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EXHIBIT 10.11
OFFICE LEASE
BY AND BETWEEN
HITACHI AMERICA, LTD.,
AS LANDLORD,
AND
COLOMOTION, INC.,
AS TENANT
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TABLE OF CONTENTS
Page
No.
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SECTION 1. TERMS AND DEFINITIONS......................................... 1
SECTION 2. PROPERTY LEASED............................................... 3
A. Premises...................................................... 3
B. Common Areas.................................................. 3
C. Minor Variations In Area...................................... 3
SECTION 3. COMMENCEMENT OF TERM AND POSSESSION OF PREMISES............... 3
A. Lease Commencement Date....................................... 3
B. Completion of Tenant Improvements and Possession of Premises.. 4
C. Extension of Lease Commencement Date.......................... 4
D. Acceptance and Suitability.................................... 4
E. Tenant's Termination Right.................................... 5
SECTION 4. RENT.......................................................... 5
A. Monthly Rental................................................ 5
B. Rent and Additional Rent...................................... 5
SECTION 5. COMMON AREAS.................................................. 5
A. Definitions................................................... 5
B. Control of Common Areas....................................... 5
SECTION 6. SECURITY DEPOSIT.............................................. 6
SECTION 7. TENANT'S TAXES................................................ 6
SECTION 8. USE OF PREMISES............................................... 7
A. Permitted Uses................................................ 7
B. Compliance with Laws.......................................... 7
C. Hazardous Materials........................................... 8
D. Landlord's Rules and Regulations.............................. 10
E. Traffic and Energy Management; Recycling...................... 10
SECTION 9. SERVICE AND UTILITIES......................................... 11
A. Standard Building Services.................................... 11
B. After-Hours Charges........................................... 11
C. Limitation on Landlord's Obligations.......................... 11
D. Excess Service................................................ 11
E. Security Services............................................. 12
SECTION 10. MAINTENANCE AND REPAIRS....................................... 12
A. Landlord's Obligations........................................ 12
B. Tenant's Obligations.......................................... 12
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C. Landlord's Right to Make Repairs.............................. 13
D. Condition of Premises Upon Surrender.......................... 13
SECTION 11. ENTRY BY LANDLORD............................................. 13
SECTION 12. ALTERATIONS, ADDITIONS AND TRADE FIXTURES..................... 14
SECTION 13. MECHANIC'S LIENS.............................................. 15
SECTION 14. INSURANCE..................................................... 15
A. Tenant........................................................ 15
B. Landlord...................................................... 16
C. Waiver of Subrogation......................................... 16
SECTION 15. INDEMNITY..................................................... 16
A. Indemnification by Tenant..................................... 16
B. Limitation on Landlord's Liability............................ 17
C. No Landlord Liability for Force Majeure Events................ 17
D. Indemnification by Landlord................................... 17
SECTION 16. ASSIGNMENT AND SUBLETTING BY TENANT........................... 18
A. Consent Required.............................................. 18
B. Tenant's Request for Consent.................................. 18
C. Landlord's Election........................................... 18
D. Landlord's Factors............................................ 18
E. Granting of Consent........................................... 19
F. Assignment and Sublease Profit................................ 19
G. Tenant Remains Liable......................................... 20
H. Assignee Becomes Liable....................................... 20
I. Bankruptcy.................................................... 20
J. Landlord's Fees............................................... 20
K. Certain Rights Personal to Tenant............................. 20
L. Sublease Rents................................................ 21
SECTION 17. TRANSFER OF LANDLORD'S INTEREST............................... 21
SECTION 18. DAMAGE AND DESTRUCTION........................................ 21
A. Minor Insured Damage.......................................... 21
B. Major or Uninsured Damage..................................... 21
C. Abatement of Rent............................................. 22
D. Waiver........................................................ 22
SECTION 19. CONDEMNATION.................................................. 22
A. Total or Partial Taking....................................... 22
B. Award......................................................... 22
C. Abatement in Rent............................................. 23
D. Temporary Taking.............................................. 23
E. Transfer of Landlord's Interest to Condemnor.................. 23
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SECTION 20. DEFAULT....................................................... 23
A. Tenant's Default.............................................. 23
B. Remedies...................................................... 24
C. Relief From Forfeiture........................................ 26
SECTION 21. LATE PAYMENTS/INTEREST AND LATE CHARGES....................... 26
A. [Intentionally Omitted]....................................... 26
B. Interest...................................................... 26
C. Late Charges.................................................. 27
D. No Waiver..................................................... 27
SECTION 22. [INTENTIONALLY OMITTED]....................................... 27
SECTION 23. HOLDING OVER.................................................. 27
SECTION 24. ATTORNEYS' FEES............................................... 28
SECTION 25. MORTGAGE PROTECTION/SUBORDINATION............................. 28
A. Subordination................................................. 28
B. Attornment.................................................... 28
C. Amendment..................................................... 29
SECTION 26. ESTOPPEL CERTIFICATION/FINANCIAL STATEMENTS................... 29
A. Estoppel Certificate.......................................... 29
B. Furnishing of Financial Statements............................ 29
SECTION 27. PARKING....................................................... 29
A. Landlord's Obligations........................................ 29
B. Tenant's Rights and Obligations............................... 30
C. Control of Parking Area....................................... 30
SECTION 28. SIGNS; NAME OF BUILDING....................................... 31
A. Signs......................................................... 31
B. Building Identification....................................... 31
SECTION 29. QUIET ENJOYMENT............................................... 31
SECTION 30. ADDITIONAL FACILITIES AVAILABLE TO TENANT..................... 32
A. Conference Rooms.............................................. 32
B. Fitness Center................................................ 32
C. Fees.......................................................... 33
SECTION 31. NOTICES....................................................... 33
SECTION 32. NOTICE AND CURE TO LANDLORD AND MORTGAGEE..................... 33
SECTION 33. GENERAL....................................................... 33
A. Paragraph Headings............................................ 33
B. Incorporation of Prior Agreements; Amendments................. 33
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C. Waiver........................................................ 34
D. Short Form or Memorandum of Lease............................. 34
E. Time of Essence............................................... 34
F. Examination of Lease.......................................... 34
G. Severability.................................................. 34
H. Surrender of Lease Not Merger................................. 34
I. Authority..................................................... 34
J. Governing Law................................................. 35
K. Force Majeure................................................. 35
L. Use of Language............................................... 35
M. Successors.................................................... 35
N. No Reduction of Rental........................................ 35
O. No Partnership................................................ 35
P. Exhibits...................................................... 35
Q. Indemnities................................................... 35
R. Nondisclosure of Lease Terms.................................. 36
S. No Light, Air or View Easement................................ 36
T. Brokers....................................................... 36
U. Counterparts.................................................. 36
EXHIBIT A FLOOR PLAN OF THE PREMISES
EXHIBIT B CONSTRUCTION WORK LETTER
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D AMENDMENT OF LEASE COMMENCEMENT DATE
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OFFICE LEASE
THIS LEASE is entered into by and between Landlord and Tenant effective as of
this 18th day of May, 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 COLOMOTION, 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 following: from the Lease Commencement Date until
12/31/1999, the space labeled as "Phase 1" on Exhibit A, Page 2 of 2
attached hereto and incorporated herein by this reference; from 01/01/2000
until 06/30/2000, the spaces labeled as "Phase 1" and "Phase 2" thereon;
and from and after 07/01/2000, the spaces labeled as "Phase 1," "Phase 2"
and "Phase 3" thereon. The Premises from time to time covered by this
Lease shall be referred to as Suite 601.
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) July 1, 1999
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 June 30, 2004 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 - 12/31/1999 $18,720.00
01/01/2000 - 06/30/2000 $37,440.00
07/01/2000 - 06/30/2001 $59,019.84
07/01/2001 - 06/30/2002 $61,387.92
07/01/2002 - 06/30/2003 $63,938.16
01/01/2003 - 06/30/2004 $66,488.40
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 lobbies, corridors, restrooms,
mechanical rooms, electrical rooms and telephone closets, but
excluding any area contained within the exterior walls of the
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Building for stairs, fire towers, vertical ducts, elevator shafts,
flues, vents, stacks and pipe shafts.
K. "Security Deposit" means $132,976.80.
L. "Permitted Use" means commercial office use.
M. "Brokers" means Cornish & Carey Commercial and Cushman & Wakefield.
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. Tenant shall not enter
upon or use in any manner or for any purpose any space on the sixth floor
of the Building other than the area from time to time expressly included
within the Premises in accordance with the provisions of Section 1(E),
except with the prior written approval of Landlord, which Landlord may
give or withhold in its sole and absolute discretion. For any calendar
month during any portion of which Tenant may use or occupy any space not
included within the Premises, Tenant shall pay to Landlord a rental equal
to the area used or occupied by Tenant multiplied by the per square foot
rental amount then in effect for the Premises, or such other amount as
Landlord and Tenant may mutually agree in writing.
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 Date (as extended only pursuant to
Section 3(C) below).
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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 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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E. Tenant's Termination Right. Tenant shall have a right to terminate this
Lease effective as of June 30, 2002, upon notice given and payment made as
specified below; provided, however, that the termination of this Lease
pursuant to any such notice and payment shall not be effective if Tenant is
in default under this Lease at the time of giving notice of termination or,
at Landlord's option, upon the effective date of termination. Tenant shall
exercise such option by giving written notice to Landlord not later than
September 30, 2001, time being of the essence with regard to the giving of
such notice, and by paying to Landlord, at the time such notice is given, a
termination payment of $245,551.68. Tenant's notice shall be effective to
terminate this Lease only provided and on condition that it is accompanied
by payment to Landlord of such termination payment. If Tenant effectively
exercises its right to terminate this Lease herein provided, Tenant shall
continue to pay all of the rents herein and perform all of its obligations
hereunder through June 30, 2002, upon which date the Term of this Lease
shall end in the same manner as if the same were the Expiration Date
originally specified on this Lease.
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 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
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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.
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 operating, 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.
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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 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
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
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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 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
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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).
(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
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and any substance on 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 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. 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
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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 (hereafter "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 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
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more electricity than is usually furnished 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 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 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
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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 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
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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.
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 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
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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 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 deemed 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 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 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
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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 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, loss, demands, actions, expenses or claims, including
reasonable attorneys'
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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 violate public policy, Tenant assumes shall 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.
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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 interest of
said guarantor.
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 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:
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(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.
(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 Section 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 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
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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 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
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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 further 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 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 Damages. 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
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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 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
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removing Tenant's merchandise, furniture and other personal property,
fixtures, and equipment, for the interruption of or damage of 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.
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 form 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 to 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
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jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of the Premises or any of Tenant's 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
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
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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 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 attorney's 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
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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 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
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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 OR 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 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.
[SIGNATURE ILLEGIBLE] [ILLEGIBLE]
------------------------- -----------------
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.
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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 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 shall be liable or responsible for any
security deposits held by Landlord hereunder
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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 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; and July 1, 2003.
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
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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 are 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 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
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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
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.
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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 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 unavailability 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
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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 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.
B. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of Landlord
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and Tenant with respect to any matter mentioned, or dealt with, herein. No
prior agreement or understanding pertaining to any such matters 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 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) the 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
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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 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 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.
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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 thereof 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 hereof or to seek a judicial determination of the rights and
obligations of the parties hereunder.
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.
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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"
COLOMOTION, INC., HITACHI AMERICA, LTD.,
a California corporation a New York corporation
By: By: /s/ TOMOHARU SHIMAYAMA
--------------------------- ---------------------------
Name: Name: TOMOHARU SHIMAYAMA
------------------------- -------------------------
Title: Title: President
------------------------ ------------------------
Dated: May 18, 1999
-------
By: /s/ RICHARD J. PALOMBA
---------------------------
Name: RICHARD J. PALOMBA
-------------------------
Title: VP Real Estate
------------------------
Dated: May 17, 1999
-------
43
[FLOOR PLAN]
44
[FLOOR PLAN]
Exhibit A
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EXHIBIT B
CONSTRUCTION OF THE PREMISES
ARTICLE 1
PLANS AND SPECIFICATIONS
SECTION 1.1 TENANT'S WORK. Any and all work required for Tenant's occupancy of
the Premises ("Tenant's Work"), including but not limited to construction and
restoration of private offices, the procurement and installation of furniture,
fixtures, equipment, artwork and interior signage shall be performed by Tenant
or its subcontractors strictly in accordance with the Approved Design Drawings
(defined above). Tenant's Work shall be at Tenant's sole cost and expense and
shall comply in all respects with all applicable laws, statutes, ordinances,
building codes and regulations.
SECTION 1.2 TENANT'S PLANS. Tenant shall prepare and submit to Landlord plans
and specifications prepared at Tenant's expense and stamped as required by an
architect, registered licensed professional and/or engineer licensed in
California. Such plans and specifications shall be submitted in two (2) phases
as provided below. The Premises shall be delivered to Tenant subject to all
existing field conditions, and Tenant shall, in connection with the preparation
of such plans and specifications, cause its architect to inspect the Premises
to determine its existing conditions. If Tenant elects to use an architect
other than the architect recommended by Landlord, then Tenant shall pay to
Landlord, as additional rent, an architectural services fee equal to ten
percent (10%) of the fees paid by Tenant to its architect in connection with
Tenant's Work. For purposes hereof, Landlord recommends that Tenant engage RMW
Architects for any architectural services performed on behalf of Tenant in
connection with Tenant's Work.
SECTION 1.3 PRELIMINARY DESIGN DRAWINGS. Upon execution of the Lease, Tenant
shall submit to Landlord one (1) reproducible and three (3) prints of
preliminary drawings showing the intended design character and finishing of the
Premises (the "Preliminary Design Drawings").
SECTION 1.4 CONSTRUCTION DRAWINGS AND SPECIFICATIONS. Within ten (10) days
after receipt of accepted Preliminary Design Drawings, Tenant shall submit to
Landlord for review and acceptance one (1) reproducible and four (4) prints of
the construction drawings and specifications for Tenant's Work (the
"Construction Drawings and Specifications"). On or before this day, Tenant
shall submit to appropriate governmental agencies applications for all permits
and approvals required in connection with Tenant's Work.
SECTION 1.5 PLAN ACCEPTANCE AND PROCEDURES.
a. The Preliminary Design Drawings and Construction Drawings and
Specifications shall be subject to Landlord's review and written
acceptance, which Landlord may give or withhold in its sole discretion.
Landlord shall review any such drawings and shall, by giving notice to
Tenant, either accept or reject the same within fifteen (15) days of
receipt from Tenant, specifying the reasons for any rejection. Within ten
(10) days after rejection by Landlord of any Preliminary Design Drawings
or Construction Drawings and Specifications, Tenant shall revise the same
in accordance with Landlord's objections thereto and resubmit the same to
Landlord for review and written acceptance, as provided above. The
Preliminary Design Drawings and the Construction Drawings and
Specifications as accepted by Landlord are referred to herein as the
"Approved Design Drawings."
b. In the event Tenant shall submit to Landlord for review and acceptance
any subsequent changes, modifications or alterations to the Approved
Design Drawings accepted a herein provided, Landlord shall have the right
to be reimbursed by Tenant for any additional charges, expenses or
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costs related to such changes, modifications or alterations. No such
changes, modifications or alterations to the Approved Design Drawings shall
be made without the written acceptance of Landlord, which Landlord may give
or withhold in its sole discretion.
c. Tenant hereby releases Landlord from any and all claims whatsoever for
damages for any scheduling disruption or for any other event which causes a
delay in the date on which the Premises are available for the commencement
of Tenant's Work therein or the date upon which such work is completed.
d. Tenant shall perform or cause Tenant's contractor to perform all Tenant's
Work in a manner so as to avoid any labor dispute which causes or is likely
to cause stoppage or impairment of work or delivery service or any other
services in the Building. In the event there shall be any such stoppage or
impairment as the result of any such labor dispute or potential labor
dispute, Tenant shall immediately undertake such actions as may be
necessary to eliminate such dispute or potential dispute, including, but
not limited to, (i) removing all disputants from the job site until such
time as the labor dispute no longer exists, (ii) seeking an injunction in
the event of a breach of contract between Tenant and Tenant's contractor,
and (iii) filing appropriate unfair labor practice charges in the event of
a union jurisdictional dispute.
ARTICLE 2
PROCEDURES FOR CONSTRUCTION
SECTION 2.1 COMMENCEMENT OF CONSTRUCTION. Tenant shall commence and diligently
prosecute construction of Tenant's Work in the Premises in sufficient time to
complete its work by the Lease Commencement Date. The failure of Tenant to
comply with the procedures and schedules set forth in this Exhibit B, to
prepare Approved Design Drawings, to commence or complete Tenant's Work prior to
the Lease Commencement Date, or to fulfill or cause to be fulfilled all of the
conditions to opening specified in Section 2.5 of this Exhibit B shall not delay
or postpone the Lease Commencement Date, which shall be as provided for in the
Lease.
SECTION 2.2 GENERAL REQUIREMENTS.
a. Tenant shall submit to Landlord, at least five (5) days prior to the
commencement of any of Tenant's Work, the following information:
1. The name and address of the general contractor Tenant intends to
engage in the construction of the Premises.
2. The date on which Tenant's Work will commence, together with the
estimated date of completion of Tenant's Work and fixturizing work.
3. Evidence of Tenant's compliance with the insurance requirements set
forth in Section 2.7 of this Exhibit B.
4. Itemized statement of estimated construction costs, including
architectural, engineering and contractor's fees.
5. Tenant's contractors' performance and/or labor and material bonds, if
so required by Landlord, and/or any other bond to be furnished by
Tenant as may be required by Landlord to insure the faithful
performance of Tenant's Work in accordance with the Approved Design
Drawings.
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b. All contractors engaged by Tenant shall be bondable, licensed contractors,
possessing good labor relations, capable of performing quality workmanship
approved in advance by Landlord. If Tenant elects to use a contractor
other than the contractor recommended by Landlord, then Tenant shall pay
to Landlord, as additional rent, a construction services fee equal to ten
percent (10%) of the hard costs of Tenant's Work. For purposes hereof,
Landlord recommends that Tenant engage Webcor Builders as its general
contractor for construction of Tenant's Work.
c. Construction shall comply in all respects with applicable laws, statutes,
ordinances, building codes and regulations. All required building and
other permits in connection with the construction and completion of the
Premises shall be obtained and paid for by Tenant.
d. Tenant shall cause its contractor to provide warranties of not less than
one (1) year against defects in workmanship, materials and equipment.
e. Tenant's Work shall be subject to the inspection and approval of Landlord
and its supervisory personnel.
f. Tenant's contractor shall present to Landlord and maintain at the job site
at all times one (1) full set of Construction Drawings and Specifications
which have been accepted by Landlord endorsed with the approval stamp and
permit number of the Building Department, local Fire Marshall and all
other governmental agencies having jurisdiction over the construction and
occupancy of the Premises. Landlord and its authorized representatives
shall have the right to inspect such Construction Drawings and
Specifications at any time.
g. Tenant or its contractors shall arrange for necessary utility, hoisting
and elevator service with Landlord and shall reimburse Landlord for any
special costs incurred by Landlord as a result of Tenant's or Tenant's
contractor's utility usage, hoisting arrangements or elevator usage.
Tenant and its contractors shall be permitted to use the Building freight
elevator (and are expressly prohibited from using the Building's passenger
elevators) in performing Tenant's Work provided that such usage does not
unreasonably burden Landlord or other tenants of the Building.
h. Tenant shall be responsible for and shall obtain and record a Notice of
Completion promptly following completion of Tenant's Work, and shall
promptly forward a copy of same to Landlord.
i. At Landlord's request, all work done by Tenant or its contractors shall be
done with union labor recognized by the local building trades council in
accordance with applicable union labor agreements.
SECTION 2.3. LANDLORD'S RIGHT TO PERFORM WORK. Landlord shall have the right to
perform, on behalf of and for the account of Tenant, subject to reimbursement
of the cost thereof by Tenant, all or such portion of Tenant's Work, which
Landlord determines in its sole discretion should be performed immediately and
on an emergency basis for the best interest of the Building, including without
limitation, work which pertains to structural components, mechanical, sprinkler
and general utility systems, roofing and removal of unduly accumulated
construction material and debris.
SECTION 2.4. TEMPORARY FACILITIES DURING CONSTRUCTION. Tenant shall provide and
pay for the removal of debris, as necessary and required in connection with the
construction of the Premises. Storage of Tenant's contractors' construction
materials, tools, equipment and debris shall be confined to the Premises and any
other areas which may be designated for such purposes by Landlord. Landlord
shall not be responsible for any loss or damage to Tenant's and/or Tenant's
contractors' equipment.
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SECTION 2.5 CONDITION OF PREMISES.
a. Tenant shall not open for business within the Premises until all of the
following have been completed:
i. The satisfactory completion by Tenant of all of Tenant's Work to be
performed by Tenant pursuant to this Exhibit B, in accordance with the
Approved Design Drawings.
ii. The issuance of a Certificate of Occupancy by the Building Department
of the City where the Building is located.
iii. The request by Tenant's contractor, when the Premises are
substantially complete, of a punch list prepared by Landlord
enumerating deficiencies in Tenant's Work.
b. Tenant shall cause the following to be performed or completed promptly
after opening for business within the Premises, but in no event later than
the deadlines set forth below:
i. Submission to Landlord of Unconditional Waivers and Releases of Lien
Upon Final Payment, within thirty (30) days of completion of
construction of the Premises. Such waivers and releases shall be
submitted from all persons performing labor and/or supplying materials
in connection with Tenant's Work showing that all of said persons have
been compensated in full.
ii. Submission by Tenant to Landlord of a detailed breakdown of Tenant's
final and total construction hard and soft costs within ten (10) days
of completion of construction of the Premises.
iii. Full payment by Tenant within ten (10) days of billing of all sums due
Landlord pursuant to this Exhibit B.
iv. Correction of any deficiencies set forth in Landlord's punch list
within ten (10) days of completion of construction of the Premises.
SECTION 2.6 PAYMENTS BY TENANT. Tenant shall pay Landlord all sums due Landlord
for items of work performed or expenses incurred by Landlord on behalf of
Tenant within ten (10) days after Landlord sends Tenant a statement therefor,
including without limitation any extra expense incurred by Landlord by reason
of faulty work done by Tenant or its contractors, by reason of damage to
existing work caused by Tenant or its contractors, or by reason of inadequate
cleanup by Tenant or its contractors.
SECTION 2.7 INSURANCE.
a. Tenant shall, at its sole cost and expense, secure and maintain, or cause
its contractors to secure and maintain during the period of construction
and fixturizing work within the Premises, in addition to the insurance
required pursuant to Section 14 of this Lease, all of the insurance
policies required and in the amounts of coverage set forth below. Tenant
shall not permit its contractors to commence any work until all required
insurance has been obtained and certificates of such insurance have been
delivered to Landlord.
b. Tenant's General Contractor's and SubContractors' Required Minimum Coverage
and Limits of Liability.
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1. Worker's Compensation, as required by State Law, and including
Employer's Liability Insurance with a limit of not less than
$500,000.00, and any insurance required by the Employee Benefit Acts
or other statutes applicable in the jurisdiction where the work is to
be performed as will protect the contractor and sub-contractors from
any and all liability under the aforementioned acts.
2. Comprehensive General Liability or Commercial General Liability
Insurance (including Contractor's Protective Liability) in an amount
not less than $2,000,000.00 for any one occurrence whether involving
bodily injury liability (or death resulting therefrom) or property
damage liability or a combination thereof with an aggregate limit of
$2,000,000.00. Such insurance shall provide for explosion, collapse
and underground coverage. Such insurance shall insure Landlord,
Tenant and Tenant's general contractor against any and all claims for
bodily injury, including death resulting therefrom and damage to or
destruction of property of any kind whatsoever and to whomsoever
belonging and arising from operations under the contract or contracts
for Tenant's Work, whether such operations are performed by Tenant's
general contractor, subcontractors, or any of their subcontractors,
or by anyone directly or indirectly employed by any of them.
3. Comprehensive Automobile Liability Insurance, including the
ownership, maintenance, and operation of any automotive equipment,
owned, hired and non-owned, in an amount not less than $2,000,000.00
for any one occurrence whether involving bodily injury liability (or
death resulting therefrom) or property damage liability or a
combination thereof. Such insurance shall insure Landlord, Tenant and
Tenant's General Contractor and/or Subcontractors against any and all
claims for bodily injury, including death resulting therefrom and
damage to the property of others caused by accident and arising from
operations under the contract or contracts for Tenant's Work, whether
such operations are performed by the General Contractor,
Subcontractors, or by anyone directly or indirectly employed by any
of them.
c. Tenant's Protective Liability Insurance:
Tenant shall provide Owner's Protective Liability Insurance to insure
Landlord and Tenant against any and all liability to third parties for
damage because of bodily injury (or death resulting therefrom) and
property damage of others or a combination thereof which may arise from
work in connection with the Premises, and any other liability for damages
which Tenant's general contractor and/or subcontractors are required to
insure against under any provisions herein. Said insurance shall be
provided in an amount not less than $2,000,000.00 for any one occurrence
whether involving bodily injury liability (or death resulting therefrom)
or property damage liability or a combination thereof.
d. Tenant's Builder's Risk Insurance - Completed Value Builder's Risk Material
Damage Insurance Coverage:
Tenant shall provide an "All Physical Loss" Builder's Risk insurance
policy on the work to be performed for Tenant in the Premises as it
relates to the building within which the Premises are located. The policy
shall include as insureds Tenant, its contractor and sub-contractors, and
Landlord, as their interests may appear. The amount of the insurance to be
provided shall be one hundred percent (100%) of the replacement cost.
e. All insurance policies required under this Exhibit B other than Worker's
Compensation Insurance shall include Landlord as an additional insured.
The Worker's Compensation Insurance required under this Exhibit B shall
contain an endorsement waiving all rights of subrogation against such
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persons and entities. Tenant shall deliver to Landlord policies of
insurance or certificates thereof, and the policies of insurance required
pursuant to this Exhibit B shall in all other respects be kept and
maintained, in accordance with the provisions of Section 14 of this Lease
relating to insurance maintained by Tenant thereunder. Tenant and Landlord
shall each have, in respect of the insurance carried pursuant to this
Exhibit B, the rights, remedies and obligations set forth in Section 14 of
this Lease.
SECTION 2.8 SUBMISSIONS FOLLOWING COMPLETION. Tenant shall submit the following
to Landlord within thirty (30) days following the completion of Tenant's Work:
a. A complete set of record drawing sepia prints initialed as such by
Tenant's architect and/or general contractor of the accepted Construction
Drawings and Specifications, together with drawings showing any changes
made during the course of construction, which drawings and specifications
may be relied on by Landlord as delineating Tenant's Work as actually
constructed.
b. Completed operating, maintenance, and spare parts manuals for all
mechanical, electrical and similar equipment installed as part of Tenant's
Work.
SECTION 2.9 REMOVAL OF TENANT'S WORK. All Tenant's Work shall immediately become
the property of Landlord and at the end of the term of the Lease, shall remain
on the Premises without compensation to Tenant unless Landlord elects by notice
to Tenant to have Tenant remove any Tenant's Work, in which event Tenant shall
be responsible for the cost of restoring the Premises to their condition prior
to the installment of such Alterations.
ARTICLE 3
LANDLORD'S WORK
SECTION 3.1 ENTRANCE DOORS. At Landlord's sole cost and expense, Landlord will
construct double entry glass doors connecting the Premises with the elevator
lobby. Until such work is completed by Landlord, the Premises shall be secured
by the existing smoke doors at the entrance to the Premises.
SECTION 3.2 OTHER WORK. Landlord will also, at Landlord's sole cost and expense,
do the following work: professionally clean the carpets; patch and paint walls;
install new building standard carpet in the area labeled as the "VCT" on Exhibit
A; and remove one wall adjacent to such area as shown on Exhibit A.
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EXHIBIT C
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF THE LEASE
The following Rules and Regulations (the "Rules") shall be in effect at the
Building. Landlord reserves the right to adopt reasonable modifications and
additions hereto. In the case of any conflict between these Rules and the Lease,
the Lease shall be controlling. Landlord shall have the right to waive one or
more Rules for the benefit of a particular tenant in Landlord's reasonable
discretion.
1. Except with the prior written consent of Landlord, no tenant shall conduct
any retail sales in or from the Premises, or any business other than that
specifically provided for in the Lease. There shall be no solicitation by
Tenant of other tenants or occupants of the Building.
2. Landlord reserves the right to prohibit personal goods and services
vendors from access to the Building except upon such reasonable terms and
conditions, including but not limited to a provision for insurance
coverage, as are related to the safety, care and cleanliness of the
Building, the preservation of good order thereon, and the relief of any
financial or other burden on Landlord occasioned by the presence of such
vendors or the sale by them of personal goods or services to a tenant or
its employees. If reasonably necessary for the accomplishment of these
purposes, Landlord may exclude a particular vendor entirely or limit the
number of vendors who may be present at any one time in the Building. The
term "personal goods or services vendors" means persons who periodically
enter the Building of which the Premises are a part for the purpose of
selling goods or services to a tenant, other than goods or services which
are used by a tenant only for the purpose of conducting its business on
the Premises. "Personal goods or services" include, but are not limited
to, drinking water and other beverages, food, barbering services, and
shoeshinning services.
3. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by any tenant or used by it for any purpose other than for
ingress to and egress from their respective Premises. The halls, passages,
entrances, elevators, stairways, balconies, janitorial closets, and roof
are not for the use of the general public, and Landlord shall in all cases
retain the right to control and prevent access thereto of all persons whose
presence in the judgment of Landlord shall be prejudicial to the safety,
character, reputation and interests of the Building and its tenants,
provided that nothing herein contained shall be construed to prevent such
access to persons with whom Tenant normally deals only for the purpose of
conducting its business on the Premises (such as clients, customers, office
suppliers and equipment vendors, and the like) unless such persons are
engaged in illegal activities. No tenant or agent or employee of any tenant
shall go upon the roof of the Building without the written consent of
Landlord.
4. The sashes, sash doors, windows, glass lights, and any lights or skylights
that reflect or admit light into the halls or other places of the Building
shall not be covered or obstructed. The toilet rooms, water and water and
wash closets and other water apparatus shall not be used for any purpose
other than that for which they were constructed, and no foreign substance
of any kind whatsoever shall be known therein, and the expense of any
breakage, stoppage or damage, resulting from the violation of this rule
shall be borne by the tenant who, or whose clerks, agents, employees, or
visitors, shall have caused it.
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5. No sign, advertisement or notice visible from the exterior of the Premises
or Building shall be inscribed, painted or affixed by Tenant on any part
of the Building or the Premises without the prior written consent of
Landlord. If Landlord shall have given such consent at any time, whether
before or after the execution of this Lease, such consent shall in no way
operate as a waiver or release of any of the provisions hereof or of this
Lease, and shall be deemed to relate only to the particular sign,
advertisement or notice so consented to by Landlord and shall not be
construed as dispensing with the necessity of obtaining the specific
written consent of Landlord with respect to each and every such sign,
advertisement or notice other than the particular sign, advertisement or
notice, as the case may be, so construed to by Landlord.
6. In order to maintain the outward professional appearance of the Building,
all window coverings to be installed at the Premises shall be subject to
Landlord's prior reasonable approval. If Landlord, by a notice in writing
to Tenant, shall object to any curtain, blind, shade or screen attached
to, or hung in, or used in connection with, any window or door of the
Premises, such use of such curtain, blind, shade or screen shall be
forthwith discontinued by Tenant. No awnings shall be permitted on any
part of the Premises.
7. Tenant shall not do or permit anything to be done in the Premises, or
bring or keep anything therein, which shall in any way increase the rate
of fire insurance on the Building, or on the property kept therein, or
obstruct or interfere with the rights of other tenants, or in any way
injure or annoy them; or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the
Building, or any part thereof, or with any rules and ordinances
established by the Board of Health or other governmental authority. Tenant
shall not bring into, or permit or suffer in, the Building or the Project,
any weapons or firearms of any kind.
8. No safes or other objects larger or heavier than the freight elevators of
the Building are limited to carry shall be brought into or installed in
the Premises. Landlord shall have the power to prescribe the weight,
method of installation and position of such safes or other objects. The
moving of safes shall occur only between such hours as may be designated
by, and only upon previous notice to, the manager of the Building, and the
persons employed to move safes in or out of the Building must be
acceptable to Landlord. No freight, furniture or bulky matter of any
description shall be received into the Building or carried into the
elevators except during hours and in a manner approved by Landlord.
9. Landlord shall clean the Premises as provided in the Lease, and except
with the written consent of Landlord, no person or persons other than
those approved by Landlord will be permitted to enter the Building for
such purpose, but Tenant shall not cause unnecessary labor by reason of
Tenant's carelessness and indifference in the preservation of good order
and cleanliness.
10. No tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substance into any of the corridors or halls or
elevators, or out of the doors or windows or stairways of the Building,
and Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in an manner offensive or objectionable to Landlord
or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having
business therein, nor shall any animals, firearms or birds be kept in or
about the Building. The Building is a non-smoking building. Smoking or
carrying lighted cigars or cigarettes in the Building and the elevators of
the Building is prohibited. Smoking is permitted within the Project only
in areas designated by Landlord.
11. Except for the use of microwave ovens and coffee makers for Tenant's
personal use, no cooking shall be done or permitted by Tenant on the
Premises, nor shall the Building be used for lodging.
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12. Tenant shall not use or keep in the Building any kerosene, gasoline, or
inflammable fluid or any other illuminating material, or use any method of
heating other than that supplied by Landlord.
13. If Tenant desires telephone or telegraph connections, Landlord will direct
electricians as to where and how the wires are to be introduced. No boring
or cutting for wires or other otherwise shall be made without directions
from Landlord.
14. Each tenant, upon the termination of its tenancy, shall deliver to Landlord
all the keys of offices, rooms and toilet rooms, and security access
card/keys which shall have been furnished such tenant or which such tenant
shall have had made, and in the event of loss of any keys so furnished,
shall pay Landlord therefor.
15. No Tenant shall lay linoleum or other similar floor covering so that the
same shall be affixed to the floor of the Premises in any manner except by
a paste, or other material which may easily be removed with water, the use
of cement or other similar adhesive materials being expressly prohibited.
The method of affixing any such linoleum or other similar floor covering to
the floor, as well as the method of affixing carpets or rugs to the
Premises shall be subject to reasonable approval by Landlord. The expense
of repairing any damage resulting from a violation of this rule shall be
borne by Tenant.
16. No furniture, packages or merchandise will be received in the Building or
carried up or down in the elevators, except between such Building hours and
in such elevators as shall be designated by Landlord.
17. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m. access to the Building or to the halls,
corridors, elevators or stairways in the Building, or to the Premises, may
be refused unless the person seeking access is known to the building
watchman, if any, in charge and has a pass or is properly identified.
Landlord shall in no case be liable for damages for the admission to or
exclusion from the Building of any person whom Landlord has the right to
exclude under Rule 3 above. In case of invasion, mob, riot, public
excitement, or other commotion, Landlord reserves the right but shall not
be obligated to prevent access to the Building during the continuance of
the same by closing the doors or otherwise, for the safety of Landlord and
the tenants and protection of property in the Building.
18. Tenant shall see that the windows and doors of the Premises are closed and
securely locked before leaving the Building and Tenant shall exercise
extraordinary care and caution that all water faucets or water apparatus
are entirely shut off before Tenant or Tenant's employees leave the
Building, and that all electricity, gas or air shall likewise be carefully
shut off, so as to prevent waste or damage, and for any default or
carelessness Tenant shall make good all injuries sustained by other tenants
or occupants of the Building or Landlord.
19. Tenant shall not alter any lock or install a new or additional lock or any
bolt on any door of the Premises without prior written consent of Landlord.
If Landlord shall give its consent, Tenant shall in each case furnish
Landlord with a key for any such lock. Landlord shall have the right to
impose a charge for each key issued and for rekeying any lock or bolt on
any door of the Premises.
20. Tenant shall not install equipment, such as but not limited to electronic
tabulating or computer equipment, requiring electrical or air conditioning
service in excess of those to be provided by Landlord under the Lease.
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21. No bicycle, or shopping cart, or other vehicle or any animal (other than
dogs assisting visually-impaired individuals) shall be brought into the
Premises or the halls, corridors, elevators or any part of the Building by
Tenant.
22. Landlord shall have the right to prohibit the use of the name of the
Building or Project or any other publicity by Tenant which in Landlord's
opinion tends to impair the reputation of the Building or Project or their
desirability for other tenants, and upon written notice from Landlord,
Tenant will refrain from or discontinue such publicity.
23. Tenant shall not install any radio or television antenna, satellite dish,
loud speaker or any other device on the exterior walls or the roof of the
Building, without the prior written consent of Landlord. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building, the Project or elsewhere.
24. Alcohol may not be consumed in the Premises, the Building or the Project at
any time.
25. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
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EXHIBIT D
AMENDMENT OF LEASE COMMENCEMENT DATE
In connection with that certain Office Lease dated _________ between HITACHI
AMERICA, LTD., as Landlord, and ________________, as Tenant concerning the
Premises located at ___________________, Landlord and Tenant hereby agree as
follows:
1. The Lease Commencement Date stated in Section 1(G) of the Office Lease is
amended to be ________________, 1999, and the Expiration Date stated in
Section 1(H) is amended to be ___________, 200_.
2. Landlord has satisfactorily complied with all requirements and conditions
precedent to the commencement of the Term as specified in the Office Lease.
3. The Premises covered by the Office Lease and the tenant improvements
therein have been fully completed as required, are in good condition, are
ready for occupancy and have been accepted by Tenant.
4. Tenant has or shall commence paying Monthly Rental pursuant to the Office
Lease on _____________, 1999.
Dated effective this __day of __________, 1999.
"TENANT" "LANDLORD"
HITACHI AMERICA, LTD.,
- -------------------------, a New York corporation
a
-------------------------
By: By:
----------------------- -------------------------
Name: Name:
--------------------- -----------------------
Title: Title:
-------------------- ----------------------
Dated: Dated:
-------------------- ----------------------
By:
-----------------------
Name:
---------------------
Title:
--------------------
Dated:
--------------------
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FIRST AMENDMENT TO OFFICE LEASE
THE FIRST AMENDMENT TO OFFICE LEASE (this "Amendment"), made as of the 31st day
of August, 1999, by and between HITACHI AMERICA, LTD., a New York corporation
("Landlord") and COLO.COM, INC., 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, 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, Landlord and Tenant desire to expand the size of the Premises sooner
than contemplated by the existing 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. Expansion of Premises. Effective as of September 1, 1999, the Premises
shall be expanded to include the entire sixth (6th) floor of the Building.
All references in the Lease to "Premises" shall be deemed to be references
to the entire sixth (6th) floor. Landlord and Tenant hereby agree that, as
of September 1, 1999, the balance of the sixth (6th) floor not included in
the original premises shall be deemed a part of the Premises for all
purposes under the Lease, including without limitation Tenant's acceptance
of such additional space in its "AS IS" condition as of September 1, 1999.
To accomplish this agreement, effective as of September 1, 1999. To
accomplish this agreement, effective as of September 1, 1999, Sections 1(E)
and 1(I) of the Lease shall be deemed deleted in their entirety and
replaced by the following:
E. "Premises" means suite(s) 601 covering the entire sixth (6th) floor of
the Building and consisting of approximately eighteen thousand two
hundred sixteen (18,216) square feet of Rentable Area, as more
particularly shown on page 2 of Exhibit A attached hereto and
incorporated herein by this reference.
I. "Monthly Rental" means the following:
Period Monthly Rental
------ --------------
Lease Commencement Date - 08/31/99 $18,720.00
09/01/1999 - 06/30/2000 $27,577,96
07/01/2000 - 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
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3. New Space Plan for Premises. Page 2 of Exhibit A attached to the Lease is
hereby deleted in its entirety and replaced by Schedule 1 attached to
this Amendment.
4. Lease in Effect. This Amendment (including the expansion of the Premises)
shall be effective on September 1, 1999. Except as amended by this
Amendment, the Agreement 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, INC.
By: /s/ TOMOHARU SHIMAYAMA By: /s/ RICHARD J. PALOMBA
Name: TOMOHARU SHIMAYAMA Name: RICHARD J. PALOMBA
Its: President Its: VP Real Estate
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SCHEDULE 1
[FLOOR PLAN]
EXHIBIT A
Page 2 of 2