EXHIBIT 10.6
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is dated as of the first day of April 1999
("Commencement Date") by and between Syntex (U.S.A.) Inc., a Delaware
corporation ("Landlord") and Noosh, Inc., a California corporation ("Tenant").
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE
AS FOLLOWS:
1. Premises
1.1. Description. Landlord leases to Tenant and Tenant leases from
Landlord, upon the terms and conditions herein set forth, those certain premises
("Premises") located at 3401 Hillview Avenue, Building B, Suite 100 & 101, Palo
Alto, County of Santa Clara, California, as illustrated in Exhibit A, attached
hereto, and approximately twenty three thousand and thirty (23,030) rentable
square feet comprising approximately 16.78% of a two story multi-tenant building
("Building"), as illustrated in Exhibit B, and subject to the terms and
conditions of the Ground Lease ("Master Lease"), Exhibit C, for the Site
("Site"), comprising approximately 105.513 acres, by and between the Board of
Trustees of the Leland Stanford Junior University ("Lessor") and Syntex (U.S.A.)
Inc. ("Lessee"), and comprised of two (2) lease agreements for parceled
properties illustrated in Exhibit D, and described as lease No. 1 and lease No.
2 as follows: Lease No. 1, dated January 1, 1963 for a 24.84 acre land parcel
for a fifty one (51) year term, and amended June 1, 1964, to add two (2) more
land parcels of 5.123 acres and 2.090 acres for the same term, and further
amended on April 1, 1965 to add an additional 5.433 acre parcel, and amended on
July 1, 1968 to provide a five and one half (5.5) year option for Lessee to
extend the term until June 30, 2019; and Lease No. 2, dated July 1, 1968, for
two (2) land parcels comprising 22.595 acres and 9.535 acres each, for an
initial term of fifty one (51) years and to expire June 30, 2019, and a third
land parcel of 35.909 acres, for a term of six (6) years and extended by
exercise of option for an additional period coterminous with the first two (2)
parcels.
1.2. Common Areas. During the Term hereof (which term is defined in
Section 2.1) Tenant shall have non-exclusive use of shared parking as shown on
the attached site-plan (Exhibit E) at a ratio of approximately three and three
tenths (3.3) spaces per one thousand (1,000) rentable square feet of space
leased at no additional cost or expense to Tenant. Designated outdoor areas
immediately south of the building may be used for recreational purposes in
common with Landlord and/or Landlord's Affiliates or tenants, or, if scheduled
in advance and under reasonable limitations as may be set forth by Landlord, to
support outdoor organized assembly events. No other external site common
building areas are included in the rentable square footage. An "Affiliate"
means any business entity that is controlled by, controlling, or under common
control with the relevant party (control shall mean the direct or indirect
beneficial ownership of more than fifty percent (50%) of the voting or income
interest in such business entity, or such other relationship that in fact
constitutes such actual control).
1.
1.3. Telecommunications Room. Tenant reserves the right to have controlled
access to the central telecommunications room of the building located within the
adjoining suite on the ground level, for purposes of routing Tenant devices and
cable necessary as may be required to serve the Premises.
1.4. Common Lobby. Tenant shall share a designated common stair lobby at
the extreme north end of the Building and a rear exit stair vestibule, as
illustrated in Exhibit B with a second floor suite of the north wing. Tenant
shall have the right to, at Tenant's sole expense, install a reception desk and
counter in the designated common stair lobby. Tenant shall be required to
remove the reception desk at the termination of this Lease.
1.5. Measurement. The Premises are measured by Landlord's CADD file.
2. Term
2.1. Term. The term of this Lease ("Term") shall commence on the
Commencement Date, so long as the Lease is fully executed and delivered to the
Parties and shall end at the close of business on December 31, 2000, unless
sooner terminated pursuant to any provision hereof. The Commencement Date shall
be the later to occur of (I) April 1, 1999 or (ii) Landlord's delivery of
possession of the Premises. If Landlord has not delivered the Premises to Tenant
on or before May 1, 1999, Tenant shall have the right thereafter to cancel this
Lease, and upon such cancellation, Landlord shall return all sums theretofore
deposited by Tenant with landlord, and neither party shall have any further
liability to the other.
2.2. Prior Access. If this Lease has been duly executed by Tenant and
Landlord, Tenant shall have access during the month preceding the Commencement
Date to the Premises, for purposes of data and equipment installation. Tenant
shall be liable for any damage to the Premises caused by Tenant, its agents,
contractors and/or employees during these periods of construction and
installation of data and equipment.
3. Rent
3.1. Basic Rent. Tenant shall pay to Landlord Basic Rent for the Premises
on a full service basis at the following rates:
Months Basic Rent /Month
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1-3 $45,000
4-21 $69,090
The first month's rent shall be due upon execution of this lease.
3.2. Tenant Operating Expense. Tenant shall manage and pay directly for
all third party services as Tenant Operating Expense with respect to service,
repair, or building system replacement as set forth in Paragraph 7.1.3. Tenant
shall immediately pay to Landlord all Landlord repairs of Tenant damage,
excepting normal wear and tear, casualty, and condemnation to building and
utility systems.
2.
3.2.1 Payment of Utility Rate Increase and Tenant Excess Utility
Usage. Tenant shall pay to Landlord all Tenant charges for utility rate
increases as set forth in Paragraph 7.2.1, and Tenant's excess utility
consumption as set forth in Paragraph 7.2.2. Tenant shall pay such charges as
additional rent ("Additional Rent"), on the same terms and conditions as set
forth in Paragraph 3.3. Landlord shall assess to Tenant any such excess utility
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charges at least twice during the Term, a) within one month following the end of
the first calendar year, and b) upon final Lease Expiration, unless the Tenant's
cumulative utility usage exceeds the Average Building Energy Allowance as set
forth in Paragraph 7.2.1, in which case, Landlord may assess to Tenant those
charges during the interim period, which will become due and payable by Tenant
at that time.
3.3. Payment of Rent. Rent shall be paid in lawful money of the United
States of America without deduction or offset, prior notice, abatement, or
demand, as set forth in Section 12.1, except as otherwise provided herein.
Tenant's obligation to pay Basic Rent shall commence on the Commencement Date
and Basic Rent shall be paid in advance of the Commencement Date and on the
first (1st) day of each succeeding calendar month until the end of the Term.
Basic Rent for any period during the Term which is for less than one (1) full
month shall be a pro-rata portion of the monthly Basic Rent payment. Tenant
acknowledges that late payment by Tenant to Landlord of Basic Rent or any other
payment due Landlord will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include without limitation processing and
accounting charges and late charges (if any) that may be imposed on Landlord by
the terms of any encumbrance and note secured by any encumbrance covering the
Premises. Therefore, if any installment of Basic Rent or other payment due from
Tenant is not received by Landlord within six (6) business days following the
due date, Tenant shall pay to Landlord, in addition to the Rent due and in
addition to interest thereon as provided in Section 12.1, an additional sum of
five percent (5%) of the overdue amount as a late charge. The parties agree
that this late charge and interest represent a fair and reasonable estimate of
the costs that Landlord will incur by reason of late payment by Tenant.
Acceptance of any late charge shall not constitute a waiver of Tenant's default
with respect to the overdue amount, nor prevent Landlord from exercising any of
the other rights and remedies available to Landlord.
3.4. Security Deposit. Tenant shall pay at signing of Lease a refundable
security deposit of one month's Basic Rent ($69,090) in the form of cash. No
interest shall accrue on the Deposit. Should Tenant comply with all the terms,
covenants and conditions of this Lease and at the end of the Term leave the
Premises in the condition required by this Lease, then the Deposit or any
balance thereof, less the sums owing to Landlord, shall be returned to Tenant
within thirty (30) days after the termination of this Lease and vacancy of the
Premises by Tenant. Tenant shall not have the right to apply this Deposit or
any part thereof toward the payment of any Rent due hereunder. Landlord may at
its option maintain the Deposit separate and apart from, or commingle with,
Landlord's general funds.
3.
3.5. Monetary Obligations as Rent. All monetary amounts payable by Tenant
to Landlord under this Lease including but not limited to Basic Rent, Security
Deposit and amounts paid by Landlord to cure Tenant's default(s), shall be
deemed "Rent" hereunder.
3.6. Guarantee. Mr. Ofer Ben-Shachar hereby personally guarantees Tenant's
rent obligations under the Lease for up to six-hundred ninety thousand and nine
hundred dollars ($690,900). Such guaranty shall be released upon acceptable
proof to Landlord that Tenant has successfully completed a third round of
financing not less than ten times such previous personal guarantee.
4. Use Of The Premises
4.1. Use Restrictions. The Premises shall be used exclusively for the
purpose of R&D software development, sales, computer labs, storage and
distribution, offices, marketing and other related legal uses in conformance
with allowable uses set forth in the Master Lease and zoning regulations and
ancillary uses including office space and supporting amenities. No
manufacturing or commercial assembly shall be performed on the Premises. Tenant
shall not use, or permit the Premises, or any part thereof, to be used, for any
purpose other than the purpose for which the Premises are hereby leased, and no
use shall be made or permitted to be made of the Premises, nor acts done, which
will increase the existing rate of insurance on the Premises or cause a
cancellation of any insurance policy covering the Premises, nor shall Tenant
sell or permit to be kept, used or sold, in or about the Premises, any article
which may be prohibited by the standard form of fire insurance policies. Tenant
shall be liable to Landlord for any increases in the existing rate of insurance,
or any other losses or damages incurred by the Landlord, as a result of Tenant's
failure to comply with the requirements of the preceding sentence. Tenant shall
not commit, or suffer to be committed, any waste upon the Premises, or any
public or private nuisance, or other act or thing which may injure, annoy, or
disturb the quiet enjoyment of any occupant of neighboring properties. Tenant
shall not place or knowingly cause to be placed: (i) any harmful materials in
the drainage system of the Premises, or (ii) any loads upon the floors, walls,
ceilings or roof which might endanger the structure nor overload any electrical,
mechanical, or other systems in excess of the design capacity. No waste
materials or refuse shall be dumped upon or permitted to remain in or on any
part of the Premises (inside or outside) except in regularly used trash
containers in conformity with applicable regulations. No materials or articles
of any nature shall be stored in or on or permitted to remain in or on or
outside any portion of the Premises. No loudspeaker or other device, system, or
apparatus which can be heard outside the Premises shall be used in or at the
Premises without the prior written consent of Landlord. Tenant covenants and
agrees that no diminution of light, air or view by any structure which may be
hereafter erected, whether or not by Landlord, or use of the Premises by any
other occupants or use of neighboring building or areas by others shall in any
way affect this Lease, entitle Tenant to any reduction of Rent hereunder, or
result in any liability of Landlord to Tenant.
4.2. Hazardous Materials. "Hazardous Materials" means any hazardous or
toxic
4.
substance, material or waste, the storage, use, or disposition of which is or
becomes regulated by any local governmental authority, the State of California
or the United States government. "Hazardous Materials" includes, without
limitation, any material or hazardous waste under Section 255115, 25117 or
25122.7, or listed pursuant to Section 25140 of the California Health and Safety
code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"hazardous substance" under Section 25136 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Preseley-Tanner Hazardous Substance
Account Act, (iii) defined as a "hazardous material," "hazardous substance," or
"hazardous waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) defined as "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) listed under
Article 9 or defined as hazardous or extremely hazardous pursuant to Article 11
of Title 22 of the California Administrative Code, Division 4, Chapter 20,
(viii) designated as a "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1317), (ix) defined as
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (x)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9601 et
seq. (42 U.S.C. Section 9601) or (xi) listed or defined as "hazardous waste",
"hazardous substance", or other similar designation by any regulatory scheme or
the State of California or the United States Government. Tenant shall not cause
or permit any Hazardous Material to be brought upon, kept, stored, generated or
recycled in or about the Premises by Tenant, its agents, employees, contractors,
or invitees, excepting Tenant's right to store and use household cleaning
products in household quantities, provided such products are used, stored and
disposed of in accordance with all applicable codes. Subject to Tenant escort
and during normal business hours following 24 hour notice (except in case of
emergency), Tenant shall grant unrestricted access to Landlord's safety
inspection representative within the Premises to verify Tenant compliance.
4.3. Release of Hazardous Materials. If Tenant or Landlord knows or has
reason to believe that any release of Hazardous Material has resulted or will
result in the contamination of the Premises or the underlying or surrounding
property, whether by Tenant, Landlord or a third party, either party shall, as
soon as practicable, give written notice of that condition to the other party.
In such event, Landlord may cause tests to be performed, including wells to be
installed thereon, and may cause the surface water, ground water or soil to be
tested to detect the presence of Hazardous Materials by the use of such tests as
are then customarily used for such purposes. If Tenant so requests, Landlord
shall supply Tenant with copies of such test results, free of charge. The cost
of such tests or the installation, maintenance, repair and replacement of such
wells shall, in the first instance, be at the cost of Landlord. To the extent
the cause of the contamination can reasonably be attributed to both parties, the
costs referred to in this Article 4 shall be reallocated according to the
relative contribution to such contamination by each party. If it is determined
that Tenant caused such contamination, Tenant shall reimburse Landlord for the
costs paid by Landlord.
5.
4.4. Indemnity by Tenant. Tenant shall defend, indemnify and hold harmless
Landlord and its Affiliates and their respective directors, officers,
shareholders, employees, successors, assigns and agents from and against any and
all causes of action, claims, judgment, damages, penalties, fines cost
(including those associated with any investigation, removal, clean-up,
government oversight and restoration work and materials required to return the
Premises and/or the underlying or surrounding property to its condition existing
prior to any contamination of the premises and/or the underlying or surrounding
property), liabilities and losses (including, without limitation, attorney's
fees, consultants fees, and expert fees arising out of, resulting from, or in
connection with the generation, use, storage, management, recycling, or disposal
of Hazardous Materials in or about the Premises by Tenant, its agents,
contractors, employees or invitees during the Term. If Tenant has a duty to
defend Landlord under this Section, Landlord may, at its election, participate
with Tenant in discussions and negotiations with other parties concerning the
matters affecting the Premises that activated such duty.
4.5. Indemnity by Landlord. Reciprocally, Landlord shall defend,
indemnify, hold harmless Tenant and its officers, directors, shareholders,
employees, successors, assigns and agents from and against any and all causes of
action, claims, judgment, damages, penalties, fines, costs (including those
associated with any investigation, removal, clean-up, government oversight and
restoration work and materials required to return the Premises and/or the
underlying or surrounding property to its condition existing prior to any
contamination of the premises and/or the underlying or surrounding property),
liability and losses (including, without limitation, attorney's fees, consultant
fees, and expert fees arising out of, resulting from, or in connection with (i)
any existing contamination in, on or under the Premises, Building or Site, or
(ii) the generation, use, storage, management, recycling, or disposal of
Hazardous Materials in or about the Premises, Building or Site by the Landlord,
its agents, contractors, employees or invitees prior to or during the Term. If
Landlord has a duty to defend Tenant under this Section, Tenant may, at its
election, participate with Landlord in discussions and negotiations with other
parties concerning the matters affecting the Premises that activated such duty.
4.6. Survival of Rights and Obligations. The termination of this Lease
shall not terminate the parties' rights and obligations under this Article 4 and
the parties expressly agree that the provisions contained herein shall survive
the termination of Tenant's leasehold estate. The provisions of this Article 4
are for the benefit of Landlord and Tenant and shall not be construed to be for
the benefit of any other person or occupant of the Premises.
4.7. Reciprocal Representation and Warranty Regarding Knowledge of Soil or
Groundwater Contamination. The parties represent and warrant to each other that
they have no knowledge of soil or groundwater contamination on or under Premises
at the time of execution hereof.
5. Taxes And Assessments
6.
5.1. Tenant Responsibility. Tenant shall pay before delinquency any and all
taxes, assessments, license fees and public charges levied, assessed or imposed
upon or against Tenant's fixtures, equipment, furnishings, furniture, appliances
and personal property installed or located on or within the Premises. Tenant
shall cause said fixtures, equipment, furnishings, furniture, appliances and
personal property to be assessed and billed separately from the real property of
Landlord. If any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay to Landlord the taxes reasonably
attributable to Tenant within twenty (20) days after receipt of a written
statement from Landlord setting forth the taxes applicable to Tenant's property.
5.2. Real Property Taxes. All Real Property Taxes shall be paid by
Landlord. However, the portion of the Real Property Taxes that are assessed on
the parcels where improvements made by Tenant are located (which parcel numbers
are set out in Exhibit D) at the 3401 Hillview Avenue address, shall be billed
by Landlord to Tenant, and Tenant shall pay such portion of the Real Property
Taxes to Landlord as are reasonably and fairly allocable to Tenant's
improvements no later than thirty (30) days after receipt from Landlord of the
Real Property Tax bill from the taxing governmental authority. The term "Real
Property Taxes," as used herein, shall mean and include: (i) all taxes,
assessments, levies and other charges of any kind or nature whatsoever, general
and special, foreseen and unforeseen (including without limitation, all
installments of principal and interest required to pay any general or special
assessments for public improvements) now or hereafter imposed by any
governmental or quasi-governmental authority or special district having the
direct or indirect power to tax or levy assessments, which are levied or
assessed against, or with respect to the value, occupancy, or use of all or any
portion of the Premises (as now constructed or as may at any time hereafter be
constructed, altered, or otherwise changed by the Tenant) or Landlord's interest
therein; any improvements located within the Premises (regardless of ownership)
constructed by Tenant; the fixtures, equipment and other property of Landlord,
real or personal, that are an integral part of and located in the Premises; and
landscaping areas, walkways, parking areas, public utilities, or energy within
the Premises; and (ii) all costs and fees (including reasonable attorneys' fees)
incurred by Landlord or Tenant in reasonably contesting any Real Property Tax
attributable to the parcel(s) on which the Building is located and in
negotiating with public authorities as to any Real Property Tax attributable to
the parcel(s) on which the Building is located. Tenant shall not be obligated
to pay (a) any state, local, federal or corporate income tax measured by the
income of Landlord from all sources; (b) any franchise, succession or transfer
taxes; (c) interest on taxes or penalties resulting from Landlord's failure to
pay taxes in a timely manner; (d) any increases in taxes attributable to
additional improvements to the Building or parking areas unless such
improvements to the Building or parking areas are for Tenant's benefit; (e) any
increases in taxes attributable to the sale, transfer, exchange or other
disposition of Landlord's interest in the Building.
6. Indemnity And Insurance
7.
6.1. Indemnity. Except as set forth in Article 4, of this Lease, Tenant
agrees to indemnify, defend (with counsel reasonably acceptable to Landlord) and
hold Landlord and its Affiliates and their respective directors, officers,
agents, employees, successors and assigns (the "Landlord Indemnitees") harmless
from and against any and all demands, claims, causes of action, judgments,
obligations or liabilities, and all reasonable expenses incurred in
investigating or resisting the same (including without limitation reasonable
attorneys' fees), on account of, relating to or arising out of, the condition
excepting pre-existing condition, use or occupancy of the Premises by Tenant,
its agents, contractors, employees or invitees. The foregoing indemnification
obligation shall not apply to the extent that such claim is (i) the result of,
or caused by Landlord's default of failure to fulfill Landlord's obligations
pursuant to this Lease, or (ii) caused by the active negligence or willful
misconduct of the Landlord or Landlord Indemnitees. This Lease is made on the
express condition that Landlord shall not be liable for, or suffer loss by
reason of, injury to person or damage to property, from whatever cause, in any
way connected with the condition, use or occupancy of the Premises specifically
including, without limitation, any liability for injury to persons or damage to
property of Tenant, its agents, officers, employees, successors, assigns and
invitees, and Tenant hereby expressly waives and releases the Landlord
Indemnitees from liability for same, except for such which arises from the
active negligence or willful misconduct of the Landlord or Landlord's
Indemnitees. Nothing contained in this Section 6.1 shall be deemed (i) to
obligate Tenant to indemnify and hold Landlord or Landlord's Indemnitees
harmless from defect in the design, workmanship or materials of the Building,
except for the design, workmanship or materials for which Tenant is responsible,
if any or (ii) be a waiver by Tenant of any claims or causes of action Tenant
may have against Landlord or Landlord's Indemnitees for liability caused by the
active negligence or willful misconduct of the Landlord or Landlord's
Indemnitees. Landlord shall indemnify and save Tenant harmless from and against
any material and reasonable loss, cost or expense incurred by Tenant as a result
of the sole negligence or willful misconduct of Landlord or Landlord's
Indemnitees; notwithstanding anything contained elsewhere herein in this Section
6.1, neither party shall be liable for any special, incidental, or consequential
damages hereunder.
6.2. Liability and Worker's Compensation Insurance. Tenant shall, at
Tenant's expense, obtain and keep in force during the Term a policy of Worker's
Compensation Insurance and a policy of comprehensive public liability insurance
insuring Tenant against any liability arising out of the condition, use or
occupancy of the Premises and all areas appurtenant thereto, including parking
areas. Such insurance shall be in an amount satisfactory to Landlord of not
less than $2,000,000 for bodily injury or death as a result of any one
occurrence, and $1,000,000 for damage to property as a result of any one
occurrence. The insurance shall be with companies authorized to do business in
the State of California and companies of Best's Rating Guide of A- IX or better
and approved by Landlord. Tenant shall deliver to Landlord prior to possession,
a certificate of insurance evidencing the existence of the policy required
hereunder, and such certificate shall certify that the policy (i) covers
Landlord as an additional insured; (ii) shall not be canceled or altered without
thirty (30) days prior written notice to Landlord; (iii) insures performance of
the indemnity set forth in Section 6.1; and (iv) the coverage is primary and any
coverage by Landlord is in excess thereto.
8.
6.3. Landlord Self-Insurance. Landlord shall, at all times during the
Term, maintain in effect a program of public liability self insurance and risk
retention, protecting Landlord and Tenant and insuring against liability
(including bodily injury or property damage) arising on or about the Premises
with limits which are equal to Tenant's insurance obligations set forth above.
Such insurance costs - included in the Basic Rent described in Article 3.
6.4. Insurance of Personal Property, Fixtures and Equipment. Tenant shall
at all times during the Term, at its cost and expense, maintain in effect
policies of insurance covering its personal property, inventory, alterations,
fixtures and equipment located on the Premises providing protection against any
peril included within the classification "Fire and Extended Coverage," together
with insurance against sprinkler leakage, vandalism and malicious mischief. The
proceeds of such insurance, so long as this Lease remains in effect, shall be
used to repair or replace the alterations, fixtures and repair or replace such
alterations, fixtures and Premises-related equipment so insured, should Tenant
elect, in its sole discretion, repair or replace such alterations, fixtures and
equipment.
6.5. Property Insurance. Landlord shall obtain and keep in force during the
Term a policy or policies of insurance coverage including fire, extended
coverage, sprinkler leakage, vandalism and malicious mischief, for loss or
damage to the Premises, in the amount of the full replacement value thereof.
Such insurance costs are included in the Basic Rent described in Article 3.
Said insurance shall also include (i) reasonable amounts of coverage for
enforcement of any law or ordinance regulating reconstruction or replacement for
any reason whatsoever and (ii) an agreed valuation provision in lieu of any co-
insurance clause, waiver of subrogation and inflation guard protection.
6.6. Waiver of Subrogation. Landlord and Tenant hereby waive any right
that each may have against the other on account of any loss or damage or
occasion to Landlord or Tenant, their respective property, the Building or
Premises or their contents, arising from any risk covered by the insurance
required hereunder. The parties each on behalf of their respective insurance
entities insuring the property of either Landlord or Tenant against any such
loss, waive any right of subrogation that the parties or their respective
insurance companies or entity may have against the other party or the other
party's insurance company or entities. The Landlord and Tenant agree to obtain
such a subrogation waiver from their respective insurance carriers or entities
and deliver a copy to the other.
6.7. Allocation. Landlord shall fairly allocate Landlord's insurance costs
that are attributable and beneficial to Tenant or the Premises on a pro-rata
basis between Landlord and Tenant, and among Tenant and any other tenants.
7. Operation, Management, Services And Utilities
7.1. Operation and Management.
9.
7.1.1 Grounds and Exterior Building Maintenance. All expenses of
operation, management and maintenance service and repair of a) site improvements
and grounds about the Premises, including landscape and irrigation, parking
areas and walks, site lighting, and b) all exterior building maintenance and
repairs, including exterior glass washing performed twice per year shall be at
Landlord's sole cost and expense and performed as part of the Base Rent except
where such repairs may be necessary due to damage or misuse by Tenant, excepting
normal wear and tear, or damage due to casualty or condemnation.
7.1.2 Interior Building Maintenance by Landlord. Landlord shall
operate, manage, and maintain all service and repairs for plumbing, general
lighting excluding Tenant's specialty fixtures, HVAC equipment and temperature
controls which are dedicated to Tenant equipment. Excluding any damage not
caused by normal wear and tear, casualty or condemnation which Landlord has
reasonably determined to be caused by Tenant or Tenant's guests, such Interior
Building Maintenance shall be at Landlord's sole cost and expense and performed
as part of the Base Rent.
7.1.3 Interior Building Maintenance by Tenant. Tenant shall operate,
manage, and maintain all service and repair to tenant improvements, including
all (a) Tenant damage of walls, floors, ceilings, fixtures, systems, and exposed
finishes; (b) Tenant specialty devices, (c) Tenant trade fixtures and equipment,
including data/telecommunications systems, cabling, and devices; (d) Landlord
approved interior modifications, alterations and/or changes; (e) interior plant
care; (f) custodial cleaning and interior window washing, (g) carpet cleaning to
be performed once during the Term and once at the end of the Term, (h) dedicated
air conditioning equipment, (i) security access equipment and devices, and
cameras if such have been installed by the Tenant and signal lines, (j) door
locks and hardware, (k) Tenant signs, (l) and Tenant furnishings and artwork.
Nothing contained herein shall be construed to require Landlord to install
improvements, except as set forth in Paragraph 9.1.
7.2 Utilities
7.2.1 Basic Utility Service & Usage. Landlord shall operate, manage,
service, repair or cause to be repaired, all utility distribution systems
including water, gas, power, sanitary sewer, storm drains, and designated trash
enclosures. Landlord shall bear the expense for Tenant's normal use of utilities
and utility systems as part of the Basic Rent, except where damage may be caused
by Tenant, excepting normal wear and tear, in which case such repairs shall be
performed by Landlord and borne by Tenant as Tenant Operating Expense, due and
payable as set forth under Paragraph 3.2.1.
Tenant's basic utility consumption associated with normal business hour usage
shall be borne by the Landlord as part of the Basic Rent. Such basic utility
consumption is defined as the average building energy allowance ("Average
Building Energy Allowance"), and is computed to be $.18/SF/Month over the Term,
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on the basis of $.051 per KWHR, the utility rate charged by the
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10.
City of Palo Alto without mark-up. In the event that the City of Palo Alto
utility rate increases during the period of the Term, Landlord reserves the
right to assess such additional increase to Tenant. The Average Building Energy
Allowance is established from the building average utility usage derived from
the occupied building areas over the previous 12 month period prior to
Commencement.
7.2.2 Excess Utility Usage. Tenant shall use its best efforts to
conduct and manage its business operations within the Average Building Energy
Allowance set forth in 7.2.1, however, Tenant shall pay Landlord for all excess
utility consumption exceeding that amount. Such charges for Excess Utility Usage
will be assessed as set forth in Paragraph 3.2.1, or on a more frequent basis if
Tenant's Excess Utility Usage exceeds the Average Building Energy Allowance by
10% over any six month period. Landlord shall compute such Excess Utility Charge
on the basis of the amount of Tenant's total energy consumption in excess of the
Average Building Energy Allowance applied to the area of the Premises for that
cumulative period.
7.2.3 Utility Service Interruption. Landlord shall exercise best
efforts to maintain in a state of uninterrupted operation, the HVAC central
plant serving the Building and Building electrical utility service systems
during the Term, however, if continuous interruption caused by failure of the
Landlord operated systems (except tele-communications ) systems maintained by
Tenant) continues for more than ten days, Tenant shall have the right to abate
rent in proportion to the Tenant business interference as reasonably negotiated
in good faith between the parties and for such length of time as such
interruption materially interferes with Tenant's business operations. Landlord
reserves the right to make periodic (at least annual) central plant equipment
shut downs to perform scheduled preventative service maintenance, where Landlord
agrees to coordinate such maintenance in advance with Tenant, and Landlord shall
make all reasonable efforts to schedule such service on weekends, off-hours,
general holidays, or between Christmas and New Years (excepting emergency
events) to minimize disruption to Tenant's business. Landlord shall not be
liable for any interruption caused by utility system failure or other services
to the Premises during the Term, unless caused by Landlord's active negligence
or willful misconduct (or it's agents, contractors or employees), and only to
the extent of rent abatement for the period of interruption. If an electrical
utility service interruption occurs which: (i) was caused solely by Landlord;
and (ii) significantly limits Tenant's ability to conduct business operations;
and (iii) persists continuously for a period of forty five (45) days, then
Tenant shall have the right to terminate this Lease.
7.3 Security Access
7.3.1 Tenant Rekeying. Tenant shall rekey all interior and exterior
locks with new key cores and remove all such key cores at the end of the Lease.
Tenant may install at it's sole expense a dedicated card key system or similar
secured access system to the perimeter doors of Tenant's dedicated Premises.
Such system shall be removed at the end of the Lease.
7.3.2 Common Access Security. Tenant agrees to coordinate and share
master keys with
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the upstairs tenant for access through the common lobby and common rear
vestibule. Tenant may install a card access device to the exterior common
entrance doors at Tenant's expense, so long as such access is agreed to be
shared with the tenant upstairs without restriction.
7.3.3 Landlord Emergency Access. Landlord maintains a master access
agreement with the City of Palo Alto Fire and Police Departments as part of a
site wide coordinated emergency access response program. Tenant shall provide
Landlord with master keys and/or security card for Landlord's Emergency access
to the Premises 24 hours a day, every day of the year. Landlord reserves the
right to make emergency access to the Premises to facilitate or verify occupant
evacuations during or as a result of fire, flood, earthquake, or similar life
threatening circumstances. Landlord reserves the right to make unscheduled entry
into the Premises for purposes of emergency maintenance repairs to building
systems or Tenant's specialty equipment as may be necessary to prevent property
damage or personal injury to others.
7.3.4 Landlord Maintenance Access. Landlord or Landlord's authorized
contractors or service agents shall rely on Tenant representatives to provide
access to the Premises during normal business hours, or during pre-scheduled
"after hours" with Tenant's permission in order to perform maintenance repairs
or service.
8. Acceptance Of The Premises And Covenant To Surrender
8.1. Commencement Condition. Landlord shall clean the Premises, patch and
paint all existing wall surfaces and otherwise deliver the Premises in a broom
clean condition. All building and lighting systems serving the Premises shall be
operational and in good condition and repair on the Commencement Date. Landlord
shall be solely responsible for any cost related to the installation of the
initial phone lines to the Premises, however, Landlord shall not warrant their
performance and Tenant shall have responsibility for all maintenance service and
repair thereafter throughout the Term.
8.2. Punch List. A walkthrough punch list ("Punch List") prepared by the
parties prior to Commencement Date will be used to identify any major items not
commensurate with a good beginning of occupancy status. Excepting the Punch
List, Tenant accepts the Premises as being in good order, condition and repair,
without representation or warranty by Landlord as to the condition of the
Premises or as to the use or occupancy which may be made thereof, except as
expressly contained herein.
8.3. Surrender Condition. Tenant agrees on the last day of the Term, or
on sooner termination of this Lease, to surrender the Premises, at Landlord's
election, either: (i) restored to their original condition, excepting normal
wear and tear and damage due to casualty or condemnation, in accordance with the
requirements set forth in this Agreement or (ii) together with all alterations,
additions and improvements which may have been made in, to, or on the
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Premises by Landlord or Tenant (and which have been approved by Landlord to
remain on the Premises at the time of providing Landlord's consent), unto
Landlord in good order, condition and repair, excepting for events of casualty
or such wear and tear as would be normal for the period of Tenant's occupancy
and subject to minor punch list items, provided such punch list items are
resolved by Tenant within ten (10) days after written notice by Landlord to do
the same. Tenant further agrees that at the end of the Term or sooner
termination of this Lease, Tenant at its sole expense, shall:
8.3.1. remove or have removed all Hazardous Materials from the
Premises that are caused by Tenant's employees, agents, contractors and
invitees. If such Hazardous Materials are not removed, then Tenant shall
indemnify and hold Landlord harmless from and against the costs of removal and
disposal by Landlord and against all loss or liability resulting from the
presence of Hazardous Materials on the Premises; and
8.3.2. remove all its personal property and trade fixtures from the
Premises in a manner that is reasonable and acceptable to Landlord; and
8.3.3. Tenant shall restore, in a manner to the reasonable
satisfaction of Landlord unless otherwise agreed by the parties, all exposed
walls, ceilings, floor finishes, surfaces and utility and building systems where
such removal of personal property or trade fixtures may directly or indirectly
cause damage to the Premises. Notwithstanding anything to the contrary contained
herein, a) Tenant shall not be required to remove (I) any of the initial tenant
improvements constructed by or on behalf of Tenant, which have been approved by
Landlord, and ii) any alterations or additions for which Tenant has obtained
Landlord's consent unless Landlord has indicated, at the time of granting such
consent, that such removal will be required; and b) Tenant shall be entitled to
remove portions of improvements, additions, and alterations stipulated in
Paragraph 8.3.2, provided tenant repairs any damage caused by such removal.
8.4. Removal by Tenant. If Tenant's personal property or trade fixtures
are not removed, and the Premises are not restored to the condition at the
Commencement Date, excepting (i) ordinary wear and tear and (ii) events of
casualty, then Tenant shall indemnify and hold Landlord harmless from and
against the reasonable costs of removal and restoration incurred by Landlord as
a result thereof. If after ten (10) days following written notice from Landlord
all said property has not been removed, then it shall be deemed to be abandoned
by Tenant and title shall thereupon pass to Landlord without compensation to
Tenant, however, Landlord may elect to begin physical removal of said property
on the day following expiration as provided herein and use reasonable efforts to
safeguard said property and in such event, Landlord, its agents and contractors
shall not be liable to Tenant for any damage subjected to said personal property
as a result of removal, handling, or storage.
8.5. Removal by Landlord. Subject to Section 8.4, Landlord may, upon
termination of this Lease, remove, store and/or sell all moveable personal
property and trade fixtures so
13.
abandoned by Tenant, at Tenant's sole cost, and repair any damage caused by such
removal at Tenant's sole cost. If the Premises are not surrendered at the end of
the Term or sooner termination of this Lease and Landlord does not exercise any
of its rights pursuant to Section 8.4 of this Lease, then Tenant shall indemnify
Landlord against loss or liability resulting from the delay by Tenant in so
surrendering the Premises, including without limitation, any claims made by any
succeeding occupant arising out of such delay, provided that such claims shall
total no more than two hundred thousand dollars ($200,000) per month of delay in
surrendering the Premises.
8.6. Acceptance by Landlord. No act or conduct of Landlord, whether
consisting of the acceptance of the keys to the demised Premises, or otherwise,
shall be deemed to be or constitute an acceptance of the surrender of the
demised Premises, or otherwise, by Tenant prior to the expiration of the Term
hereof, and such acceptance for the surrender by Tenant shall only flow from and
must be evidenced by a written acknowledgment of acceptance of surrender signed
by Landlord with a punch list attached which shall obligate Tenant to resolve
within ten (10) days after such written notice. After the expiration or earlier
termination of this Lease, Tenant shall execute, acknowledge and deliver to
Landlord, within fifteen (15) days after written demand from Landlord to Tenant,
any quitclaim deed or other document reasonably required by any reputable title
company, licensed to operate in the State of California, to remove the cloud or
encumbrance created by this Lease from the real property of which Tenant's
Premises are a part.
8.7. Tenant Surrender. Should Tenant fail to surrender the Premises as
required hereunder, Tenant shall reimburse Landlord for any and all reasonable
costs incurred by Landlord in connection with restoring the Premises less normal
wear and tear and damage due to casualty or condemnation to their original
condition and such reimbursement shall be due and owing at Landlord's election
on demand unless otherwise provided in herein.-
9. Repair And Maintenance
9.1. Landlord Obligations. Subject to the provisions of Article 14,
Landlord shall keep and maintain the roof, paving, structural elements,
landscaping, irrigation, and exterior walls of the building in good order and
repair and all common Building and Site areas. Landlord shall manage the
building utility systems unless dedicated to Tenant's exclusive use. Landlord
shall b e responsible for City-mandated ADA costs associated with the exterior
areas of the Premises. Notwithstanding anything other than Sections 10.1 and
8.1 in this Lease to the contrary, Landlord shall have no obligation to alter,
remodel, improve, decorate, the Premises or any part thereof, except Landlord
shall provide to Tenant a recarpeting allowance including new top set base up to
but not to exceed twenty-five dollars ($25.00) per square yard of floor area
currently carpeted, amounting to a total maximum of $55,100.
9.2. Tenant Obligations. Tenant shall be responsible for and shall
undertake the design and construction of any Tenant improvements, subject to
---
Landlord's consent. "Tenant
14.
Improvements" means all work necessary to augment the base building and includes
finished ceilings, walls, floor surfaces, HVAC distribution, lighting,
electrical distribution, fire protections systems, cabling, security systems,
distributed and centralized conference areas, secretarial, reception area work
stations, satellite kitchens, and other areas necessary for the operation of an
internet service provider. Tenant shall, at its sole cost, keep and maintain the
interior of Premises, in a condition of proper cleanliness and good working
order. Tenant shall be responsible without limitation for repairs necessitated
by Tenant's negligence or failure to properly safeguard and maintain such areas.
Tenant shall be responsible for all City-mandated ADA costs associated with the
interior of the Premises that are triggered by Tenant's alterations or
improvements. Tenant shall have sole responsibility to manage and limit its
equipment and property placement within the structural design load limits of the
Premises according to the specific placement. Should Tenant fail to maintain the
Premises as required of Tenant in this Lease, forthwith upon written notice from
Landlord, Landlord, in addition to all other remedies available hereunder or by
law, and without waiving any alternative remedies, may make the same, and in
that event, Tenant shall reimburse Landlord for the actual and reasonable cost
of such maintenance or repairs, at Landlord's election on demand or on the next
date upon which Basic Rent is due.
9.3. Exclusions to Tenant Obligations. Tenant's obligation to repair shall
not extend to (1) damage and repairs as may be covered under Section 6 herein,
(2) damage caused by any defects in the design, construction or materials of the
Building including the Premises other than design, construction, or materials
that were Tenant's responsibility, (3) damage caused by the active negligence or
willful misconduct of Landlord, its employees, agents, invitees or licensees,
(4) repairs reimbursed pursuant to the definition of reimbursable Operating
Expenses, (5) damage due to fire, earthquake, acts of god, the elements, or
other casualty; and (6) damage to the interior of the Premises resulting from
causes outside the Premises. Tenant shall not be obligated to pay for capital
expenditures of the roof system, or the exterior cladding and glazing systems.
9.4. Compliance with Regulations. Tenant shall have sole responsibility
for compliance with all regulatory requirements governing the management and
timely reporting of the quality and quantity of discharges from all facility
utility systems from the Premises.
10. Alterations And Additions
10.1. Regulatory Modifications. Landlord shall be responsible for
performing all modifications required on the exterior of the Premises including
the exterior entrances and exits, by the City of Palo Alto pursuant to the
Americans with Disabilities Act and Title 24 as may be required as part of the
approved initial construction and bringing the Premises on the Commencement Date
into compliance with all applicable local, state and federal regulations and
codes as interpreted and required by the City of Palo Alto on Commencement Date.
Tenant shall be responsible for performing all modifications required by the
City of Palo Alto pursuant to the American Disabilities Act and Title 24 as may
be required for interior modifications, alterations or improvements, as approved
by Landlord.
15.
10.2. Landlord Approval. Tenant shall not make, or suffer to be made, any
alterations, improvements or additions in, on, or about, or to the Premises or
any part thereof without the prior written approval of Landlord, which approval
shall not be unreasonably withheld or delayed. Subject to this Section 10.2,
Landlord conceptually approves Tenant's significant augmentation of the network
room and network cabling in the Premises. Tenant shall submit to Landlord two
sets of design drawings for Landlord's review and approval prior to start of
work. Landlord's consent shall be affixed or attached to one set of the drawings
and returned to the Tenant. Said Landlord consent is not required for the
physical attachment or utility hook-up of Tenant's personal property, fixtures,
or equipment on the Premises, however, Tenant shall restore damaged surfaces
following the removal of these items at the expiration of the Lease, nor is such
Landlord consent required for routine repairs to the Premises' utility systems
provided they do not compromise the performance of such systems and meet
established practices and code requirements. If Landlord consents to Tenant's
making any alterations, improvements, or additions, Tenant shall be responsible
for notifying Landlord at least (3) business days before work can begin for
Landlord to post notice of non- responsibility, which shall remain posted until
completion of the alterations, additions or improvements. If any alteration,
addition or change requested by Tenant and approved by Landlord results in a
requirement of any law, regulation, ordinance, order of any public agency,
Tenant, at its sole cost and expense, shall promptly make the same in accordance
with the provisions of this Article 10, except in the case of such an
alteration, et al being required in the absence of any Tenant alteration during
the Term, in which case Landlord shall be solely responsible for making the
required alteration. At the completion of an alteration or addition, Tenant
shall submit to Landlord's Palo Alto engineering department a complete record
"as-built" set of blue print drawings which accurately depict the new conditions
together with any concealed work.
10.3. Exterior. No exterior building modifications will be allowed to the
Premises except as may be required to keep building and lighting systems in good
condition and repair. All construction will be performed under a recorded notice
of Landlord non-responsibility and only by contractors that agree to Landlord
stipulated general construction conditions regarding site access and
mobilization, material storage and handling, dust and noise control, trash
disposal, minimum standards of safety, minimum building standard finishes, the
proper use, handling and disposal of hazardous materials, and general reputation
in the industry.
10.4. Restoration. If Tenant requests that any alterations, improvements
or additions be made, and Landlord in its reasonable judgment agrees to their
implementation, Tenant shall perform same at Tenant's sole cost and expense.
Landlord shall not require at the end of the Term the removal of improvements
approved by Landlord as of the Commencement Date. Tenant shall also reimburse
Landlord for the actual and reasonable costs of removing any other such
alterations, improvements or additions at the termination of this Lease, and
restoring the Premises to their original condition. Any alteration, addition or
improvements to the Premises (except movable furniture, security and sound
studio equipment, and trade fixtures not affixed to the Premises) shall become
the property of Landlord upon expiration or termination of this Lease.
Alterations and additions that are not to be deemed as trade fixtures shall
include
16.
heating, lighting, electrical systems, air conditioning, partitioning,
electrical signs, laboratory casework, built-in laboratory equipment, carpeting,
or any other installation that has become an integral part of the Premises.
10.5. Restoration Exclusions. Tenant shall not be required to make (1)
any structural changes nor shall Landlord approve of Tenant's request for any
alterations, modifications, or improvements which may require any structural
changes, (2) any changes which constitute capital expenditures, (3) any
improvements or alterations which will remain as part of the Premises for the
benefit of Landlord upon termination of this Lease in order to comply with any
law, ordinance, rule or regulation or the recommendation of Landlord's fire
insurance rating organization unless the same is required by Tenant's particular
use of the Premises.
11. Events Of Default
The occurrence of any of one or more of the following events shall
constitute a default hereunder by Tenant:
11.1. Abandonment. The abandonment of the Premises by Tenant. Abandonment
shall be defined as any absence by Tenant from the Premises for twenty (20) or
more business days while in default of any of its obligations hereunder.
11.2. Payment Breach. The failure by Tenant to make any payment of Rent,
or other payment required to be made by Tenant hereunder, within three (3)
business days after written notice from Landlord.
11.3. Other Breach. The failure by Tenant to observe or perform any of
the express or implied covenants or provisions of this Lease to be observed or
performed by Tenant where such failure continues for a period of thirty (30)
days after written notice thereof from Landlord to Tenant; provided, however,
that any such notice shall be in lieu of, and not in addition to, any notice
required under California Code of Civil Procedure Section 1161; and provided
further, that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant shall commence such cure within said thirty (30) day
period and thereafter diligently prosecute such cure to completion.
11.4. Assignment or Subletting. An assignment or subletting of this Lease
that is not permitted by Article 18.
12. Remedies For Default
12.1. Landlord Rights. If this Lease is breached by Tenant, Landlord has
the option of (i) removing all persons and property from the Premises and
repossessing the Premises, in which case any of Tenant's property which Landlord
removes from the Premises may be stored in a public warehouse or elsewhere at
the cost of, and for the account of Tenant, or (ii) allowing
17.
Tenant to remain in full possession and control of the Premises. If Landlord
chooses to repossess the Premises, the Lease will automatically terminate in
accordance with the provisions of California Civil Code, Section 1951.2. If the
Lease is so terminated, Landlord may recover from Tenant: (1) the worth at the
time of award of the unpaid Rent which had been earned at the time of
termination, including interest at the prime rate of the Chase Manhattan Bank ,
New York plus 1% at the time of award; (2) the worth at the time of award of the
amount by which the unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such Rental loss that Tenant
proves could have been reasonably avoided, including interest at the maximum
rate an individual is permitted by law to charge; and (3) 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 such Rental loss that Tenant
proves could be reasonably avoided. "The worth at the time of the award", as
used in (1), (2) and (3) of this Article 12, is to be the amount equal to the
base amount multiplied by the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award.
12.2. Lease in Effect. If Landlord chooses not to repossess the Premises,
but allows Tenant to remain in full possession and control of the Premises, in
accordance with provisions of California Civil Code, Section 1951.4, Landlord
may treat the Lease as being in full force and effect subject to all reasonable
efforts to mitigate its damages, and may collect from Tenant all Rents as they
become due through the termination date of the Lease, as specified in the Lease.
For the purpose of this Article 12, the following do not constitute a
termination of Tenant's right to possession:
12.2.1. Reasonable acts of maintenance or preservation, or
reasonable efforts to relet the Premises; or
12.2.2. The appointment of a receiver on the initiative of Landlord
to protect its interest under this Lease.
12.3. Tenant Liability. Tenant shall be liable immediately to Landlord
for all reasonable costs Landlord incurs in reletting the Premises, including
without limitation, brokers' commissions attributable to the remainder of the
Term, removal of Tenant's trade fixtures and equipment and associated repairs,
and like costs. Reletting can be for a period shorter or longer than the
remainder of the Term. Tenant shall pay to Landlord the Rent due under this
Lease on the dates the Rent is due, less the Rent Landlord receives from this
Lease unless Landlord notifies Tenant that Landlord elects to terminate this
Lease. After Tenant's default and for as long as Landlord does not terminate
Tenant's right to possession of the Premises, if Tenant obtains Landlord's
consent, Tenant shall have the right to assign or sublet its interest in this
Lease, but Tenant shall not be released from liability.
12.4. Relet. If Landlord elects to relet the Premises as provided in this
Section, Rent that Landlord receives from reletting shall be applied to the
payment of:
12.4.1. First, any indebtedness from Tenant to Landlord other than
Rent due
18.
from Tenant;
12.4.2. Second, all costs, including for maintenance, incurred by
Landlord in reletting;
12.4.3. Third, Rent due and unpaid under this Lease.
12.5. Proceeds. After deducting the payments referred to in this Article
12, any sum remaining from the Rent Landlord receives from reletting shall be
held by Landlord and applied in payment of future Rent as Rent becomes due under
this Lease. In no event shall Tenant be entitled to any excess Rent received by
Landlord as a result of a default hereunder. If, on the date Rent is due under
this Lease, the Rent received from reletting is less than Rent due on that date,
Tenant shall pay to Landlord, in addition to the remaining Rent due, all costs
including for maintenance, Landlord incurred in reletting that remain after
applying the Rent received from the reletting, as provided in this Article 12.
12.6. Cure. At any time after Tenant commits a default, Landlord can cure
the default at Tenant's sole reasonable cost. If Landlord at any time, by reason
of Tenant's default, pays any sum or does any act that requires the payment of
any sum, the sum paid by Landlord shall be due promptly from Tenant to Landlord
at the time the sum is paid, and if paid at a later date, bear interest at the
maximum rate set forth in Section 12.1 but in no event in excess of ten (10) per
cent per annum from the date the sum is paid by Landlord until Landlord is
reimbursed by Tenant. The sum, together with interest on it, shall be deemed to
be part of the Rent that is due and owing by Tenant to Landlord hereunder.
12.7. Interest. Any Rent not paid when due shall bear interest at the
rate set forth in Section 12.1 from the date due until paid, but in no event in
excess of ten (10) per cent per annum.
13. Destruction
13.1. Landlord Options. If the Premises are destroyed in whole or in part
from any cause, Landlord may, at its sole option:
13.1.1. Rebuild or restore the Premises to their condition prior to
the damage or destruction; or
13.1.2. Terminate the Lease, provided Landlord terminates all other
leases of the Building.
13.2. Notice. Landlord shall give Tenant notice in writing sixty (60)
days from the date of destruction of the Premises if such damage or destruction
is or is not capable of repair within one hundred twenty (120) days of the date
of notice, and of Landlord's election to either rebuild and restore the
Premises, or to terminate this Lease. If Landlord fails to provide said notice
within sixty (60) days following the date of destruction, or provides notice
that such repairs shall exceed one
19.
hundred twenty (120) days from the date of notice, then Tenant shall have the
right to terminate this Lease. If Landlord gives Tenant written notice to
rebuild or restore the Premises within sixty (60) days of the date of
destruction, then Landlord agrees, at its expense, promptly to rebuild or
restore the Premises to its condition prior to the damage or destruction. If
Landlord does not complete the rebuilding or restoration within one hundred
twenty (120) days following the date of notice to rebuild (such period of time
to be extended a maximum of sixty (60) days for delays caused by any act or
omission to act of Tenant or its agents, employees, contractors, invitees, or
because of acts of God, acts of public agencies, labor disputes, strikes, fires,
freight embargoes, rainy or stormy weather, inability to obtain materials,
supplies or fuels, acts of contractors or subcontractors, or delay of the
contractors or subcontractors due to such causes or other contingencies beyond
the reasonable control of Landlord), then Tenant shall have the right to
terminate this Lease by giving fifteen (15) days prior written notice to
Landlord. All rent shall abate as of the date of destruction. Landlord's
obligation to rebuild or restore shall not include restoration of Tenant's trade
fixtures or equipment not comprising the Premises, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises.
13.3. Civil Code. Unless this Lease is terminated pursuant to the
foregoing provisions, this Lease shall remain in full force and effect. Tenant
hereby expressly waives the provisions of Section 1932, Subdivision 2, and
Section 1933, Subdivision 4, of the California Civil Code.
13.4. Destruction. If the Premises are damaged or destroyed to the extent
of not less than thirty three and one third percent (33 1/3%) of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not.
13.5. Damage At the End of Term. If there is a partial destruction of the
Premises and/or Building within the final six (6) months of the Term, either
Tenant or Landlord shall have the right to terminate this Lease by written
notice to the other within fifteen (15) days after the date of such damage or
destruction.
14. Condemnation
If any part of the Premises, not including any portions of the parking or Site
area which may be reasonably replaced by alternative parking within close
proximity on the Site, shall be taken for any public or quasi-public use, under
any statute or by right of eminent domain, or private purchase in lieu thereof,
either Landlord or Tenant may terminate this Lease upon and within fifteen (15)
days of the taking and the vesting of title in the condemnor or purchaser. If a
part or all of the Premises is taken, all compensation awarded upon such taking
shall go to Landlord, and Tenant shall have no claim thereto, except as set
forth in this Article 14. Tenant shall have the right to separately petition and
to claim and recover from the condemning authority, but not from Landlord, such
compensation as may be separately awarded or recoverable by Tenant in Tenant's
own right on account of any and all damage to Tenant's business, including
without limitation the loss of goodwill by reason of any appropriation, and for
or on account of any cost or loss to which Tenant might be put in removing and
relocating Tenant's merchandise, furniture,
20.
moveable trade fixtures, and equipment and the value of Tenant's leasehold
interest in the Premises, tenant's improvements to the extent paid for by Tenant
any alterations, additions, improvements or replacements made by or at the
expense of the Tenant and any compensation by reason of the payment by Tenant of
Basic Rent in excess of the Basic Rent payable by Tenant in this Lease in order
to obtain alternate space. Each party waives the provisions of Code of Civil
Procedure, Section 1265130, allowing either party to petition the Superior Court
to terminate this Lease if there is a partial taking of the Premises. Nothing
herein contained shall be deemed or construed to prevent Tenant from interposing
and prosecuting in any condemnation proceedings a claim for the value of any
fixtures or improvements installed in or made to the Premises by the Tenant, or
for its costs of moving or loss of business by reason of such condemnation.
15. Free From Liens
Tenant shall (a) pay for all labor and services performed or materials used by
or furnished to Tenant, or any contractor employed by Tenant with respect to the
Premises, (b) indemnify, defend and hold Landlord and the Premises harmless and
free from any liens, claims, demands, encumbrances, or judgments created or
suffered by reason of any labor or services performed or materials used by or
furnished by Tenant or any contractor employed by Tenant with respect to the
Premises, (c) give notice to Landlord in writing five (5) days prior to
employing any laborer or contractor to perform services related, or receiving
materials for use upon the Premises, and (d) post, on behalf of Landlord, a
notice of non-responsibility in accordance with the statutory requirements of
California Civil Code, Section 3094, or any amendment thereof. If an improvement
bond with a public agency in connection with the above is required to be posted,
Tenant agrees to include Landlord as an additional obligee.
16. Compliance With Laws
Tenant shall at its own cost, comply with and observe all laws, regulations,
ordinances, statutes, and other requirements of all municipal, county, state and
federal authorities, as they now exist or may hereafter be enacted by
legislative bodies having jurisdiction thereof, relating to the use, condition
and occupancy of the Premises, subject to Section 10.4. Notwithstanding the
foregoing or anything to the contrary contained in this Lease, Tenant shall not
be responsible for capital expenditures related to (a) building structural
modifications or (b) American Disabilities Act (ADA) interior alterations,
excepting where Tenant employees may bring such action to cause said alterations
to be undertaken, in compliance with laws, codes, ordinances or governmental
directives not otherwise required elsewhere in this Lease.
17. Subordination
Tenant agrees that this Lease shall, at the option of Landlord, be subjected and
subordinated to any mortgage, deed of trust, or other instrument of security,
which has been or shall be placed on the Premises, and this subordination is
hereby made effective without any further act of Tenant or Landlord. Tenant
shall, at any time hereinafter, within fifteen (15) days, execute any
instruments, releases or other documents that may be reasonably required by a
mortgagee,
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mortgagor, or trustor, or beneficiary under any deed of trust, for the purpose
of subjecting or subordinating this Lease to the lien of any such mortgage, deed
of trust, or other instrument of security, provided that Tenant shall continue
to have the rights covenanted and warranted to Tenant in Article 27. The
subordination of this Lease to any future mortgages, deeds of trust or other
security interests shall be subject to the following: (1) the holder of such
lease or security interest shall have first agreed in writing that so long as
Tenant is not is default, this Lease shall not be terminated by foreclosure or
sale and (2) such subordination shall not otherwise restrict or limit the rights
or increase the obligations of Tenant under this Lease. To the extent permitted
under the Master Lease., Tenant's obligation to attorn to such ground lessor or
mortgagee shall be conditioned on receipt of a reasonably satisfactory
nondisturbance agreement and upon assumption by such ground lessor or mortgagee
of Landlord's obligations under this Lease.
17.1. Encumbrance. Subject to the foregoing, if this Lease is or becomes
subordinate to any encumbrance now of record or encumbrance recorded after this
date affecting the Premises, then Tenant agrees to attorn to any purchaser at
any foreclosure sale, or to any grantee or transferee designated in any deed
given in lieu of foreclosure. In such event, Tenant shall execute, at Landlord's
or lender's request, such recognition and attornment agreement as lender and
Tenant, at its option, may reasonably agree upon.
18. Assignment And Subletting
18.1. Assignment or Subletting. Tenant shall not, without the prior
written consent of Landlord, which shall not be unreasonably withheld, except as
set forth below, delayed or conditioned, either voluntarily or by operation of
law, sell, encumber, pledge or otherwise transfer all or any part of Tenant's
leasehold estate hereunder or permit the Premises to be occupied by anyone other
than Tenant or Tenant's employees, or sublet the Premises or any portion
thereof, except to an Affiliate of Tenant which Affiliated sublessee or assignee
would not need Landlord's approval but would require the approval of Lessor. No
more than two entities shall occupy the Premises at any time, whether or not
such entity is Affiliated. The transfer, assignment or hypothecation of any
stock or interest in Tenant in the aggregate in excess of twenty five percent
(25%) shall be deemed an assignment within the meaning and provisions of this
Section, unless such transfer, assignment or hypothecation is between or among
Affiliates of Tenant. Notwithstanding the foregoing, a sale or transfer of the
capital stock of Tenant shall be deemed a Landlord permitted transfer if (a)
such sale or transfer occurs in connection with any bona fide financing or
capitalization for the benefit of Tenant and in the sole opinion of Landlord,
such transfer shall not create a conflict of business interest with respect to
Landlord's own business operations, or (b) Tenant becomes a publically traded
corporation. Except where otherwise provided in this Lease, Landlord shall have
no right to any sums or other economic consideration in connection from any
Landlord permitted transfer.
18.2. Profit on Sublease. All profit that Tenant shall realize in the
subletting of the Premises shall be paid to Landlord. "Profit" shall be computed
after subtracting therefrom any and all costs and expenses incurred by Tenant in
connection with such subleasing, including reasonable
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improvement allowances, brokerage commissions and attorney's fees. Tenant shall
give Landlord a copy of any sublease and shall remit to Landlord by the first of
each calendar quarter any such profit due from such lease during the previous
quarter.
18.3. Notice to Landlord. If Tenant desires at any time to assign this
Lease or to sublet the Premises or any portion thereof, it shall first notify
Landlord of its desire to do so and shall submit in writing to Landlord (i) the
name of the proposed sublessee or assignee; (ii) the nature of the proposed
sublessee's or assignee's business to be carried on in the Premises; (iii) the
terms and provisions of the proposed sublease or assignment; and (iv) such
reasonable financial information (to be treated in a confidential manner by
Landlord) concerning the proposed assignee as Landlord may require. Landlord
shall reasonably approve or reject, subject to Section 18.1, any such assignment
or subletting by written notice to Tenant no later than fifteen (15) working
days after Landlord's receipt of the foregoing information. Landlord also has
the right, in its sole discretion, to retake the Premises if Tenant so requests
Landlord consent to an assignment or subletting.
18.4. Involuntary Assignment. No interest of Tenant in this Lease shall
be assignable by operation of law. Without limiting the foregoing, each of the
following acts shall be considered an involuntary assignment:
18.4.1. Transfer of this Lease by testacy or intestacy;
18.4.2. If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes a proceeding under the
Bankruptcy Act in which Tenant is the bankrupt;
18.4.3. The appointment of a trustee or receiver to take possession
of substantially all of Tenant's assets located at the Premises or of Tenant's
interests in this Lease, where possession is not restored to Tenant within sixty
(60) days; or
18.4.4. The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where seizure is not discharged within sixty (60) days.
An involuntary assignment shall constitute a default by Tenant and Landlord
shall have the right to elect to terminate this Lease, in which case this Lease
shall not be treated as an asset of Tenant.
18.5. Tenant to Reimburse for Expenses. Tenant agrees to reimburse
Landlord upon demand for Landlord's reasonable costs and reasonable attorney's
fees (without limitation) incurred in conjunction with the processing,
investigation and documentation of any involuntary assignment.
19. Insolvency Or Bankruptcy
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or (b) a general assignment by Tenant
for the benefit of creditors, or (c) any action
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taken or suffered by Tenant under any insolvency or bankruptcy act shall
constitute a breach of this Lease by Tenant. Upon the happening of any such
event, this Lease shall terminate ten (10) days after written notice of
termination from Landlord to Tenant. This section is to be applied consistent
with applicable state and federal law in effect at the time such event occurs.
20. Landlord Loan Or Sale
If Tenant shall require an estoppel certificate or similar document from
Landlord, Landlord's estoppel shall be in the same form as applicable to
Landlord, as Tenant must provide below. Tenant agrees, promptly following
written request by Landlord, to (a) execute and deliver to Landlord any
documents, including estoppel certificates presented to Tenant by Landlord, (i)
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, (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, and (iii) evidencing the status of the Lease as may be
required either by a lender making a loan to Landlord, to be secured by deed of
trust or mortgage covering the Premises or any part thereof, or a purchase of
the Premises from Landlord, and (b) to deliver to Landlord "10-K" Annual Reports
if such exists, filed with the Securities and Exchange Commission for the
previous three (3) fiscal years. Tenant's failure to deliver an estoppel
certificate within twenty (20) days following such request shall constitute a
default under this Lease and shall be conclusive upon Tenant that this Lease is
in full force and effect and has not been modified except as may be represented
by Landlord, and that there are no uncured defaults in Landlord's performance.
Any such certificate shall contain language such that (1) all statements therein
are made to Tenant's best knowledge and (2) nothing therein shall be deemed to
be a waiver of any right or cause of action based on any fact of which Tenant
has no knowledge due to Landlord's concealment of or failure to disclose such
fact.
21. Attorney's Fees
If, for any reason, any suit be initiated to enforce any provision of this
Lease, the prevailing party shall be entitled to legal costs, expert witnesses
expenses and reasonable attorney's fees as fixed by the Court.
22. Notices
All notices to be given to Tenant may be given in writing, personally or by
depositing the same in the United States mail, postage prepaid, and addressed to
the Vice President of Finance of the Tenant at the address of the Premises for
Tenant with a copy to the Legal Department, unless a different address has been
given to the other in writing. Any notice, payment or document required or
permitted by this Lease to be given to Landlord shall be addressed to Landlord
at the address set forth below, or at such other address as either party may
have specified by notice
24.
delivered in accordance herewith:
Attn: Director of Site Services Attn:
- ------------------------------- ----------------------------
Palo Alto Site Engineering Division ____________________________
Syntex (U.S.A.) Inc. ____________________________
3401 Hillview Avenue ____________________________
Palo Alto, California 94304-1397 ____________________________
with a copy to: with a copy to:
Attn: Legal Department Attn.:______________________
- ----------------------
Syntex (U.S.A.) Inc. ____________________________
3401 Hillview Avenue ____________________________
Palo Alto, CA 94304-1397 ____________________________
23. Waiver
The waiver by Landlord or Tenant of any breach of any term, covenant or
condition herein contained shall not be deemed to be a future waiver of such
term, covenant, or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant, or condition of this Lease, other than the
failure of Tenant to pay the particular Rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent.
24. Holding Over
Any holding over after the expiration of the Term and up to six months after
such expiration shall be construed to be a tenancy from month-to-month (which in
no event shall exceed a period of three (3) months) at a rental one and one and
one-half or one hundred and twenty five (125%) per cent of the Basic Rent as set
forth in Section 3.1. above, and shall otherwise be on the terms and conditions
herein specified, so far as applicable.
25. Sale Or Transfer Of Premises
If Landlord sells or transfers all or any portion of the Premises, Landlord, on
consummation of the sale or transfer, shall be released from any liability
thereafter accruing under this Lease but not such liability as accrued prior to
such sale, including without limitation with respect to Section 4.2 of this
Lease. If any deposit or prepaid Rent has been paid by Tenant, Landlord agrees
to transfer the deposit or prepaid Rent to Landlord's successor other than any
portion of the security deposit applied or retained to compensate Landlord for
any loss or damage that Landlord may have suffered as a result of Tenant's
default, and thereupon, Landlord shall be discharged from any further liability
in reference thereto.
26. Landlord's Right To Perform
Except as otherwise provided in this Lease, all terms, covenants and conditions
of this Lease to
25.
be performed or observed by Tenant shall be performed or observed by Tenant at
Tenant's sole cost and expense and without any reduction of Rent. If Tenant
fails to pay any sum of money required to be paid by it hereunder or fails to
perform or observe any other term hereunder on its part to be performed or
observed beyond all applicable cure periods, Landlord may, at its option,
without waiving or releasing Tenant from any obligation of Tenant hereunder,
make any such payment or perform or observe any such other term or act on
Tenant's part to be performed or observed. All sums so paid by Landlord and all
reasonably necessary costs of such performance or observation by Landlord
together with interest thereon from the date incurred at the rate of ten (10%)
per cent per annum shall be paid by Tenant to Landlord, within fifteen (15) days
of receipt of written demand, in which event Landlord shall have the same rights
and remedies against Tenant as in the case of nonpayment of Rent hereunder.
27. Quiet Enjoyment By Tenant, Non-Disturbance And Landlord's Right Of Entry
27.1. Landlord's Covenant. Subject to Section 27.2, Landlord covenants
and warrants that upon Tenant's paying the Rent and observing and performing all
of the terms, covenants and conditions on Tenant's part to be observed and
performed under this Lease:
27.1.1. Tenant shall have, hold and enjoy the sole and exclusive
use and enjoyment of the Premises during the Term without interference by
Landlord and/or its representatives, and
27.1.2. If the Premises are encumbered during the Term, If Landlord
defaults under any encumbrance, the encumbrancer shall not have the contractual
right to evict Tenant or reject this Lease.
27.2. Landlord Entry. Landlord (and/or its representatives) shall have
the right, at all reasonable times upon 24 hours' notice, to enter the Premises
to post notices, inspect, repair, maintain, improve, or alter the Premises; and
to erect scaffolding and other necessary structures in or near the Premises, and
Tenant shall procure such access to the Premises for Landlord and its
representatives. Landlord and any purchaser, lessee, or encumbrancer may enter
the Premises, at all reasonable times with 24-hour notice, with respect to any
existing or prospective sale, lease or encumbrance. Landlord shall also have the
right to enter the Premises in those emergency situations which could involve
potential injury to persons or loss of or damage to property. All of the above
shall be without abatement of Rent and any such entry shall not be construed as
a forcible or unlawful entry, or a detainer, or an actual or constructive
eviction of Tenant from the Premises, except as otherwise agreed in this Lease.
28. Signs
No sign, placard, picture, advertisement, name or notice shall be permanently
inscribed, printed or affixed on or to any part of the outside of the Premises
or any exterior windows of the Premises or any interior windows or doors visible
from common areas of the Premises without
26.
the prior written consent of Landlord which consent shall not be unreasonably
withheld or delayed and Landlord shall have the right to remove the same without
notice to and at the expense of Tenant. Tenant shall have the right to a quarter
panel of shared monument signage at the first Hillview Avenue entrance to the
Premises, south of Foothill Expressway, along with shared signage of a single
non-Landlord Affiliated cotenant for the Premises, bearing the names or logos of
Avid/Digidesign and one other tenant, subject to the approval of the Master
Lessor's designee (Stanford Lands Management Company) and the City of Palo Alto.
Under the same approval standards, Tenant shall also be allowed to have two
smaller directional signs on site and an entrance sign at the north side of the
building. Tenant is allowed to display a sign on or about front entrance to the
Premises, subject to all applicable approvals and at Landlord's option upon
expiration or other sooner termination of this Lease, Tenant shall at Tenant's
sole cost both remove such signs, repair all damage caused thereby and restore
the appearance of the Premises to its condition prior to the placement of said
sign. All approved signs (or lettering on outside doors) shall be done at the
expense of Tenant by a person qualified and reasonably approved of by Landlord.
Any signs shall be according to government and Stanford regulation.
29. Rules And Regulations
Such reasonable rules and regulations as may hereafter be adopted by Landlord
for the safety, care and cleanliness of the Premises and the preservation of
good order thereon, are hereby expressly made a part hereof, and Tenant agrees
to obey all such rules and regulations.
30. Miscellaneous
30.1. Time is of the Essence. Time is of the essence of this Lease, and
each and all of its provisions.
30.2. Assignment. The term "assign" shall include the term "transfer."
30.3. Severability. The invalidity or unenforceability of any provision
of this Lease shall not affect the validity or enforceability of the remainder
of this Lease.
30.4. Equal Participation. All parties hereto have equally participated
in the preparation of this Lease.
30.5. Headings. The headings and title to the paragraphs of this Lease
are not a part of this Lease and shall have no effect upon the construction or
interpretation of any part thereof.
30.6. No other Representations. Landlord has made no representation(s)
whatsoever to Tenant (express or implied) except as may be expressly stated in
writing in this Lease document.
30.7. Entire Agreement and Modification. This Lease document contains all
of the agreement and conditions made between the parties hereto, and may not be
modified orally or in
27.
any other manner than by agreement in writing, signed by all of the parties
hereto or their respective successors in interest.
30.8. Non-exclusive Remedies. It is understood and agreed that the
remedies herein given to Landlord shall be cumulative, and the exercise of any
one remedy by Landlord shall not be to the exclusion of any other remedy.
30.9. Successors. The covenants and conditions herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all the parties hereto; and
all of the parties hereto shall jointly and severally be liable hereunder.
30.10. Presumptions. This Lease has been negotiated by the parties hereto
and the language hereof shall not be construed for or against either party.
30.11. Covenants and Conditions. All provisions, whether covenants or
conditions, on the part of Landlord and Tenant shall be deemed to be both
covenants and conditions.
30.12. Governing Law. This Lease shall in all respects be governed by, and
construed and enforced in accordance with the laws of the State of California.
30.13. Additional Representations. Landlord represents and warrants the
following to Tenant as of the date of this Lease:
30.13.1. There are no actions, suits, claims or arbitrations
(including proceedings in eminent domain or purchase in lieu thereof) affecting
any or all of Landlord's interest in the Premises.
30.13.2. Landlord has not received notice from any governmental
agency pertaining to the violation of any material law, order or regulation
affecting Landlord's interest in the Premises, and Landlord has no knowledge
that Tenant has received such notice.
30.13.3. Landlord has no knowledge of (i) any leases, sublease,
licenses, occupancies or tenancies in effect related to the Premises except as
described herein, or (ii) any rights of first refusal or options to purchase its
interest therein or with respect to the Premises.
30.13.4. There exists no default or event which with notice or
passage of time or both would constitute a default under the Master Lease on the
part of the Lessor or Landlord, the Master Lease is in full force and effect and
is unmodified or amended except as set forth herein, Landlord has paid all rent
and other charges in amounts due under the Master Lease, and Landlord has no
knowledge of any claims or defenses by Lessor against Landlord.
30.14. Maintenance of Master Lease. Landlord agrees to maintain the Master
Lease in full force and effect during the Term (and any extended term) of this
Lease.
28.
30.15. Second Right of First Refusal. Tenant shall have the second right
of first refusal (following Avid Technologies, Inc. right of first refusal) on
approximately 20,000 square feet on the second floor of the Premises,
conditioned upon Landlord's expansion needs. Rates on such additional property
will be at current market rates negotiated in good faith by the parties at the
time of exercise of the right.
31. Brokerage Commissions. Landlord shall pay all brokerage commissions
due on this Lease. Each party hereto represents and warrants that it has dealt
with no other broker in connection with this Sublease and the transactions
contemplated herein, except Cornish & Carey Commercial/ONCOR International.
29.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
date first above written.
LANDLORD: TENANT:
SYNTEX (U.S.A.) INC. NOOSH, INC.
By: /s/ David R. Austin By: /s/ Ofer Ben-Shachar
_______________________________ _______________________________
Its: Vice President Its: President & CEO
______________________________ ______________________________
Date: 3/24/99 Date: 3/19/99
_____________________________ _____________________________
GUARANTOR:
OFER BEN-SHACHAR
By: /s/ Ofer Ben-Shachar
_______________________________
Its: ______________________________
Date: _____________________________
30.