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EXHIBIT 10.3
OFFICE LEASE
THIS LEASE is entered into by and between Landlord and Tenant effective as of
this ____ day of December, 1999.
SECTION 1. TERMS AND DEFINITIONS
The following terms as used herein shall have the meanings as set forth below:
A. "Landlord" means HITACHI AMERICA, LTD., a New York corporation, and its
successors and assigns.
B. "Tenant" means COLO.COM, INC., a California corporation.
C. "Building" means the building in which the Premises are located, which
Building has approximately 266,606 square feet of Rentable Area and is
located at 2000 Sierra Point Parkway, in the City of Brisbane,
California.
D. "Project" means the Building, the Premises, the Common Areas and the
legal parcel on which the Building is located.
E. "Premises" means the entire 10th floor of the Building and consists of
approximately eighteen thousand two hundred sixteen (18,216) square feet
of Rentable Area, as more particularly shown on Exhibit A attached
hereto and incorporated herein by this reference.
F. "Term" means the approximately sixty (60) month period commencing on the
Lease Commencement Date and expiring on the Expiration Date.
G. "Lease Commencement Date" means the earlier to occur of (1) March 1,
2000 and (2) the date Tenant commences operation of its business from
the Premises; provided, however, that if the Lease Commencement Date
stated in this subsection is amended pursuant to Section 3(C) below,
Landlord and Tenant shall execute and attach hereto as a new Exhibit D
an Amendment of Lease Commencement Date in the form of Exhibit D hereto,
which shall specify such amended Lease Commencement Date and, if
applicable, an amended Expiration Date.
H. "Expiration Date" means February 28, 2005 unless amended as provided in
an Amendment of Lease Commencement Date executed as provided above.
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I. "Monthly Rental" means the following:
Period Monthly Rental
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Lease Commencement Date - February 28, 2001 $67,399.20
March 1, 2001 - February 28, 2002 $70,131.60
March 1, 2002 - February 28, 2003 $72,864.00
March 1, 2003 - February 29, 2004 $75,778.56
March 1, 2004 - Expiration Date $78,875.25
J. "Rentable Area" means:
(1) As to each floor of the Building on which the entire space
rentable to tenants is or will be leased to one tenant
(hereinafter referred to as a Single Tenant Floor), Rentable
Area shall be the entire area bounded by the inside surface of
the four exterior glass walls (or in the inside surface of the
permanent exterior wall(s) where there is no glass) on such
floor, including all areas used for elevator lobbies, corridors,
special stairways, or elevators, restrooms, mechanical rooms,
electrical rooms and telephone closets without deduction for
columns and other structural portions of the Building or
vertical penetrations that are included for the special use of
the tenant of such floor together with a portion of the covered
or enclosed common facilities which constitute a part of the
Building and which are maintained by Landlord for the common
benefit of all tenants of the Building which bears the same
proportion to the total area of such common facilities as the
Rentable Area of each Single Tenant Floor bears to the Rentable
Area of the Building (excluding such common facilities), but
excluding the area contained within the exterior walls of the
Building stairs, fire towers, vertical ducts, elevator shafts,
flues, vents, stacks and pipe shafts.
(2) As to each floor of the Building on which space is or will be
leased to more than one tenant, Rentable Area attributable to
each such lease shall be the total of (a) the entire area
included within the premises covered by such lease, being the
area bounded by the inside surface of any exterior glass walls
(or the inside surface of the permanent exterior wall(s) where
there is no glass) of the Building bounding such premises, the
exterior of all walls separating such premises from any public
corridors or other public areas on such floor, and the
centerline of all walls separating such premises from other
areas leased or to be leased to other tenants on such floor, (b)
that portion outside the Premises but within space intended for
use or occupancy as premises by another tenant utilized by
Tenant for wiring, ducts, vents or other requirements of
Tenant's operations in the Premises, (c) that portion of the
covered or enclosed common facilities which constitute a part of
the Building and which are maintained by Landlord for the common
benefit of all tenants of the Building which bears the same
proportion to the total area of such common facilities as the
Rentable Area of such Premises bears to the Rentable Area of the
Building (excluding such common facilities), and (d) a pro rata
portion of any area of the Building devoted to common features
such as elevator
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lobbies, corridors, restrooms, mechanical rooms, electrical
rooms and telephone closets, but excluding any area contained
within the exterior walls of the Building for stairs, fire
towers, vertical ducts, elevator shafts, flues, vents, stacks
and pipe shafts.
K. "Security Deposit" means $134,798.40.
L. "Permitted Use" means commercial office use.
M. "Brokers" means Cornish & Carey Commercial.
N. "Landlord's Address for Notice" means 2000 Sierra Point Parkway, MS 550,
Brisbane, California 94005, Attention: Facilities Manager.
O. "Tenant's Address for Notice" means the address of the Premises.
P. "Parking Spaces" means 3.3 unreserved parking spaces per 1000 square
feet of Rentable Area in the Premises in the area of the Project
designated by Landlord for vehicle parking.
Q. "Fitness Center Memberships" means eighteen (18) memberships in the
fitness center located on the first floor of the Building ("Fitness
Center").
SECTION 2. PROPERTY LEASED
A. Premises. Upon and subject to the terms, covenants and conditions
hereinafter set forth, Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises; reserving to Landlord,
however, (1) the use of the exterior walls, roof, return air plenum and
the area under the Premises floor and (2) the rights to make structural
(building) modifications and the right to install, maintain, use, repair
and replace pipes, ducts, conduits, and wires to serve or serving other
tenant premises in the Building through the Premises in locations which
will not materially interfere with Tenant's use thereof.
B. Common Areas. Subject to the terms, covenants and conditions of this
Lease, Tenant shall have the right, for the benefit of Tenant and its
employees and invitees, to the non-exclusive use of all of the Common
Areas as hereinafter defined.
C. Minor Variations In Area. The Rentable Area of the Premises contained in
Section 1(E) is agreed to be the Rentable Area of the Premises
regardless of minor variations resulting from construction of the
Building and/or tenant improvements.
SECTION 3. COMMENCEMENT OF TERM AND POSSESSION OF PREMISES
A. Lease Commencement Date. The Term of the Lease shall commence on the
Lease Commencement Date (as extended only pursuant to Section 3(C)
below, if applicable), and shall continue, subject to earlier
termination as provided herein, until the Expiration
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Date (as extended only pursuant to Section 3(C) below).
B. Completion of Tenant Improvements and Possession of Premises. Upon
execution of this Lease by the parties, Tenant shall have the right to
enter the Premises solely for purposes of performing and completing all
tenant improvements described as "Tenant's Work" in Exhibit B hereto,
and Tenant shall open the Premises for business, on or before the Lease
Commencement Date. Tenant's occupancy of the Premises prior to the Lease
Commencement Date shall be subject to all of the terms and conditions of
this Lease; provided, however, Tenant's obligation to pay Monthly Rental
shall not commence until the Lease Commencement Date. All tenant
improvements constructed in the Premises, whether by Landlord or by (or
on behalf of) Tenant and whether at Landlord's or Tenant's expense,
shall become part of the Premises and shall be and remain the property
of Landlord unless Landlord specifically agrees otherwise in writing.
C. Extension of Lease Commencement Date. If the Premises are not ready for
occupancy by Tenant on the original Lease Commencement Date specified in
Section 1(G) due to one or more delays caused by Landlord or caused by
matters beyond the control of Landlord, this Lease and the obligations
of Landlord and Tenant hereunder shall nevertheless continue in full
force and effect. However, in such event Landlord and Tenant shall agree
on an amendment of the original Lease Commencement Date to reflect such
delay or delays and shall, in each instance, within thirty (30) days
after the amended Lease Commencement Date, execute and attach hereto an
amendment in the form of that attached as Exhibit D hereto stating such
amended Lease Commencement Date and, if applicable, an amended
Expiration Date and no rental shall be payable by Tenant hereunder until
the amended Lease Commencement Date. The delay in commencement of the
Term and in the accrual of rent described in the foregoing sentence
shall constitute full settlement of all claims that Tenant might
otherwise have by reason of the Premises not being ready for occupancy
on the original Lease Commencement Date specified in Section 1(G) above.
If the Premises are not ready for occupancy by Tenant on the Lease
Commencement Date due to one or more delays caused by Tenant, or anyone
acting under or for Tenant, Landlord shall have no liability for such
delay and the Lease Commencement Date shall nevertheless begin as of the
Lease Commencement Date stated in Section 1(G) (as extended only because
of Landlord's delay pursuant to this Section 3(C), if applicable).
D. Acceptance and Suitability. Tenant hereby agrees to accept the Premises
in its "AS IS" condition. Tenant agrees that by taking possession of the
Premises it will conclusively be deemed to have inspected the Premises
and found the Premises in satisfactory condition. Tenant acknowledges
that neither Landlord, nor any agent, employee or servant of Landlord,
has made any representation with respect to the Premises, the Building,
or the Project or with respect to the suitability of them for the
conduct of Tenant's business, nor has Landlord agreed to undertake any
modifications, alterations, or improvements of the Premises or Building,
except as specifically provided in this Lease.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD
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HEREBY DISCLAIMS, AND TENANT WAIVES THE BENEFIT OF, ANY AND ALL IMPLIED
WARRANTIES, INCLUDING IMPLIED WARRANTIES OF HABITABILITY, FITNESS OR
SUITABILITY FOR PURPOSE, OR THAT THE BUILDING OR THE IMPROVEMENTS IN THE
PREMISES HAVE BEEN CONSTRUCTED IN A GOOD AND WORKMANLIKE MANNER.
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Tenant's Initials
SECTION 4. RENT
A. Monthly Rental. Commencing on the Lease Commencement Date, Tenant shall
pay to Landlord during the Term the amount set forth in Section 1(I) in
monthly installments (the "Monthly Rental"), which sum shall be payable
by Tenant on or before the first day of each month, in advance, without
further notice, at the address specified for Landlord in Section 1(N),
or such other place as Landlord shall designate, without any prior
demand therefor and without any abatement, demand, counterclaim,
deduction or setoff whatsoever. If the Lease Commencement Date should
occur on a day other than the first day of a calendar month, or the
Expiration Date should occur on a day other than the last day of a
calendar month, then the rental for such fractional month shall be
prorated on a daily basis upon a thirty (30) day calendar month.
B. Rent and Additional Rent. As used in this Lease, the term "rent" shall
mean Monthly Rental and additional rent, and the term "additional rent"
shall mean all other amounts payable by Tenant to Landlord pursuant to
this Lease other than Monthly Rental. All Monthly Rental and additional
rent shall be paid without any abatement, demand, deduction, setoff or
counterclaim whatsoever in lawful money of the United States which shall
be legal tender at the time of payment. Where no other time is stated
herein for payment, payment of any amount payable from Tenant to
Landlord hereunder shall be due and made, within ten (10) days after
Tenant's receipt of Landlord's invoice or statement therefor. Tenant
expressly acknowledges that Tenant's covenant to pay rent under this
Lease is separate and independent from Landlord's covenant to provide
services and other amenities hereunder.
SECTION 5. COMMON AREAS
A. Definitions. "Common Areas" means all areas, space, equipment and
special services provided by Landlord for the common or joint use and
benefit of Landlord, the tenants and other occupants of the Building,
and their respective employees, agents, servants, suppliers, customers
and other invitees, including, by way of illustration, but not
limitation, retaining walls, fences, landscaped areas, parks, curbs,
sidewalks, private roads, the cafeteria on the first floor of the
Building, common restrooms, stairways, elevators, lobbies, common
hallways, patios, service quarters, parking areas and all common areas
and other areas within the exterior of the Building and in the Project.
B. Control of Common Areas. Landlord shall maintain the Common Areas,
including
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lobbies,stairs, elevators, corridors, restrooms, windows, mechanical,
plumbing and electrical equipment, and the structure itself in
reasonably good order and condition except for damage occasioned by the
act of Tenant, its employees, agents, contractors or invitees, which
damage shall be repaired by Landlord at Tenant's expense. Landlord shall
have the sole and exclusive control of the Common Areas, as well as the
right to make changes to the Common Areas. Notwithstanding the preceding
sentence, Landlord is not responsible for any harm or damage to any of
Tenant's officers, agents, employees, servants, suppliers, customers or
other invitees as a result of their use of the Common Areas. Landlord's
rights to make changes shall include, but not be limited to, the right
to (a) restrain the use of the Common Areas by unauthorized persons, (b)
utilize from time to time any portion of the Common Areas for
promotional and related matters, (c) temporarily close any portion of
the Common Areas for repairs, improvements or alterations, (d) change
the shape and size of the Common Areas or change the location of
improvements within the Common Areas, including, without limitation,
parking areas, roadways and curb cuts, and (e) prohibit access to or use
of Common Areas that are designated for the storage of supplies or
operation of equipment necessary to operate the Project or Building.
Landlord may determine the nature, size and extent of the Common Areas
as well as make changes to the Common Areas from time to time which, in
its opinion, are deemed desirable. Noise, dust, dirt or vibration or
other incidents to new construction of improvements on lands adjacent or
proximate to the Building, whether or not owned by Landlord, shall in no
way affect this Lease or impose any liability on Landlord.
SECTION 6. SECURITY DEPOSIT
Upon execution of this Lease, Tenant shall deposit with Landlord the Security
Deposit defined in Section 1(K) above, which shall be held by Landlord as
security for the performance by Tenant of all terms, covenants and conditions of
this Lease. It is expressly understood and agreed that such Security Deposit is
not an advance rental deposit or a measure of Landlord's damages in case of
Tenant's default. If Tenant defaults with respect to any provision of this
Lease, including, but not limited to, the provisions relating to the payment of
rent or the obligation to repair and maintain the Premises or to perform any
other term, covenant or condition contained herein, Landlord may (but shall not
be required to), without prejudice to any other remedy provided herein or
provided by law and without notice to Tenant, use the Security Deposit, or any
portion of it, to cure the default or to compensate Landlord for all damages
sustained by Landlord resulting from Tenant's default. Tenant shall immediately
on demand pay to Landlord a sum equivalent to the portion of the Security
Deposit so expended or applied by Landlord as provided in this Section so as to
maintain the Security Deposit in the sum initially deposited with Landlord.
Although the Security Deposit shall be deemed the property of Landlord, if
Tenant is not in default at the expiration or termination of this Lease,
Landlord shall return the Security Deposit (or applicable portion thereof) to
Tenant. Landlord shall not be required to keep the Security Deposit separate
from its general funds and Landlord, not Tenant, shall be entitled to all
interest, if any, accruing on any such Security Deposit. Upon any sale or
transfer of its interest in the Building, Landlord shall transfer the Security
Deposit to its successor in interest and thereupon, Landlord shall be released
from any liability or obligation with respect thereto.
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SECTION 7. TENANT'S TAXES
Tenant shall be liable for any tax (now or hereafter imposed by any governmental
entity) applicable to or measured by or on the rents or any other charges
payable by Tenant under this Lease, including (but not limited to) any gross
income tax, gross receipts tax or excise tax with respect to the receipt of such
rent or other charges or the possession, leasing or operation, use or occupancy
of the Premises, but not including any net income, franchise, capital stock,
estate or inheritance taxes. If any such tax is required to be paid to the
governmental taxing entity directly by Landlord, then Landlord shall pay the
amount due and, upon demand, shall be fully reimbursed by Tenant for such
payment.
Tenant shall also be liable for all taxes levied against the leasehold held by
Tenant or against any personal property, leasehold improvements, additions,
alterations and fixtures placed by or for Tenant in, on or about the Premises,
Building and Project or constructed by Landlord for Tenant in the Premises; and
if any such taxes are levied against Landlord or Landlord's property, or if the
assessed value of such property is increased (whether by special assessment or
otherwise) by the inclusion therein of value placed on such leasehold, personal
property, leasehold improvements, additions, alterations and fixtures, and
Landlord pays any such taxes (which Landlord shall have the right to do
regardless of the validity thereof), Tenant, upon demand, shall fully reimburse
Landlord for the taxes so paid by Landlord or for the proportion of such taxes
resulting from such increase in any assessment.
SECTION 8. USE OF PREMISES
A. Permitted Uses. Tenant shall use the Premises solely for the Permitted
Use specified in Section 1(L) above, and for no other use, and under the
name specified in Section 1(B) above. Tenant shall, at its own cost and
expense, obtain any and all licenses and permits necessary for any such
use. Tenant shall not do or permit anything to be done in or about the
Premises, Common Areas, Building or Project which will in any way
obstruct or interfere with the rights of Landlord or other tenants or
occupants of the Building or injure or annoy them or use or allow the
Premises to be used for any unlawful purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises and Common
Areas or permit any odors to emanate from the Premises and intrude upon
the Common Areas or the premises of Landlord or other tenants. Tenant
shall not commit or suffer to be committed any waste in or upon the
Premises, Common Areas, Building or Project. Tenant shall not do or
permit anything to be done in or about the Premises, Common Areas,
Building or Project which may render the insurance thereon void or
increase the insurance risk thereon. If an increase in any fire and
extended coverage insurance premiums paid by Landlord for the Building
and Project is caused by Tenant's use and occupancy of the Premises,
then Tenant shall pay as additional rental the amount of such increase
to Landlord.
B. Compliance with Laws. Tenant shall not use the Premises, Building,
Project or Common Areas in any way (or permit or suffer anything to be
done in or about the same) which will conflict with any law, statute,
ordinance or governmental rule or regulation or any covenant, condition
or restriction (whether or not of public record) affecting the
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Premises, Project or Building, now in force or which may hereafter be
enacted or promulgated including, but not limited to, the provisions of
any city or county zoning codes regulating the use thereof. Tenant
shall, at its sole cost and expense, promptly comply with (i) all laws,
statutes, ordinances and governmental rules and regulations, now in
force or which may hereafter be in force, applicable to Tenant or its
use of or business or operations in the Premises including structural,
utility system and life safety system changes necessitated by Tenant's
acts, use of the Premises or by improvements made by or for Tenant, (ii)
all requirements, and other covenants, conditions and restrictions, now
in force or which may hereafter be in force, which affect the Premises,
and (iii) all requirements, now in force or which may hereafter be in
force, of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or
occupancy of the Premises, Building or Project. The judgment of any
court of competent jurisdiction or the admission by Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any law, statute, ordinance, governmental rule or
regulation or any requirement, covenant, condition or restriction shall
be conclusive of the fact as between Landlord and Tenant. Tenant agrees
to fully indemnify Landlord against any liability, claims or damages
arising as a result of a breach of the provisions of this Section 8(B)
by Tenant, and against all costs, expenses, fines or other charges
arising therefrom, including, without limitation, reasonable attorneys'
fees and related costs incurred by Landlord in connection therewith,
which indemnity shall survive the expiration or earlier termination of
this Lease. Without limiting the generality of the foregoing, it is
expressly understood and agreed that Tenant is accepting the Premises
"AS IS," in its present state and condition, without any representations
or warranties from Landlord of any kind whatsoever, either express or
implied, with respect to the Premises or the Building, including without
limitation the compliance of the Premises or the Building with The
Americans With Disabilities Act and the rules and regulations
promulgated thereunder, as amended from time to time (the "ADA"). Tenant
shall be responsible for insuring that the Premises and Tenant's use
thereof and operations therein fully and completely comply with the ADA.
If Tenant's use of the Premises or operations therein cause Landlord to
incur any obligation under the ADA, as reasonably determined by
Landlord, then Tenant shall reimburse Landlord for Landlord's costs and
expenses in connection therewith. If Tenant's initial use of the
Premises is not a "place of public accommodation" within the meaning of
the ADA, then Tenant may not thereafter change the use of the Premises
to cause the Premises to become a "place of public accommodation." In
the event that Tenant desires or is required hereby to make Alterations
(as defined below) to the Premises in order to satisfy its obligations
under the ADA, then all such Alterations shall be subject to any
requirements in this Lease with respect to Alterations of the Premises,
and shall be performed at Tenant's sole cost and expense.
C. Hazardous Materials.
(1) Tenant covenants and agrees that it shall not cause or permit
any Hazardous Materials (as defined below) to be brought upon,
kept, or used in or about the Premises, Building or Project by
Tenant, its agents, employees, contractors or invitees. The
foregoing covenant shall not extend to substances typically
found or
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used in general office applications so long as (a) such
substances and any equipment which generates such substances are
maintained only in such quantities as are reasonably necessary
for Tenant's operations in the Premises, (b) such substances are
used strictly in accordance with the manufacturers' instructions
therefor, (c) such substances are not disposed of in or about
the Project in a manner which would constitute a release or
discharge thereof, and (d) all such substances and any equipment
which generates such substances are removed from the Project by
Tenant upon the expiration or earlier termination of this Lease.
Any use, storage, generation, disposal, release or discharge by
Tenant of Hazardous Materials in or about the Project as is
permitted pursuant to this Section shall be carried out in
compliance with all applicable federal, state and local laws,
ordinances, rules and regulations, including without limitation
any labeling standards established by state regulations.
Moreover, no hazardous waste resulting from any operations by
Tenant shall be stored or maintained by Tenant in or about the
Project for more than ninety (90) days prior to removal by
Tenant. Tenant shall, annually within thirty (30) days after
Tenant's receipt of Landlord's written request therefor, provide
to Landlord a written list identifying any Hazardous Materials
then maintained by Tenant in the Project, the use of each such
Hazardous Material and the approximate quantity of each such
Hazardous Material so maintained by Tenant, together with
written certification by Tenant stating, in substance, that
neither Tenant nor any person for whom Tenant is responsible has
released or discharged any Hazardous Materials in or about the
Project.
(2) In the event that Tenant proposes to conduct any use or to
operate any equipment which will or may utilize or generate a
Hazardous Material other than as specified in Section 8(C)(1)
above, Tenant shall first in writing submit such use or
equipment to Landlord for approval. No approval by Landlord
shall relieve Tenant of any obligation of Tenant pursuant to
this Section 8(C), including the removal, clean-up and
indemnification obligations imposed upon Tenant by this Section
8(C). Tenant shall, within five (5) days after receipt thereof,
furnish to Landlord copies of all notices or other
communications received by Tenant with respect to any actual or
alleged release or discharge of any Hazardous Material in or
about the Premises or the Project and shall, whether or not
Tenant receives any such notice or communication, notify
Landlord in writing of any discharge or release of Hazardous
Material by Tenant or anyone for whom Tenant is responsible in
or about the Premises or the Project. In the event that Tenant
is required to maintain any Hazardous Materials license or
permit in connection with any use conducted by Tenant or any
equipment operated by Tenant in the Premises, copies of each
such license or permit, each renewal or revocation thereof and
any communication relating to suspension, renewal or revocation
thereof shall be furnished to Landlord within five (5) days
after receipt thereof by Tenant. Compliance by Tenant with the
two immediately preceding sentences shall not relieve Tenant of
any other obligation of Tenant pursuant to this Section 8(C).
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(3) Upon any violation of the foregoing covenants, Tenant shall be
obligated, at Tenant's sole cost, to clean-up and remove from
the Project all Hazardous Materials introduced into the Project
by Tenant or any person or entity for whom Tenant is
responsible. Such clean-up and removal shall include all testing
and investigation required by any governmental authorities
having jurisdiction and preparation and implementation of any
remedial action plan required by any governmental authorities
having jurisdiction. All such clean-up and removal activities of
Tenant shall, in each instance, be conducted to the satisfaction
of Landlord and all governmental authorities having
jurisdiction. Landlord's right of entry pursuant to Section 11
below shall include the right to enter and inspect the Premises
for violations of Tenant's covenants in this Section 8(C).
(4) Tenant shall indemnify, defend and hold harmless Landlord, and
its successors, assigns, partners, officers, employees, agents,
lenders and attorneys from and against any and all claims,
liabilities, losses, actions, costs and expenses (including
attorneys' fees and costs of defense) incurred by such
indemnified persons, or any of them, as the result of (a) the
introduction into or about the Project by Tenant or anyone for
whom Tenant is responsible of any Hazardous Materials, (b) the
usage, storage, maintenance, generation, disposition or disposal
by Tenant or anyone for whom Tenant is responsible of Hazardous
Materials in or about the Project, (c) the discharge or release
in or about the Project by Tenant or anyone for whom Tenant is
responsible of any Hazardous Materials, (d) any injury to or
death of persons or damage to or destruction of property
resulting from the use, introduction, maintenance, storage,
generation, disposal, disposition, release or discharge by
Tenant or anyone for whom Tenant is responsible of Hazardous
Materials in or about the Project, and (e) any failure of Tenant
or anyone for whom Tenant is responsible to observe the
foregoing covenants of this Section 8(C).
(5) Upon any violation of the foregoing covenants, Landlord shall be
entitled to exercise all remedies available to a landlord
against a defaulting tenant, including but not limited to those
set forth in Section 20. Without limiting the generality of the
foregoing, Tenant expressly agrees that upon any such violation
Landlord may, at its option, (a) immediately terminate this
Lease or (b) continue this Lease in effect until compliance by
Tenant with its clean-up and removal covenant notwithstanding
any earlier expiration date of the term of this Lease. No action
by Landlord hereunder shall impair the obligations of Tenant
pursuant to this Section 8(C).
(6) As used in this Section 8(C), "Hazardous Materials" is used in
its broadest sense and shall include any petroleum based
products, pesticides, paints and solvents, polychlorinated
biphenyl, lead, cyanide, DDT, acids, ammonium compounds and
other chemical products and any substance or material defined or
designated as hazardous or toxic, or other similar term, by any
federal, state or local environmental statute, regulation, or
ordinance affecting the Premises, Building or Project presently
in effect or that may be promulgated in the future, as such
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statutes, regulations and ordinances may be amended from time to
time, including but not limited to the statutes listed below:
Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6901 et seq.
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
Clean Air Act, 42 U.S.C. Sections 7401-7626.
Water Pollution Control Act (Clean Water Act of 1977), 33 U.S.C.
Section 1251 et seq.
Insecticide, Fungicide, and Rodenticide Act (Pesticide Act of
1987), 7 U.S.C. Section 135 et seq.
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.
Safe Drinking Water Act, 42 U.S.C. Section 300(f) et seq.
National Environmental Policy Act (NEPA) 42 U.S.C. Section 4321
et seq.
Refuse Act of 1899, 33 U.S.C. Section 407 et seq.
California Health and Safety Code Section 25316 et seq.
California Code of Federal Regulations, Title 8 Section 5194
California Code of Federal Regulations, Title 22 Section 12601
(7) By its signature to this Lease, Tenant confirms that it has
conducted its own examination of the Premises and the Project
with respect to Hazardous Materials and accepts the same "AS IS"
and with no Hazardous Materials present thereon.
(8) Tenant acknowledges that incorporation of any material
containing asbestos into the Premises is absolutely prohibited.
Tenant agrees, represents and warrants that it shall not
incorporate or permit or suffer to be incorporated, knowingly or
unknowingly, any material containing asbestos into the Premises.
D. Landlord's Rules and Regulations. Tenant shall, and Tenant agrees to
cause its agents, servants, employees, invitees and licensees to,
observe and comply fully and faithfully with the rules and regulations
attached hereto as Exhibit C or such rules and regulations which may
hereafter be adopted by Landlord (the "Rules") for the care, protection,
cleanliness, and operation of the Premises, Building and Project, and
any modifications or additions to the Rules adopted by Landlord,
provided that, Landlord shall give written notice thereof to Tenant.
Landlord shall not be responsible to Tenant for the failure of any other
party to observe or comply with any of the Rules.
E. Traffic and Energy Management; Recycling. Tenant agrees to cooperate and
use its best efforts to participate in governmentally mandated or
voluntary traffic management and recycling programs generally applicable
to businesses located in the area in which the Project is situated or to
the Project and, initially, shall encourage and support van and car
pooling by employees and shall encourage and support staggered and
flexible working hours for employees to the fullest extent permitted by
the requirements of Tenant's business. Landlord shall offer, for the
benefit of Tenant and other occupants of the Building and their
respective employees only, the non-exclusive use of a shuttle service
from the Project to a Caltrain station and a BART station at times
designated by Landlord. Landlord shall have the option to discontinue
such shuttle service at any time.
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Neither this Section 8(E) nor any other provision in this Lease,
however, is intended to or shall create any rights or benefits in any
other person, firm, company, governmental entity or the public. Landlord
and Tenant agree to cooperate and use their best efforts to comply with
any and all guidelines or controls imposed upon either Landlord or
Tenant by federal or state governmental organizations or by any energy
conservation association to which Landlord is a party concerning energy
management. Landlord will provide recycling containers for Tenant's use
at the Premises. Tenant agrees to use its best efforts to encourage its
employees to recycle all recyclable material. Any costs, fees, fines or
other levies assessed against Landlord as the result of failure of
Tenant to comply with this Section 8(E) shall be reimbursed by Tenant to
Landlord as additional rent.
SECTION 9. SERVICE AND UTILITIES
A. Standard Building Services. So long as Tenant is not in default
hereunder (including any default of a type described in clauses (4) -
(6) of Section 20(A) below), Landlord agrees to make available to the
Premises, during the Building's normal business hours of 8:00 a.m. to
6:00 p.m. Monday through Friday (holidays excepted), which hours are
subject to change from time to time as reasonably determined by
Landlord, such heat and air conditioning (hereinafter "HVAC"), water and
electricity, as may be required in Landlord's judgment for the
comfortable use and occupation of the Premises for general office
purposes and at a level which is usual and customary in similar office
buildings in the area where the Building is located, all of which shall
be subject to the Rules of the Building as well as any governmental
requirements or standards relating to, among other things, energy
conservation.
B. After-Hours Charges. During non-business hours Landlord shall keep the
public areas of the Building and Project lighted and shall provide
elevator service with at least (1) elevator, but shall not be obligated
to furnish HVAC to the Premises. If Tenant requires HVAC during
non-business hours, Tenant shall give Landlord at least twenty-four (24)
hours prior notice of such requirement or shall follow such other
procedure for activating the building energy management system as
Landlord may advise Tenant, and Tenant shall pay Landlord for such extra
service at Landlord's standard rates. Such rates are subject to increase
from time to time based on increase in Landlord's costs associated with
providing such extra services. All payments required for such charges
shall be deemed to be additional rent and Landlord shall have the same
remedies for a default in payment thereof as for a default in payment of
rent. If the Building is designed for individual tenant operation of the
HVAC, Tenant agrees to pay the cost of operating the HVAC at any time
other than the schedule of hours for providing the same set forth above,
which cost may include the operation of the HVAC for space located
outside the Premises when such space is serviced concurrently with the
operation of the HVAC for the benefit of the Premises.
C. Limitation on Landlord's Obligations. Landlord shall not be in breach of
its obligations under this Section 9 unless Landlord fails to make any
repairs or perform maintenance which it is obligated to perform
hereunder and such failure persists for an unreasonable time after
written notice of a need for such repairs or maintenance is given to
Landlord by
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Tenant. Landlord shall not be liable for and Tenant shall not be
entitled to any abatement or reduction of rent by reason of Landlord's
failure to furnish or the interruption or termination of any of the
foregoing when such failure, interruption or termination is caused by
accidents, breakage, repairs, strikes, brownouts, blackouts, lockouts or
other labor disturbances or labor disputes of any character, or by any
other cause, similar or dissimilar, beyond the actual or reasonable
control of Landlord, nor shall such failure, interruption or termination
under such circumstances be construed as a constructive or actual
eviction of Tenant. Landlord shall not be liable under any circumstances
for loss or injury to property or business, however occurring, through
or in connection with or incidental to Landlord's failure to furnish or
the interruption or termination of any of said service or utilities.
D. Excess Service. Tenant shall not, without the written consent of
Landlord, use any apparatus or device in the Premises, including,
without limitation, electronic data processing machines, punch card
machines or machines using in excess of one hundred twenty (120) volts
or which consumes more electricity than is usually furnished or supplied
for the Permitted Use of the Premises, as determined by Landlord. Tenant
shall not consume water or electric current in excess of that usually
furnished or supplied for the use of the Premises (as determined by
Landlord), without first procuring the written consent of Landlord,
which Landlord may refuse. The excess cost (including any penalties for
excess usage) for such water and electric current shall be established
by an estimate made by a utility company or independent engineer hired
by Landlord at Tenant's expense and Tenant shall pay such excess costs
each month with the Monthly Rental. All costs and expenses of modifying
existing equipment, cables, lines, etc. or installing additional
equipment, cables, lines, etc. to accommodate such excess usage or use
by Tenant of such apparatus or device shall be borne by Tenant.
E. Security Services. Certain security measures (both by electronic
equipment and personnel) may be provided by Landlord in connection with
the Building and Common Areas. However, Tenant hereby acknowledges that
such security is intended to be only for the benefit of the Landlord in
protecting its property from fire, theft, vandalism and similar perils
and while certain incidental benefits may accrue to Tenant therefrom,
such security is not for the purpose of protecting either the property
of Tenant or the safety of its officers, employees, servants or
invitees. By providing such security, Landlord assumes no obligation to
Tenant and shall have no liability arising therefrom and Tenant hereby
releases Landlord from all liability relating thereto. If, as a result
of Tenant's occupancy of the Premises, Landlord in its sole discretion
determines that it is necessary to provide security or implement
additional security measures or devices in or about the Building or the
Common Areas, Tenant shall be required to pay, as additional rent, the
cost or increased cost, as the case may be, of such security.
SECTION 10. MAINTENANCE AND REPAIRS
A. Landlord's Obligations. Except for special or non-standard systems and
equipment installed for Tenant's exclusive use, Landlord shall keep in
good condition and repair, at Landlord's initial cost and expense, HVAC
systems which service the Premises as well as
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other premises within the Building, the foundations, exterior walls,
structural condition of interior bearing walls and roof of the Premises,
interior walls, interior surfaces of exterior walls, ceilings, windows,
doors, cabinets, draperies, electrical and lighting facilities within
the Premises, window coverings, carpeting and other floor coverings,
plate glass and skylights located within the Premises and the Building,
as well as the parking lots, walkways, driveways, landscaping, fences,
signs, and utility installations of the Project. Janitorial services to
the Premises shall be provided in accordance with specifications
established by Landlord, which specifications are subject to change from
time to time in the reasonable discretion of Landlord. Landlord shall
also provide elevator service, restroom supplies and window washing with
reasonable frequency. Landlord shall not be required to make any repairs
that are the obligation of any other tenant or occupant within the
Building or Project or repairs for damage caused by any negligent or
intentional act or omission of Tenant or any person claiming through or
under Tenant or any of Tenant's employees, suppliers, shippers,
customers or invitees, in which event Tenant shall repair such damage at
its sole cost and expense. Tenant hereby waives and releases its right
to make repairs at Landlord's expense under any law, statute, ordinance,
rule or regulation now or hereafter in effect in any jurisdiction in
which the Project is located.
B. Tenant's Obligations. Tenant shall, at its sole cost and expense, make
all repairs and replacements as and when Landlord deems reasonably
necessary to preserve in good working order and condition any special or
supplementary HVAC systems located within the Premises and installed for
the exclusive use of the Premises, Tenant's cabling and telephone lines
and all other non-standard utility facilities and systems exclusively
serving the Premises, and all of Tenant's trade fixtures located within
the Premises; provided, however, at Tenant's written request, Landlord
will maintain such non-standard improvements at Tenant's expense, at a
cost or charge equal to the costs incurred in such maintenance plus an
additional overhead charge of fifteen percent (15%). Tenant shall not
commit or permit any waste in or about the Premises, the Building or the
Project. Tenant shall reimburse Landlord on demand for all repairs to
the Premises, Building and Project which are required, in the reasonable
opinion of Landlord, as a result of any misuse, neglect, negligent or
intentional act or omission committed or permitted by Tenant or by any
subtenant, agent, employee, supplier, shipper, customer, invitee or
servant of Tenant.
C. Landlord's Right to Make Repairs. In the event that Tenant fails to
maintain the Premises in good and sanitary order, condition and repair
as required by this Lease, then, following written notification to
Tenant (except in the case of an emergency, in which case no prior
notification shall be required), Landlord shall have the right, but not
the obligation, to enter the Premises and to do such acts and expend
such funds at the expense of Tenant as are required to place the
Premises in good, safe and sanitary order, condition and repair. Any
amount so expended by Landlord plus an overhead charge of fifteen
percent (15%) of the expended amount shall be paid by Tenant promptly
upon demand as additional rent.
D. Condition of Premises Upon Surrender. Except as otherwise provided in
this Lease, Tenant shall, upon the expiration or earlier termination of
the Term, surrender the
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Premises to Landlord in the same condition as on the date Tenant took
possession, reasonable wear and tear excepted. All appurtenances,
fixtures, improvements, additions and other property attached to or
installed in the Premises whether by Landlord or by or on behalf of
Tenant, and whether at Landlord's expense or Tenant's expense, shall be
and remain the property of Landlord unless Landlord specifically agrees
otherwise in writing. Any furnishings and personal property of Tenant
located in the Premises, whether the property of Tenant or leased by
Tenant (including the fixtures, improvements and other items agreed, in
writing, by Landlord to belong to the Tenant as provided in the
preceding sentence and, unless Landlord elects to require Tenant to
leave the same in the Premises, which Landlord shall have the right to
do, all data, telephone or other cabling or wiring installed by or on
behalf of Tenant in the Premises, including the plenum area above the
ceiling of the Premises), shall be and remain the property of Tenant and
shall be removed by Tenant at Tenant's sole cost and expense at the
expiration of the Term. Tenant shall promptly repair any damage to the
Premises or the Building resulting from such removal. Any of Tenant's
property not removed from the Premises upon the expiration of the Term
shall, at Landlord's option, either become the property of Landlord or
may be removed by Landlord and Tenant shall pay to Landlord the cost of
such removal within ten (10) days after delivery of a bill therefor or
Landlord, at its option, may deduct such amount from the Security
Deposit. Any damage to the Premises, including any structural damage,
resulting from Tenant's use or from the removal of Tenant's fixtures,
furnishings and equipment, shall be repaired by Tenant at Tenant's
expense.
SECTION 11. ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the right to enter the
Premises at reasonable times during normal business hours and at any time in
case of an emergency to inspect the same to determine whether Tenant is
complying with its obligations hereunder; to supply janitorial service and any
other service to be provided by Landlord hereunder; and, upon reasonable notice
to Tenant, may exhibit the Premises to prospective purchasers, mortgagees or
prospective tenants; to post notices of nonresponsibility; and to alter, improve
or repair the Premises and any portion of the Building and Project, without
abatement of rent, and may for that purpose erect scaffolding and other
necessary structures that are reasonably required by the character of the work
to be performed by Landlord, provided that the business of Tenant shall not be
interfered with unreasonably. For each of the aforesaid purposes, Landlord shall
at all times have and retain a key with which to unlock all of the doors in,
upon and about the Premises, excluding Tenant's vaults and safes, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open such doors in the event of an emergency. Any entry to the Premises or
portions thereof obtained by Landlord by any of said means, or otherwise, shall
not under any circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction, actual or
constructive, of Tenant from the Premises, or any portion thereof. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business and any loss of occupancy or quiet enjoyment of the
Premises by reason of Landlord's exercise of its right of entry in accordance
with this Section 11, and Tenant shall not be entitled to an abatement or
reduction of rent in connection therewith.
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SECTION 12. ALTERATIONS, ADDITIONS AND TRADE FIXTURES
Except to the extent provided for in Exhibit B hereto, Tenant shall not make any
alterations, additions or improvements to the Premises, or any part thereof,
whether structural or nonstructural (hereafter "Alterations"), without
Landlord's prior written consent. If Tenant does not use Landlord's architect or
contractor to design or perform Alterations, Tenant shall pay to Landlord, as
additional rent, a management fee equal to ten percent (10%) of the cost of the
Alterations plus any professional fees or other costs and expenses incurred by
Landlord in reviewing such plans and specifications or inspecting progress of
any such work. In order to obtain Landlord's preliminary consent, which
preliminary consent may be given or denied in Landlord's sole discretion, Tenant
shall submit such information as Landlord may require, including without
limitation plans and specifications for the Alterations. After Landlord gives
preliminary consent, in order to obtain Landlord's final consent, which consent
may not be unreasonably withheld, Tenant shall then submit (a) permits,
licenses, bonds, and the construction contract, all in conformance with the
plans and specifications preliminarily approved by Landlord; (b) evidence of
insurance coverage in such types and amounts and from such insurers as Landlord
deems satisfactory; and (c) such other information as Landlord deems reasonably
necessary. The construction contract shall, at a minimum, require the general
contractor and all subcontractors to obey the rules and regulations of the
Building and Project. All Alterations shall be done in a good workmanlike manner
by qualified and licensed contractors or mechanics, as approved by Landlord.
Except for Alterations to the Premises, Tenant shall have no right whatsoever to
make any alterations or modifications to any portion of the Building or its
appurtenant facilities nor shall any Alterations affect the structure of the
Building or its exterior appearance. All Alterations made by or for Tenant
(other than Tenant's moveable trade fixtures), shall, unless Landlord expressly
requires or agrees otherwise in writing, immediately become the property of
Landlord, without compensation to Tenant, but Landlord has no obligation to
repair, maintain or insure those Alterations. Carpeting, shelving and cabinetry
are considered improvements of the Premises and not movable trade fixtures,
regardless of how or where affixed. No Alterations will be removed by Tenant
from the Premises either during or at the expiration or earlier termination of
the Term, and they shall be surrendered as a part of the Premises unless
Landlord has required that Tenant remove them. At Landlord's discretion,
Alterations are subject to removal by Tenant and at Tenant's sole cost and
expense. Upon any such removal, Tenant shall repair any damage caused to the
Premises thereby, and shall return the Premises to the condition they were in
prior to installation of such Alterations so removed. Tenant shall indemnify,
defend and keep Landlord free and harmless from and against all liability, loss,
damage, cost, attorneys' fees and any other expense incurred on account of
claims by any person performing work or furnishing materials or supplies for
Tenant or any person claiming under Tenant. Landlord may require Tenant to
provide Landlord, at Tenant's sole cost and expense, a lien and completion bond
in an amount equal to one and one-half times the estimated cost of such
improvements, to insure Landlord against any liability for mechanic's liens and
to insure completion of the work. Landlord shall have the right at all times to
post on the Premises any notices permitted or required by law, or that Landlord
shall deem proper, for the protection of Landlord, the Premises, the Building
and the Project, and any other party having an interest therein, from mechanics'
and materialmen's liens, and Tenant shall give to Landlord written notice of the
commencement of any construction in or on the Premises at
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least thirty (30) days prior thereto. Prior to the commencement of any such
construction, Landlord shall be furnished certificates of insurance, naming
Landlord as an additional insured, evidencing that each contractor performing
work has insurance acceptable to Landlord, including but not limited to general
liability insurance of not less that Two Million Dollars ($2,000,000.00) and
worker's compensation insurance in the statutorily required amount.
SECTION 13. MECHANIC'S LIENS
Tenant shall keep the Premises, the Building and the Project free from any liens
arising out of any work performed, material furnished or obligation incurred by
or for Tenant or any person or entity claiming through or under Tenant. In the
event that Tenant shall not, within ten (10) days following the imposition of
any such lien, cause the same to be released of record by payment or posting of
a proper bond, Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause such lien to be
released by such means as Landlord deems proper, including payment of the claim
giving rise to such lien. All such sums paid and all expenses incurred by
Landlord in connection therewith shall be due and payable to Landlord by Tenant
on demand.
SECTION 14. INSURANCE
A. Tenant. During the Term hereof, Tenant shall keep in full force and
effect the following insurance and shall provide appropriate insurance
certificates to Landlord prior to the Lease Commencement Date and
annually thereafter before the expiration of each policy:
(1) Commercial general liability insurance for the benefit of Tenant
and Landlord as an additional insured, with a limit of not less
than Two Million Dollars ($2,000,000.00) combined single limit
per occurrence, against claims for personal injury liability
including, without limitation, bodily injury, death or property
damage liability and covering (a) the business(es) operated by
Tenant and by any subtenant of Tenant on the Premises, (b)
operations of independent contractors engaged by Tenant for
services or construction on or about the Premises, and (c)
contractual liability;
(2) All risk property insurance, insuring the personal property,
furniture, furnishings and fixtures belonging to Tenant located
on the Premises for not less than one hundred percent (100%) of
the actual replacement value thereof;
(3) Workers' compensation in the amount required by law; and
(4) Business interruption or loss of income insurance in amounts
satisfactory to Landlord, with a rental interruption rider
assuring Landlord that the rent due hereunder will be paid for a
period of not less than twelve (12) months or the remaining term
of this Lease, whichever is shorter, if the Premises are
destroyed or rendered inaccessible by a risk insured against by
a policy of all risk insurance.
Each insurance policy obtained by Tenant pursuant to this Lease shall
contain a clause
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that the insurer will provide Landlord with at least thirty (30) days'
prior written notice of any material change, non-renewal or cancellation
of the policy, shall be in a form satisfactory to Landlord and shall be
taken out with an insurance company authorized to do business in the
State in which the Project is located and rated not less than Best's
Financial Class X and Best's Policy Holder Rating "A". In addition, any
insurance policy obtained by Tenant shall be written as a primary
policy, and shall not be contributing with or in excess of any coverage
which Landlord may carry. The liability limits of the above described
insurance policies shall in no manner limit the liability of Tenant
under the terms of Section 15 below.
Not more frequently than every two (2) years, if, in the reasonable
opinion of Landlord, the amount of liability insurance specified in this
Section 14 is not adequate, the above-described limits of coverage shall
be adjusted by Landlord, by written notification to Tenant, in order to
maintain the level of insurance protection at least equal to the
protection afforded on the date the Term commences. If Tenant fails to
maintain and secure the insurance coverage required under this Section
14, then Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to procure and
maintain such insurance, the cost of which shall be due and payable to
Landlord by Tenant on demand.
If, on account of the failure of Tenant to comply with the provisions of
this Section, Landlord is deemed a co-insurer by its insurance carrier,
then any loss or damage which Landlord shall sustain by reason thereof
shall be borne by Tenant and shall be immediately paid by Tenant as
additional rent upon receipt of a bill therefor and evidence of such
loss.
B. Landlord. During the Term hereof, Landlord shall keep in full force and
effect the following insurance:
(1) All risk property insurance (including flood and earthquake)
insuring the Building and Landlord's improvements in an amount
not less than the full replacement cost thereof; and
(2) Such other insurance as Landlord deems necessary in its sole and
absolute discretion.
All insurance policies shall be issued in the names of Landlord and
Landlord's lender, if any, and any other party reasonably designated by
Landlord as an additional insured, as their interests appear. The
insurance policies shall provide that any proceeds shall be made payable
to Landlord, or to the holders of mortgages or deeds of trust
encumbering Landlord's interest in the Premises, Building, and Project,
or to any other party reasonably designated by Landlord as an additional
insured, as their interests shall appear.
C. Waiver of Subrogation. Landlord and Tenant each hereby waives any and
all rights of recovery against the other, and against any other tenant
or occupant of the Building and
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against the officers, employees, agents, representatives, customers and
business visitors of such other party and of each such other tenant or
occupant of the Building, for loss of or damage to such waiving party or
its property or the property of others under its control, arising from
any cause insured against under any policy of property insurance
required to be carried by such waiving party pursuant to the provisions
of this Lease (or any other policy of property insurance carried by such
waiving party in lieu thereof) at the time of such loss or damage. The
foregoing waiver shall be effective whether or not a waiving party
actually obtains and maintains such insurance which such waiving party
is required to obtain and maintain pursuant to this Lease (or any
substitute therefor). Landlord and Tenant shall, upon obtaining the
policies of insurance which they are required to maintain hereunder,
give notice (if required) to their respective insurance carrier or
carriers that the foregoing mutual waiver of subrogation is contained in
this Lease.
SECTION 15. INDEMNITY
A. Indemnification by Tenant. Tenant agrees to indemnify, defend and hold
Landlord and its officers, directors, partners, agents and employees
(collectively, "Indemnitees") entirely harmless from and against all
liabilities, losses, demands, actions, expenses or claims, including
reasonable attorneys' fees and court costs, for injury to or death of
any person or for damages to any property or for violation of law
arising out of or in any manner connected with (i) the use, occupancy or
enjoyment of the Premises, Building or Project by Tenant or Tenant's
agents, employees, invitees or contractors (the "Tenant's Agents") or
any work, activity or other things allowed or suffered by Tenant or
Tenant's Agents to be done in or about the Premises, Building or
Project, (ii) any breach or default in the performance of any obligation
of Tenant under this Lease, and (iii) any act or failure to act, whether
negligent or otherwise tortious, by Tenant or Tenant's Agents in or
about the Premises, Building or Project; provided, however, that Tenant
shall not be required to indemnify Landlord in respect of any loss or
damage arising by reason of the gross negligence or willful misconduct
of Landlord.
B. Limitation on Landlord's Liability; Release of Directors, Officers and
Partners of Landlord. Tenant agrees that, in the event Tenant shall have
any claim against Landlord under this Lease arising out of the subject
matter of this Lease, Tenant's sole recourse shall be against the
Landlord's interest in the Building, for the satisfaction of any claim,
judgment or decree requiring the payment of money by Landlord as a
result of a breach hereof or otherwise in connection with this Lease,
and no other property or assets of Landlord, its officers, directors,
employees, successors or assigns, shall be subject to the levy,
execution or other enforcement procedure for the satisfaction of any
such claim, judgment, injunction or decree. MOREOVER, TENANT AGREES THAT
LANDLORD SHALL IN NO EVENT AND UNDER NO CIRCUMSTANCES BE RESPONSIBLE FOR
ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES INCURRED OR
SUSTAINED BY TENANT, OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES
AS A RESULT OF OR IN ANY WAY CONNECTED TO TENANT'S OCCUPANCY OF THE
PREMISES. None of the Indemnitees shall be liable to Tenant for, and, as
such assumption and waiver do not
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violate public policy, Tenant assumes all risk of, and waives any and
all right to assert claims against, or obtain any damages from, the
Indemnitees with respect to, loss, injury, or damages which may be
sustained by the person, goods, wares, merchandise or property of
Tenant, Tenant's Agents, or any other person in or about the Premises
from any cause whatsoever, whether such damage or injury results from
conditions arising within the Premises or from other sources and whether
known, unknown, foreseen, unforeseen, patent or latent. Tenant
understands and acknowledges the significance and consequence of such
specific assumption of risk and waiver.
C. No Landlord Liability for Force Majeure Events. Landlord shall not be
liable or responsible to Tenant for any loss or damage to any property
or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition,
or order of governmental body or authority, or for any damage or
inconvenience that may arise through repair or alteration of any part of
the Project, the Building or the Premises, or a failure to make any such
repairs, except as expressly provided in this Lease.
D. Indemnification by Landlord. Landlord shall indemnify, defend, protect
and save Tenant harmless from all losses, costs, damages, claims and
liability whatsoever on account of any damage or liability of any kind
or for any injury to or death of persons arising in the Common Areas if
caused by or resulting from any negligent or willful act or omission of
Landlord or its employees or agents; provided, however, that Landlord's
obligation to indemnify and hold harmless Tenant pursuant to the
foregoing provisions is made for the purpose of providing any benefit
from time to time available to Tenant under policies of insurance
carried by Landlord, and further provided that the foregoing provisions
shall in no event require Landlord to provide any defense to Tenant or
pay any sum to or on behalf of Tenant in addition to that which may be
provided and paid pursuant to such policies of insurance as may be
carried by Landlord from time to time.
SECTION 16. ASSIGNMENT AND SUBLETTING BY TENANT
A. Consent Required. Tenant shall not, directly or indirectly, voluntarily
or by operation of law, sell, assign, encumber, pledge or otherwise
transfer or hypothecate all or any part of the Premises or Tenant's
leasehold estate hereunder (collectively "Assignment"), or permit the
Premises to be occupied by anyone other than Tenant or sublet the
Premises ("Sublease") or any portion thereof without Landlord's prior
written consent being had and obtained in each instance, subject to the
terms and conditions contained in this Section. In no event will
Landlord's consent be unreasonably withheld. Any sale or other transfer,
including transfer by consolidation, merger or reorganization, of
twenty-five percent (25%) or more of the voting stock of Tenant, if
Tenant is a corporation, or any sale or other transfer of twenty-five
percent (25%) or more of the partnership interest in Tenant, if Tenant
is a partnership, shall be an Assignment for purposes of this Section.
As used in this subsection, the term "Tenant" shall also mean any entity
that has guaranteed Tenant's obligation under this Lease, and the
prohibition hereof shall be applicable to any sales or transfers of
stock or partnership interests of said guarantor.
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B. Tenant's Request for Consent. If Tenant desires at any time to enter
into an Assignment of this Lease or a Sublease of the Premises or any
portion thereof, Tenant shall request, in writing, at least sixty (60)
days prior to the effective date of the Assignment or Sublease,
Landlord's consent to the Assignment or Sublease, and shall provide
Landlord with the following information:
(1) The name of the proposed assignee, subtenant or occupant;
(2) The nature of the proposed assignee's, subtenant's or occupant's
business to be carried on in the Premises;
(3) The terms and provisions of the proposed Assignment or Sublease
and a copy of such documents; and
(4) Such financial information concerning the proposed assignee,
subtenant or occupant which Landlord shall have requested
following its receipt of Tenant's request for consent.
C. Landlord's Election. At any time within fifteen (15) business days after
Landlord's receipt of the notice specified above, Landlord may by
written notice to Tenant elect either to (1) consent to the proposed
Assignment or Sublease, (2) refuse to consent to the proposed Assignment
or Sublease, or (3) terminate this Lease in full with respect to an
Assignment or terminate in part with respect to a Sublease. Any such
termination of this Lease shall be conditioned on Landlord successfully
entering into a new lease covering the Premises or a portion thereof
with the intended assignee or subtenant on such terms as Landlord and
such person may agree, or entering into a new lease covering the
Premises or a portion thereof with any other person. In such event,
Tenant shall not be entitled to any portion of the profit, if any, which
Landlord may realize on account of such termination and reletting.
Landlord's exercise of its aforesaid option shall not be construed to
impose any liability upon Landlord with respect to any real estate
brokerage commission(s) or any other proposed subletting or assignment.
D. Landlord's Factors. Landlord and Tenant agree (by way of example and
without limitation) that Landlord shall be entitled to take into account
any fact or factor which Landlord reasonably deems relevant to its
decision to consent or not consent to an Assignment or Sublease,
including but not necessarily limited to the following, all of which
Tenant hereby agrees are reasonable factors for Landlord's
consideration:
(1) The financial strength of the proposed assignee or subtenant
(which shall be at least equal to that of Tenant as of the date
of execution of this Lease), including the adequacy of its
working capital to pay all expenses anticipated in connection
with any remodeling of the Premises.
(2) The quality and nature of the business and/or services to be
conducted in or from the Premises by the proposed assignee or
subtenant and in any other locations which it has.
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(3) Violation of exclusive use rights previously granted by Landlord
to other tenants of the Building.
(4) The quality of the appearance of the Premises resulting from any
remodeling or renovation to be conducted by the proposed
assignee or subtenant, and the compatibility of such quality
with that of other premises in the Building.
(5) Whether the business in the Premises is, and whether the
business to be operated by the proposed assignee or subtenant
will be, a "destination business" (i.e., a business which draws
patrons to the Building specifically to obtain services from
such business).
(6) Whether the proposed tenant is a direct competitor of Landlord.
(7) Whether there then exists any default by Tenant pursuant to this
Lease or any non-payment or non-performance by Tenant under this
Lease which, with the passage of time and/or the giving of
notice, would constitute a default under this Lease.
Moreover, Landlord shall be entitled to be reasonably satisfied that
each and every covenant, condition or obligation imposed upon Tenant by
this Lease and each and every right, remedy or benefit afforded Landlord
by this Lease is not impaired or diminished by such Assignment or
Sublease. In no event shall there be any substantial change in the use
of the Premises in connection with any Assignment or Sublease except as
expressly approved in writing by Landlord in advance. Landlord and
Tenant acknowledge that the express standards and provisions set forth
in this Lease dealing with Assignment and Sublease, including those set
forth in Sections 16(E) through 16(H) have been freely negotiated and
are reasonable at the date hereof taking into account Tenant's proposed
use of the Premises and the nature and quality of the Building and
Project. No withholding of consent by Landlord for any reason deemed
sufficient by Landlord shall give rise to any claim by Tenant or any
proposed assignee or subtenant or entitle Tenant to terminate this Lease
or to any abatement of rent. Approval of any Assignment of Tenant's
interest shall, whether or not expressly so stated, be conditioned upon
such assignee assuming in writing all obligations of Tenant hereunder by
a written instrument satisfactory to Landlord.
E. Granting of Consent. If Landlord consents to the Sublease or Assignment
within said thirty (30) day period, Tenant may enter into such
Assignment or Sublease of the Premises or portion thereof, but only upon
the terms and conditions set forth in the notice furnished by Tenant to
Landlord pursuant to Section 16(B) above.
F. Assignment and Sublease Profit. In connection with any Assignment or
Sublease, as a condition to Landlord's consent, seventy-five percent
(75%) of any sums or other economic consideration received by Tenant
directly or indirectly in connection with any assignment or sublease
hereunder (except to the extent of assignment or sublease
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commissions paid by Tenant to a licensed broker at prevailing rates for
comparable space) from assignee or sublessee and leasehold improvement
costs whether described as rental or otherwise which exceed, in the
aggregate, the total sums which Tenant is obligated to pay Landlord
hereunder (prorated to reflect obligations allocable to that portion of
the Premises assigned or sublet) shall be payable to Landlord as
additional rent under this Lease. Within fifteen (15) days after written
request therefor by Landlord, Tenant shall at any time and from time to
time at Landlord's request certify to Landlord the amount of all such
sums or other economic consideration received and all such commissions
and improvement costs incurred, or expected to be received or incurred.
G. Tenant Remains Liable. No consent by Landlord to any Assignment or
Sublease by Tenant shall relieve Tenant of any obligation to be
performed by Tenant under this Lease, whether arising before or after
the Assignment or Sublease. The consent by Landlord to any Assignment or
Sublease shall not relieve Tenant of the obligation to obtain Landlord's
express written consent to any other Assignment or Sublease. Any
Assignment or Sublease that is not in compliance with this Section 16
shall be void and, at the option of Landlord, shall constitute a
material default by Tenant under this Lease. The acceptance of rent by
Landlord or payment to Landlord of any other monetary obligation by a
proposed assignee or sublessee shall not constitute the consent by
Landlord to such Assignment or Sublease. Tenant shall promptly provide
to Landlord a copy of the fully executed Sublease or Assignment.
H. Assignee Becomes Liable. Each assignee, sublessee or other transferee,
other than Landlord, shall assume, as provided in this Section 16(H),
all obligations of Tenant under this Lease and shall be and remain
liable jointly and severally with Tenant for the payment of Monthly
Rental and all other monetary obligations hereunder, and for the
performance of all the terms, covenants, conditions and agreements
herein contained on Tenant's part to be performed for the Term;
provided, however, that the assignee, sublessee, or other transferee
shall be liable to Landlord for rent only in the amount set forth in the
Assignment or Sublease. No Assignment shall be binding on Landlord
unless the assignee or Tenant shall deliver to Landlord a counterpart of
the Assignment and an instrument in recordable form that contains a
covenant of assumption by the assignee satisfactory in substance and
form to Landlord, consistent with the requirements of this Section 16(H)
but the failure or refusal of the assignee to execute such instrument of
assumption shall not release or discharge the assignee from its
liability as set forth above.
I. Bankruptcy. If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq.,
(the "Bankruptcy Code"), any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment
shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy
Code. Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord
shall be held in trust for the benefit of Landlord and be promptly paid
or delivered to Landlord. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code, shall be
deemed, without further act or deed, to
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have assumed all of the obligations arising under this Lease on and
after the date of such Assignment. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such
assumption.
J. Landlord's Fees. Tenant shall pay Landlord's expenses and attorneys'
fees incurred in processing an Assignment or Sublease, but in no event
less than Five Hundred Dollars ($500.00) for each such proposed transfer
to cover the legal review and processing expenses of Landlord, whether
or not Landlord shall grant its consent to such proposed transfers.
K. Certain Rights Personal to Tenant. All options to extend, renew or
expand, if any, contained in this Lease are personal to Tenant. Consent
by Landlord to any Assignment or Sublease shall not include consent to
the assignment or transfer of any such rights with respect to the
Premises or any special privileges or extra services granted to Tenant
by this Lease, or any addendum or amendment hereto or letter of
agreement. All such options, rights, privileges and extra services shall
terminate upon the effective date of such Assignment or Sublease unless
Landlord specifically grants in writing such options, rights, privileges
and extra services to such assignee or subtenant. Similarly, any
allowance, abatement or monetary concession provided to Tenant as an
inducement to execute this Lease is personal to Tenant and shall be
amortized (on a straight line basis) over the term of this Lease. Upon
the effective date of any Assignment or Sublease, the then unamortized
portion thereof shall be paid by Tenant to Landlord in cash on or before
the effective date of such Assignment or Sublease.
L. Sublease Rents. Tenant immediately and irrevocably assigns to Landlord,
as security for Tenant's obligations under this Lease, all rent from any
subletting of all or part of the Premises, and appoints Landlord, as
assignee and as attorney-in-fact for Tenant for purposes hereof.
Landlord, or a receiver for Tenant appointed on Landlord's application,
may collect such rents and apply same toward Tenant's obligations under
this Lease; except that, until the occurrence of an act of default by
Tenant, Tenant shall have the right and license to collect such rents.
SECTION 17. TRANSFER OF LANDLORD'S INTEREST
In the event Landlord shall sell or otherwise convey its title to the Building,
then, after the effective date of such sale or conveyance, Landlord shall have
no further liability under this Lease to Tenant except as to matters of
liability which have accrued and are unsatisfied as of the date of sale or
conveyance, and Tenant shall seek performance solely from Landlord's purchaser
or successor in title. In connection with such sale or transfer, Landlord may
assign its interest under this Lease without notice to or consent by Tenant. In
such event, Tenant agrees to be bound to any successor Landlord.
SECTION 18. DAMAGE AND DESTRUCTION
A. Minor Insured Damage. In the event the Premises or the Building, or any
portion thereof, is damaged or destroyed by any casualty that is covered
by the insurance maintained by
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Landlord pursuant to Section 14 above, then Landlord shall rebuild,
repair and restore the damaged portion thereof, provided that (1) the
amount of insurance proceeds available to Landlord equals or exceeds the
cost of such rebuilding, restoration and repair, (2) such rebuilding,
restoration and repair can be completed within one hundred eighty (180)
days after the work commences in the opinion of a registered architect
or engineer appointed by Landlord, (3) the damage or destruction has
occurred more than twelve (12) months before the expiration of the Term,
and (4) such rebuilding, restoration or repair is then permitted, under
applicable governmental laws, rules and regulations, to be done in such
a manner as to return the damaged portion thereof to substantially its
condition immediately prior to the damage or destruction, including,
without limitation, substantially the same Rentable Area on each of the
damaged floors. To the extent that insurance proceeds must be paid to a
mortgagee or beneficiary under, or must be applied to reduce any
indebtedness secured by, a mortgage or deed of trust encumbering the
Premises, Building or Project, such proceeds, for the purposes of this
Section 18(A), shall be deemed not available to Landlord unless such
mortgagee or beneficiary permits Landlord to use such proceeds for the
rebuilding, restoration and repair of the damaged portion thereof.
Notwithstanding the foregoing, Landlord shall have no obligation to
repair any damage to, or to replace any of, Tenant's personal property,
furnishings, trade fixtures, equipment or other such property or effects
of Tenant.
B. Major or Uninsured Damage. In the event the Premises or the Building, or
any portion thereof, is damaged or destroyed by any casualty to the
extent that Landlord is not obligated, under Section 18(A) above, to
rebuild, repair or restore the damaged portion thereof, then Landlord
shall, within sixty (60) days after such damage or destruction, notify
Tenant of its election, at its option, to either (1) rebuild, restore
and repair the damaged portions thereof, in which case Landlord's notice
shall specify the time period within which Landlord estimates such
repairs or restoration can be completed; or (2) terminate this Lease
effective as of the date the damage or destruction occurred. If Landlord
does not give Tenant written notice within sixty (60) days after the
damage or destruction occurs of its election to rebuild or restore and
repair the damaged portions thereof, Landlord shall be deemed to have
elected to terminate this Lease.
C. Abatement of Rent. There shall be an abatement of rent by reason of
damage to or destruction of the Premises or the Building, or any portion
thereof, to the extent that Landlord receives insurance proceeds for
loss of rental income attributable to the Premises, commencing on the
date that the damage to or destruction of the Premises or Building has
occurred. Such abatement shall be determined by reference to the area of
the Premises rendered untenantable, except that if so much of the
Premises shall be untenantable that it is not commercially practicable
for Tenant to use any portion thereof, rent shall entirely abate during
restoration of the casualty.
D. Waiver. Tenant shall have no claim against Landlord for any damage
suffered by Tenant by reason of any such damage, destruction, repair or
restoration. Tenant waives the provisions of California Civil Code
Sections 1932(2) and 1933(4) and any present or future laws or case
decisions to the same effect. Upon completion of such repair or
restoration, Tenant shall promptly refixture the Premises substantially
to the condition
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they were in prior to the casualty and shall reopen for business if
closed by the casualty.
SECTION 19. CONDEMNATION
A. Total or Partial Taking. If all or substantially all of the Premises is
condemned or taken in any manner for public or quasi-public use,
including but not limited to, a conveyance or assignment in lieu of the
condemnation or taking, this Lease shall automatically terminate as of
the earlier of the date on which actual physical possession is taken by
the condemnor or the date of dispossession of Tenant as a result of such
condemnation or other taking. If less than all or substantially all of
the Premises is so condemned or taken, this Lease shall automatically
terminate only as to the portion of the Premises so taken as of the
earlier of the date on which actual physical possession is taken by the
condemnor or the date of dispossession of Tenant as a result of such
condemnation or taking. If a portion of the Building not including the
Premises is condemned or otherwise taken so as to require, in the
opinion of Landlord, a substantial alteration or reconstruction of the
remaining portions thereof, this Lease may be terminated by Landlord, as
of the date on which actual physical possession is taken by the
condemnor or dispossession of Tenant as a result of such condemnation or
taking, by written notice to Tenant delivered within sixty (60) days
following notice to Landlord of the date on which such physical
possession is taken or dispossession will occur.
B. Award. Landlord shall be entitled to the entire award in any
condemnation proceeding or other proceeding for taking for public or
quasi-public use, including, without limitation, any award made for the
value of the leasehold estate created by this Lease. No award for any
partial or total taking shall be apportioned, and Tenant hereby assigns
to Landlord any award that may be made in such condemnation or other
taking, together with any and all rights of Tenant now or hereafter
arising in or to the same or any part thereof. Although all damages in
the event of any condemnation are to belong to Landlord whether such
damages are awarded as compensation for diminution in value of the
leasehold or to the fee of the Premises, Tenant shall have the right to
claim and recover from the condemnor, but not from Landlord, such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right on account of damages to Tenant's business by reason
of the condemnation and for or on account of any cost or loss to which
Tenant might be put in removing Tenant's merchandise, furniture and
other personal property, fixtures, and equipment, for the interruption
of or damage to Tenant's business or for Tenant's relocation expenses.
C. Abatement in Rent. In the event of a partial condemnation or other
taking that does not result in a termination of this Lease as to the
entire Premises pursuant to this Section 19, the rent and all other
charges shall abate in proportion to the portion of the Premises taken
by such condemnation or other taking. If this Lease is terminated, in
whole or in part, pursuant to any of the provisions of this Section 19,
all rentals and other charges payable by Tenant to Landlord hereunder
and attributable to the Premises taken shall be paid up to the date upon
which actual physical possession shall be taken by the condemnor.
Landlord shall be entitled to retain all of the Security Deposit until
such time as this Lease is terminated as to all of the Premises.
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D. Temporary Taking. If all or any portion of the Premises is condemned or
otherwise taken for public or quasi-public use for a limited period of
time, this Lease shall remain in full force and effect and Tenant shall
continue to perform all terms, conditions and covenants of this Lease;
provided, however, the rent and all other charges payable by Tenant to
Landlord hereunder shall abate during such limited period in proportion
to the portion of the Premises that is rendered untenantable and
unusable as a result of such condemnation or other taking. Landlord
shall be entitled to receive the entire award made in connection with
any such temporary condemnation or other taking. Tenant shall have the
right to claim and recover from the condemnor, but not from Landlord,
such compensation as may be separately awarded or recoverable by Tenant
in Tenant's own right on account of damages to Tenant's business by
reason of the condemnation and for or on account of any cost or loss to
which Tenant might be put in removing Tenant's merchandise, furniture
and other personal property, fixtures and equipment or for the
interruption of or damage to Tenant's business.
E. Transfer of Landlord's Interest to Condemnor. Landlord may, without any
obligation to Tenant, agree to sell and/or convey to the condemnor the
Premises, the Building, the Project or any portion thereof, sought by
the condemnor, free from this Lease and the rights of Tenant hereunder,
without first requiring that any action or proceeding be instituted or,
if instituted, pursued to a judgment.
SECTION 20. DEFAULT
A. Tenant's Default. The failure by Tenant to perform any one or more of
the following obligations shall constitute a default hereunder by
Tenant:
(1) If Tenant abandons all or a substantial portion of the Premises;
(2) If Tenant fails to pay any rent or other charges required to be
paid by Tenant under this Lease and such failure continues for
five (5) days after such payment is due and payable; provided,
however, that the obligation of Tenant to pay a late charge or
interest pursuant to this Lease below shall commence as of the
due date of the rent or such other monetary obligation and not
on the expiration of such five (5) day grace period;
(3) If Tenant involuntarily transfers Tenant's interest in this
Lease or voluntarily transfers (attempted or actual) its
interest in this Lease, without Landlord's prior written
consent;
(4) If Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the Federal Bankruptcy Laws
or other insolvency laws is filed and not withdrawn or dismissed
within forty-five (45) days thereafter, or if under the
provisions of any law providing for reorganization or winding up
of corporations, any court of competent jurisdiction assumes
jurisdiction, custody or control of Tenant or any substantial
part of the Premises or any of Tenant's
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personal property located at the Premises and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days;
(5) If in any proceeding or action in which Tenant is a party, a
trustee, receiver, agent or custodian is appointed to take
charge of the Premises or any of Tenant's personal property
located at the Premises (or has the authority to do so) for the
purpose of enforcing a lien against the Premises or Tenant's
personal property;
(6) If Tenant shall make any general assignment for the benefit of
creditors or convene a meeting of its creditors or any class
thereof for the purpose of effecting a moratorium upon or
composition of its debts, or any class thereof;
(7) If Tenant fails to discharge any lien placed upon the Premises,
the Building or the Project by Tenant or any person claiming
under, by or through Tenant within ten (10) days of the
imposition of such lien;
(8) If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease (other
than subparagraphs (1) through (7) above) and such failure
continues for ten (10) days after written notice thereof from
Landlord to Tenant, or if such failure cannot be completely
cured within such ten (10) day period, then if Tenant fails to
commence such cure within such ten (10) day period and
thereafter proceed to completely cure such failure within thirty
(30) days after such written notice; or
(9) If Tenant is a partnership or consists of more than one (1)
person or entity, if any partner of the partnership or other
person or entity is involved in any of the acts or events
described in subparagraphs (1) through (8) above.
B. Remedies. Any notice given by Landlord pursuant to Section 20(A) above
may be the notice required or permitted pursuant to Section 1161 et seq.
of the California Code of Civil Procedure or successor statutes, and the
provisions of this Lease shall not require the giving of a notice in
addition to such statutory notice to terminate this Lease and Tenant's
right to possession of the Premises. The periods specified in Section
20(A) within which Tenant is permitted to cure any default following
notice from Landlord shall run concurrently with any cure period
provided by applicable laws. Upon the occurrence of a default by Tenant
that is not cured by Tenant within any applicable grace period specified
above, Landlord shall have the following rights and remedies in addition
to all other rights and remedies available to Landlord at law or in
equity, which shall be cumulative and non-exclusive:
(1) Without further notice or demand of any kind to Tenant or any
other person, the right to declare this Lease and the term of
this Lease terminated; re-enter the Premises and the
improvements located thereon, with or without process of law; to
eject all parties in possession thereof therefrom; repossess and
enjoy the Premises together with all said improvements; and to
recover from Tenant all of
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the following:
(a) The worth at the time of award of the unpaid rent which
had been earned at the time of termination; plus
(b) The worth at the time of award of the amount by which
the unpaid rent which would have been earned after
termination until the time of award exceeds the amount
of such rental loss that Tenant proves could have been
reasonably avoided; plus
(c) The worth at the time of award of the amount by which
the unpaid rent for the balance of the Term after the
time of award exceeds the amount of rental loss that
Tenant proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in
the ordinary course of things would be likely to result
therefrom, including, but not limited to, any attorneys'
fees, broker's commissions or finder's fees (not only in
connection with the reletting of the Premises, but also
that portion of any leasing commission paid by Landlord
in connection with this Lease which is applicable to
that portion of the Term which is unexpired as of the
date on which this Lease is terminated); the then
unamortized cost of any tenant improvements constructed
for or on behalf of Tenant by or at the expense of
Landlord or of any moving allowance or other concession
made available to Tenant and/or paid by Landlord
pursuant to this Lease; any costs for repairs, clean-up,
refurbishing, removal (including the repair of any
damage caused by such removal) and storage (or disposal)
of Tenant's personal property, equipment, fixtures, and
anything else that Tenant is required (under this Lease)
to remove but does not remove; any costs for
alterations, additions and renovations; and any other
costs and expenses, including reasonable attorneys' fees
and costs, incurred by Landlord in regaining possession
of and reletting (or attempting to relet) the Premises.
(2) The right to continue this Lease in effect and to enforce all of
Landlord's rights and remedies under this Lease, including the
right to recover rent and any other additional monetary charges
as they become due, for as long as Landlord does not terminate
Tenant's right to possession. Acts of maintenance or
preservation, efforts to relet the Premises, the appointment of
a receiver upon Landlord's initiative to protect its interest
under this Lease or Landlord's withholding of consent to an
Assignment or Subletting pursuant to the terms and conditions of
Section 16 above shall not constitute a termination of Tenant's
right to possession.
(3) The foregoing provisions of clause (2) shall apply even though
Tenant has breached the Lease and abandoned the Premises, in
which case Landlord shall have the right to re-enter the
Premises with or without process of law to eject
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therefrom all parties in possession thereof, and, without
terminating this Lease, at any time and from time to time, but
without obligation to do so, to relet the Premises and the
improvements located therein or any part or parts of any thereof
for the account of Tenant, or otherwise, on such conditions as
Landlord in its discretion may deem proper, with the right to
make alterations and repairs to the Premises in connection
therewith, and to receive and collect the rents therefor, and
apply the same (a) first to the payment of such costs and
expenses as Landlord may have paid, assumed or incurred: (I) in
recovering possession of the Premises and said improvements,
including attorneys' fees, and costs; (II) on expenses for
placing the Premises and said improvements in good order and
condition, for decorating and preparing the Premises for
reletting; (III) for making any alterations, repairs, changes or
additions to the Premises that may be necessary or convenient;
and (IV) for all other costs and expenses, including leasing and
subleasing commissions, and charges paid, assumed or incurred by
Landlord in or upon reletting the Premises and said
improvements, or in fulfillment of the covenants of Tenant under
this Lease; (b) then to the payment of Monthly Rental and other
monetary obligations due and unpaid hereunder; and (c) any
balance shall be held by Landlord and applied in payment of
future amounts as the same may become due and payable hereunder.
Any such reletting may be for the remainder of the term of this
Lease or for a longer or shorter period. Landlord may execute
any lease or sublease made pursuant to the terms of this clause
(3) either in its own name or in the name of Tenant as its
agent, as Landlord may see fit. The tenant(s) or subtenant(s)
thereunder shall be under no obligation whatsoever with regard
to the application by Landlord of any rent collected by Landlord
from such tenant or subtenant to any and all sums due and owing
or which may become due and owing under the provisions of this
Lease, nor shall Tenant have any right or authority whatever to
collect any rent whatever from such tenant(s) or subtenant(s).
If Tenant has been credited with any rent received by such
reletting and such rent shall not be promptly paid to Landlord
by the tenant(s) or subtenant(s), or if such rentals received
from reletting during any month are less than those to be paid
during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. Tenant shall also pay to Landlord as soon as
ascertained, any costs and expenses incurred by Landlord in such
reletting or in making such alterations and repairs not covered
by the rentals received from such reletting. For all purposes
set forth in this clause (3), Landlord is hereby irrevocably
appointed as agent for Tenant. No taking of possession of the
Premises by Landlord shall be construed as Landlord's acceptance
of a surrender of the Premises by Tenant or an election on
Landlord's part to terminate this Lease unless written notice of
such intention is given to Tenant. Notwithstanding any such
subletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous
breach. Election by Landlord to proceed pursuant to this clause
(3) shall be made upon written notice to Tenant and shall be
deemed an election of the remedy described in California Civil
Code Section 1951.4 (providing that a lessor of real property
may continue a lease in effect after a lessee's breach or
abandonment and recover rent as it becomes due, if the lessee
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has the right to sublet or assign, subject only to reasonable
limitations). If Landlord elects to pursue such remedy, unless
Landlord relets the Premises, Tenant shall have the right to
sublet the Premises and to assign its interest in this Lease,
subject to all of the standards and conditions set forth in
Section 16. Landlord may elect to terminate the prosecution of
such remedy at any time by written notice to Tenant, and the
right of Tenant to sublet or assign shall terminate upon receipt
by Tenant of such notice.
(4) The right to have a receiver appointed for Tenant, upon
application by Landlord, to take possession of the Premises and
to apply any rental collected from the Premises and to exercise
all other rights and remedies granted to Landlord pursuant to
this subsection.
C. Relief From Forfeiture. Tenant hereby waives all rights under California
Code of Civil Procedure Section 1179 and California Civil Code Section
3275 providing for relief from forfeiture, and any other right now or
hereafter existing to redeem the Premises or reinstate this Lease after
termination pursuant to this Section 20 or by order or judgment of any
court or by any legal process.
SECTION 21. LATE PAYMENTS/INTEREST AND LATE CHARGES
A. [Intentionally Omitted]
B. Interest. Any amount due from Tenant to Landlord which is not paid when
due shall bear interest at the rate of one percent (1%) per month or, if
less, the maximum rate permitted by law from the date such payment is
due until paid, except that amounts spent by Landlord on behalf of
Tenant shall bear interest at such rate from the date of disbursement by
Landlord which Tenant agrees is to compensate Landlord for Tenant's use
of Landlord's money after it is due. Payment of such interest shall not
excuse or cure any default by Tenant pursuant to this Lease. Such rate
shall remain in effect after the occurrence of any breach or default
hereunder by Tenant to and until payment of the entire amount due.
C. Late Charges. TENANT HEREBY ACKNOWLEDGES THAT IN ADDITION TO LOST
INTEREST, THE LATE PAYMENT BY TENANT TO LANDLORD OF RENT OR ANY OTHER
SUMS DUE HEREUNDER WILL CAUSE LANDLORD TO INCUR OTHER COSTS NOT
CONTEMPLATED IN THIS LEASE, THE EXACT AMOUNT OF WHICH WILL BE EXTREMELY
DIFFICULT AND IMPRACTICABLE TO ASCERTAIN. SUCH OTHER COSTS INCLUDE, BUT
ARE NOT LIMITED TO, PROCESSING, ADMINISTRATIVE AND ACCOUNTING COSTS, AND
LATE CHARGES WHICH MAY BE IMPOSED UPON LANDLORD BY THE TERMS OF ANY
ENCUMBRANCE COVERING THE PREMISES. ACCORDINGLY, IF ANY INSTALLMENT OF
RENT OR ANY ADDITIONAL RENT OR OTHER SUM DUE FROM TENANT SHALL NOT BE
RECEIVED BY LANDLORD WHEN SUCH AMOUNT SHALL BE DUE (WITHOUT REGARD TO
ANY GRACE PERIOD GRANTED IN THIS LEASE), TENANT SHALL PAY TO LANDLORD AS
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ADDITIONAL RENT HEREUNDER A LATE CHARGE EQUAL TO THE LESSER OF FIVE
PERCENT (5%) OF SUCH OVERDUE AMOUNT OR $1,500.00. THE PARTIES HEREBY
AGREE THAT (i) SUCH LATE CHARGE REPRESENTS A FAIR AND REASONABLE
ESTIMATE OF THE COSTS LANDLORD WILL INCUR IN PROCESSING SUCH DELINQUENT
PAYMENT BY TENANT, (ii) SUCH LATE CHARGE SHALL BE PAID TO LANDLORD AS
LIQUIDATED DAMAGES FOR EACH DELINQUENT PAYMENT, AND (iii) THE PAYMENT OF
THE LATE CHARGE IS TO COMPENSATE LANDLORD FOR THE ADDITIONAL
ADMINISTRATIVE EXPENSE INCURRED BY LANDLORD IN HANDLING AND PROCESSING
DELINQUENT PAYMENTS.
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Landlord's Initials Tenant's Initials
D. No Waiver. Neither assessment nor acceptance of partial payments,
interest or late charges by Landlord shall constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of its other rights and remedies under this
Lease. Nothing contained in this Section shall be deemed to condone,
authorize, sanction or grant to Tenant an option for the late payment of
rent, additional rent or other sums due hereunder, and Tenant shall be
deemed in default with regard to any such payments should the same not
be made by the date on which they are due.
SECTION 22. [INTENTIONALLY OMITTED].
SECTION 23. HOLDING OVER
Any holding over by Tenant in the possession of the Premises, or any portion
thereof, after the expiration or earlier termination of the Term, with the prior
written consent of Landlord, shall be construed to be a tenancy from month to
month at one hundred fifty percent (150%) of the Monthly Rental herein specified
for the last month in the Term (prorated on a monthly basis) unless Landlord
shall specify a lesser amount for rent in its sole discretion, and shall
otherwise be on the terms and conditions herein specified as far as applicable.
Any holding over without Landlord's consent shall constitute a default by Tenant
and shall entitle Landlord to pursue all remedies provided in this Lease and
Tenant shall be liable for any and all direct or consequential damages or losses
of Landlord resulting from Tenant's holding over without Landlord's consent.
SECTION 24. ATTORNEYS' FEES
Tenant shall pay to Landlord all amounts for costs and expenses, including, but
not limited to, reasonable attorneys' fees and amounts paid to any collection
agency, incurred by Landlord in connection with any breach or default by Tenant
under this Lease or incurred in order to enforce or interpret the terms or
provisions of this Lease. Tenant shall also pay to Landlord all such amounts,
including attorneys' fees, incurred by Landlord in responding to any request by
Tenant (a) to amend or modify this Lease or (b) to prepare any statement or
document in connection with this Lease, including without limitation estoppel
certificates or subordination agreements or
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the like. Such amounts shall be payable upon demand. In addition, if any action
shall be instituted by either Landlord or Tenant for the enforcement or
interpretation of any of its rights or remedies in or under this Lease, the
prevailing party shall be entitled to recover from the losing party all costs
incurred by the prevailing party in said action and any appeal therefrom,
including reasonable attorneys' fees and court costs to be fixed by the court
therein. In the event Landlord is made a party to any litigation between Tenant
and any third party, then Tenant shall pay all costs and attorneys' fees
incurred by or imposed upon Landlord in connection with such litigation;
provided, however, if Landlord is ultimately held to be liable, then Landlord
shall reimburse Tenant for the cost of any attorneys' fees paid by Tenant on
behalf of Landlord.
SECTION 25. MORTGAGE PROTECTION/SUBORDINATION
A. Subordination. The rights of Tenant under this Lease are and shall be,
at the option of Landlord, either subordinate or superior to any
mortgage or deed of trust (including a consolidated mortgage or deed of
trust) constituting a lien on the Premises, Building or Project, or
Landlord's interest therein or any part thereof, whether such mortgage
or deed of trust has heretofore been, or may hereafter be, placed upon
the Premises by Landlord, and to any ground or master lease if
Landlord's title to the Premises or any part thereof is or shall become
a leasehold interest. To further assure the foregoing subordination or
superiority, Tenant shall, upon Landlord's request, together with the
request of any mortgagee under a mortgage or beneficiary under a deed of
trust or ground or master lessor, execute any instrument (including
without limitation an amendment to this Lease that does not materially
and adversely affect Tenant's rights or materially increase Tenant's
obligations under this Lease) or instruments intended to subordinate
this Lease, or at the option of Landlord, to make it superior to any
mortgage, deed of trust, or ground or master lease. Notwithstanding any
such subordination, Tenant's right to occupy the Premises pursuant to
this Lease shall remain in effect for the full Term as long as Tenant is
not in default hereunder.
B. Attornment. Notwithstanding Section 25(A) above, Tenant agrees (1) to
attorn to any mortgagee of a mortgage or beneficiary of a deed of trust
encumbering the Premises and to any party acquiring title to the
Premises by judicial foreclosure, trustee's sale, or deed in lieu of
foreclosure, and to any ground or master lessor, as the successor to
Landlord hereunder, (2) to execute any attornment agreement reasonably
requested by a mortgagee, beneficiary, ground or master lessor, or party
so acquiring title to the Premises, and (3) that this Lease, subject to
the rights under any outstanding non-disturbance agreement, at the
option of such mortgagee, beneficiary, or ground or master lessor, or
other party, shall remain in force notwithstanding any such judicial
foreclosure, trustee's sale, deed in lieu of foreclosure, or merger of
titles. Notwithstanding the foregoing, neither a mortgagee of a mortgage
or beneficiary of a deed of trust encumbering the Premises, any party
acquiring title to the Premises by judicial foreclosure, trustee sale,
or deed in lieu of foreclosure, or any ground lessor or master lessor,
as the successor to Landlord hereunder, shall be liable or responsible
for any breach of a covenant contained in this Lease that occurred
before such party acquired its interest in the Premises or for any
continuing breach thereof until after the successor Landlord has
received the notice and right to cure as provided herein, and no such
party
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shall be liable or responsible for any security deposits held by
Landlord hereunder which have not been transferred or actually received
by such party, and such party shall not be bound by any payment of rent
or additional rent for more than two (2) months in advance.
C. Amendment. If any lending institution with which Landlord has negotiated
or may negotiate for financing for the Building or Project requires any
changes to this Lease, Tenant shall promptly execute and deliver an
amendment to this Lease prepared by Landlord and embodying such changes,
so long as such changes do not materially and adversely affect Tenant's
rights or materially increase Tenant's obligations hereunder. In the
event that Tenant shall fail to execute and deliver such amendment
within twenty (20) days after receipt thereof by Tenant, such failure
shall constitute a default hereunder by Tenant and shall entitle
Landlord to all remedies available to a landlord against a defaulting
tenant pursuant to a written lease, including but not limited to those
remedies set forth in Section 20.
SECTION 26. ESTOPPEL CERTIFICATE/FINANCIAL STATEMENTS
A. Estoppel Certificate. Tenant, at any time and from time to time upon not
less than ten (10) days' prior written notice from Landlord, agrees to
execute and deliver to Landlord a statement in the form provided by
Landlord (1) certifying that this Lease is unmodified and in full force
and effect, or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect
and the date to which the rent and other charges are paid in advance, if
any; (2) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such
defaults if they are claimed evidencing the status of this Lease; (3)
acknowledging the amount of the Security Deposit held by Landlord; and
(4) containing such other information regarding this Lease or Tenant as
Landlord reasonably requests. Tenant's failure to deliver an estoppel
certificate within such time shall be conclusive upon Tenant that (i)
this Lease is in full force and effect without modification except as
may be represented by Landlord, (ii) to Tenant's knowledge there are no
uncured defaults in Landlord's performance, (iii) no rent has been paid
in advance except as set forth in this Lease, and (iv) such other
information regarding this Lease and Tenant set forth therein by
Landlord is true and complete.
B. Furnishing of Financial Statements. Landlord has reviewed the financial
statements, if any, requested of Tenant and has relied upon the truth
and accuracy thereof with Tenant's knowledge and representations of the
truth and accuracy of such statements and that said statements
accurately and fairly depict the financial condition of Tenant. Said
financial statements are an inducing factor and consideration for the
entering into of this Lease by Landlord with this particular Tenant. At
each of the times provided below, Tenant shall furnish Landlord with
Tenant's most recent audited financial statements, including a balance
sheet and income statement, or a document in which Tenant states that
its books are not independently audited accompanied by Tenant's most
recent unaudited financial statements, including a balance sheet and
income statement, signed by Tenant's chief financial officer. Such
information shall be provided at Landlord's request by Tenant on
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each and all of the following dates (or if Landlord's request is not
made at least ten (10) days before such date, within ten (10) days of
Landlord's request): July 1, 2000; January 1, 2001; July 1, 2001; July
1, 2002; July 1, 2003 and July 1, 2004.
SECTION 27. PARKING
A. Landlord's Obligations. Landlord agrees to maintain or cause to be
maintained an automobile parking area and to maintain and operate, or
cause to be maintained and operated, said automobile parking area during
the Term of this Lease for the benefit and non-exclusive use by Tenant
and the customers, service suppliers, other invitees and employees of
Tenant. Whenever the words "automobile parking area" or "parking area"
are used in this Lease, it is intended that the same shall include,
whether in a surface parking area or a parking structure, the automobile
parking stalls, driveways, loading docks, truck areas, service drives,
entrances and exits and sidewalks, landscaped areas, pedestrian
passageways in conjunction therewith and other areas designated for
parking. Landlord shall keep said automobile parking area in a neat,
clean and orderly condition, lighted and landscaped, and shall repair
any damage to the facilities thereof. Nothing contained herein shall be
deemed to impose liability upon Landlord for personal injury or theft,
for damage to any motor vehicle, or for loss of property from within any
motor vehicle, which is suffered by Tenant or any of its employees,
customers, service suppliers or other invitees in connection with their
use of said automobile parking area. Landlord shall also have the right
to establish such reasonable rules and regulations as may be deemed
desirable, at Landlord's sole discretion, for the proper and efficient
operation and maintenance of said automobile parking area. Such rules
and regulations may include, without limitation, (i) restrictions on the
hours during which the automobile parking area shall be open for use and
(ii) the establishment on a non-discriminatory basis of charges for
parking therein (on either a reserved or unreserved basis, at Landlord's
sole discretion) by tenants of the Building as well as by their
employees, customers and service suppliers.
B. Tenant's Rights and Obligations. Tenant shall be entitled to use the
number of vehicle parking spaces allocated to Tenant in Section 1(P)
without paying any additional rent therefor. Tenant and its employees
shall park their vehicles only in those portions of the Common Areas or
other locations designated and provided for that purpose by Landlord.
Tenant's parking shall not be reserved and shall be limited to vehicles
no longer than standard size automobiles or pickup or sport utility
vehicles. Tenant shall not cause large trucks or other large vehicles to
be parked within the Project or on the adjacent public streets except in
accordance with the Rules. Vehicles shall be parked only in striped
parking spaces and not in driveways or other locations not specifically
designated for parking. Handicapped spaces shall only be used by those
legally permitted to use them. Tenant shall not use or permit the use of
loading areas, any spaces which have been specifically assigned by
Landlord to employees of Landlord or other tenants or for such other
uses as visitor parking or which have been designated by governmental
entities as being restricted to certain uses. Tenant shall not permit or
allow any vehicles that belong to or are controlled by Tenant or
Tenant's employees, suppliers, shippers, customers, or invitees to be
loaded, unloaded, or parked in areas other than those designated by
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Landlord for such activities. The parking area shall not be used to
provide car wash, oil changes, detailing, automotive repair or other
services unless otherwise approved or furnished by Landlord. Tenant
shall furnish Landlord with its and its employees' license plate numbers
within fifteen (15) days after taking possession of the Premises, and
Tenant shall thereafter notify Landlord of any changes within five (5)
days after such change occurs. If Tenant or its employees fail to park
their cars in designated parking areas, then Landlord may charge Tenant
Fifteen Dollars ($15.00) per day for each day or partial day that any
such car is parked in any area other than those designated. Overnight
and weekend parking shall not be permitted unless Tenant has provided
Landlord with advance written notice thereof. If Tenant permits or
allows any of the prohibited activities described herein, Landlord shall
have the right, without notice, in addition to any other rights it may
have, to remove or tow away the vehicle. If Landlord shall tow any
vehicles of Tenant or its employees, suppliers, shippers, customers, or
invitees, Tenant shall pay to Landlord the costs and expenses incurred
by Landlord in connection therewith, within ten (10) days after Landlord
sends Tenant an invoice therefor.
C. Control of Parking Area. Landlord shall at all times during the Term
hereof have the sole and exclusive control of the automobile parking
area, and may at any time during the Term hereof exclude and restrain
any person from use or occupancy thereof; excepting, however, Tenant and
employees, customers, service suppliers and other invitees of Tenant and
of other tenants in the Building who make use of said area in accordance
with any rules and regulations established by Landlord from time to time
with respect thereto. The rights of Tenant and its employees, customers,
service suppliers and invitees referred to in this Section 27 shall at
all times be subject to (i) the rights of Landlord and other tenants in
the Building and their customers, employees, licensees, invitees,
successors and assigns to use the same in common with Tenant and its
employees, customers, service suppliers and invitees, (ii) the
availability of parking spaces in said automobile parking area, and
(iii) Landlord's right to assign reserved parking spaces and to change
the location of any assigned reserved parking spaces in such instances
as shall be determined at Landlord's sole discretion. Notwithstanding
Landlord's exclusive control and obligations to provide a parking area,
Landlord is not responsible or liable for any damage to any automobiles
or persons in the parking area.
SECTION 28. SIGNS; NAME OF BUILDING
A. Signs. Landlord shall enter Tenant's name in the Building directory
located in the main lobby of the Building and in the elevator lobby of
the floor on which the Premises is located. Tenant shall not have the
right to place, construct, or maintain on or about the Premises,
Building or Project, or in any interior portions of the Premises that
may be visible from the exterior of the Building or Common Areas, any
signs, names, insignia, trademark, advertising placard, descriptive
material or any other similar item ("Sign") without Landlord's prior
written consent, which consent may be withheld in Landlord's sole
discretion; provided, however, any Signs are further subject to approval
of any applicable governmental authority and/or compliance with
applicable governmental requirements and covenants, conditions and
restrictions applicable to the Building or the Project. In the event
Landlord consents to Tenant placing a Sign on or about the
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Premises, Building or Project, any such Sign shall be subject to
Landlord's approval of the color, size, style and location of such Sign,
and shall conform to any current or future Sign criteria established by
Landlord for the Building or Project. If Landlord enacts a Sign criteria
or revises an existing Sign criteria, after Tenant has erected a Sign to
which Landlord has granted its consent, if Landlord so elects, Tenant
agrees, at Landlord's expense, subject to Landlord's prior approval of
the cost thereof, to make the necessary changes to its Sign in order to
conform the Sign to Landlord's Sign criteria, as enacted or revised,
provided that such changes shall be limited to the color, size, style
and location of Tenant's Sign and that Tenant shall not be required to
change the content of its Sign. In the event Landlord consents to
Tenant's placement of a Sign on the Building, Tenant shall, at its sole
cost, remove such Sign from the Building at the end of the Term, restore
the Building to the same condition as before the installation of the
Sign, ordinary wear and tear excepted and remove any discoloration of
the Building caused by the presence of such sign.
B. Building Identification. Landlord reserves the right at any time it
deems necessary or appropriate to (1) place Signs at any location on the
Building and Project as it deems necessary and (2) change the name,
address or designation of the Building and Project.
SECTION 29. QUIET ENJOYMENT
Upon payment by Tenant of the rents herein provided, and upon the observance and
performance of all the covenants, terms and conditions on Tenant's part to be
observed and performed, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term without hindrance or interruption by Landlord or any other
person or persons lawfully or equitably claiming by, through or under Landlord,
subject, nevertheless, to the terms and conditions of this Lease, and any
mortgage and/or deed of trust to which this Lease is subordinate.
SECTION 30. ADDITIONAL FACILITIES AVAILABLE TO TENANT
A. Conference Rooms. Tenant shall have the right to reserve the use of (1)
the Bay Conference Room located on the second floor of the Building
without paying any additional rent therefor, (2) the Pacific Conference
Room located on the second floor of the Building free of charge once
each calendar quarter and at other times at a fee of $100.00 per day or
partial day (plus a set-up fee based on Landlord's standard hourly rates
to be determined from time to time) and (3) any other conference room
located on the second floor of the Building at Landlord's standard
hourly rates to be determined from time to time. Tenant shall pay
Landlord for any audio/visual, video conferencing or other equipment
available in any such conference room a fee to be determined by Landlord
from time to time; provided however, Tenant acknowledges that Landlord
does not guarantee that any such equipment will be available or in
working order at any time. Landlord shall notify Tenant of any
discretionary fees described above at such time as Tenant requests use
of any such conference room or equipment. Such use of the conference
rooms on the second floor of the Building shall be on a non-exclusive
basis during normal business hours (as designated by Landlord from time
to time) and shall in all other respects be subject to the same
obligations set forth in this Lease regarding
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Tenant's use of the Common Areas. If Tenant desires to reserve a
conference room, Tenant shall notify Landlord on Landlord's standard
reservation form or in another manner acceptable to Landlord at least
ten (10) business days before the desired date of use. Landlord shall
notify Tenant within five (5) business days after receipt of Tenant's
request whether the requested conference room is available for Tenant's
use in accordance with the rules of Landlord from time to time in
effect, which may include rules to ensure that Tenant's use of
conference facilities is not disproportionate to the Rental Area of the
Premises. If not, Tenant may request the use of another conference room,
however Tenant agrees that Landlord shall have no obligation to respond
to such request within less than five (5) business days after receipt of
Tenant's request. Tenant hereby waives any claims it may have against
Landlord due to the unavailablility of a conference room at any time,
regardless whether Landlord has notified Tenant that a particular
conference room is available for Tenant's use, except for claims due to
Landlord's willful misconduct. Landlord shall not be required to make
conference facilities available to Tenant if Landlord elects, in its
discretion, to cease to maintain and operate shared conference
facilities in the Building.
B. Fitness Center. Tenant shall be entitled to use the number of Fitness
Center Memberships allocated to Tenant in Section 1(Q) without paying
any additional rent therefor. Such use of the Fitness Center at the
Building shall be on a non-exclusive basis during the standard hours of
operation of the Fitness Center (as designated by Landlord from time to
time) and shall in all other respects be subject to the same obligations
set forth in this Lease regarding Tenant's use of the Common Areas.
Tenant shall have the right to purchase additional Fitness Center
Memberships at $50 per Membership per month. Such amounts shall be
payable to Landlord as additional rent and shall be subject to increase
on written notice from Landlord. Memberships may only be used by
employees of Tenant and not spouses or friends of Tenant's employees or
customers, consultants, vendors or agents of Tenant. Tenant shall assign
Memberships to specific employees and shall arrange for the security
badges of such employees to allow them access to the Fitness Center.
Tenant shall notify Landlord of the names of such employees at such time
or times as Tenant allocates Memberships to its employees. Tenant shall
ensure that the assigned employees do not allow other individuals to use
the assigned Memberships. Memberships shall be granted by Landlord only
to Tenant; Landlord shall not have any obligation to grant Memberships
directly to employees of Tenant. Prior to using the Fitness Center for
the first time, each employee of Tenant shall sign a written waiver on
Landlord's standard form releasing Landlord from all liability for
personal injury or theft or for loss of property from within the Fitness
Center. Nothing contained herein shall be deemed to impose, and Tenant
hereby waives on behalf of itself and all users of the Fitness Center
Memberships (authorized or unauthorized, paid or unpaid), liability
against Landlord for personal injury or theft or for loss of property
from within the Fitness Center, which is suffered by Tenant or any of
its employees or other parties. Tenant further agrees to indemnify,
defend and hold Landlord and its officers, directors, partners, agents
and employees (collectively, "Indemnitees") entirely harmless from and
against all liabilities, losses, demands, actions, expenses or claims,
including reasonable attorneys' fees and court costs, for injury to or
death of any person or for damages to any property or for violation of
law arising out of or in any manner connected with the use, occupancy or
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enjoyment of the Fitness Center by Tenant or and users of the Fitness
Center Memberships (authorized or unauthorized, paid or unpaid).
Landlord shall not be required to make the Fitness Center available as
provided above if Landlord elects, in its discretion, to discontinue
operation of the Fitness Center.
C. Fees. All amounts payable to Landlord pursuant to this Section 30 shall
be deemed additional rent. All fees described herein shall be payable by
Tenant regardless whether Tenant or its employees use the conference
room(s) that have been reserved or the paid Fitness Center Memberships,
as applicable.
SECTION 31. NOTICES
Any notice, demand, approval, consent, bill, statement or other communication
("Notice") required or desired to be given under this Lease shall be in writing,
shall be directed to Tenant at Tenant's Address for Notice or to Landlord at
Landlord's Address for Notice and shall be personally served or given by
pre-paid certified U.S. Mail or "overnight" delivery service. In the case of
personal delivery, any Notice shall be deemed to have been given when delivered;
in the case of service by certified mail, any Notice shall be deemed delivered
of the date of receipt, refusal or non-delivery indicated on the return receipt;
and in the case of overnight delivery service, any Notice shall be deemed given
when delivered as evidenced by a receipt. If more than one Tenant is named under
this Lease, service of any Notice upon any one of said Tenants shall be deemed
as service upon all of such Tenants. The parties hereto and their respective
heirs, successors, legal representatives, and assigns may from time to time
change their respective addresses for Notice by giving at least fifteen (15)
days' written notice to the other party, delivered in compliance with this
Section.
SECTION 32. NOTICE AND CURE TO LANDLORD AND MORTGAGEE
On any act or omission by Landlord which might give, or which Tenant claims or
intends to claim gives, Tenant the right to damages from Landlord or the right
to terminate this Lease by reason of a constructive or actual eviction from all
or part of the Premises, or otherwise, Tenant shall not sue for damages or
attempt to terminate this Lease until it has given written notice of the act or
omission to Landlord and to the holder(s) of the indebtedness or other
obligations secured by any mortgage or deed of trust affecting the Premises as
identified by Landlord, and a reasonable period of time for remedying the act or
omission has elapsed following the giving of the notice, during which time
Landlord and the lienholder(s), or either of them, their agents or employees,
may enter upon the Premises and do therein whatever is necessary to remedy the
act or omission. During the period after the giving of notice and during the
remedying of the act or omission, the Monthly Rental payable by Tenant shall not
be abated and apportioned except to the extent that the Premises are
untenantable.
SECTION 33. GENERAL
A. Paragraph Headings. The paragraph headings used in this Lease are for
the purposes of convenience only. They shall not be construed to limit
or to extend the meaning of any part of this Lease.
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B. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of Landlord and Tenant with respect to any matter mentioned,
or dealt with, herein. No prior agreement or understanding pertaining to
any such matter shall be binding upon Landlord. Any amendments to or
modifications of this Lease shall be in writing, signed by the parties
hereto, and neither Landlord nor Tenant shall be liable for any oral or
implied agreements. LANDLORD HAS NOT MADE, AND TENANT MAY NOT RELY ON,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH REGARD TO
THE PROJECT, THE BUILDING, THE PREMISES OR OTHERWISE OR THE SUITABILITY
THEREOF FOR TENANT'S BUSINESS, EXCEPT AS EXPRESSLY STATED IN THIS LEASE.
IN PARTICULAR, LANDLORD HAS NOT AUTHORIZED ANY AGENT OR BROKER TO MAKE A
REPRESENTATION OR WARRANTY INCONSISTENT WITH THE TERMS OF THIS LEASE AND
TENANT MAY NOT RELY ON ANY SUCH INCONSISTENT REPRESENTATION OR WARRANTY.
C. Waiver. Any waiver by Landlord of any breach of any term, covenant, or
condition contained in this Lease shall not be deemed to be a waiver of
such term, covenant, or condition or of any subsequent breach of the
same or of any other term, covenant, or condition contained in this
Lease. Landlord's consent to, or approval of, any act shall not be
deemed to render unnecessary the obtaining of Landlord's consent to, or
approval of, any subsequent act by Tenant. The acceptance of rent or
other sums payable hereunder by Landlord shall not be a waiver of any
preceding breach by Tenant of any provision hereof, other than failure
of Tenant to pay the particular rent or other sum so accepted,
regardless of Landlord's knowledge of such preceding breach at the time
of acceptance of such rent, or sum equivalent to rent.
D. Short Form or Memorandum of Lease. Tenant agrees, at the request of
Landlord, to execute, deliver, and acknowledge a short form or
memorandum of this Lease satisfactory to counsel for Landlord, and
Landlord may, in its sole discretion, record such short form or
memorandum in the county where the Premises are located. Tenant shall
not record this Lease, or a short form or memorandum of this Lease,
without Landlord's prior written consent.
E. Time of Essence. Time is of the essence in the performance of each
provision of this Lease.
F. Examination of Lease. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for
lease, and it is not effective as a lease or otherwise until execution
by and delivery to both Landlord and Tenant.
G. Severability. If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest
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extent permitted by law.
H. Surrender of Lease Not Merger. Neither the voluntary or other surrender
of this Lease by Tenant nor the mutual cancellation thereof shall cause
a merger of the titles of Landlord and Tenant, but such surrender or
cancellation shall, at the option of Landlord, either terminate all or
any existing subleases or operate as an assignment to Landlord of any
such subleases. The delivery of keys to the Premises to Landlord or its
agent shall not, of itself, constitute a surrender and termination of
this Lease.
I. Authority. If Tenant is a corporation, each individual executing this
Lease on behalf of Tenant represents and warrants (1) that he or she is
duly authorized to execute and deliver this Lease on behalf of Tenant in
accordance with a duly adopted resolution of the Board of Directors of
Tenant in accordance with the By-laws of Tenant and (2) that this Lease
is binding upon and enforceable by Landlord against Tenant in accordance
with its terms. If Tenant is a corporation, Tenant shall, concurrently
with delivery of an executed Lease to Landlord, deliver to Landlord a
certified copy of a resolution of its Board of Directors authorizing or
ratifying the execution of this Lease. If Tenant is a partnership, joint
venture, or other unincorporated association, each individual executing
this Lease on behalf of Tenant warrants that this Lease is binding on
Tenant and that each and both of the persons signing on behalf of Tenant
were authorized to do so.
J. Governing Law. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed and enforced in accordance with
the local laws of the State in which the Building is located.
K. Force Majeure. If the performance by Landlord of any provision of this
Lease is delayed or prevented by any act of God, strike, lockout,
shortage of material or labor, restriction by any governmental
authority, civil riot, flood, and any other cause not within the control
of Landlord, then the period for Landlord's performance of the provision
shall be automatically extended for the same time Landlord is so delayed
or hindered.
L. Use of Language. Words of gender used in this Lease include any other
gender, and words in the singular include the plural, unless the context
otherwise requires.
M. Successors. The terms, conditions and covenants contained in the Lease
inure to the benefit of and are binding on, the parties hereto and their
respective successors in interest, assigns and legal representatives,
except as otherwise herein expressly provided. All rights, privileges,
immunities and duties of Landlord under this Lease, including without
limitation, notices required or permitted to be delivered by Landlord to
Tenant hereunder, may, at Landlord's option, be exercised or performed
by Landlord's agent or attorney.
N. No Reduction of Rental. Except as otherwise expressly and unequivocally
provided in this Lease, Tenant shall not for any reason withhold or
reduce the amounts payable by Tenant under this Lease, it being
understood that the obligations of Landlord hereunder are independent of
Tenant's obligations. If Landlord is required by governmental authority
to reduce energy consumption or impose a parking or similar charge with
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respect to the Premises, Building or Project, to restrict the hours of
operation of, limit access to, or reduce parking spaces available at the
Building, or take other limiting actions, then Tenant is not entitled to
abatement or reduction of rent or to terminate this Lease.
O. No Partnership. Notwithstanding anything else to the contrary, Landlord
is not, and under no circumstances shall it be considered to be, a
partner of Tenant, or engaged in a joint venture with Tenant.
P. Exhibits. All exhibits attached hereto are made a part hereof and are
incorporated herein by this reference. A complete list of said exhibits
is set forth in the Table of Contents.
Q. Indemnities. The obligations of the indemnifying party under each and
every indemnification and hold harmless provision contained in this
Lease shall survive the expiration or earlier termination of this Lease
to and until the last to occur of (1) the last date permitted by law for
the bringing of any claim or action with respect to which
indemnification may be claimed by the indemnified party against the
indemnifying party under such provision or (2) the date on which any
claim or action for which indemnification may be claimed under such
provision is fully and finally resolved and, if applicable, any
compromise thereof or judgment or award thereon is paid in full by the
indemnifying party and the indemnified party is reimbursed by the
indemnifying party for any amounts paid by the indemnified party in
compromise thereof or upon a judgment or award thereon and in defense of
such action or claim, including reasonable attorneys' fees incurred.
Payment shall not be a condition precedent to recovery upon any
indemnification provision contained herein.
R. Nondisclosure of Lease Terms. Landlord and Tenant agree that the terms
of this Lease are confidential and constitute proprietary information of
the parties hereto. Disclosure of the terms hereof could adversely
affect the ability of Landlord to negotiate with other tenants of the
Building. Each of the parties hereto agrees that such party, and its
respective partners, officers, directors, employees, agents, brokers and
attorneys, shall not disclose the terms and conditions of this Lease to
any other person without the prior written consent of the other party
hereto except pursuant to an order of a court of competent jurisdiction.
Provided, however, that Landlord may disclose the terms hereof to any
prospective purchaser of the Building or any lender now or hereafter
having a lien on Landlord's interest in the Building or the Project, or
any portion thereof, and either party may disclose the terms hereof to
its respective independent accountants who review its respective
financial statements or prepare its respective tax returns, to any
prospective transferee of all or any portions of their respective
interests hereunder (including a prospective sublessee or assignee of
Tenant), to its respective real estate brokers, to any lender or
prospective lender to such party, to any governmental entity, agency or
person to whom disclosure is required by applicable law, regulation or
duty of diligent inquiry and in connection with any action brought to
enforce the terms of this Lease, on account of the breach or alleged
breach hereof or to seek a judicial determination of the rights and
obligations of the parties hereunder.
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S. No Light, Air or View Easement. Any diminution or shutting of light, air
or view by any structure which may be erected on lands adjacent to the
Building shall in no way affect this Lease or impose any liability on
Landlord.
T. Brokers. Tenant warrants and represents that it has not dealt with any
real estate broker or agent in connection with this Lease or its
negotiation except the Brokers identified in Section 1(M). Tenant shall
indemnify and hold Landlord harmless from any cost, expense or liability
(including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation by reason of
any act of Tenant.
U. Counterparts. This Lease may be executed in several duplicate
counterparts, each of which shall be deemed an original of this Lease
for all purposes.
SECTION 34. DEFAULT UNDER 6TH FLOOR LEASE
Tenant agrees that any default by Tenant under the Lease dated May 18, 1999, as
amended from time to time, between Landlord and Tenant governing Tenant's
occupancy of the 6th floor of the Building (the "6th Floor Lease") will be
deemed a default under this Lease, entitling Landlord to pursue all of its
rights and remedies under this Lease. Tenant further agrees that any default by
Tenant under this Lease will be deemed a default under the 6th Floor Lease,
entitling Landlord to pursue all of its rights and remedies under the 6th Floor
Lease.
IN WITNESS WHEREOF, the parties have executed this Lease, consisting of the
foregoing provisions, any typed addenda appended hereto and all Exhibits
appended hereto, on the dates indicated below, the later of which shall be
deemed the date of execution of this Lease.
"TENANT" "LANDLORD"
COLO.COM, INC., HITACHI AMERICA, LTD.,
a California corporation a New York corporation
By: /s/ Richard J. Palomba By: /s/ unreadable
----------------------------- ---------------------------------
Name: Richard J. Palomba Name:
Title: VP Real Estate Title:
Dated: December 23, 1999 Dated: , 1999
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SECOND AMENDMENT TO OFFICE LEASE
THIS SECOND AMENDMENT TO OFFICE LEASE (this "Amendment"), made as of the 23rd
day of December, 1999, by and between HITACHI AMERICA, LTD., a New York
corporation ("Landlord") and COLO.COM, a California corporation formerly known
as Colomotion, Inc. ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Office Lease (the
"Lease") captioned "OFFICE LEASE," dated as of May 18, 1999, as amended on
August 31, 1999, providing for, among other matters, the lease of certain space
by Landlord to Tenant known as Suite 601 in that certain building located at
2000 Sierra Point Parkway, Brisbane, CA (the "Premises"); and
WHEREAS, simultaneously herewith, Landlord and Tenant are entering into a new
lease for the 10th floor of the Building (the "New Lease") and desire to amend
this Lease (a) to increase the rent for the months of January 2000 trough June
2000 and (2) in certain respects related to the New Lease.
NOW, THEREFORE, in consideration of the Premises and the respective
undertakings of the parties hereinafter set forth, it is hereby agreed that the
Lease shall be amended as follows:
1. Defined Terms. Capitalized terms used herein and not defined herein shall
have the meaning for the same set forth in the Lease.
2. Monthly Rent. Section 1(I) is hereby deleted in its entirety and replaced
by the following:
I. "Monthly Rental" for the sixth (6th) floor mans the following:
PERIOD MONTHLY RENTAL
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Lease Commencement Date - 08/31/99 $18,720.00
09/01/1999 - 12/31/1999 $27,577.96
01/01/2000 - 06/30/2001 $59,019.84
07/01/2001 - 06/30/2002 $61,387.92
07/01/2002 - 06/30/2003 $63,938.16
07/01/2003 - 06/30/2004 $66,488.40
3. Phased Occupancy. The last two sentences of Section 2(A) of the Lease are
hereby deleted in their entirety.
4. Default Under New Lease. Any default by Tenant under the New Lease will be
deemed a default under this Lease, entitling Landlord to pursue all of its
rights and remedies under this Lease. Any default by Tenant under this
Lease will be deemed a default under the New Lease, entitling Landlord to
pursue all of its rights and remedies under the New Lease.
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5. Lease in Effect. This Amendment shall be effective as of the date set forth
above. Except as amended by this Amendment, the Lease shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year first above written.
HITACHI AMERICA, LTD. COLO.COM
By: /s/ [Signature Illegible] By: /s/ DAVID STANLY
---------------------------- -----------------------------
Name: [Name Illegible] Name: David Stanly
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Its: President Its: General Counsel
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