trade fixtures, inventory, fixtures and equipment
located in, on or about the Premises, and in addition, coverage for flood, and
business interruption of Tenant, together with, if the property of Tenant's
invitees is to be kept in the Premises, warehouser's legal liability or bailee
customers insurance for the full replacement cost of the property belonging to
invitees and located in the Premises. Such insurance shall be written on a
replacement cost basis (without deduction for depreciation) in an amount equal
to one hundred percent (100%) of the full replacement value of the aggregate of
the items referred to in this subparagraph (v); and (vi) such other insurance as
Landlord deems reasonably necessary and prudent or as may otherwise be required
by any of Landlord's lenders.
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12.2 INSURANCE POLICIES: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A-:VIII as set forth in the most
current issue of "A.M. Best's Rating Guides" or similar publication. Any
deductible amounts under any of the insurance policies actually procured by
Tenant and as required hereunder is not in substitution of the limits of
insurance coverage which must be maintained by Tenant, rather such deductibles
are Tenant's self-insured retention for which Tenant shall be wholly
responsible. Tenant shall deliver to Landlord certificates of insurance together
with a true and complete copy of any waiver of subrogation endorsement required
herein for the insurance required to be maintained by Tenant hereunder at the
time of execution of this Lease by Tenant. If at any time Tenant is in default
of its obligations under this Lease beyond any applicable cure periods, Tenant
will deliver to Landlord a copy of any other endorsements to the insurance
policies obtained by Tenant upon Landlord's request therefor. Tenant shall, at
least five (5) days prior to expiration of each policy, furnish Landlord with
certificates of renewal or "binders" thereof. Each certificate shall expressly
provide that such policies shall not be cancelable or otherwise subject to
material reduction of coverage except after thirty (30) days prior written
notice to the parties named as additional insureds as required in this Lease
(except for cancellation for nonpayment of premium, in which event cancellation
shall not take effect until at least ten (10) days' notice has been given to
Landlord), as such certificates are reasonably acceptable to the insurers
issuing such policies and as is customarily provided to landlords in the general
vicinity of the Premises. Tenant shall have the right to provide insurance
coverage which it is obligated to carry pursuant to the terms of this Lease
under a blanket insurance policy.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property
management company and/or agent of Landlord for the Premises, the Buildings, the
Lot or the Park, and any lender(s) of Landlord having a lien against the
Premises, the Buildings, the Lot or the Park shall be named as additional
insureds under all of the policies required in Section 12.1(iii) above, as each
of such parties' interests may appear. Additionally, such policies shall provide
for severability of interest. All insurance to be maintained by Tenant shall,
except for workers' compensation and employer's liability insurance, be primary,
without right of contribution from insurance maintained by Landlord. The limits
of insurance maintained by Tenant shall not limit Tenant's liability under this
Lease. It is the parties' intention that the insurance to be procured and
maintained by Tenant as required herein shall provide coverage for damage or
injury arising from or related to Tenant's operations of its business and/or
Tenant's or Tenant's Representatives' use of the Premises and/or any of the
areas within the Park, whether such events occur within the Premises (as
described in Exhibit A hereto) or in any other areas of the Park. It is not
contemplated or anticipated by the parties that the aforementioned risks of loss
be borne by Landlord's insurance carriers, rather it is contemplated and
anticipated by Landlord and Tenant that such risks of loss be borne by Tenant's
insurance carriers pursuant to the insurance policies procured and maintained by
Tenant as required herein, except to the extent of Landlord's or its authorized
representatives' negligence or willful misconduct.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: Subject to
Tenant's ability to self-insure such risks in accordance with the provisions of
Section 12.5 below, in the event Tenant does not purchase the insurance required
in this Lease or keep the same in full force and effect throughout the Term of
this Lease (including any renewals or extensions), Landlord may, but without
obligation to do so, purchase the necessary insurance and pay the premiums
therefor. If Landlord so elects to purchase such insurance, Tenant shall
promptly pay to Landlord as Additional Rent, the amount so paid by Landlord,
upon Landlord's demand therefor. In addition, Landlord may recover from Tenant
and Tenant agrees to pay, as Additional Rent, any and all damages which Landlord
may sustain by reason of Tenant's failure to so obtain and maintain such
insurance. If Tenant fails to maintain any insurance required in this Lease or
otherwise fails to comply with the provisions of Section 12.5 below regarding
Tenant's ability to self-insure such risks, Tenant shall be liable for all
losses, damages and costs resulting from such failure.
12.5 TENANT'S RIGHT TO SELF-INSURE: Notwithstanding anything to the
contrary contained herein, only with respect to the Tenant named herein as of
the Lease Date and provided that said Tenant has and maintains a net worth in
excess of One Hundred Million Dollars ($100,000,000.00), such originally named
Tenant may self-insure the risks contemplated in this Section 12 to the extent
that such self-insurance is permitted by all applicable Laws and provided
further that Tenant shall be fully and completely responsible and liable, at its
sole cost and expense, (1) to fully repair, restore, and replace any and all
items described above which may be damaged due to such risks contemplated
herein, (2) for all injuries to persons or property for which such risks would
otherwise have been insured against under any of the policies described above,
(3) for any losses experienced by Tenant or in Tenant's business which would
have otherwise been covered by business interruption insurance, and (4) for any
and all claims, damages, losses and other liabilities incurred by, or made
against, Tenant, Landlord, Landlord's property management company and/or lenders
arising from Tenant's election to self-insure the risks contemplated in this
Section 12.5, including without limitation, any and all costs of defense,
litigation or other similar proceeding. If the Tenant named herein as of the
Lease Date does so elect to self-insure such risks, then in lieu of delivering
to Landlord a certificate of insurance, Tenant shall deliver to Landlord
(annually) a letter certified by an authorized officer of its company that such
risks are being self-insured and that Tenant has complied with the financial
criteria set forth herein, and such letter shall also contain such other
information as Landlord's lender(s) may reasonably require (the "Self-Insurance
Certificate").
13. WAIVER OF SUBROGATION: Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss of, or damage to,
either parties' property to the extent that such loss or damage is insured by an
insurance policy required to be in effect at the time of such loss or damage.
Each party shall obtain any special endorsements, if required by its insurer
whereby the insurer waives its rights of subrogation
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against the other party. This provision is intended to waive fully, and for the
benefit of the parties hereto, any rights and/or claims which might give rise to
a right of subrogation in favor of any insurance carrier. The coverage obtained
by Tenant pursuant to Section 12 of this Lease shall include, without
limitation, a waiver of subrogation endorsement attached to the certificate of
insurance. The provisions of this Section 13 shall not apply in those instances
in which such waiver of subrogation would invalidate such insurance coverage or
would cause either party's insurance coverage to be voided or otherwise
uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY: Except to the extent of damage
resulting from the negligence or willful misconduct of Landlord or its
authorized representatives, Tenant agrees to protect, defend (with counsel
acceptable to Landlord) and hold Landlord and Landlord's lender(s), members,
partners, employees, representatives, legal representatives, successors and
assigns (collectively, the "Indemnitees") harmless and indemnify the Indemnitees
from and against all liabilities, damages, claims, losses, judgments, charges
and expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly, (i) Tenant's or Tenant's Representatives' use of the Premises,
Buildings and/or the Park, (ii) the failure by Tenant to perform its obligations
under this Lease or any breach on the part of Tenant of any of the provisions of
this Lease, or (iii) the conduct of Tenant's business, or from any activity,
work or thing done, permitted or suffered by Tenant in or about the Premises,
including, but not limited to, any liability for injury to person or property of
Tenant, Tenant's Representatives, or third party persons. Tenant agrees that the
obligations of Tenant herein shall survive the expiration or earlier termination
of this Lease.
Except to the extent of damage resulting from the negligence or
willful misconduct of Landlord or its authorized representatives, Landlord shall
not be liable to Tenant for any loss or damage to Tenant or Tenant's property,
for any injury to or loss of Tenant's business or for any damage or injury to
any person from any cause whatsoever, including, but not limited to, any acts,
errors or omissions by or on behalf of any other tenants or occupants of the
Buildings and/or the Park. Tenant shall not, in any event or circumstance, be
permitted to offset or otherwise credit against any payments of Rent required
herein for matters for which Landlord may be liable hereunder. Landlord and its
authorized representatives shall not be liable for any interference with light
or air, or, subject to the provisions of Section 5 above, for any latent defect
in the Premises or the Buildings. To the fullest extent permitted by law and
except to the extent of damage resulting from the negligence or willful
misconduct of Landlord or its authorized representatives, Tenant agrees that
neither Landlord nor any of Landlord's lender(s), members, partners, employees,
representatives, legal representatives, successors and assigns shall at any time
or to any extent whatsoever be liable, responsible or in any way accountable for
any loss, liability, injury, death or damage to persons or property which at any
time may be suffered or sustained by Tenant or by any person(s) whomsoever who
may at any time be using, occupying or visiting the Premises, the Buildings or
the Park.
Except to the extent of damage resulting from the negligence or
willful misconduct of Tenant or any of Tenant's Representatives, Landlord agrees
to protect, defend (with counsel acceptable to Tenant) and hold Tenant and
Tenant's employees and representatives (collectively, the "Tenant Indemnitees")
harmless and indemnify the Tenant Indemnitees from and against all liabilities,
damages, claims, losses, judgments, charges and expenses (including reasonable
attorneys' fees, costs of court and expenses necessary in the prosecution or
defense of any litigation including the enforcement of this provision) resulting
from Landlord's or its authorized agents' negligence or willful misconduct.
Landlord agrees that the obligations of Landlord herein shall survive the
expiration or earlier termination of this Lease.
15. ASSIGNMENT AND SUBLEASING:
15.1 PROHIBITION: Except as expressly set forth herein with respect to
a Related Entity, Tenant shall not assign, mortgage, hypothecate, encumber,
grant any license or concession, pledge or otherwise transfer this Lease
(collectively, "assignment"), in whole or in part, whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than Tenant of all or any portion of the Premises without first
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant hereby agrees that Landlord may withhold its
consent to any proposed sublease or assignment if the proposed sublessee or
assignee or its business is subject to compliance with additional requirements
of the ADA (defined below) beyond those requirements which are applicable to
Tenant, unless the proposed sublessee or assignee shall (a) first deliver plans
and specifications for complying with such additional requirements and obtain
Landlord's written consent thereto, which consent shall not be unreasonably
withheld, and (b) comply with all Landlord's conditions for or contained in such
consent, including without limitation, requirements for security to assure the
lien-free completion of such improvements. If Tenant seeks to sublet or assign
all or any portion of the Premises, Tenant shall deliver to Landlord at least
thirty (30) days prior to the proposed commencement of the sublease or
assignment (the "Proposed Effective Date") the following: (i) the name of the
proposed assignee or sublessee; (ii) such information as to such assignee's or
sublessee's financial responsibility and standing as Landlord may reasonably
require; and (iii) the aforementioned plans and specifications, if any. Within
ten (10) days after Landlord's receipt of a written request from Tenant that
Tenant seeks to sublet or assign all or any portion of the Premises, Landlord
shall deliver to Tenant a copy of Landlord's standard form of sublease or
assignment agreement (as applicable), which instrument shall be utilized for
each proposed sublease or assignment (as applicable), and such instrument shall
include a provision whereby the assignee or sublessee assumes all of Tenant's
obligations hereunder, but with respect to a sublease only, to the extent
applicable to the subleased portion of the Premises, and agrees to be bound by
the terms hereof. As Additional Rent hereunder, Tenant shall pay to Landlord a
fee in the amount of five hundred dollars ($500) plus Tenant
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shall reimburse Landlord for actual legal and other expenses incurred by
Landlord in connection with any actual or proposed assignment or subletting.
Notwithstanding anything to the contrary contained herein, if (I) the Term of
the First Lease has expired or the First Lease has been earlier terminated for
any reason whatsoever, in whole or in part, and (II) Tenant proposes to sublease
or assign this Lease to a party other than a Related Entity, then for the time
period during which there is any vacancy in Building A and/or Building B (as
referred to in the First Lease) Landlord shall have the right, to be exercised
by giving written notice to Tenant, to either (1) recapture the space described
in the proposed sublease or assignment, or (2) consent to such proposed sublease
or assignment, in which event Tenant shall pay Landlord monthly, as Additional
Rent, at the same time as the monthly installments of Rent are payable
hereunder, fifty percent (50%) of the excess of each such payment of rent or
other consideration in excess of the Rent called for hereunder, after deduction
of the actual brokerage commission (if any) paid by Tenant in connection with
such proposed sublease or assignment, where the rent or other consideration
provided for in the proposed sublease or assignment either initially or over the
term of the sublease or assignment exceeds the Rent or pro rata portion of the
Rent, as the case may be, for such space reserved in the Lease. If such
recapture notice is given, it shall serve to terminate this Lease with respect
to the proposed sublease or assignment space, or, if the proposed sublease or
assignment space covers all the Premises, it shall serve to terminate the entire
term of this Lease in either case, as of the Proposed Effective Date, with
respect to such space. However, no termination of this Lease with respect to
part or all of the Premises shall become effective without the prior written
consent, where necessary, of the holder of each deed of trust encumbering the
Premises or any part thereof. If this Lease is terminated pursuant to the
foregoing with respect to less than the entire Premises, the Rent shall be
adjusted on the basis of the proportion of square feet retained by Tenant to the
square feet originally demised and this Lease as so amended shall continue
thereafter in full force and effect. Each permitted assignee or sublessee,
including without limitation, a Related Entity, shall assume and be deemed to
assume this Lease and shall be and remain liable jointly and severally with
Tenant for payment of Rent and for the due performance of, and compliance with
all the terms, covenants, conditions and agreements herein contained on Tenant's
part to be performed or complied with, for the term of this Lease. No assignment
or subletting shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the assignee), and Tenant
shall not be released from performing any of the terms, covenants and conditions
of this Lease. Tenant hereby acknowledges and agrees that it understands that
Landlord's accounting department may process and accept Rent payments without
verifying that such payments are being made by Tenant, a permitted sublessee or
a permitted assignee in accordance with the provisions of this Lease. Although
such payments may be processed and accepted by such accounting department
personnel, any and all actions or omissions by the personnel of Landlord's
accounting department shall not be considered as acceptance by Landlord of any
proposed assignee or sublessee nor shall such actions or omissions be deemed to
be a substitute for the requirement that Tenant obtain Landlord's prior written
consent to any such subletting or assignment, and any such actions or omissions
by the personnel of Landlord's accounting department shall not be considered as
a voluntary relinquishment by Landlord of any of its rights hereunder nor shall
any voluntary relinquishment of such rights be inferred therefrom. For purposes
hereof, and except with respect to a Related Entity, in the event Tenant is a
corporation, partnership, joint venture, trust or other entity other than a
natural person, any change in the direct or indirect ownership of Tenant
(whether pursuant to one or more transfers other than publicly traded stock
which does not confer upon any party or parties control over Tenant) which
results in a change of more than fifty percent (50%) in the direct or indirect
ownership of Tenant shall be deemed to be an assignment within the meaning of
this Section 15 and shall be subject to all the provisions hereof. Except for a
permissible assignment to a Related Entity, any and all options, first rights of
refusal, tenant improvement allowances and other similar rights granted to
Tenant in this Lease, if any, shall not be assignable by Tenant unless expressly
authorized in writing by Landlord, at Landlord's reasonable discretion.
Notwithstanding anything to the contrary contained herein, so long as Tenant
delivers to Landlord (x) at least fifteen (15) business days prior written
notice of its intention to assign or sublease the Premises to any Related
Entity, which notice shall set forth the name of the Related Entity, (y) a copy
of the proposed agreement pursuant to which such assignment or sublease shall be
effectuated, and (z) such other information concerning the Related Entity as
Landlord may reasonably require, including without limitation, information
regarding any change in the proposed use of any portion of the Premises and any
financial information with respect to such Related Entity, and so long as
Landlord approves, in writing, of any change in the proposed use of the subject
portion of the Premises, then Tenant may assign this Lease or sublease any
portion of the Premises (X) to any Related Entity, or (Y) in connection with any
merger, consolidation or sale of substantially all of the assets of Tenant,
without having to obtain the prior written consent of Landlord thereto. For
purposes of this Lease the term "Related Entity" shall mean and refer to any
corporation or entity which controls, is controlled by or is under common
control with Tenant, as all of such terms are customarily used in the industry,
and with an equal or greater net worth as Tenant has as of the proposed transfer
date.
15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION:
Notwithstanding anything to the contrary contained herein, the provisions of
this Section 15.2 are subject to the provisions of Section 15.1 above and in the
event of any conflict between such provisions, the terms and provisions of
Section 15.1 hereof shall control and prevail. During the initial term of this
Lease only, in the event of any sublease or assignment of all or any portion of
the Premises to a party other than a Related Entity, which sublease or
assignment only relates to the initial term of this Lease and is expressly
approved by Landlord, and where the rent or other consideration provided for in
the sublease or assignment either initially or over the term of the sublease or
assignment exceeds the Rent or pro rata portion of the Rent, as the case may be,
for such space reserved in the Lease, Tenant shall pay the Landlord monthly, as
Additional Rent, at the same time as the monthly installments of Rent are
payable hereunder, fifty percent (50%) of the excess of each such payment of
rent or other consideration in excess of the Rent called for hereunder, after
deduction of the actual brokerage commission (if any) paid by Tenant in
connection with such proposed sublease or assignment. During any renewal or
option terms of this Lease, in the event of any sublease or assignment of all or
any portion of the Premises to a party other than a Related Entity, which
sublease or assignment relates to such renewal or option term of this Lease and
is expressly
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approved by Landlord, and where the rent or other consideration provided for in
the sublease or assignment either initially or over the term of the sublease or
assignment exceeds the Rent or pro rata portion of the Rent, as the case may be,
for such space reserved in the Lease, Tenant shall pay the Landlord monthly, as
Additional Rent, at the same time as the monthly installments of Rent are
payable hereunder, fifty percent (50%) of the excess of each such payment of
rent or other consideration in excess of the Rent called for hereunder, after
deduction of the actual brokerage commission (if any) paid by Tenant in
connection with such proposed sublease or assignment.
15.3 WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or sublessee, or failure by Landlord to take action against any assignee or
sublessee, Tenant agrees that Landlord may, at its option, proceed against
Tenant without having taken action against or joined such assignee or sublessee,
except that Tenant shall have the benefit of any indulgences, waivers and
extensions of time granted to any such assignee or sublessee.
16. AD VALOREM TAXES: Prior to delinquency, Tenant shall pay all taxes and
assessments levied upon trade fixtures, alterations, additions, improvements,
inventories and personal property located and/or installed on or in the Premises
by, or on behalf of, Tenant; and if requested by Landlord, Tenant shall promptly
deliver to Landlord copies of receipts for payment of all such taxes and
assessments. To the extent any such taxes are not separately assessed or billed
to Tenant, Tenant shall pay the amount thereof as invoiced by Landlord.
17. SUBORDINATION: Landlord hereby represents to Tenant that as of the Lease
Date there does not exist a lien of a mortgage or deed of trust on all or any
portion of the Premises. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any bona fide mortgagee or deed of trust beneficiary
with a lien on all or any portion of the Premises or any ground lessor with
respect to the land of which the Premises are a part, the rights of Tenant under
this Lease and this Lease shall be subject and subordinate at all times to: (i)
all ground leases or underlying leases which may now exist or hereafter be
executed affecting the Buildings or the land upon which the Buildings are
situated or both provided such ground lease includes a provision that Tenant's
use, occupancy or quiet enjoyment of the Premises will not be disturbed so long
as Tenant is not in default of the terms and provisions of this Lease, and (ii)
the lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Buildings, the Lot, ground leases or
underlying leases, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding the foregoing, Landlord or any such
ground lessor, mortgagee, or any beneficiary shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or any
such liens to this Lease. If any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination and upon the request of such successor to Landlord, attorn to and
become the Tenant of the successor in interest to Landlord, provided such
successor in interest will not disturb Tenant's use, occupancy or quiet
enjoyment of the Premises so long as Tenant is not in default of the terms and
provisions of this Lease. The successor in interest to Landlord following
foreclosure, sale or deed in lieu thereof shall not be (a) liable for any act or
omission of any prior lessor or with respect to events occurring prior to
acquisition of ownership; (b) subject to any offsets or defenses which Tenant
might have against any prior lessor; or (c) bound by prepayment of more than one
(1) month's Rent. Tenant covenants and agrees to execute (and acknowledge if
required by Landlord, any lender or ground lessor) and deliver, within ten (10)
business days of a demand or request by Landlord and in the form requested by
Landlord, ground lessor, mortgagee or beneficiary, any additional documents
evidencing the priority or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such mortgage or deed of
trust. Tenant's failure to timely execute and deliver such additional documents
shall, at Landlord's option, constitute a material default hereunder. Tenant's
agreement to subordinate this Lease to any future ground or underlying lease or
any future deed of trust or mortgage pursuant to the foregoing provisions of the
Section 17 is conditioned upon Landlord delivering to Tenant from the lessor
under such future ground or underlying lease or the holder of any such mortgage
or deed of trust, a non-disturbance agreement agreeing, among other things, that
Tenant's right to possession of the Premises pursuant to the terms and
conditions of this Lease shall not be disturbed provided Tenant is not in
default under this Lease beyond the applicable notice and cure periods
hereunder.
18. RIGHT OF ENTRY: Tenant grants Landlord or its agents the right to enter the
Premises at all reasonable times, upon 24 hours advance notice to Tenant, for
purposes of inspection, exhibition, posting of notices, repair or alteration. At
Landlord's option, Landlord shall at all times have and retain a key with which
to unlock all the doors not conspicuously designated as restricted access areas
for security reasons in, upon and about the Premises, excluding Tenant's vaults
and safes. It is further agreed that Landlord shall have the right to use any
and all means Landlord deems necessary to enter the Premises in an emergency.
Landlord shall also have the right to place "for sale" signs in the Common Areas
at any time during the Term of this Lease. Landlord shall also have the right to
place "for rent" or "for lease" signs (which signage shall include a phrase to
the effect that Tenant is moving to larger quarters) on the outside of the
Premises and/or in the Common Areas at any time during the last nine (9) months
of the Term or the earlier termination thereof. Tenant hereby waives any claim
from damages or for any injury or inconvenience to or interference with Tenant's
business, or any other loss occasioned thereby except for any claim for any of
the foregoing arising out of the negligence or willful misconduct of Landlord or
its authorized representatives.
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19. ESTOPPEL CERTIFICATE: Tenant shall execute (and acknowledge if required by
any lender or ground lessor) and deliver to Landlord, within not less than ten
(10) business days after Landlord provides such to Tenant, a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or, if modified, stating the nature of such modification), the date to which
the Rent and other charges are paid in advance, if any, acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder or specifying such defaults as are claimed, and such other matters as
Landlord may reasonably require. Any such statement may be conclusively relied
upon by Landlord and any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon the Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) there are no uncured
defaults in Landlord's performance; and (c) not more than one month's Rent has
been paid in advance, except in those instances when Tenant pays Rent quarterly
in advance pursuant to Section 8 hereof, then not more than three month's Rent
has been paid in advance. Failure by Tenant to so deliver such certified
estoppel certificate shall be a material default of the provisions of this
Lease. Tenant shall be liable to Landlord, and shall indemnify Landlord from and
against any loss, cost, damage or expense, incidental, consequential, or
otherwise, resulting from any failure of Tenant to execute or deliver to
Landlord any such certified estoppel certificate.
20. TENANT'S DEFAULT: The occurrence of any one or more of the following events
shall, at Landlord's option, constitute a material default by Tenant of this
Lease:
20.1 The abandonment of the Premises by Tenant or the vacation of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse. Tenant agrees to notice and service of notice as provided for
in this Lease and waives any right to any other or further notice or service of
notice which Tenant may have under any statute or law now or hereafter in
effect;
20.2 The failure by Tenant to make any payment of Rent, Additional
Rent or any other payment required hereunder within three (3) days of Landlord's
delivery of written notice that said payment is due. Tenant agrees to notice and
service of notice as provided for in this Lease and waives any right to any
other or further notice or service of notice which Tenant may have under any
statute or law now or hereafter in effect;
20.3 The failure by Tenant to observe, perform or comply with any of
the conditions, covenants or provisions of this Lease (except failure to make
any payment of Rent and/or Additional Rent) and such failure is not cured within
(i) thirty (30) days of the date on which Landlord delivers written notice of
such failure to Tenant, complying with the notice requirements of Section 31.10
hereof, for all failures other than with respect to Hazardous Materials, and
(ii) ten (10) days of the date on which Landlord delivers written notice of such
failure to Tenant for all failures in any way related to Hazardous Materials.
However, Tenant shall not be in default of its obligations hereunder if such
failure cannot reasonably be cured within such thirty (30) or ten (10) day
period, as applicable, and Tenant promptly commences, and thereafter diligently
proceeds with same to completion, all actions necessary to cure such failure as
soon as is reasonably possible, but in no event shall the completion of such
cure be later than sixty (60) days after the date on which Landlord delivers to
Tenant written notice of such failure, unless Landlord, acting reasonably and in
good faith, otherwise expressly agrees in writing to a longer period of time
based upon the circumstances relating to such failure as well as the nature of
the failure and the nature of the actions necessary to cure such failure;
20.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
20.5 Tenant's use or storage of Hazardous Materials in, on or about
the Premises, the Buildings, the Lot and/or the Park other than as expressly
permitted by the provisions of Section 29 below;
20.6 The intentional making of any material misrepresentation or
omission by Tenant in any materials delivered by or on behalf of Tenant to
Landlord pursuant to this Lease; or
20.7 A material default by Tenant of any of the terms, provisions or
conditions of that certain Lease Agreement, of even date herewith, by and
between Landlord and Tenant for the leasing by Tenant of those two (2) certain
buildings situated within the Park and referred to as Buildings A and B (the
"First Lease").
21. REMEDIES FOR TENANT'S DEFAULT:
21.1 LANDLORD'S RIGHTS: In the event of Tenant's material default or
breach of the Lease, Landlord may, after expiration of any applicable cure
period, terminate Tenant's right to possession of the Premises by any lawful
means in which case upon delivery of written notice by Landlord this Lease shall
terminate on the date specified by Landlord in such notice and Tenant shall
immediately surrender possession of the Premises
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to Landlord. In addition, the Landlord shall have the immediate right of
re-entry whether or not this Lease is terminated, and if this right of re-entry
is exercised following abandonment of the Premises by Tenant, Landlord may
consider any personal property belonging to Tenant and left on the Premises to
also have been abandoned. No re-entry or taking possession of the Premises by
Landlord pursuant to this Section 21 shall be construed as an election to
terminate this Lease unless a written notice of such intention is given to
Tenant. If Landlord relets the Premises or any portion thereof, (i) Tenant shall
be liable immediately to Landlord for all costs Landlord incurs in reletting the
Premises or any part thereof, including, without limitation, broker's
commissions, expenses of cleaning, redecorating, and further improving the
Premises and other similar costs (collectively, the "Reletting Costs"), and (ii)
the rent received by Landlord from such reletting shall be applied to the
payment of, first, any indebtedness from Tenant to Landlord other than Base
Rent, Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses; second, all costs including maintenance, incurred by Landlord in
reletting; and, third, Base Rent, Operating Expenses, Tax Expenses, Common Area
Utility Costs, Utility Expenses, and all other sums due under this Lease. Any
and all of the Reletting Costs shall be fully chargeable to Tenant and shall not
be prorated or otherwise amortized in relation to any new lease for the Premises
or any portion thereof. After deducting the payments referred to above, any sum
remaining from the rental Landlord receives from reletting shall be held by
Landlord and applied in payment of future Rent as Rent becomes due under this
Lease. In no event shall Tenant be entitled to any excess rent received by
Landlord. Reletting may be for a period shorter or longer than the remaining
term of this Lease. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's right to possession. So long as this Lease is not terminated, Landlord
shall have the right to remedy any default of Tenant, to maintain or improve the
Premises, to cause a receiver to be appointed to administer the Premises and new
or existing subleases and to add to the Rent payable hereunder all of Landlord's
reasonable costs in so doing, with interest at the maximum rate permitted by law
from the date of such expenditure.
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons
the Premises before the end of the Term, or if Tenant's right to possession is
terminated by Landlord because of a breach or default of the Lease, then in
either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations hereunder,
including, but not limited to, the unamortized portion of any broker's or
leasing agent's commission incurred with respect to the leasing of the Premises
to Tenant for the balance of the Term of the Lease remaining after the date on
which Tenant is in default of its obligations hereunder to the extent such sums
are not already included as part of the calculation of damages, and all
Reletting Costs, and the worth at the time of the award (computed in accordance
with paragraph (3) of Subdivision (a) of Section 1951.2 of the California Civil
Code) of the amount by which the Rent then unpaid hereunder for the balance of
the Lease Term exceeds the amount of such loss of Rent for the same period which
Tenant proves could be reasonably avoided by Landlord and in such case, Landlord
prior to the award, may relet the Premises for the purpose of mitigating damages
suffered by Landlord because of Tenant's failure to perform its obligations
hereunder; provided, however, that even though Tenant has abandoned the Premises
following such breach, this Lease shall nevertheless continue in full force and
effect for as long as Landlord does not terminate Tenant's right of possession,
and until such termination, Landlord shall have the remedy described in Section
1951.4 of the California Civil Code (Landlord may continue this Lease in effect
after Tenant's breach and abandonment and recover Rent as it becomes due, if
Tenant has the right to sublet or assign, subject only to reasonable
limitations) and may enforce all its rights and remedies under this Lease,
including the right to recover the Rent from Tenant as it becomes due hereunder.
The "worth at the time of the award" within the meaning of Subparagraphs (a)(1)
and (a)(2) of Section 1951.2 of the California Civil Code shall be computed by
allowing interest at the rate of ten percent (10%) per annum. Tenant waives
redemption or relief from forfeiture under California Code of Civil Procedure
Sections 1174 and 1179, or under any other present or future law, in the event
Tenant is evicted or Landlord takes possession of the Premises by reason of any
default of Tenant hereunder.
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and remedies
of Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditor's rights generally.
21.4 WAIVER OF A DEFAULT: The waiver by Landlord of any material
default or breach of any provision of this Lease shall not be deemed or
construed a waiver of any other material breach or default by Tenant hereunder
or of any subsequent material breach or default of this Lease, except for the
default specified in the waiver.
22. HOLDING OVER: If Tenant holds possession of the Premises after the
expiration of the Term of this Lease with Landlord's consent, Tenant shall
become a tenant from month-to-month upon the terms and provisions of this Lease,
provided the monthly Base Rent during such hold over period shall be 125% of the
Base Rent due on the last month of the Lease Term, payable in advance on or
before the first day of each month. Acceptance by Landlord of the monthly Base
Rent without the additional twenty-five percent (25%) increase of Base Rent
shall not be deemed or construed as a waiver by Landlord of any of its rights to
collect the increased amount of the Base Rent as provided herein at any time.
Such month-to-month tenancy shall not constitute a renewal or extension for any
further term. All options, if any, granted under the terms of this Lease shall
be deemed automatically terminated and be of no force or effect during said
month-to-month tenancy. Tenant shall continue in possession until such tenancy
shall be terminated by either Landlord or Tenant giving written notice of
termination to the other party at least thirty (30) days prior to the effective
date of termination.
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This paragraph shall not be construed as Landlord's permission for Tenant to
hold over. Acceptance of Base Rent by Landlord following expiration or
termination of this Lease shall not constitute a renewal of this Lease. If
Tenant provides Landlord with at least twelve (12) months advance written notice
of Tenant's intention to hold over and the anticipated hold over period of time,
Landlord shall not be entitled to any consequential damages arising from such
hold over for the hold over period specified in such written notice; provided,
however, the foregoing shall not be considered as Landlord's waiver of the
requirement for Tenant to pay such additional twenty-five percent (25%) increase
of Base Rent during such holdover period as contemplated above.
23. LANDLORD'S DEFAULT: Landlord shall not be deemed in breach or default of
this Lease unless Landlord fails within a reasonable time to perform an
obligation required to be performed by Landlord hereunder. For purposes of this
provision, a reasonable time shall not be less than thirty (30) days after
receipt by Landlord of written notice specifying the nature of the obligation
Landlord has not performed (except for any items of repair or maintenance for
which a prompter response would be reasonably necessary or appropriate given the
then existing circumstances); provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days, after receipt of
written notice, is reasonably necessary for its performance, then Landlord shall
not be in breach or default of this Lease if performance of such obligation is
commenced within such thirty (30) day period and thereafter diligently pursued
to completion.
24. PARKING: Tenant shall have a license to use the number of undesignated and
nonexclusive parking spaces set forth on Page 1. Landlord shall exercise
reasonable efforts to insure that such spaces are available to Tenant for its
use, but Landlord shall not be required to enforce Tenant's right to use the
same. Tenant shall have the exclusive right to use up to ten (10) parking
spaces, in locations designated by Landlord, in close proximity to the entrance
of each of the Buildings for Tenant's exclusive use for visitor parking;
provided, Tenant shall be solely responsible for the payment of all costs
associated with such striping and designation and Tenant's General Contractor
shall perform the work associated therewith as part of the Tenant Improvements.
25. SALE OF PREMISES: In the event of any sale of the Premises by Landlord or
the cessation otherwise of Landlord's interest therein, Landlord shall be and is
hereby entirely released from any and all of its obligations to perform or
further perform under this Lease and from all liability hereunder accruing or
arising from and after the date of such sale; and the purchaser, at such sale or
any subsequent sale of the Premises shall be deemed, without any further
agreement between the parties or their successors in interest or between the
parties and any such purchaser, to have assumed and agreed to carry out any and
all of the covenants and obligations of the Landlord under this Lease except for
those obligations of Landlord which have accrued prior to the date of such
transfer. For purposes of this Section 25, the term "Landlord" means only the
owner and/or agent of the owner as such parties exist as of the date on which
Tenant executes this Lease. A ground lease or similar long term lease by
Landlord of the entire Buildings, of which the Premises are a part, shall be
deemed a sale within the meaning of this Section 25. Tenant agrees to attorn to
such new owner provided such new owner does not disturb Tenant's use, occupancy
or quiet enjoyment of the Premises so long as Tenant is not in default of any of
the provisions of this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
Landlord on any default by Tenant shall impair such a right or remedy or be
construed as a waiver. The subsequent acceptance of Rent by Landlord after
breach by Tenant of any covenant or term of this Lease shall not be deemed a
waiver of such breach, other than a waiver of timely payment for the particular
Rent payment involved, and shall not prevent Landlord from maintaining an
unlawful detainer or other action based on such breach. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Rent and other sums due
hereunder shall be deemed to be other than on account of the earliest Rent or
other sums due, nor shall any endorsement or statement on any check or
accompanying any check or payment be deemed an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Rent or other sum or pursue any other remedy
provided in this Lease. No failure, partial exercise or delay on the part of the
Landlord in exercising any right, power or privilege hereunder shall operate as
a waiver thereof.
27. CASUALTY DAMAGE: If either of the Buildings or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case either of the Buildings shall be so damaged by fire
or other casualty that fifty percent (50%) or more of the affected Building(s)
requires substantial alteration or reconstruction, in Landlord's reasonable
opinion, Landlord may, at its option, terminate this Lease with respect only to
the affected Building by notifying Tenant in writing of such termination within
ninety (90) days after the date of such damage, in which event the Rent shall be
abated as of the date of such damage but only to the extent Tenant is not able
to conduct its operations in the affected Building(s). If either of the
Buildings or any part thereof shall be damaged by fire or other casualty such
that the reparation of such damage or casualty shall require more than one
hundred eighty (180) days to complete (subject to extension for Force Majeure
Delays or Tenant Delays), then either Tenant or Landlord may terminate this
Lease with respect only to the affected Building by notifying the other party of
such election to terminate this Lease within thirty (30) days after the date on
which it is determined by Landlord of the length of time necessary to
substantially complete such repairs, in which event the Rent shall be abated as
of the date of such damage but only to the extent Tenant is not able to conduct
its operations in the affected Building(s). If neither party exercises their
rights to so elect to terminate this Lease with respect only to the affected
Building in accordance with the aforesaid provisions, and provided insurance
proceeds are available to fully repair the damage (excluding any
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deductible), Landlord shall within ninety (90) days after the date of such
damage commence to repair and restore the affected Building(s) and shall proceed
with reasonable diligence to restore the affected Building(s) (except that
Landlord shall not be responsible for delays outside its control) to
substantially the same condition in which it was immediately prior to the
happening of the casualty; provided, Landlord shall not be required to rebuild,
repair, or replace any part of Tenant's furniture, furnishings or fixtures and
equipment removable by Tenant or any improvements, alterations or additions
installed by or for the benefit of Tenant under the provisions of this Lease.
Landlord shall not in any event be required to spend for such work an amount in
excess of the insurance proceeds (excluding any deductible) actually received by
Landlord as a result of the fire or other casualty. Landlord shall not be liable
for any inconvenience or annoyance to Tenant, injury to the business of Tenant,
loss of use of any part of the Premises by the Tenant or loss of Tenant's
personal property resulting in any way from such damage or the repair thereof,
except that, subject to the provisions of the next sentence, Landlord shall
allow Tenant a fair diminution of Rent during the time and to the extent the
affected Building(s) is unfit for occupancy. Notwithstanding anything to the
contrary contained herein, if either of the Buildings or any other portion
thereof be damaged by fire or other casualty resulting from the intentional or
negligent acts or omissions of Tenant or any of Tenant's Representatives, (i)
the Rent shall not be diminished during the repair of such damage, (ii) Tenant
shall not have any right to terminate this Lease with respect only to the
affected Building due to the occurrence of such casualty or damage, and (iii)
Tenant shall be liable to Landlord for the cost and expense of the repair and
restoration of all or any portion of the affected Building(s) caused thereby
(including, without limitation, any deductible) to the extent such cost and
expense is not covered by insurance proceeds. In the event the holder of any
indebtedness secured by the affected Building(s) requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this Lease with respect only to the affected Building by delivering
written notice of termination to Tenant within thirty (30) days after the date
of notice to Tenant of any such event, whereupon all rights and obligations
shall cease and terminate hereunder with respect only to the affected Building
except for those obligations expressly intended to survive any such termination
of this Lease. Any notices required to be delivered pursuant to the provisions
of this Section 27 shall be in compliance with the notice requirements of
Section 31.10 of this Lease. Except as otherwise provided in this Section 27,
Tenant hereby waives the provisions of Sections 1932(2.), 1933(4.), 1941 and
1942 of the California Civil Code.
28. CONDEMNATION: If twenty-five percent (25%) or more of the Premises is
condemned by eminent domain, inversely condemned or sold in lieu of condemnation
for any public or quasi-public use or purpose ("Condemned"), then Tenant or
Landlord may terminate this Lease as of the date when physical possession of the
Premises is taken and title vests in such condemning authority, and Rent shall
be adjusted to the date of termination. Tenant shall not because of such
condemnation assert any claim against Landlord or the condemning authority for
any compensation because of such condemnation, and Landlord shall be entitled to
receive the entire amount of any award without deduction for any estate of
interest or other interest of Tenant; provided, however, the foregoing
provisions shall not preclude Tenant, at Tenant's sole cost and expense, from
obtaining any separate award to Tenant for loss of or damage to Tenant's trade
fixtures and removable personal property or for damages for cessation or
interruption of Tenant's business provided such award is separate from
Landlord's award and provided further such separate award does not diminish nor
impair the award otherwise payable to Landlord. In addition to the foregoing,
Tenant shall be entitled to seek compensation for the relocation costs
recoverable by Tenant pursuant to the provisions of California Government Code
Section 7262. If a substantial portion of the Premises, Buildings or the Lot is
so Condemned, Landlord or Tenant may terminate this Lease. If neither party
elects to terminate this Lease, Landlord shall, if necessary, promptly proceed
to restore the Premises or the Buildings to substantially its same condition
prior to such partial condemnation, allowing for the reasonable effects of such
partial condemnation, and a proportionate allowance shall be made to Tenant, as
reasonably determined by Landlord, for the Rent corresponding to the time during
which, and to the part of the Premises of which, Tenant is deprived on account
of such partial condemnation and restoration. Landlord shall not be required to
spend funds for restoration in excess of the amount received by Landlord as
compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS:
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing
this Lease, Tenant has completed, executed and delivered to Landlord Tenant's
initial Hazardous Materials Disclosure Certificate (the "Initial HazMat
Certificate"), a copy of which is attached hereto as Exhibit G and incorporated
herein by this reference. Tenant covenants, represents and warrants to Landlord
that the information on the Initial HazMat Certificate is true and correct, to
the best of Tenant's knowledge, and accurately describes the use(s) of Hazardous
Materials which will be made and/or used on the Premises by Tenant. Commencing
with the date which is one year from the Commencement Date and continuing every
year thereafter, Tenant shall complete, execute, and deliver to Landlord, a
Hazardous Materials Disclosure Certificate ("the "HazMat Certificate")
describing Tenant's present use of Hazardous Materials on the Premises, and any
other reasonably necessary documents as requested by Landlord. The HazMat
Certificate required hereunder shall be in substantially the form as that which
is attached hereto as Exhibit E. Landlord hereby acknowledges and agrees that as
of the date on which both parties execute and deliver this Lease, Landlord has
approved the Initial HazMat Certificate; however, any such approval by Landlord
shall not be construed to relieve Tenant from its obligations and/or any
liabilities under the provisions of this Section 29.
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the
term Hazardous Materials shall mean and include (a) any hazardous or toxic
wastes, materials or substances, and other pollutants or contaminants, which are
or become regulated by any Environmental Laws; (b) petroleum, petroleum by
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products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
and asbestos containing material, in any form, whether friable or non-friable;
(d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and
lead-containing materials; (g) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or threatens
to cause a nuisance upon or waste to any portion of the Premises, the Buildings,
the Lot, the Park or any surrounding property; or poses or threatens to pose a
hazard to the health and safety of persons on the Premises or any surrounding
property.
29.3 PROHIBITION; ENVIRONMENTAL LAWS: Except for and to the extent of
the type and quantities of Hazardous Materials specified in the Initial HazMat
Certificate, Tenant shall not be entitled to use nor store any Hazardous
Materials on, in, or about the Premises, the Buildings, the Lot and the Park, or
any portion of the foregoing, without, in each instance, obtaining Landlord's
prior written consent thereto. If Landlord consents to any such usage or
storage, then Tenant shall be permitted to use and/or store only those Hazardous
Materials that are necessary for Tenant's business and to the extent disclosed
in the HazMat Certificate and as expressly approved by Landlord in writing,
provided that such usage and storage is only to the extent of the quantities of
Hazardous Materials as specified in the then applicable HazMat Certificate as
expressly approved by Landlord and provided further that such usage and storage
is in full compliance with any and all local, state and federal environmental,
health and/or safety-related laws, statutes, orders, standards, courts'
decisions, ordinances, rules and regulations (as interpreted by judicial and
administrative decisions), decrees, directives, guidelines, permits or permit
conditions, currently existing and as amended, enacted, issued or adopted in the
future which are or become applicable to Tenant or all or any portion of the
Premises (collectively, the "Environmental Laws"). Tenant agrees that any
changes to the type and/or quantities of Hazardous Materials specified in the
most recent HazMat Certificate may be implemented only with the prior written
consent of Landlord, which consent may be given or withheld in Landlord's
reasonable discretion. Tenant shall not be entitled nor permitted to install any
tanks under, on or about the Premises for the storage of Hazardous Materials
without the express written consent of Landlord, which may be given or withheld
in Landlord's sole discretion. Landlord shall have the right at all times during
the Term of this Lease, upon reasonable advance notice to Tenant, to (i) inspect
the Premises, (ii) conduct tests and investigations to determine whether Tenant
is in compliance with the provisions of this Section 29, and (iii) request lists
of all Hazardous Materials used, stored or otherwise located on, under or about
the Premises, the Common Areas and/or the parking lots. The cost of all such
inspections, tests and investigations shall be borne solely by Tenant, if
Landlord reasonably determines that Tenant or any of Tenant's Representatives
are directly or indirectly responsible in any manner for any contamination
revealed by such inspections, tests and investigations. The aforementioned
rights granted herein to Landlord and its representatives shall not create (a) a
duty on Landlord's part to inspect, test, investigate, monitor or otherwise
observe the Premises or the activities of Tenant and Tenant's Representatives
with respect to Hazardous Materials, including without limitation, Tenant's
operation, use and any remediation related thereto, or (b) liability on the part
of Landlord and its representatives for Tenant's use, storage, disposal or
remediation of Hazardous Materials, it being understood that Tenant shall be
solely responsible for all liability in connection therewith.
29.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials by Tenant, Tenant's Representatives or by any other party in
the event Tenant or Tenant's Representatives has actual knowledge thereof, on,
under or about the Premises, or in any Common Areas or parking lots. Tenant, at
its sole cost and expense, covenants and warrants to promptly investigate, clean
up, remove, restore and otherwise remediate (including, without limitation,
preparation of any feasibility studies or reports and the performance of any and
all closures) any spill, release, discharge, disposal, emission, migration or
transportation of Hazardous Materials arising from or related to the intentional
or negligent acts or omissions of Tenant or Tenant's Representatives such that
the affected portions of the Park and any adjacent property are returned to the
condition existing prior to the appearance of such Hazardous Materials. Any such
investigation, clean up, removal, restoration and other remediation shall only
be performed after Tenant has obtained Landlord's prior written consent, which
consent shall not be unreasonably withheld so long as such actions would not
potentially have a material adverse long-term or short-term effect on the
Premises, the Buildings, the Lot or the Park, or any portion of any of the
foregoing. Notwithstanding the foregoing, Tenant shall be entitled to respond
immediately to an emergency without first obtaining Landlord's prior written
consent. Tenant, at its sole cost and expense, shall conduct and perform, or
cause to be conducted and performed, all closures as required by any
Environmental Laws or any agencies or other governmental authorities having
jurisdiction thereof. If Tenant fails to so promptly investigate, clean up,
remove, restore, provide closure or otherwise so remediate, Landlord may, but
without obligation to do so, take any and all steps necessary to rectify the
same and Tenant shall promptly reimburse Landlord, upon demand, for all
reasonable costs and expenses to Landlord of performing investigation, clean up,
removal, restoration, closure and remediation work. All such work undertaken by
Tenant, as required herein, shall be performed in such a manner so as to enable
Landlord to make full economic use of the Premises, the Buildings, the Lot and
the Park after the satisfactory completion of such work.
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as
set forth hereinabove but subject to the provisions of Section 29.7 below,
Tenant agrees to, and shall, protect, indemnify, defend (with counsel reasonably
acceptable to Landlord) and hold Landlord and Landlord's lenders, members,
partners, property management company (if other than Landlord), agents,
directors, officers, employees, representatives, contractors, shareholders,
successors and assigns and each of their respective partners, directors,
employees, representatives, agents, contractors, shareholders, successors and
assigns harmless from and against any and all claims, judgments, damages,
penalties, fines, liabilities, losses (including, without limitation, diminution
in value
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of the Premises, the Buildings, the Lot, the Park, or any portion of any of the
foregoing, damages for the loss of or restriction on the use of rentable or
usable space, and from any adverse impact of Landlord's marketing of any space
within the Buildings and/or Park), suits, administrative proceedings and costs
(including, but not limited to, reasonable attorneys' and consultant fees and
court costs) arising at any time during or after the Term of this Lease in
connection with or related to, directly or indirectly, the use, presence,
transportation, storage, disposal, migration, removal, spill, release or
discharge of Hazardous Materials on, in or about the Premises, or in any Common
Areas or parking lots as a result (directly or indirectly) of the intentional or
negligent acts or omissions of Tenant or Tenant's Representatives. Neither the
written consent of Landlord to the presence, use or storage of Hazardous
Materials in, on, under or about any portion of the Premises, the Buildings, the
Lot and the Park, nor the strict compliance by Tenant with all Environmental
Laws shall excuse Tenant from its obligations of indemnification pursuant
hereto. Tenant shall not be relieved of its indemnification obligations under
the provisions of this Section 29.5 as a result of Landlord's status as either
an "owner" or "operator" under any Environmental Laws.
29.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the condition of
all or any portion of the Premises, the Buildings, the Lot and/or the Park is
not in compliance with the provisions of this Lease with respect to Hazardous
Materials, including without limitation all Environmental Laws at the expiration
or earlier termination of this Lease, then at Landlord's sole option, Landlord
may require Tenant to hold over possession of the Premises until Tenant can
surrender the Premises to Landlord in the condition in which the Premises
existed as of the Commencement Date and prior to the appearance of such
Hazardous Materials except for reasonable wear and tear, including without
limitation, the conduct or performance of any closures as required by any
Environmental Laws. For purposes hereof, the term "reasonable wear and tear"
shall not include any deterioration in the condition or diminution of the value
of any portion of the Premises, the Buildings, the Lot and/or the Park in any
manner whatsoever related to directly, or indirectly, Hazardous Materials. Any
such holdover by Tenant will be with Landlord's consent, will not be terminable
by Tenant in any event or circumstance and will otherwise be subject to the
provisions of Section 22 of this Lease.
29.7 EXCULPATION OF TENANT: Tenant shall not be liable to Landlord for
nor otherwise obligated to Landlord under any provision of the Lease with
respect to the following: (i) any claim, remediation, obligation, investigation,
obligation, liability, cause of action, attorney's fees, consultants' cost,
expense or damage resulting from any Hazardous Materials present in, on or about
the Premises or the Buildings to the extent not caused nor otherwise permitted,
directly or indirectly, by Tenant or Tenant's Representatives; or (ii) the
removal, investigation, monitoring or remediation of any Hazardous Material
present in, on or about the Premises or the Buildings directly caused by any
source, including third parties, other than Tenant or Tenant's Representatives;
provided, however, Tenant shall be fully liable for and otherwise obligated to
Landlord under the provisions of this Lease for all liabilities, costs, damages,
penalties, claims, judgments, expenses (including without limitation, attorneys'
and experts' fees and costs) and losses to the extent (a) Tenant or any of
Tenant's Representatives contributes to the presence of such Hazardous
Materials, or Tenant and/or any of Tenant's Representatives exacerbates the
conditions caused by such Hazardous Materials, or (b) Tenant and/or Tenant's
Representatives allows or permits persons over which Tenant or any of Tenant's
Representatives has control, and/or for which Tenant or any of Tenant's
Representatives are legally responsible for, to cause such Hazardous Materials
to be present in, on, under, through or about any portion of the Premises, the
Common Areas, the Buildings or the Park, or (c) Tenant and/or any of Tenant's
Representatives does not take all reasonably appropriate actions to prevent such
persons over which Tenant or any of Tenant's Representatives has control and/or
for which Tenant or any of Tenant's Representatives are legally responsible from
causing the presence of Hazardous Materials in, on, under, through or about any
portion of the Premises, the Common Areas, the Buildings or the Park.
30. FINANCIAL STATEMENTS: Tenant, for the reliance of Landlord, any lender
holding or anticipated to acquire a lien upon the Premises, the Buildings or the
Park or any portion thereof, or any prospective purchaser of the Buildings or
the Park or any portion thereof, within thirty (30) days after Landlord's
request therefor, but not more often than once annually so long as Tenant is not
in default of this Lease, shall deliver to Landlord the then current audited
financial statements of Tenant (including interim periods following the end of
the last fiscal year for which annual statements are available) which statements
shall be prepared or compiled by a certified public accountant and shall present
fairly the financial condition of Tenant at such dates and the result of its
operations and changes in its financial positions for the periods ended on such
dates. So long as Tenant is a publicly-traded entity, Tenant's publicly-filed
financial statements shall be satisfactory for the satisfaction of the foregoing
requirement. If an audited financial statement has not been prepared, Tenant
shall provide Landlord with an unaudited financial statement and/or such other
information, the type and form of which are acceptable to Landlord in Landlord's
reasonable discretion, which reflects the financial condition of Tenant. If
Landlord so requests, Tenant shall deliver to Landlord an opinion of a certified
public accountant, including a balance sheet and profit and loss statement for
the most recent prior year, all prepared in accordance with generally accepted
accounting principles consistently applied. Any and all options granted to
Tenant hereunder shall be subject to and conditioned upon Landlord's reasonable
approval of Tenant's financial condition at the time of Tenant's exercise of any
such option.
31. GENERAL PROVISIONS:
31.1 TIME. Time is of the essence in this Lease and with respect to
each and all of its provisions in which performance is a factor.
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31.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
31.3 RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Landlord.
31.4 LANDLORD'S PERSONAL LIABILITY. The liability of Landlord (which,
for purposes of this Lease, shall include Landlord and the owner of the
Buildings if other than Landlord) to Tenant for any default by Landlord under
the terms of this Lease shall be limited to the actual interest of Landlord and
its present or future partners or members in the Park, and Tenant agrees to look
solely to the Park for satisfaction of any liability and shall not look to other
assets of Landlord nor seek any recourse against the assets of the individual
members, partners, directors, officers, shareholders, agents or employees of
Landlord; it being intended that Landlord and the individual partners, members,
directors, officers, shareholders, agents or employees of Landlord shall not be
personally liable in any manner whatsoever for any judgment or deficiency. The
liability of Landlord under this Lease is limited to its actual period of
ownership of title to the Buildings, and Landlord shall be automatically
released from further performance under this Lease and from all further
liabilities and expenses accruing hereunder after the date of such transfer of
Landlord's interest in the Buildings. The foregoing shall not in any way limit
or impair Tenant's right, if any, to recover proceeds of insurance or any
condemnation award in accordance with the provisions of this Lease.
31.5 SEPARABILITY. Any provisions of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provisions hereof and such other provision shall remain in full force and
effect.
31.6 CHOICE OF LAW. This Lease shall be governed by the laws of the
State of California.
31.7 ATTORNEYS' FEES. In the event any dispute between the parties
results in litigation or other proceeding or any other litigation involving the
parties arises from this Lease, the prevailing party shall be reimbursed by the
party not prevailing for all reasonable costs and expenses, including, without
limitation, reasonable attorneys' and experts' fees and costs incurred by the
prevailing party in connection with such litigation or other proceeding, and any
appeal thereof. Such costs, expenses and fees shall be included in and made a
part of the judgment recovered by the prevailing party, if any.
31.8 ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party, that is not in writing and
signed by all parties to this Lease, shall be binding.
31.9 WARRANTY OF AUTHORITY. On the date that Tenant executes this
Lease, Tenant shall deliver to Landlord an original certificate of status for
Tenant issued by the California Secretary of State or statement of partnership
for Tenant recorded in the county in which the Premises are located, as
applicable, and such other documents as Landlord may reasonably request with
regard to the lawful existence of Tenant. Each person executing this Lease on
behalf of a party represents and warrants that (1) such person is duly and
validly authorized to do so on behalf of the entity it purports to so bind, and
(2) if such party is a limited liability company, partnership, corporation or
trustee, that such limited liability company, partnership, corporation or
trustee has full right and authority to enter into this Lease and perform all of
its obligations hereunder.
31.10 NOTICES. Any and all notices and demands required or permitted
to be given hereunder to Landlord shall be in writing and shall be sent: (a) by
United States mail, certified and postage prepaid; or (b) by personal delivery;
or (c) by overnight courier, addressed to Landlord at 101 Lincoln Centre Drive,
Fourth Floor, Foster City, California 94404-1167. Any and all notices and
demands required or permitted to be given hereunder to Tenant shall be in
writing and shall be sent: (i) by United States mail, certified and postage
prepaid; or (ii) by personal delivery to any employee or agent of Tenant over
the age of eighteen (18) years of age; or (iii) by overnight courier, all of
which shall be addressed to Tenant at the Tenant's Address as provided on Page 1
of this Lease or otherwise provided to Landlord. Notice and/or demand shall be
deemed given upon the earlier of actual receipt or the third day following
deposit in the United States mail. Any notice or requirement of service required
by any statute or law now or hereafter in effect, including, but not limited to,
California Code of Civil Procedure Sections 1161, 1161.1, and 1162, is hereby
waived by Tenant.
31.11 JOINT AND SEVERAL. If Tenant consists of more than one person or
entity, the obligations of all such persons or entities shall be joint and
several.
31.12 COVENANTS AND CONDITIONS. Each provision to be performed by
Tenant hereunder shall be deemed to be both a covenant and a condition.
31.13 WAIVER OF JURY TRIAL. Intentionally omitted.
31.14 COUNTERCLAIMS. In the event Landlord commences any proceedings
for nonpayment of Rent, Additional Rent, or any other sums or amounts due
hereunder, Tenant shall not interpose any counterclaim of whatever nature or
description in any such proceedings, provided, however, nothing contained herein
shall be deemed or construed as a waiver of the Tenant's right to assert such
claims in any separate action brought by Tenant or the right to offset the
amount of any final judgment owed by Landlord to Tenant.
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31.15 UNDERLINING. The use of underlining within the Lease is for
Landlord's reference purposes only and no other meaning or emphasis is intended
by this use, nor should any be inferred.
32. SIGNS: All signs and graphics of every kind visible in or from public view
or corridors or the exterior of the Premises shall be subject to Landlord's
prior written approval, which shall not be unreasonably withheld or delayed, and
shall also be subject to any applicable governmental laws, ordinances, and
regulations and in compliance with Landlord's sign criteria as same may exist
from time to time or as set forth in Exhibit H hereto and made a part hereof.
Tenant shall remove all such signs and graphics prior to the termination of this
Lease. Such installations and removals shall be made in a manner as to avoid
damage or defacement of the Premises; and Tenant shall repair any damage or
defacement, including without limitation, discoloration caused by such
installation or removal. Landlord shall have the right, at its option, to demand
payment from Tenant of such sums as are reasonably necessary to remove such
signs, including, but not limited to, the costs and expenses associated with any
repairs necessitated by such removal. Notwithstanding the foregoing, in no event
shall any: (a) neon, flashing or moving sign(s) or (b) sign(s) which shall
interfere with the visibility of any sign, awning, canopy, advertising matter,
or decoration of any kind of any other business or occupant of the Buildings or
the Park be permitted hereunder. Tenant further agrees to maintain any such
sign, awning, canopy, advertising matter, lettering, decoration or other thing
as may be approved in good condition and repair at all times.
33. MORTGAGEE PROTECTION: Upon any breach or default on the part of Landlord,
Tenant will give written notice by registered or certified mail to any
beneficiary of a deed of trust or mortgagee of a mortgage covering the Premises
who has provided Tenant with notice of their interest together with an address
for receiving notice, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default (which, in no event shall be more than ninety
(90) days), including time to obtain possession of the Premises by power of sale
or a judicial foreclosure, if such should prove necessary to effect a cure. If
such breach or default cannot be cured within such time period, then such
additional time as may be necessary will be given to such beneficiary or
mortgagee to effect such cure so long as such beneficiary or mortgagee has
commenced the cure within the original time period and thereafter diligently
pursues such cure to completion, in which event this Lease shall not be
terminated while such cure is being diligently pursued. Tenant agrees that each
lender to whom this Lease has been assigned by Landlord is an express third
party beneficiary hereof. Tenant shall not make any prepayment of Rent more than
one (1) month in advance without the prior written consent of each such lender,
except if Tenant is required to make quarterly payments of Rent in advance
pursuant to the provisions of Section 8 above. Tenant agrees to make all
payments under this Lease to the lender with the most senior encumbrance upon
receiving a direction, in writing, to pay said amounts to such lender. Tenant
shall comply with such written direction to pay without determining whether an
event of default exists under such lender's loan to Landlord.
34. QUITCLAIM: Upon any termination of this Lease, Tenant shall, at Landlord's
request, execute, have acknowledged and deliver to Landlord a quitclaim deed of
Tenant's interest in and to the Premises.
35. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing for the
Premises or any portion thereof, Landlord's lender shall request reasonable
modification(s) to this Lease as a condition to such financing, Tenant shall not
unreasonably withhold, delay or defer its consent thereto, provided such
modifications do not materially adversely affect Tenant's rights hereunder or
the use, occupancy or quiet enjoyment of Tenant hereunder.
36. WARRANTIES OF TENANT: Tenant hereby warrants and represents to Landlord, for
the express benefit of Landlord, that Tenant has undertaken a complete and
independent evaluation of the risks inherent in the execution of this Lease and
the operation of the Premises for the use permitted hereby, and that, based upon
said independent evaluation, Tenant has elected to enter into this Lease and
hereby assumes all risks with respect thereto. Each party hereby warrants and
represents to the other party, for the express benefit of the other party, that
in entering into this Lease, the warranting party has not relied upon any
statement, fact, promise or representation (whether express or implied, written
or oral) not specifically set forth herein in writing and that any statement,
fact, promise or representation (whether express or implied, written or oral)
made at any time to it, which is not expressly incorporated herein in writing,
is hereby waived by it.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT: Landlord and Tenant hereby
agree and acknowledge that the Premises, the Buildings and/or the Park may be
subject to the requirements of the Americans with Disabilities Act, a federal
law codified at 42 U.S.C. 12101 et seq, including, but not limited to Title III
thereof, all regulations and guidelines related thereto, together with any and
all laws, rules, regulations, ordinances, codes and statutes now or hereafter
enacted by local or state agencies having jurisdiction thereof, including all
requirements of Title 24 of the State of California, as the same may be in
effect on the date of this Lease and may be hereafter modified, amended or
supplemented (collectively, the "ADA"). The Shell Improvements to be constructed
hereunder shall be in compliance with the requirements of the ADA as of the date
on which the Shell Improvements are Substantially Completed. Any Tenant
Improvements to be constructed hereunder shall be in compliance with the
requirements of the ADA, and all costs incurred for purposes of compliance
therewith shall be a part of and included in the costs of the Tenant
Improvements. Tenant shall be solely responsible for conducting its own
independent investigation of this matter and for ensuring that the design of all
Tenant Improvements strictly comply with all requirements of the ADA. Subject to
reimbursement pursuant to Section
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6 of the Lease, if any barrier removal work or other work is required to the
Buildings, the Common Areas or the Park under the ADA, then such work shall be
the responsibility of Landlord; provided, if such work is required under the ADA
as a result of Tenant's use of the Premises or any work or alteration made to
the Premises by or on behalf of Tenant, then such work shall be performed by
Landlord at the sole cost and expense of Tenant. Except as otherwise expressly
provided in this provision, Tenant shall be responsible at its sole cost and
expense for fully and faithfully complying with all applicable requirements of
the ADA, including without limitation, not discriminating against any disabled
persons in the operation of Tenant's business in or about the Premises, and
offering or otherwise providing auxiliary aids and services as, and when,
required by the ADA. Within ten (10) days after receipt, Landlord and Tenant
shall advise the other party in writing, and provide the other with copies of
(as applicable), any notices alleging violation of the ADA relating to any
portion of the Premises or the Buildings; any claims made or threatened in
writing regarding noncompliance with the ADA and relating to any portion of the
Premises or the Buildings; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with the ADA and
relating to any portion of the Premises or the Buildings. Tenant shall and
hereby agrees to protect, defend (with counsel acceptable to Landlord) and hold
Landlord and Landlord's lender(s), members, partners, employees,
representatives, legal representatives, successors and assigns (collectively,
the "Indemnitees") harmless and indemnify the Indemnitees from and against all
liabilities, damages, claims, losses, penalties, judgments, charges and expenses
(including reasonable attorneys' fees, costs of court and expenses necessary in
the prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly,
Tenant's or Tenant's Representatives' violation of the ADA. Tenant agrees that
the obligations of Tenant herein shall survive the expiration or earlier
termination of this Lease.
38. BROKERAGE COMMISSION: Landlord and Tenant each represents and warrants for
the benefit of the other that it has had no dealings with any real estate
broker, agent or finder in connection with the Premises and/or the negotiation
of this Lease, except for the Broker(s) (as set forth on Page 1), and that it
knows of no other real estate broker, agent or finder who is or might be
entitled to a real estate brokerage commission or finder's fee in connection
with this Lease or otherwise based upon contacts between the claimant and
Tenant. Each party shall indemnify and hold harmless the other from and against
any and all liabilities or expenses arising out of claims made for a fee or
commission by any real estate broker, agent or finder in connection with the
Premises and this Lease other than Broker(s), if any, resulting from the actions
of the indemnifying party. Any real estate brokerage commission or finder's fee
payable to the Broker(s) in connection with this Lease shall only be payable and
applicable to the extent of the initial term of the Lease and to the extent of
the Premises as same exist as of the date on which Tenant executes this Lease.
Unless expressly agreed to in writing by Landlord and Broker(s), no real estate
brokerage commission or finder's fee shall be owed to, or otherwise payable to,
the Broker(s) for any renewals or other extensions of the initial Term of this
Lease or for any additional space leased by Tenant other than the Premises as
same exists as of the date on which Tenant executes this Lease. Tenant further
represents and warrants to Landlord that Tenant will not receive (i) any portion
of any brokerage commission or finder's fee payable to the Broker(s) in
connection with this Lease or (ii) any other form of compensation or incentive
from the Broker(s) with respect to this Lease.
39. QUIET ENJOYMENT: Landlord covenants with Tenant, upon the paying of Rent and
observing and keeping the covenants, agreements and conditions of this Lease on
its part to be kept, and during the periods that Tenant is not otherwise in
default of any of the terms or provisions of this Lease, and subject to the
rights of any of Landlord's lenders, (i) that Tenant shall and may peaceably and
quietly hold, occupy and enjoy the Premises and the Common Areas during the Term
of this Lease, and (ii) neither Landlord, nor any successor or assign of
Landlord, shall disturb Tenant's occupancy or enjoyment of the Premises and the
Common Areas.
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS:
Notwithstanding anything to the contrary contained in this Lease, if Tenant
shall fail to perform any of the terms, provisions, covenants or conditions to
be performed or complied with by Tenant pursuant to this Lease, and/or if the
failure of Tenant relates to a matter which in Landlord's judgment reasonably
exercised is of an emergency nature and such failure shall remain uncured for a
period of time commensurate with such emergency, then Landlord may, at
Landlord's option without any obligation to do so, and in its sole discretion as
to the necessity therefor, perform any such term, provision, covenant, or
condition, or make any such payment and Landlord by reason of so doing shall not
be liable or responsible for any loss or damage thereby sustained by Tenant or
anyone holding under or through Tenant. If Landlord so performs any of Tenant's
obligations hereunder, the full amount of the cost and expense entailed or the
payment so made or the amount of the loss so sustained shall immediately be
owing by Tenant to Landlord, and Tenant shall promptly pay to Landlord upon
demand, as Additional Rent, the full amount thereof with interest thereon from
the date of payment at the greater of (i) ten percent (10%) per annum, or (ii)
the highest rate permitted by applicable law and Enforcement Expenses.
41. TENANT'S ABILITY TO PERFORM LANDLORD'S UNPERFORMED OBLIGATIONS:
Notwithstanding anything to the contrary contained in this Lease, if Landlord
shall fail to perform any of the terms, provisions, covenants or conditions to
be performed or complied with by Landlord pursuant to this Lease after
expiration of all applicable notice and cure periods for Landlord's and any
mortgagee's benefit as set forth in Sections 23 and 33, respectively, and/or if
the failure of Landlord relates to a matter which in Tenant's judgment
reasonably exercised is of an emergency nature and such failure shall remain
uncured for a period of time commensurate with such emergency, then Tenant may,
at Tenant's option without any obligation to do so, after delivery of prior
written notice to Landlord and affording Landlord an opportunity to cure such
failure, perform any such term, provision, covenant, or condition. If Tenant so
performs any of Landlord's obligations hereunder, the full
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amount of the reasonable costs and expenses incurred shall immediately be owing
by Landlord to Tenant, and Landlord shall pay to Tenant the full amount thereof
within ninety (90) days of Landlord's receipt of Tenant's written demand and
accompanying documentation therefor. If Landlord fails to pay such sums within
said 90-day period, and provided there does not then exist a good faith dispute
thereof on the part of Landlord, Tenant may deduct such sums so demanded from
the next installment of Base Rent then due from Tenant hereunder.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the
Lease Date referenced on page 1 of this Lease.
TENANT:
Cisco Systems, Inc., a California corporation
By: /s/Nancy Bareilles
------------------------
Its: VP
------------------------
Date: 12-19-96
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LANDLORD:
LINCOLN-WHITEHALL REALTY (WEST), L.L.C.,
a Delaware limited liability company
By: Lincoln Property Company Management Services, Inc.,
as manager and agent for LINCOLN-WHITEHALL REALTY (WEST), L.L.C.
By: /s/Barry DiRaimondo
---------------------------
Vice President
Date: 12/23/96
-----------------------
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EXHIBIT A - PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to that
certain Lease Agreement dated December 18, 1996, (the "Lease"), by and between
Lincoln-Whitehall Realty (West), L.L.C., a Delaware limited liability company
("Landlord"), and Cisco Systems, Inc., a California corporation ("Tenant"), for
the leasing of certain premises located in the Lincoln Bay Tech Park, at
Buildings C & D, San Jose, California (the "Premises").
The Premises consist of the rentable square footage of space specified in the
Basic Lease Information and has the addresses specified in the Basic Lease
Information. The Premises are a part of and are contained in the Buildings
specified in the Basic Lease Information. The cross-hatched area depicts the
Premises within the Buildings and the Park:
INITIALS:
TENANT: ___________
LANDLORD: ___________
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EXHIBIT B TO LEASE AGREEMENT
TENANT IMPROVEMENTS AND SHELL IMPROVEMENTS
This exhibit, entitled "Tenant Improvements and Shell Improvements", is and
shall constitute EXHIBIT B to that certain Lease Agreement dated December 18,
1996, (the "Lease"), by and between Lincoln-Whitehall Realty (West), L.L.C., a
Delaware limited liability company ("Landlord"), and Cisco Systems, Inc., a
California corporation ("Tenant"), for the leasing of certain premises located
at 130 Baytech Drive (Building C) and 140 Baytech Drive (Building D), San Jose,
California (the "Premises"). The terms, conditions and provisions of this
EXHIBIT B are hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease.
1. TENANT TO CONSTRUCT TENANT IMPROVEMENTS. Subject to the provisions
below, Tenant shall be solely responsible for the planning, construction and
completion of the interior tenant improvements ("Tenant Improvements") to the
Premises in accordance with the terms and conditions of this Exhibit B. The
Tenant Improvements shall not include any of Tenant's personal property, trade
fixtures, furnishings, equipment or similar items.
2. TENANT IMPROVEMENT PLANS.
A. PRELIMINARY PLANS AND SPECIFICATIONS. Tenant shall retain a
licensed, insured architect ("Architect") to prepare preliminary working
architectural and engineering plans and specifications ("Preliminary Plans and
Specifications") for the Tenant Improvements. Tenant shall deliver the
Preliminary Plans and Specifications to Landlord. The Preliminary Plans and
Specifications shall be in sufficient detail to show locations, types and
requirements for all heat loads, people loads, floor loads, power and plumbing,
regular and special HVAC needs, telephone communications, telephone and
electrical outlets, lighting, lighting fixtures and related power, and
electrical and telephone switches. Landlord shall reasonably approve or
disapprove the Preliminary Plans and Specifications within five (5) days after
Landlord receives the Preliminary Plans and Specifications and, if disapproved,
Landlord shall return the Preliminary Plans and Specifications to Tenant, who
shall make all necessary revisions within ten (10) days after Tenant's receipt
thereof. This procedure shall be repeated until Landlord approves the
Preliminary Plans and Specifications. The approved Preliminary Plans and
Specifications, as modified, shall be deemed the "Final Preliminary Plans and
Specifications".
B. FINAL PLANS AND SPECIFICATIONS. After the Final Preliminary Plans
and Specifications are approved by Landlord and are deemed to be the Final
Preliminary Plans and Specifications, Tenant shall cause the Architect to
prepare in twenty (20) days following Landlord's approval of the Final
Preliminary Plans and Specifications the final working architectural and
engineering plans, specifications and drawings, ("Final Plans and
Specifications") for the Tenant Improvements. Tenant shall then deliver the
Final Plans and Specifications to Landlord. Landlord shall reasonably approve or
disapprove the Final Plans and Specifications within five (5) days after
Landlord receives the Final Plans and Specifications and, if disapproved,
Landlord shall return the Final Plans and Specifications to Tenant who shall
make all necessary revisions within ten (10) days after Tenant's receipt
thereof. This procedure shall be repeated until Landlord approves, in writing,
the Final Plans and Specifications. The approved Final Plans and Specifications,
as modified, shall be deemed the "Construction Documents".
C. MISCELLANEOUS. All deliveries of the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents shall be delivered by
messenger service, by personal hand delivery or by overnight parcel service.
While Landlord has the right to approve the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents, Landlord's interest in doing
so is to protect the Premises, the Buildings and Landlord's interest.
Accordingly, Tenant shall not rely upon Landlord's approvals and Landlord shall
not be the guarantor of, nor responsible for, the adequacy and correctness or
accuracy of the Preliminary Plans and Specifications, the Final Preliminary
Plans and Specifications, the Final Plans and Specifications, and the
Construction Documents, or the compliance thereof with applicable laws, and
Landlord shall incur no liability of any kind by reason of granting such
approvals.
D. BUILDING STANDARD WORK. The Construction Documents shall provide
that the Tenant Improvements to be constructed in accordance therewith must be
at least equal, in quality, to Landlord's building standard materials,
quantities and procedures then in use by Landlord ("Building Standards")
attached hereto as Exhibit B-2. Notwithstanding the foregoing, so long as the
Construction Documents are consistent with Tenant's Tasman buildings, the
Construction Documents shall be considered to be in accordance with Landlord's
Building Standards.
3. PERMITS. Tenant, at its sole cost and expense (subject to the
provisions of Paragraph 5 below), shall obtain all governmental approvals of the
Construction Documents to the full extent necessary for the issuance of a
building permit for the Tenant Improvements based upon such Construction
Documents. Tenant, at its sole cost and expense, shall also cause to be obtained
all other necessary approvals and permits from all governmental agencies having
jurisdiction or authority for the construction and installation of the Tenant
Improvements in accordance with the approved Construction Documents. Tenant at
its sole cost and expense (subject to the provisions of Paragraph 5 below) shall
undertake all steps necessary to insure that the construction of the Tenant
Improvements is accomplished in strict compliance with all statutes, laws,
ordinances, codes, rules, and regulations applicable to the construction of the
Tenant Improvements and the requirements and standards of
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any insurance underwriting board, inspection bureau or insurance carrier
insuring the Premises and/or the Buildings.
4. CONSTRUCTION.
A. Tenant shall be solely responsible for the construction,
installation and completion of the Tenant Improvements in accordance with the
Construction Documents approved by Landlord and is solely responsible for the
payment of all amounts when payable in connection therewith without any cost or
expense to Landlord, except for Landlord's obligation to contribute the Tenant
Improvement Allowance in accordance with the provisions of Paragraph 5 below.
Tenant shall diligently proceed with the construction, installation and
completion of the Tenant Improvements in accordance with the Construction
Documents and the completion schedule reasonably approved by Landlord. No
material changes shall be made to the Construction Documents and the completion
schedule approved by Landlord without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed.
B. Tenant at its sole cost and expense (subject to the provisions of
Paragraph 5 below) shall employ a licensed, insured and bondable general
contractor ("Contractor") to construct the Tenant Improvements in accordance
with the Construction Documents. The construction contracts between Tenant and
the Contractor and between the Contractor and subcontractors shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld. In addition to the foregoing, each of such construction contracts
shall include a provision that Landlord shall be a third party beneficiary in,
to and under such construction contracts. Proof that the Contractor is licensed
in California, is bondable as required under California law, and has the
insurance specified in Exhibit B-1, attached hereto and incorporated herein by
this reference, shall be provided to Landlord at the time that Tenant requests
approval of the Contractor from Landlord. Tenant shall comply with or cause the
Contractor to comply with all other terms and provisions of Exhibit B-1.
Notwithstanding anything to the contrary contained herein, Landlord hereby
approves of Devcon Construction Inc. to be selected by Tenant as the Contractor
under this Exhibit B. Tenant shall keep the Premises and the property on which
the Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant with
regard to the Tenant Improvements. Additionally, Tenant shall promptly
discharge, bond or otherwise cause the release of any and all liens arising out
of any work performed, materials furnished or obligations incurred by or on
behalf of Tenant with regard to the Tenant Improvements regardless of any
dispute Tenant or its Contractor may have regarding any such liens. In addition
to the foregoing and in consideration for Landlord not requiring the Contractor
to procure a bond with respect to the construction of the Tenant Improvements,
Tenant agrees to protect, defend (with counsel acceptable to Landlord) and hold
Landlord and the Indemnitees harmless and indemnify the Indemnitees from and
against all liabilities, damages, claims, losses, judgments, charges and
expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly, the construction of the Tenant Improvements, including without
limitation, the costs to complete the Tenant Improvements and all other matters
for which a payment and performance bond would have otherwise provided coverage.
C. Prior to the commencement of the construction and installation of
the Tenant Improvements, Tenant shall provide the following to Landlord, all of
which shall be to Landlord's reasonable satisfaction:
(i) An estimated budget and cost breakdown for the Tenant
Improvements.
(ii) Estimated completion schedule for the Tenant Improvements.
(iii) Copies of all required approvals and permits from
governmental agencies having jurisdiction or authority for the construction and
installation of the Tenant Improvements; provided, however, if prior to
commencement of the construction and installation of Tenant Improvements Tenant
has not received the electrical, plumbing or mechanical permits, Tenant shall
only be required to provide Landlord with evidence that Tenant has made
application therefor, and, upon receipt by Tenant of such permits, Tenant shall
promptly provide Landlord with copies thereof.
(iv) Evidence of Tenant's procurement of insurance required to be
obtained pursuant to the provisions of Paragraphs 4.B and 4.G.
D. Landlord shall at all reasonable times have a right to inspect the
Tenant Improvements (provided Landlord does not materially interfere with the
work being performed by the Contractor or its subcontractors) and Tenant shall
immediately cease work upon written notice from Landlord if the Tenant
Improvements are not in compliance with the Construction Documents approved by
Landlord. If Landlord shall give notice of faulty construction or any other
material deviation from the Construction Documents, Tenant shall cause the
Contractor to make corrections promptly. However, neither the privilege herein
granted to Landlord to make such inspections, nor the making of such inspections
by Landlord, shall operate as a waiver of any rights of Landlord to require good
and workmanlike construction and improvements constructed in accordance with the
Construction Documents.
E. Subject to Landlord complying with its obligations in Paragraph 5
below, Tenant shall pay and discharge promptly and fully all claims for labor
done and materials and services furnished in connection with the Tenant
Improvements. The Tenant Improvements shall not be commenced until five (5)
business days after Landlord has received notice from Tenant stating the date
the construction of the Tenant Improvements is to commence so that Landlord can
post and record any appropriate Notice of Non-Responsibility.
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F. Tenant acknowledges and agrees that the agreements and covenants
of Tenant in Sections 10 and 37 of the Lease shall be fully applicable to
Tenant's construction of the Tenant Improvements.
G. Tenant shall maintain, and cause to be maintained, during the
construction of the Tenant Improvements, at its sole cost and expense, insurance
of the types and in the amounts specified in Exhibit B-1 and in Section 12 of
the Lease, together with builders' risk insurance for the amount of the
completed value of the Tenant Improvements on an all-risk non-reporting form
covering all improvements under construction, including building materials, and
other insurance in amounts and against such risks as the Landlord shall
reasonably require in connection with the Tenant Improvements.
H. No materials, equipment or fixtures shall be delivered to or
installed upon the Premises pursuant to any agreement by which another party has
a security interest or rights to remove or repossess such items, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld.
I. Landlord reserves the right to establish reasonable rules and
regulations for the use of the Buildings during the course of construction of
the Tenant Improvements, including, but not limited to, construction parking,
storage of materials, hours of work, use of elevators, and clean-up of
construction related debris.
J. Upon completion of the Tenant Improvements, Tenant shall deliver
to Landlord the following, all of which shall be to Landlord's reasonable
satisfaction:
(i) Any certificates required for occupancy, including a
permanent and complete Certificate of Occupancy issued by the City of San Jose.
(ii) A Certificate of Completion signed by the Architect who
prepared the Construction Documents, reasonably approved by Landlord.
(iii) A cost breakdown itemizing all expenses for the Tenant
Improvements, together with invoices and receipts for the same or other evidence
of payment.
(iv) Final and unconditional mechanic's lien waivers for all the
Tenant Improvements.
(v) A Notice of Completion for execution by Landlord, which
certificate once executed by Landlord shall be recorded by Tenant in the
official records of Santa Clara County, and Tenant shall then deliver to
Landlord a true and correct copy of the recorded Notice of Completion.
(vi) A true and complete copy of all as-built plans and drawings
for the Tenant Improvements.
K. The Tenant Improvements shall be deemed substantially complete on
the date that the building officials of the applicable governmental agency(s)
issues its final approval of the construction of the Tenant Improvements whether
in the form of the issuance of a final permit, certificate of occupancy or the
written approval evidencing its final inspection on the building permits, or the
date on which Tenant first takes occupancy of the Premises for purposes other
than to perform the Tenant's Pre-Occupancy Work (defined below), or the date
that the Contractor issues a certificate stating that the Tenant Improvements
have been substantially completed in accordance with the Construction Drawings,
whichever first occurs ("Substantial Completion", or "Substantially Completed",
or "Substantially Complete").
5. TENANT IMPROVEMENT ALLOWANCE.
A. Subject to Tenant's compliance with the provisions of this Exhibit
B, Landlord shall provide to Tenant an allowance in the approximate amount of
eight hundred forty-nine thousand three hundred fifty and 00/100 dollars and
($849,350.00) based upon a rate of ten dollars ($10.00) per rentable square foot
of the Premises (the "Tenant Improvement Allowance") to construct and install
only the Tenant Improvements. The actual amount of the Tenant Improvement
Allowance shall be adjusted commensurately based upon the actual rentable square
feet of the Premises after Landlord's Substantial Completion of the Shell
Improvements. The Tenant Improvement Allowance shall be used to design, prepare,
plan, obtain the approval of, construct and install the Tenant Improvements and
for no other purpose. Except as otherwise expressly provided herein, Landlord
shall have no obligation to contribute the Tenant Improvement Allowance unless
and until the Construction Documents have been approved by Landlord and Tenant
has complied with all requirements set forth in Paragraph 4.C. of this Exhibit
B. The costs to be paid out of the Tenant Improvement Allowance shall include
all reasonable costs and expenses associated with the design, preparation,
approval, planning, construction and installation of the Tenant Improvements
(the "Tenant Improvement Costs"), including all of the following:
(i) All costs of the Preliminary Plans and Specifications,
the Final Plans and Specifications, and the Construction Documents, and
engineering costs associated with completion of the State of California energy
utilization calculations under Title 24 legislation:
(ii) All costs of obtaining building permits and other necessary
authorizations from local governmental authorities;
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(iii) All costs of interior design and finish schedule plans and
specifications including as-built drawings, if applicable;
(iv) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not limited
to, the construction fee for overhead and profit and the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by the Contractor in connection with the construction of the Tenant
Improvements; provided, however, that the construction fee for overhead and
profit, the cost of all on-site supervisory and administrative staff, office,
equipment and temporary services shall not exceed amounts which are reasonable
and customary for such items in the local construction industry;
(v) All fees payable to the Architect and any engineer if they
are required to redesign any portion of the Tenant Improvements following
Tenant's and Landlord's approval of the Construction Documents;
(vi) Utility connection fees;
(vii) Inspection fees and filing fees payable to local
governmental authorities, if any;
(viii) All costs of all permanently affixed equipment and
non-trade fixtures provided for in the Construction Documents, including the
cost of installation; and,
(ix) A construction management fee (the "CM Fee") payable to
Landlord in the amount of one percent (1%) of the aggregate of the hard costs
for the construction and installation of the Tenant Improvements (excluding this
CM Fee).
The Tenant Improvement Allowance shall be the maximum contribution by Landlord
for the Tenant Improvement Costs, and the disbursement of the Tenant Improvement
Allowance is subject to the terms contained hereinbelow.
Except for payment of the CM Fee, Landlord will make payments to Tenant from the
Tenant Improvement Allowance to reimburse Tenant for Tenant Improvement Costs
paid or incurred by Tenant. Payment of the CM Fee shall be the first payment
from the Tenant Improvement Allowance and shall be made by means of a deduction
or credit against the Tenant Improvement Allowance. All other payments of the
Tenant Improvement Allowance shall be by progress payments not more frequently
than once per month and only after satisfaction of the following conditions
precedent: (a) receipt by Landlord of conditional mechanics' lien releases for
the work completed and to be paid by said progress payment, conditioned only on
the payment of the sums set forth in the mechanics' lien release, executed by
the Contractor and all subcontractors, labor suppliers and materialmen; (b)
receipt by Landlord of unconditional mechanics' lien releases from the
Contractor and all subcontractors, labor suppliers and materialmen for all work
other than that being paid by the current progress payment previously completed
by the Contractor, subcontractors, labor suppliers and materialmen and for which
Tenant has received funds from the Tenant Improvement Allowance to pay for such
work; (c) receipt by Landlord of any and all documentation reasonably required
by Landlord detailing the work that has been completed and the materials and
supplies used as of the date of Tenant's request for the progress payment,
including, without limitation, invoices, bills, or statements for the work
completed and the materials and supplies used; and (d) completion by Landlord or
Landlord's agents of any inspections of the work completed and materials and
supplies used as deemed reasonably necessary by Landlord. Except for the CM Fee
payment (credit), Tenant Improvement Allowance progress payments shall be paid
to Tenant within fourteen (14) days from the satisfaction of the conditions set
forth in the immediately preceding sentence. The preceding notwithstanding, all
Tenant Improvement Costs paid or incurred by Tenant prior to Landlord's approval
of the Construction Documents in connection with the design and planning of the
Tenant Improvements by Architect shall be paid from the Tenant Improvement
Allowance, without any retention, within fourteen (14) days following Landlord's
receipt of invoices, bills or statements from Architect evidencing such costs.
Notwithstanding the foregoing to the contrary, Landlord shall be entitled to
withhold and retain five percent (5%) of the Tenant Improvement Allowance or of
any Tenant Improvement Allowance progress payment until the lien-free expiration
of the time for filing of any mechanics' liens claimed or which might be filed
on account of any work ordered by Tenant or the Contractor or any subcontractor
in connection with the construction and installation of the Tenant Improvements.
B. Landlord shall not be obligated to pay any Tenant Improvement
Allowance progress payment or the Tenant Improvement Allowance retention if on
the date Tenant is entitled to receive the Tenant Improvement Allowance progress
payment or the Tenant Improvement Allowance retention Tenant is in material
default of this Lease. Such payments shall resume upon Tenant curing any such
default within the time periods which may be provided for in the Lease.
C. Should the total cost of constructing the Tenant Improvements be
less than the Tenant Improvement Allowance, the Tenant Improvement Allowance
shall be automatically reduced to the amount equal to said actual cost.
6. Termination. If the Lease is terminated prior to the date on which the Tenant
Improvements are completed, for any reason due to the default of Tenant
hereunder, in addition to any other remedies available to Landlord under the
Lease, Tenant shall pay to Landlord as Additional Rent under the Lease, within
five (5) days of receipt of a statement therefor, any and all costs incurred by
Landlord and not reimbursed or otherwise paid by Tenant through the date of
termination in connection with the Tenant Improvements to the extent
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planned, installed and/or constructed as of such date of termination, including,
but not limited to, any costs related to the removal of all or any portion of
the Tenant Improvements and restoration costs related thereto. Except for any
cafeteria and related items that are part of the Tenant Improvements for which
Landlord will require Tenant, at its sole cost and expense, to demolish and/or
remove from the Premises upon the expiration or earlier termination of this
Lease, Landlord shall not require Tenant to demolish and/or remove any other
items comprising the Tenant Improvements from the Premises upon the expiration
or earlier termination of this Lease.
7. Lease Provisions; Conflict. The terms and provisions of the Lease, insofar as
they are applicable, in whole or in part, to this EXHIBIT B, are hereby
incorporated herein by reference, and specifically including all of the
provisions of Section 31 of the Lease. In the event of any conflict between the
terms of the Lease and this EXHIBIT B, the terms of this EXHIBIT B shall
prevail. Any amounts payable by Tenant to Landlord hereunder shall be deemed to
be Additional Rent under the Lease and, upon any default in the payment of same,
Landlord shall have all rights and remedies available to it as provided for in
the Lease.
8. Tenant Access. Landlord, in Landlord's reasonable discretion and upon receipt
of written confirmation from Landlord's general contractor that such entry will
be in harmony with Landlord's general contractor's work schedule with respect to
the Shell Improvements, will grant Tenant a license to have access to the
Premises prior to the Shell Improvements being Substantially Completed (defined
below) to allow Tenant to do other work required by Tenant to install a portion
of the Tenant Improvements and to otherwise make the Premises ready for Tenant's
use and occupancy (the "Tenant's Pre-Occupancy Work"). It shall be a condition
to the grant by Landlord and continued effectiveness of such license that:
(a) Tenant shall give to Landlord a written request to have such
access not less than five (5) business days prior to the date on which such
proposed access will commence (the "Access Notice"). The Access Notice shall
contain or be accompanied by each of the following items, all in form and
substance reasonably acceptable to Landlord: (i) a detailed description of and
schedule for Tenant's Pre-Occupancy Work; (ii) the names and addresses of all
contractors, subcontractors and material suppliers and all other representatives
of Tenant who or which will be entering the Premises on behalf of Tenant to
perform Tenant's Pre-Occupancy Work or will be supplying materials for such
work, and the approximate number of individuals, itemized by trade, who will be
present in the Premises; (iii) copies of all contracts, subcontracts, material
purchase orders, plans and specifications pertaining to Tenant's Pre-Occupancy
Work; (iv) copies of all licenses and permits required in connection with the
performance of Tenant's Pre-Occupancy Work; and (v) certificates of insurance
(in amounts satisfactory to Landlord and with the parties identified in, or
required by, the Lease named as additional insureds) and instruments of
indemnification against all claims, costs, expenses, penalties, fines, and
damages which may arise in connection with Tenant's Pre-Occupancy Work.
(b) Such pre-term access by Tenant and Tenant's employees, agents,
contractors, consultants, workmen, mechanics, suppliers and invitees shall be
subject to reasonable scheduling by Landlord.
(c) Tenant's employees, agents, contractors, consultants, workmen,
mechanics, suppliers and invitees shall fully cooperate, work in harmony and
not, in any manner, unreasonably interfere with Landlord or Landlord's agents or
representatives in performing the work related to substantial completion of the
Shell Improvements (the "Work") and any additional work pursuant to approved
change orders for the Shell Improvements, Landlord's work in other areas of the
Park, or the general operation of the Buildings. If at any time any such person
representing Tenant shall not be cooperative or shall otherwise cause or
threaten to cause any such disharmony or interference, including, without
limitation, labor disharmony, and Tenant fails to immediately institute and
maintain corrective actions as directed by Landlord, then Landlord may revoke
such license upon twenty-four (24) hours' prior written notice to Tenant.
(d) Any such entry into and occupancy of the Premises or any portion
thereof by Tenant or any person or entity working for or on behalf of Tenant
shall be deemed to be subject to all of the terms, covenants, conditions and
provisions of the Lease, excluding only the covenant to pay Rent. Landlord shall
not be liable for any injury, loss or damage that may occur to any of Tenant's
Pre-Occupancy Work made in or about the Premises or to any property placed
therein prior to the commencement of the term of the Lease, the same being at
Tenant's sole risk and liability. Tenant shall be liable to Landlord for any
damage to any portion of the Premises, the Work or the additional work related
to any approved change orders caused by Tenant or any of Tenant's employees,
agents, contractors, consultants, workmen, mechanics, suppliers and invitees. In
the event that the performance of Tenant's Pre-Occupancy Work causes extra costs
to be incurred by Landlord or requires the use of other Building services, after
delivery to Tenant of prior notice that such extra costs are reasonably
anticipated by Landlord to be incurred, Tenant shall promptly reimburse Landlord
for such extra costs and/or shall pay Landlord for such other Building services
at Landlord's standard rates then in effect.
9. Shell Improvements. Subject to the conditions set forth herein, Landlord, at
its sole cost and expense, agrees to construct and install certain shell
improvements ("Shell Improvements") on the Lot, including without limitation,
the construction of the Buildings substantially in accordance with those certain
plans, specifications, and drawings prepared by Cabak Rooney Jordan Associates,
dated September 30, 1996 (collectively, the "Shell Construction Drawings"), a
copy of which is attached hereto as Schedule 1. In constructing and installing
the Shell Improvements Landlord shall not deviate from the Shell Construction
Drawings in any substantial and material manner, without first obtaining
Tenant's prior consent thereto, which consent shall not be unreasonably
withheld, conditioned or delayed; provided, however, Tenant shall not have any
approval nor consensual rights (and Landlord shall not be required to obtain
Tenant's consent therefor) concerning any changes required to be made to the
Shell Construction Drawings or the Shell Improvements by (1) the fire
department, building or
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planning department, building inspectors or any other agency or official having
jurisdiction over the Buildings, the work related to the Shell Improvements
and/or the Shell Improvements, and/or (2) any committee, declarant or other
persons or entities having approval or similar rights under any Recorded Matters
with respect to the Shell Improvements, and/or (3) Landlord's lender(s) making a
construction loan(s) with respect to the Shell Improvements. The Shell
Improvements shall not include the Tenant Improvements nor any of Tenant's
personal property, equipment, furnishings, trade fixtures or fixtures. All other
improvements not specified in this Section 9 shall be considered Tenant
Improvements and shall be paid for in accordance with the provisions of Sections
8 and 10 above. Landlord shall use commercially reasonable efforts to cause its
general contractor to Substantially Complete (defined below) the Shell
Improvements by the scheduled Commencement Date specified in the Basic Lease
Information (the "Completion Date"), subject to delays due to (a) acts or events
beyond its control including, but not limited to, acts of God, earthquakes,
strikes, lockouts, boycotts, casualties, discontinuance of any utility or other
service required for performance of the Work, moratoriums, governmental agencies
and inclement weather (including, but not limited to, rain delays), (b) the lack
of availability or shortage of specialized materials used in the construction of
the Tenant Improvements, (c) any matters beyond the control of Landlord, the
general contractor or any subcontractors, (d) any changes required by the fire
department, building and/or planning department, building inspectors or any
other agency having jurisdiction over the Buildings, the Work, the Tenant
Improvements and/or the Shell Improvements (except to the extent such changes
are directly attributable to Tenant's use or Tenant's specialized tenant
improvements, in which event such delays are considered Tenant Delays) (the
events and matters set forth in Subsections (a), (b), (c) and (d) are
collectively referred to as "Force Majeure Delays"), or (e) any delay
attributable to Tenant and/or any of Tenant's Representatives or Tenant's
intended use of the Premises (collectively, "Tenant Delays"), including, but not
limited to, any of the following described events or occurrences: (i) delays
related to changes made or requested by Tenant to the Work, and/or the approved
final drawings with respect to the Tenant Improvements; (ii) the failure of
Tenant to furnish all or any plans, drawings, specifications, finish details or
other information required above; (iii) the failure of Tenant to comply with the
requirements of this Exhibit B; (iv) Tenant's requirements for special work or
materials, finishes, or installations other than the Building Standards or
Tenant's requirements for special construction or phasing; (v) any changes
required by the fire department, building or planning department, building
inspectors or any other agency having jurisdiction over the Buildings, the Work
and/or the Tenant Improvements if such changes are directly attributable to
Tenant's particular use or Tenant's specialized tenant improvements which do not
conform to Landlord's Building Standards; (vi) the performance of any additional
work pursuant to a change request which is requested by Tenant; (vii) the
performance of work in or about the Premises by any person, firm or corporation
employed by or on behalf of Tenant, including, without limitation, any failure
to complete or any delay in the completion of such work; or (viii) any and all
delays caused by or arising from acts or omissions of Tenant and/or Tenant's
Representatives, in any manner whatsoever. Any delays in the construction of the
Shell Improvements due to any of the events described above and designated as
"Tenant Delays", shall in no way extend or affect the date on which Tenant is
required to commence paying Rent under the terms of the Lease. It is the
intention of the parties that all of such delays will be considered Tenant
Delays for which Tenant shall be wholly and completely responsible for any and
all consequences related to such delays, including, without limitation, any
costs and expenses attributable to increases in labor or materials. The Shell
Improvements shall be deemed substantially complete on the date that the
building officials of the applicable governmental agency(s) issues its final
approval of the construction of the Shell Improvements whether in the form of
the issuance of a final permit, certificate of occupancy or the written approval
evidencing its final inspection on the building permits, or the date on which
Tenant first takes occupancy of the Premises for purposes other than to perform
the Tenant's Pre-Occupancy Work (defined below), or the date that Landlord's
general contractor issues a certificate stating that the Shell Improvements have
been substantially completed in accordance with the Shell Construction Drawings,
whichever first occurs ("Substantial Completion", or "Substantially Completed",
or "Substantially Complete"). Subject to the provisions set forth below, if the
Work with respect to the Shell Improvements is not deemed to be Substantially
Completed on or before the scheduled Completion Date, (A) Landlord agrees to use
reasonable efforts to Substantially Complete the Work as soon as practicable
thereafter, (B) the Lease shall remain in full force and effect, and (C)
Landlord shall not be deemed to be in breach or default of the Lease or this
EXHIBIT B as a result thereof and, Landlord shall have no liability to Tenant as
a result of any delay in occupancy (whether for damages, abatement of all or any
portion of the Rent, or otherwise). Subject to the provisions set forth below,
the Commencement Date and the Expiration Date of the term of the Lease (as
defined in Section 2 of the Lease) shall be extended commensurately by the
amount of time attributable to any Force Majeure Delays which delay the
Substantial Completion of the Shell Improvements. In addition to the foregoing
and notwithstanding anything to the contrary contained herein or in the Lease,
if Landlord does not tender possession to Tenant of the Premises with the Shell
Improvements Substantially Complete by November 15, 1997 (the "Outside Date")
(subject to any Force Majeure Delays or Tenant Delays, in which event the date
of November 15, 1997 shall be extended commensurately by the period of time
attributable to such delays), then either Tenant or Landlord may terminate this
Lease by delivering written notice thereof to the other party no later than the
date which is ten (10) business days after the Outside Date, as extended by the
period of time attributable to any Force Majeure Delays and/or Tenant Delays. In
addition to the foregoing and notwithstanding anything to the contrary contained
herein or in the Lease, if Landlord does not tender possession to Tenant of the
Premises with the Shell Improvements Substantially Complete by March 1, 1998
(the "Ultimate Outside Date") (subject to any Tenant Delays, in which event the
date of March 1, 1998 shall be extended commensurately by the period of time
attributable to such delays), then either Tenant or Landlord may terminate this
Lease by delivering written notice thereof to the other party no later than the
date which is ten (10) business days after the Ultimate Outside Date, as
extended by the period of time attributable to any Tenant Delays. If either
party fails to timely terminate the Lease as and when provided herein, or if
Landlord delivers to Tenant possession of the Premises with the Tenant
Improvements Substantially Complete at any time earlier than the Outside Date
(as such date may be extended due to Force Majeure Delays or Tenant Delays, as
the case may be) or the Ultimate Outside Date (as such date may be extended due
to Tenant Delays), as applicable, then upon the occurrence of any such
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events the foregoing right given to Tenant and Landlord to terminate this Lease
as provided herein shall lapse and be null and void upon the earlier occurrence
of such event and the Lease shall remain in full force and effect with Tenant
and Landlord having no further right to terminate this Lease pursuant to the
foregoing provisions. If Landlord does so timely deliver to Tenant possession of
the Premises with the Shell Improvements Substantially Complete, Tenant shall
promptly deliver written notice to Landlord confirming same. In the event the
commencement date and/or the expiration date of this Lease is other than the
Commencement Date and/or Expiration Date provided on Page 1 in the Basic Lease
Information, as the case may be, Landlord and Tenant shall execute a written
amendment to this Lease, substantially in the form of Exhibit F hereto, wherein
the parties shall specify the actual commencement date, expiration date, the
date on which Tenant is to commence paying Rent and the other matters referred
to in Section 1 of the Lease. Landlord's employees, agents, contractors,
consultants, workmen, mechanics, suppliers and invitees shall fully cooperate,
work in harmony and not, in any manner, unreasonably interfere with Tenant or
Tenant's contractors, agents or representatives in performing the work related
to substantial completion of the Tenant Improvements and any additional work
pursuant to approved change orders for the Tenant Improvements. If at any time
any such person representing Landlord shall not be cooperative or shall
otherwise cause or threaten to cause any such disharmony or interference,
including, without limitation, labor disharmony, and Landlord fails to
immediately institute and maintain corrective actions as requested by Tenant,
then any delays in Substantially Completing the Tenant Improvements as a result
thereof shall be considered to be Landlord Delays.
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EXHIBIT B-1
CONSTRUCTION INSURANCE REQUIREMENTS
Before commencing work, the contractor shall procure and maintain at its sole
cost and expense until completion and final acceptance of the work, at least the
following minimum levels of insurance.
A. Workers' Compensation in statutory amounts and Employers Liability
Insurance in the minimum amounts of $100,000 each accident for bodily
injury by accident and $100,000 each employee for bodily injury by
disease with a $500,000 policy limit, covering each and every worker used
in connection with the contract work.
B. Comprehensive General Liability Insurance on an occurrence basis
including, but not limited to, protection for Premises/Operations
Liability, Broad Form Contractual Liability, Owner's and Contractor's
Protective, and Products/Completed Operations Liability*, in the
following minimum limits of liability.
Bodily Injury, Property Damage, and
Personal Injury Liability $2,000,000/each occurrence
$3,000,000/aggregate
* Products/Completed Operations Liability Insurance is to be
provided for a period of at least one (1) year after completion of
work.
Coverage should include protection for Explosion, Collapse and
Underground Damage.
C. Comprehensive Automobile Liability Insurance with the following minimum
limits of liability.
Bodily Injury and Property $1,000,000/each occurrence
Damage Liability $2,000,000/aggregate
This insurance will apply to all owned, non-owned or hired automobiles to
be used by the Contractor in the completion of the work.
D. Umbrella Liability Insurance in a minimum amount of five million dollars
($5,000,000), providing excess coverage on a following-form basis over
the Employer's Liability limit in Paragraph A and the liability coverages
outlined in Paragraphs B and C.
E. Equipment and Installation coverages in the broadest form available
covering Contractor's tools and equipment and material not accepted by
Tenant. Tenant will provide Builders Risk Insurance on all accepted and
installed materials.
All policies of insurance, duplicates thereof or certificates evidencing
coverage shall be delivered to Landlord prior to commencement of any work and
shall name Landlord, and its partners and lenders as additional insureds as
their interests may appear. All insurance policies shall (1) be issued by a
company or companies licensed to be business in the state of California, (2)
provide that no cancellation, non-renewal or material modification shall be
effective without thirty (30) days prior written notice provided to Landlord,
(3) provide no deductible greater than $15,000 per occurrence, (4) contain a
waiver to subrogation clause in favor of Landlord, and its partners and lenders,
and (5) comply with the requirements of Sections 12.2, 12.3 and 12.4 of the
Lease to the extent such requirements are applicable.
INITIALS:
TENANT: ___________
LANDLORD: ___________
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EXHIBIT B-2
BUILDING STANDARDS
OFFICE AREA
DEMISING PARTITION AND CORRIDOR WALLS:
A. 6" 20-gauge metal studs at 24" O.C. (or as required by code for
span) framed full height from finish floor to structure above
B. One (1) layer 5/8" drywall Type "X" both sides of wall, fire taped
only
INTERIOR PARTITIONS:
A. 3 5/8" 25-gauge metal studs at 24" O.C. to bottom of T-bar ceiling
grid approximately 9' - 0' high
B. Top track to be pre-formed slotted aluminum taped in
C. One (1) layer 5/8" drywall both sides of wall, taped texture ready
for paint
D. 3 5/8" metal studs including all lateral bracing as required by
code
PERIMETER DRYWALL (AT OFFICE AREAS):
A. One (1) layer 5/8" Type "X" drywall taped texture ready for paint
B. Provide alternate to texture concrete in lieu of furring walls
COLUMN FURRING:
A. Furring channel all sides
B. One (1) layer 5/8" drywall taped texture and ready for paint
C. Provide deductive alternate for texturing columns where there are
no pipes to furred out
ACOUSTICAL CEILINGS:
A. 2' x 4' standard white T-bar grid system as manufactured by
Chicago Metallic or equal
B. 2' x 4' x 5/8" white, fissured, non-directional acoustical tile to
be Cortega as manufactured by Armstrong or equal
PAINTING:
A. Sheetrock walls to receive two (2) coats of interior latex paint
as manufactured by Kelly Moore or equal. Some portions of second
coat to be single accent color.
B. Provide a deductive alternate for not painting warehouse walls
WINDOW COVERING:
A. 1" aluminum mini-blinds as manufactured by Levelor or equal, color
to be selected by Lincoln Property Company
B. Blinds to be sized to fit window module
VCT:
VCT to be 1/8" x 12" x 12" as manufactured by Armstrong - Excelon Series
or equal
LIGHT FIXTURES:
2' x 4' T-bar lay in 3-tube energy efficient fixture with cool white
fluorescent tubes with prismatic acrylic lens as manufactured by Lithonia
or equal
LIGHT SWITCHES:
A. Double switching as required by Title 24
B. Switch assembly to be Leviton, color - Ivory
ELECTRICAL OUTLET:
A. 110-v duplex outlet in demising or interior partitions only, as
manufactured by Leviton, color to be Ivory
B. Eight (8) outlets per circuit, spacing to meet code (2 per office)
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C. Transformers to be a minimum of 20% or over required capacity
D. Contractors to inspect electric room and to include all necessary
metering costs
E. No aluminum wiring is acceptable
TELEPHONE OUTLET:
A. One (1) single outlet box in wall with pullwire from outlet box to
area above T-bar ceiling per office
B. Cover plate for phone outlets to be included
FIRE SPRINKLERS:
As required by fire codes
TOPSET BASE:
A. 4" rubber base as manufactured by Burke or equal, standard colors
only
B. 4" rubber base at VCT areas
TOILET AREAS:
Wet walls to receive marlite up to 48". Floors to receive sheetvinyl and
cove base as required by code
CARPET:
Minimum 30 ounce, commercial grade, level loop, UM44-C. Type 1 Class 1.
100% continuous filament. 5-year wear guarantee. Glue down, no pad.
WOOD DOORS:
Shall be 3'-0" x 7'-0" x 1 3/4" (unless otherwise specified) solid core,
prefinished birch "Cal-Wood" B-3 or equal if approved by owner
DOOR FRAMES:
Shall be ACI or equal, 3 3/4" or 4 7/8" throat, aluminum, dark bronze
anodized, snap-on trim
HARDWARE:
Shall be "Schlage", a lever type "Levon" D series, dark bronze 613
finish, 2 3/4" backset. Closers (where required) shall be Duro X PA X
SN-1
INSULATION:
By Title 24 insulation
PLUMBING:
A. Shall comply with all local codes and handicapped code
requirements. Fixtures shall be either "American Standard",
"Koher" or "Norris". All toilet accessories and grab bars shall be
"Bobrick" or equal and approved by owner
B. Plumbing bid shall include 5 gallon minimum, or insta hot with
mixer valve electric water heater
TOILET PARTITIONS:
Shall be as manufactured by Fiat, global or equal if approved by owner.
Color shall be chosen by tenant
HVAC:
Five (5) year warranty provided on all HVAC compressor units. All
penetrations and sleeper supports to be hot mopped to LPC standard.
Provide alternate price for electric heat pumps at conditioned spaces.
Provide time overlay switch at compressors.
WAREHOUSE AREAS:
Floor - sealed concrete
Fire Extinguishers - 2A 10 BC surface mount by code x by S.F.
Lighting - 1x8 strip lighting single tube chain hung 25 ft.
Draft stops - by code UBC 198 Edition
Service electrical outlets - HVAC or heaters at tenant cost
(400 W metal halide lighting are acceptable in lieu of strip lighting at
warehouse minimum 15 F.C.)1
2
37
EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute EXHIBIT C
to that certain Lease Agreement dated December 18, 1996 (the "Lease"), by and
between Lincoln-Whitehall Realty (West), L.L.C., a Delaware limited liability
company ("Landlord"), and Cisco Systems, Inc., a California corporation
("Tenant"), for the leasing of certain premises located at 130 Baytech Drive
(Building C) and 140 Baytech Drive (Building D), San Jose, California (the
"Premises"). The terms, conditions and provisions of this EXHIBIT C are hereby
incorporated into and are made a part of the Lease. Any capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to such
terms as set forth in the Lease.
1. No advertisement, picture or sign of any sort shall be displayed on
or outside the Premises or the Buildings without the prior written
consent of Landlord. Landlord shall have the right to remove any such
unapproved item without notice and at Tenant's expense.
2. Tenant shall not regularly store motor vehicles in designated parking
areas after the conclusion of normal daily business activity.
3. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or
delayed.
4. All window coverings installed by Tenant and visible from the outside
of the Buildings require the prior written approval of Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance or any flammable or combustible materials on
or around the Premises, the Buildings or the Park, except as
otherwise permitted pursuant to the provisions of Section 29 of the
Lease.
6. Tenant shall not alter any lock or install any new locks or bolts on
any door at the Premises without the prior consent of Landlord,
except any conspicuously designated security areas of Tenant.
7. Intentionally omitted.
8. Tenant shall park motor vehicles in those general parking areas as
designated by Landlord except for loading and unloading. During those
periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow within the Park and loading and unloading
areas of other tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the
Buildings or Park and shall cooperate to prevent same.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of
the Buildings, to such a degree as to be objectionable to Landlord or
other Tenants, shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration.
12. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and
shall not be left in parking or receiving areas overnight without the
prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed.
13. Tractor trailers which must be unhooked or parked with dolly wheels
beyond the concrete loading areas must use steel plates or wood
blocks under the dolly wheels to prevent damage to the asphalt paving
surfaces. No parking or storing of such trailers will be permitted in
the auto parking areas of the Park or on streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid
rubber tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and
refuse. All such trash and refuse shall be contained in suitable
receptacles stored behind screened enclosures at locations approved
by Landlord.
16. Tenant shall not store or permit the storage or placement of goods,
or merchandise or pallets or equipment of any sort in or around the
Premises, the Buildings, the Park or any of the Common Areas of the
foregoing. No displays or sales of merchandise shall be allowed in
the parking lots or other Common Areas.
17. Tenant shall not permit any animals, including, but not limited to,
any household pets, to be brought or kept in or about the Premises,
the Buildings, the Park or any of the Common Areas of the foregoing.
INITIALS:
TENANT: ___________
LANDLORD: ___________
38
18. Tenant shall not permit any motor vehicles to be washed on any
portion of the Premises or in the Common Areas of the Park, nor shall
Tenant permit mechanical work or maintenance of motor vehicles to be
performed on any portion of the Premises or in the Common Areas of
the Park.
INITIALS:
TENANT:
LANDLORD:
39
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord: ______________________________________________
______________________________________________
c/o Lincoln Property Company Management Services, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn:
Phone: (415) 571-2200
Name of (Prospective) Tenant:__________________________________________________
Mailing Address:_______________________________________________________________
Contact Person, Title and Telephone Number(s):_________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):___________________________________________________________
_______________________________________________________________________________
Address of (Prospective) Premises:_____________________________________________
Length of (Prospective) initial Term:__________________________________________
_______________________________________________________________________________
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or
about the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing tenants should describe
any proposed changes to on-going operations.
____________________________________________________________________
____________________________________________________________________
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing tenants
should describe any Hazardous Materials which continue to
be used, generated, stored or disposed of in, on or about
the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
1
40
If Yes is marked, please explain:_________________________
__________________________________________________________
__________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or
disposed of in, on or about the Premises, including the
applicable hazard class and an estimate of the quantities
of such Hazardous Materials at any given time; estimated
annual throughput; the proposed location(s) and method of
storage (excluding nominal amounts of ordinary household
cleaners and janitorial supplies which are not regulated by
any Environmental Laws); and the proposed location(s) and
method of disposal for each Hazardous Material, including,
the estimated frequency, and the proposed contractors or
subcontractors. Existing tenants should attach a list
setting forth the information requested above and such list
should include actual data from on-going operations and the
identification of any variations in such information from
the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing tenants
should describe any such actual or proposed activities.
Yes [ ] No [ ]
If yes, please explain:___________________________________
__________________________________________________________
__________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste
Generator I.D. Number? Existing tenants should describe any
additional identification numbers issued since the previous
certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe
any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
______storm drain? _______sewer?
______surface water? _______no wastewater or
other wastes discharged.
Existing tenants should indicate any actual discharges. If
so, describe the nature of any proposed or actual
discharge(s).
__________________________________________________________
__________________________________________________________
5.2 Will any such wastewater or waste be treated before
discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be
conducted. Existing tenants should describe the actual
treatment conducted.
__________________________________________________________
__________________________________________________________
6. AIR DISCHARGES
2
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6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the
Premises that will discharge into the air; and will such
air emissions be monitored? Existing tenants should
indicate whether or not there are any such air filtration
systems or stacks in use in, on or about the Premises which
discharge into the air and whether such air emissions are
being monitored.
Yes [ ] No [ ]
If yes, please describe:__________________________________
__________________________________________________________
__________________________________________________________
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air
emissions permit? Existing tenants should specify any such
equipment being operated in, on or about the Premises.
_______Spray booth(s) _______Incinerator(s)
_______Dip tank(s) _______Other (Please describe)
_______Drying oven(s) _______No Equipment Requiring
Air Permits
If yes, please describe:__________________________________
__________________________________________________________
__________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare
a Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements? Existing tenants should
indicate whether or not a Management Plan is required and
has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing
tenants should attach a copy of any required updates to the
Management Plan.
7.2 Are any of the Hazardous Materials, and in particular
chemicals, proposed to be used in your operations in, on or
about the Premises regulated under Proposition 65? Existing
tenants should indicate whether or not there are any new
Hazardous Materials being so used which are regulated under
Proposition 65.
Yes [ ] No [ ]
Yes [ ] No [ ]
If yes, please explain:___________________________________
__________________________________________________________
__________________________________________________________
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws,
has your company ever been subject to any agency
enforcement actions, administrative orders, or consent
decrees or has your company received requests for
information, notice or demand letters, or any other
inquiries regarding its operations? Existing tenants should
indicate whether or not any such actions, orders or decrees
have been, or are in the process of being, undertaken or if
any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of
these actions, orders or decrees and also describe any
requests, notices or demands, and attach a copy of all such
documents. Existing tenants should describe and attach a
copy of any new actions, orders, decrees, requests, notices
or demands not already delivered
3
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to Landlord pursuant to the provisions of Section 29 of
the signed Lease Agreement.
__________________________________________________________
__________________________________________________________
__________________________________________________________
8.2 Have there ever been, or are there now pending, any
lawsuits against your company regarding any environmental
or health and safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord.
Existing tenants should describe and attach a copy of any
new complaint(s), cross-complaint(s), pleadings and other
related documents not already delivered to Landlord
pursuant to the provisions of Section 29 of the signed
Lease Agreement.
__________________________________________________________
__________________________________________________________
__________________________________________________________
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's
current facility with regard to environmental or health and
safety concerns? Existing tenants should indicate whether
or not there have been any such problems or complaints from
adjacent tenants, owners or other neighbors at, about or
near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing tenants should describe
any such problems or complaints not already disclosed to
Landlord under the provisions of the signed Lease
Agreement.
__________________________________________________________
__________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and
licenses including a Transporter Permit number issued to
your company with respect to its proposed operations in, on
or about the Premises, including, without limitation, any
wastewater discharge permits, air emissions permits, and
use permits or approvals. Existing tenants should attach
copies of any new permits and licenses as well as any
renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding the
foregoing
4
43
or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will, rely upon the statements, representations,
warranties, and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name)___________________, acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent and
warrant that the information contained in this certificate is true and correct.
(PROSPECTIVE) TENANT:
By: ________________________
Title: ________________________
Date: ________________________
INITIALS:
TENANT: _____________
LANDLORD: _____________
5
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45
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into as of ___________________, by and between ____________________________
("LANDLORD"), AND ________________________ ("TENANT"), with reference to the
following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
___________ (the "Lease"), for the leasing of certain premises located at
____________________________, California (the "Premises") as such
Premises are more fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. The Commencement Date of the Lease shall be ________________________.
2. The last day of the Term of the Lease (the "Expiration Date") shall be
______________.
3. The dates on which the Base Rent will be adjusted are:
for the period _________ to ________ the monthly Base Rent shall be
$_____________;
for the period _________ to ________ the monthly Base Rent shall be
$_____________; and
for the period _________ to ________ the monthly Base Rent shall be
$_____________.
4. Effect of Amendment: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in
full force and effect. In the event of any conflict between the
terms and conditions of the Lease and this Amendment, the terms and
conditions of this Amendment shall prevail.
5. Definitions: Unless otherwise defined in this Amendment, all terms
not defined in this Amendment shall have the meaning set forth in
the Lease.
6. Authority: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors
and assigns. Each party hereto and the persons signing below
warrant that the person signing below on such party's behalf is
authorized to do so and to bind such party to the terms of this
Amendment.
7. The terms and provisions of the Lease are hereby incorporated in
this Amendment.
INITIALS:
TENANT: _____________
LANDLORD: _____________
46
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
[PROPERTY MANAGER: PLEASE PROVIDE TENANT INFORMATION AND WORD PROCESSING WILL
COMPLETE THE SIGNATURE BLOCK]
INITIALS:
TENANT: ___
LANDLORD: ___
47
EXHIBIT G
TENANT'S INITIAL HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord:
__________________________________________________________
__________________________________________________________
c/o Lincoln Property Company Management Services, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn:_____________________________________________________
Phone: (415) 571-2200
Name of (Prospective) Tenant:__________________________________________________
Mailing Address:_______________________________________________________________
_______________________________________________________________________________
Contact Person, Title and Telephone Number(s):_________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):___________________________________________________________
_______________________________________________________________________________
Address of (Prospective) Premises:_____________________________________________
Length of (Prospective) initial Term:__________________________________________
_______________________________________________________________________________
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or
about the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing tenants should describe any
proposed changes to on-going operations.
____________________________________________________________________
____________________________________________________________________
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing tenants
should describe any Hazardous Materials which continue to
be used, generated, stored or disposed of in, on or about
the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
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48
If Yes is marked, please explain:_________________________
__________________________________________________________
__________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or
disposed of in, on or about the Premises, including the
applicable hazard class and an estimate of the quantities
of such Hazardous Materials at any given time; estimated
annual throughput; the proposed location(s) and method of
storage (excluding nominal amounts of ordinary household
cleaners and janitorial supplies which are not regulated by
any Environmental Laws); and the proposed location(s) and
method of disposal for each Hazardous Material, including,
the estimated frequency, and the proposed contractors or
subcontractors. Existing tenants should attach a list
setting forth the information requested above and such list
should include actual data from on-going operations and the
identification of any variations in such information from
the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing tenants
should describe any such actual or proposed activities.
Yes [ ] No [ ]
If yes, please explain:___________________________________
__________________________________________________________
__________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste
Generator I.D. Number? Existing tenants should describe any
additional identification numbers issued since the previous
certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should
describe any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
______storm drain? _______sewer?
______surface water? _______no wastewater or other
wastes discharged.
Existing tenants should indicate any actual discharges. If
so, describe the nature of any proposed or actual
discharge(s).
__________________________________________________________
__________________________________________________________
5.2 Will any such wastewater or waste be treated before
discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be
conducted. Existing tenants should describe the actual
treatment conducted.
__________________________________________________________
__________________________________________________________
6. AIR DISCHARGES
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49
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the
Premises that will discharge into the air; and will such
air emissions be monitored? Existing tenants should
indicate whether or not there are any such air filtration
systems or stacks in use in, on or about the Premises which
discharge into the air and whether such air emissions are
being monitored.
Yes [ ] No [ ]
If yes, please describe:__________________________________
__________________________________________________________
__________________________________________________________
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air
emissions permit? Existing tenants should specify any such
equipment being operated in, on or about the Premises.
_______Spray booth(s) ______Incinerator(s)
_______Dip tank(s) ______Other (Please describe)
_______Drying oven(s) ______No Equipment Requiring
Air Permits
If yes, please describe:__________________________________
__________________________________________________________
__________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare
a Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements? Existing tenants should
indicate whether or not a Management Plan is required and
has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing
tenants should attach a copy of any required updates to the
Management Plan.
7.2 Are any of the Hazardous Materials, and in particular
chemicals, proposed to be used in your operations in, on or
about the Premises regulated under Proposition 65? Existing
tenants should indicate whether or not there are any new
Hazardous Materials being so used which are regulated under
Proposition 65.
Yes [ ] No [ ]
If yes, please explain:___________________________________
__________________________________________________________
__________________________________________________________
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws,
has your company ever been subject to any agency
enforcement actions, administrative orders, or consent
decrees or has your company received requests for
information, notice or demand letters, or any other
inquiries regarding its operations? Existing tenants should
indicate whether or not any such actions, orders or decrees
have been, or are in the process of being, undertaken or if
any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of
these actions, orders or decrees and also describe any
requests, notices or demands, and attach a copy of all such
documents. Existing tenants should describe and attach a
copy of any new actions, orders, decrees, requests, notices
or demands not already delivered
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to Landlord pursuant to the provisions of Section 29 of the
signed Lease Agreement.
__________________________________________________________
__________________________________________________________
__________________________________________________________
8.2 Have there ever been, or are there now pending, any
lawsuits against your company regarding any environmental
or health and safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord.
Existing tenants should describe and attach a copy of any
new complaint(s), cross-complaint(s), pleadings and other
related documents not already delivered to Landlord
pursuant to the provisions of Section 29 of the signed
Lease Agreement.
__________________________________________________________
__________________________________________________________
__________________________________________________________
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's
current facility with regard to environmental or health and
safety concerns? Existing tenants should indicate whether
or not there have been any such problems or complaints from
adjacent tenants, owners or other neighbors at, about or
near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing tenants should describe
any such problems or complaints not already disclosed to
Landlord under the provisions of the signed Lease
Agreement.
__________________________________________________________
__________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and
licenses including a Transporter Permit number issued to
your company with respect to its proposed operations in, on
or about the Premises, including, without limitation, any
wastewater discharge permits, air emissions permits, and
use permits or approvals. Existing tenants should attach
copies of any new permits and licenses as well as any
renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding the
foregoing
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or anything to the contrary contained herein, the undersigned acknowledges and
agrees that Landlord and its partners, lenders and representatives may, and
will, rely upon the statements, representations, warranties, and certifications
made herein and the truthfulness thereof in entering into the Lease Agreement
and the continuance thereof throughout the term, and any renewals thereof, of
the Lease Agreement.
I (print name) , acting with full authority to bind the (proposed) Tenant and on
behalf of the (proposed) Tenant, certify, represent and warrant that the
information contained in this certificate is true and correct.
(PROSPECTIVE) TENANT:
By: __________________
Title: __________________
Date: __________________
INITIALS:
TENANT: ______________
LANDLORD: ______________
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ADDENDUM 1
FIRST OPTION TO EXTEND THE LEASE
This Addendum 1 is incorporated as a part of that certain Lease Agreement, dated
December 18, 1996 (the "Lease"), by and between Lincoln-Whitehall Realty (West),
L.L.C., a Delaware limited liability company ("Landlord"), and Cisco Systems,
Inc., a California corporation ("Tenant"), of those certain premises located at
130 and 140 Baytech Drive (Buildings C & D), San Jose, California (the
"Premises"). Any capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms as set forth in the Lease.
1. GRANT OF EXTENSION OPTION. Subject to the provisions of Sections 5 and 6
hereinbelow, if Tenant has not at any time been in default of its obligations
beyond applicable cure periods more than three (3) times in any twelve-month
period ("Chronic Default"), or at the time of Tenant's exercise of this option,
is currently not, in default in the performance of any of its obligations under
this Lease beyond applicable cure periods, and contingent upon review and
approval of Tenant's then current financial condition by Landlord [which
financial condition shall be deemed to be acceptable to Landlord so long as
Tenant, at the time of exercise of this option and for the prior twelve month
period of time prior to Tenant's exercise of this option, has a net worth of at
least One Hundred Million Dollars ($100,000,000.00)], Tenant shall have the
right at its option (the "First Option") to extend the initial term of the Lease
for an additional period of one (1) year (the "First Extended Term").
2. TENANT'S FIRST OPTION NOTICE. If Landlord does not receive written notice
from Tenant of its exercise of this First Option on a date which is not more
than five hundred forty (540) days nor less than three hundred sixty (360) days
prior to the end of the initial term of the Lease (the "First Option Notice"),
all rights of Tenant in, to and under this First Option shall automatically
lapse and terminate and shall be of no further force or effect. Time is of the
essence herein.
3. ESTABLISHING THE MONTHLY BASE RENT FOR THE FIRST EXTENDED TERM. In the event
Tenant duly exercises its rights under this First Option, the monthly Base Rent
payable by Tenant to Landlord during the First Extended Term shall be one
hundred forty thousand one hundred forty-two and 75/100 dollars ($140,142.75).
If Tenant duly exercises this First Option in accordance with the terms outlined
above, Landlord and Tenant shall immediately execute, at Landlord's sole option,
either the standard lease agreement then in use by Landlord, or an amendment to
this Lease. Such new lease agreement or amendment, as the case may be, shall set
forth among other things, the monthly Base Rent quoted above for the First
Extended Term and the actual commencement date and expiration date of the First
Extended Term. Tenant shall have no other right to extend the initial term of
the Lease under this Addendum 1 unless Landlord and Tenant otherwise agree in
writing.
4. CONDITION OF PREMISES AND BROKERAGE COMMISSIONS FOR THE FIRST EXTENDED TERM.
If Tenant duly exercises this First Option in accordance with the terms
contained herein, the following shall apply: (1) Tenant shall accept the
Premises in its then "As-Is" condition and, accordingly, Landlord shall not be
required to perform nor install any additional improvements to the Premises; and
(2) Tenant hereby agrees that it will be solely responsible for any and all
brokerage commissions and finder's fees payable to any broker except for
Landlord's broker in connection with the First Option described herein, and
Tenant hereby further agrees that Landlord shall in no event or circumstance be
responsible for the payment of any such commissions and fees.
5. LIMITATIONS ON, AND CONDITIONS TO, FIRST EXTENSION OPTION. Except as
otherwise provided below, this First Option is personal to Tenant and except for
a Related Entity may not be assigned, voluntarily or involuntarily, separate
from or as part of the Lease, unless Landlord otherwise expressly consents in
writing to such assignment. At Landlord's option, all rights of Tenant under
this First Option shall terminate and be of no force or effect if any of the
following individual events occur or any combination thereof occur: (1) Tenant
or the Related Entity, as applicable, has been in Chronic Default at any time
during the initial term of the Lease, or at the time of exercise of the First
Option is then currently in default of any provision of the Lease beyond
applicable cure periods; and/or (2) Tenant has
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assigned its rights and obligations under all or part of the Lease to any party
or entity other than a Related Entity, or Tenant has subleased all or part of
the Premises to any party or entity other than a Related Entity, unless Landlord
otherwise expressly consents in writing to such assignment or sublease, which
consent shall not be unreasonably withheld, and/or (3) Tenant's or the Related
Entity's (as applicable) financial condition is unacceptable to Landlord at the
time the First Option Notice is delivered to Landlord [which financial condition
shall be deemed to be acceptable to Landlord so long as Tenant or the Related
Entity, as applicable, at the time of exercise of this First Option and for the
prior twelve month period of time prior to delivery of the First Option Notice,
has a net worth of at least One Hundred Million Dollars ($100,000,000.00)];
and/or (4) Tenant or the Related Entity (as applicable) has failed to exercise
this First Option in a timely manner and in strict accordance with the
provisions of this Addendum 1; and/or (5) Tenant, a Related Entity, or a third
party subtenant or assignee for which Landlord has expressly consented, as the
case may be, no longer has possession of all or any part of the Premises under
the Lease, or if the Lease has been terminated earlier, pursuant to the terms of
the Lease.
6. RECAPTURE AND EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION.
Notwithstanding anything to the contrary contained in the Lease or herein, if
(I) the Term of the First Lease has expired or the First Lease has been earlier
terminated for any reason whatsoever, in whole or in part, and (II) during the
First Extended Term Tenant proposes to sublease or assign this Lease to a party
other than a Related Entity, then for the time period during which there is any
vacancy in Building A and/or Building B (as referred to in the First Lease)
Landlord shall have the right, to be exercised by giving written notice to
Tenant, to either (1) recapture the space described in the proposed sublease or
assignment, or (2) consent to such proposed sublease or assignment, (which
consent shall not be unreasonably withheld) in which event Tenant shall pay
Landlord monthly, as Additional Rent, at the same time as the monthly
installments of Rent are payable hereunder, fifty percent (50%) of the excess of
each such payment of rent or other consideration in excess of the Rent called
for hereunder, after deduction of the actual brokerage commission (if any) paid
by Tenant in connection with such proposed sublease or assignment, where the
rent or other consideration provided for in the proposed sublease or assignment
either initially or over the term of the sublease or assignment exceeds the Rent
or pro rata portion of the Rent, as the case may be, for such space reserved in
the Lease. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed sublease or assignment space, or, if the
proposed sublease or assignment space covers all the Premises for the First
Extended Term, it shall serve to terminate the entire term of this Lease in
either case, as of the Proposed Effective Date, with respect to such space.
INITIALS:
TENANT: __________
LANDLORD: __________
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ADDENDUM 2
SECOND OPTION TO EXTEND THE LEASE
This Addendum 2 is incorporated as a part of that certain Lease Agreement, dated
December 18, 1996 (the "Lease"), by and between Lincoln-Whitehall Realty (West),
L.L.C., a Delaware limited liability company ("Landlord"), and Cisco Systems,
Inc., a California corporation ("Tenant"), of those certain premises located at
130 and 140 Baytech Drive (Buildings C & D), San Jose, California (the
"Premises"). Any capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms as set forth in the Lease.
1. GRANT OF EXTENSION OPTION. Subject to the provisions of Sections 5 and 6
hereinbelow, if (i) Tenant has not at any time been in Chronic Default, or at
the time of Tenant's exercise of this Second Option, is currently not, in
default in the performance of any of its obligations under this Lease beyond any
applicable cure periods, (ii) Tenant has duly exercised the First Option in
accordance with the provisions of Addendum 1 to the Lease, and (iii) contingent
upon review and approval of Tenant's then current financial condition by
Landlord [which financial condition shall be deemed to be acceptable to Landlord
so long as Tenant, at the time of exercise of this option and for the prior
twelve month period of time prior to Tenant's exercise of this Second Option,
has a net worth of at least One Hundred Million Dollars ($100,000,000.00)],
Tenant shall have the right at its option (the "Second Option") to further
extend the term of the Lease for an additional one (1) year period (the "Second
Extended Term").
2. TENANT'S SECOND OPTION NOTICE. If Landlord does not receive written notice
from Tenant of its exercise of this Second Option on a date which is not more
than five hundred forty (540) days nor less than three hundred sixty (360) days
prior to the end of the First Extended Term of the Lease (the "Second Option
Notice"), all rights of Tenant in, to and under this Second Option shall
automatically lapse and terminate and shall be of no further force or effect.
Time is of the essence herein.
3. ESTABLISHING THE MONTHLY BASE RENT FOR THE SECOND EXTENDED TERM. In the event
Tenant duly exercises its rights under this Second Option, the monthly Base Rent
payable by Tenant to Landlord during the Second Extended Term shall be one
hundred forty-four thousand three hundred eighty-nine and 50/100 dollars
($144,389.50). If Tenant duly exercises this Second Option in accordance with
the terms outlined above, Landlord and Tenant shall immediately execute, at
Landlord's sole option, either the standard lease agreement then in use by
Landlord, or an amendment to this Lease. Such new lease agreement or amendment,
as the case may be, shall set forth among other things, the monthly Base Rent
quoted above for the Second Extended Term and the actual commencement date and
expiration date of the Second Extended Term. Tenant shall have no other right to
extend the then applicable term of the Lease under this Addendum 2 unless
Landlord and Tenant otherwise agree in writing.
4. CONDITION OF PREMISES AND BROKERAGE COMMISSIONS FOR THE SECOND EXTENDED TERM.
If Tenant duly exercises this Second Option in accordance with the terms
contained herein: (1) Tenant shall accept the Premises in its then "As-Is"
condition and, accordingly, Landlord shall not be required to perform nor
install any additional improvements to the Premises; and (2) Tenant hereby
agrees that it will be solely responsible for any and all brokerage commissions
and finder's fees payable to any broker except for Landlord's broker in
connection with the Second Option described herein, and Tenant hereby further
agrees that Landlord shall in no event or circumstance be responsible for the
payment of any such commissions and fees.
5. LIMITATIONS ON, AND CONDITIONS TO, SECOND EXTENSION OPTION. Except as
otherwise provided herein, this Second Option is personal to Tenant and except
for a Related Entity may not be assigned, voluntarily or involuntarily, separate
from or as part of the Lease, unless Landlord otherwise expressly consents in
writing to such assignment. At Landlord's option, all rights of Tenant under
this First Option shall terminate and be of no force or effect if any of the
following individual events occur or any combination thereof occur: (1) Tenant
or the Related Entity, as applicable, has been in Chronic Default at any time
during the initial term or First Extended Term of the Lease, or at the time of
exercise of the
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Second Option is then currently in default of any provision of the Lease beyond
applicable cure periods; and/or (2) Tenant has assigned its rights and
obligations under all or part of the Lease to any party or entity other than a
Related Entity, or Tenant has subleased all or part of the Premises to any party
or entity other than a Related Entity, unless Landlord otherwise expressly
consents in writing to such assignment or sublease, which consent shall not be
unreasonably withheld, and/or (3) Tenant's or the Related Entity's (as
applicable) financial condition is unacceptable to Landlord at the time the
Second Option Notice is delivered to Landlord [which financial condition shall
be deemed to be acceptable to Landlord so long as Tenant or the Related Entity,
as applicable, at the time of exercise of this Second Option and for the prior
twelve month period of time prior to delivery of the Second Option Notice, has a
net worth of at least One Hundred Million Dollars ($100,000,000.00)]; and/or (4)
Tenant or the Related Entity, as applicable, has failed to exercise the First
Option in a timely manner in strict accordance with the provisions of Addendum 1
to the Lease; (5) Tenant or the Related Entity (as applicable) has failed to
exercise this Second Option in a timely manner and in strict accordance with the
provisions of this Addendum 2; and/or (6) Tenant, a Related Entity, or a third
party subtenant or assignee for which Landlord has expressly consented, as the
case may be, no longer has possession of all or any part of the Premises under
the Lease, or if the Lease has been terminated earlier, pursuant to the terms of
the Lease.
6. RECAPTURE AND EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION.
Notwithstanding anything to the contrary contained in the Lease or herein, if
(I) the Term of the First Lease has expired or the First Lease has been earlier
terminated for any reason whatsoever, in whole or in part, and (II) during the
Second Extended Term Tenant proposes to sublease or assign this Lease to a party
other than a Related Entity, then for the time period during which there is any
vacancy in Building A and/or Building B (as referred to in the First Lease)
Landlord shall have the right, to be exercised by giving written notice to
Tenant, to either (1) recapture the space described in the proposed sublease or
assignment, or (2) consent to such proposed sublease or assignment, (which
consent shall not be unreasonably withheld) in which event Tenant shall pay
Landlord monthly, as Additional Rent, at the same time as the monthly
installments of Rent are payable hereunder, fifty percent (50%) of the excess of
each such payment of rent or other consideration in excess of the Rent called
for hereunder, after deduction of the actual brokerage commission (if any) paid
by Tenant in connection with such proposed sublease or assignment, where the
rent or other consideration provided for in the proposed sublease or assignment
either initially or over the term of the sublease or assignment exceeds the Rent
or pro rata portion of the Rent, as the case may be, for such space reserved in
the Lease. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed sublease or assignment space, or, if the
proposed sublease or assignment space covers all the Premises for the Second
Extended Term, it shall serve to terminate the entire term of this Lease in
either case, as of the Proposed Effective Date, with respect to such space.
INITIALS:
TENANT: __________
LANDLORD: __________
2