EXHIBIT 10.7
[LOGO OF FORUM PROPERTIES APPEARS HERE]
OFFICE BUILDING LEASE
TABLE OF CONTENTS
Page
Addendum One and
1. BASIC LEASE TERMS...................................................... 1
2. PREMISES AND COMMON AREAS LEASED....................................... 2
3. TERM................................................................... 3
4. POSSESSION AND COMMENCEMENT............................................ 3
5. RENT................................................................... 3
6. RENTAL ADJUSTMENT...................................................... 4
Addendum One and
7. SECURITY DEPOSIT....................................................... 5
8. USE.................................................................... 5
9. NOTICES................................................................ 6
10. BROKERS................................................................ 6
11. HOLDING OVER........................................................... 6
12. TAXES ON TENANT'S PROPERTY............................................. 6
13. CONDITION OF PREMISES.................................................. 6
14. ALTERATIONS............................................................ 6
15. REPAIRS................................................................ 7
16. LIENS.................................................................. 7
17. ENTRY ON PREMISES...................................................... 7
18. UTILITIES AND SERVICES................................................. 8
19. BANKRUPTCY............................................................. 8
20. INDEMNIFICATION AND RELEASE............................................ 8
21. EXCLUSIONS............................................................. 8
22. TENANT'S INSURANCE..................................................... 8
23. DAMAGE OR DESTRUCTION.................................................. 9
24. EMINENT DOMAIN......................................................... 9
25. DEFAULTS AND REMEDIES.................................................. 10
26. ASSIGNMENT AND SUBLETTING.............................................. 10
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27. SUBORDINATION.......................................................... 11
28. ESTOPPEL CERTIFICATE................................................... 11
29. MISCELLANEOUS PROVISIONS............................................... 11
30. LIMITATION ON LIABILITY................................................ 13
31. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE.......................... 13
ADDENDUM ONE
EXHIBITS
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A THE PREMISES
B THE PROJECT
C STANDARDS FOR UTILITIES AND SERVICES
D RULES AND REGULATIONS
E PARKING RULES AND REGULATIONS
INTENTIONALLY OMITTED
INTENTIONALLY OMITTED
INTENTIONALLY OMITTED
H ENVIRONMENTAL DISCLOSURE
I INSURANCE
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VFD PM VFM
[LOGO OF FORUM PROPERTIES INC APPEARS HERE]
OFFICE BUILDING LEASE
1. BASIC LEASE TERMS.
a. DATE OF LEASE EXECUTION: 4-25-97
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b. TENANT: Tut Systems, Inc.
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Trade Name: Same
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Address (leased Premises): 8905 SW Nimbus Avenue Suite 160
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Beaverton OR 97008
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Address (For Notices): 2446 Estand Way
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Pleasant Hill CA 94523
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Building/Suite: 12/160
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c. LANDLORD: Petula Assoc., Ltd., an Iowa corporation and Principal Mutual Life
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Insurance Co., an Iowa corporation, doing business as KC Creekside-
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Phase VI.
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Address (for Notices):
_______________________________________________________
c/o Forum Properties Inc., Managing Agent
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8705 SW Nimbus Avenue Suite 230
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Attn: Beaverton OR 97008 Attn: Property Manager
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With a Copy to:
_______________________________________________________
_______________________________________________________
_______________________________________________________
d. PREMISES AREA: Approximately 2,620 Rentable Square Feet
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e. PROJECT AREA: Approximately 75,218 Rentable Square Feet
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f. AGREED UPON TENANT'S PERCENTAGE: 3.48 %
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g. TERM OF LEASE: The term of this Lease shall be for 60 full calendar months
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commencing upon April 1, 1997 (the "Scheduled Commencement Date") and
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ending on March 31, 2002 (the "Scheduled Expiration Date").
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h. BASE MONTHLY RENT: $4,258.00
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i. RENT ADJUSTMENT (Initial One):
/s/ JNU
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Landlord Tenant
(2) Step Increase. If this provision is
initialed, the step adjustment /s/ MTS
provisions of Section 5c apply as _________________________ ___________
follows: Landlord Tenant
1 - OFFICE BUILDING LEASE
Effective Date of New Base
Rent Increases Monthly Rent
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April 1 , 1999 $4,470.00
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April 1 ,**2001 $4,693.00
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_________________, 19___ $___________
_________________, 19___ $___________
_________________, 19___ $___________
j. BASE YEAR: Calendar Year 1997
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k. PREPAID RENT: $4,258
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l. TOTAL SECURITY DEPOSIT: $26,842.00 , including a $0
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non-refundable cleaning fee. See attached Addendum One.
m. TENANT IMPROVEMENT ALLOWANCES: $ 0 per rentable square foot. See attached
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Addendum One.
n. TENANT'S USE OF PREMISES: General office.
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_____________________________________________________________________________
o. PARKING: 4/1,000 unreserved spaces
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p. BROKER(S): Cliff Finnall, Grubb & Ellis
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q. BROKERAGE COMMISSION PAYABLE BY: Landlord
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r. GUARANTOR(S): n/a
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s. ADDITIONAL SECTIONS: Additional sections of this lease, if any, attached
hereto are a part hereof.
t. EXHIBITS: All Exhibits attached hereto are a part hereof.
Section 1 represents a summary of certain terms of this Lease. In the event of
any inconsistency between the terms contained in Section 1 and other specific
clause of this Lease, the terms of the other clause shall prevail.
2. PREMISES AND COMMON AREAS LEASED.
a. Lease. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises described in Section 1 and depicted on Exhibit A hereto
(the "Premises") within the building at the address designated in Section 1 (the
"Building") located in the Project described on Exhibit B hereto (the
"Project"). The rentable square footage of the Premises (and also Tenant's
Percentage set forth in Section 1) may be adjusted by Landlord's architect upon
completion of the Tenant improvements pursuant to the Work Letter Agreement
which is attached hereto. The calculation shall be made in accordance with the
most current "BOMA Standard" in effect and shall be binding upon Landlord and
Tenant.
b. License. Tenant shall have the nonexclusive right to use, in common with
other tenants in the Building and the Project and subject to the Rules and
Regulations referred to in Section 29b below and acts of government, the
following areas: the common entrances, lobbies, restrooms, elevators, stairways,
and loading areas of the Building, and the parking areas, sidewalks, driveways
and landscaped areas and similar areas and facilities appurtenant to the
Building (herein "Common Areas").
c. Reservations. Landlord reserves the right from time to time without
unreasonable interference with Tenant's use:
(1) To install, use, maintain, repair and replace pipes, wires and other
equipment above the ceiling surfaces, below the floor surfaces, within the
walls and/or in the central core areas of the Premises;
(2) To add to, make changes to, or to delete from the Common Areas;
(3) To do work in the Common Areas, and/or to close temporarily any of
the Common Areas (so long as reasonable access to the Premises remains
available); and
(4) To do and perform such other acts and make such other changes in, to
or with respect to the Common Areas, the Building or the Project as Landlord
may deem appropriate.
2 - OFFICE BUILDING LEASE
3. TERM.
The term of this lease shall be for the period designated in Section
1, commencing on the Scheduled Commencement Date, and ending on the Scheduled
Expiration Date, unless sooner terminated as herein provided. The actual
Commencement Date, Expiration Date, rentable square footage of the Premises, and
Tenant's Percentage shall be determined in accordance with the provisions of
this Lease and will be specified by Landlord, in a written notice given after
completion of the Tenant Improvements. Such notice shall be binding upon Tenant
unless Tenant objects, in writing, within five (5) days of Tenant's receipt of
Landlord's notice.
4. POSSESSION AND COMMENCEMENT.
a. Delays. If Landlord, for any reason cannot deliver possession of
the Premises to Tenant upon the Scheduled Commencement Date, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting from such delay. In that event, however, Landlord shall deliver
possession of the Premises as soon as practicable and the Commencement Date
shall be the date of such delivery with the length of the term of the Lease
being the number of full calendar months set forth in Section 1, and all other
terms and conditions of the Lease remaining in full force and effect. However,
if Landlord is delayed in delivering possession to Tenant for any reason
attributable to Tenant, this Lease (including the obligation to pay all rents)
shall commence on the date Landlord could have delivered possession absent such
delay.
b. Outside Date. Notwithstanding the foregoing, if Landlord, for any
reason not attributable to Tenant, is unable to deliver possession of the
Premises within ninety (90) days following the Scheduled Commencement Date,
either party may terminate this Lease by written notice given within ten (10)
days following expiration of such period.
5. RENT.
a. Generally. Tenant shall pay to Landlord, monthly in advance on the
first day of each calendar month, Base Monthly Rent in the amounts described in
Section 1 ("Base Monthly Rent"); provided, however, the Base Monthly Rent for
the first month of the term (or the first month following any rental abatement
period, if applicable) is due upon execution of this Lease by Tenant. If the
term on this Lease contains any rental abatement period, and if this Lease or
Tenant's right of possession is terminated because of Tenant's default, then the
rental abatement period shall be void and Tenant shall pay, in addition to all
other damages due Landlord, rent for the entire rental abatement period at a
rental rate equivalent to the highest Base Monthly Rent described herein. All
charges and sums due from Tenant to Landlord hereunder shall be deemed rent. For
purposes of Section 467 of the Internal Revenue code, the parties agree to
allocate the stated rents to the periods which correspond to the actual rent
payments as provided herein.
b. Index. If Section 1.i.(1) is initialed, the Base Monthly Rent
shall be subject to increase (but shall not be decreased) on each annual
anniversary of the commencement of the term of this Lease. The base for
computing the increase is the Consumer Price Index all Urban Consumers U.S. City
Average (1982-84 = 100), published by the United States Department of Labor,
Bureau of Labor Statistics ("Index"). The Index which is in effect on the
ninetieth (90th) day preceding the date of the commencement of the term is the
"Beginning Index". The Index published and in effect on the ninetieth (90th) day
preceding each anniversary of the commencement of the term of this Lease is the
"Extension Index". On and after each anniversary of the Commencement Date, the
Base Monthly Rent shall be increased to equal the product achieved by
multiplying the Base Monthly Rent due with respect to the month immediately
preceding such anniversary date by a fraction. On the first anniversary of the
Commencement Date, the numerator of the fraction will be the Extension Index and
the Denominator will be the Beginning Index. On the second and any subsequent
anniversaries of the Commencement Date, the numerator of the fraction will be
the current Extension Index and the denominator will be the Extension Index used
to calculate the previous year's rental increase. If the Index is changed so
that the base year differs from that in effect when the term commences, the
Index shall be converted in accordance with the conversion factor published by
the United States Department of Labor, Bureau of Labor Statistics. If the Index
is discontinued or revised during the term, such other government index or
computation with which it is replaced shall be used in order to obtain
substantially the same result as would be obtained if the Index had not been
discontinued or revised.
c. Step Increase. If Section 1.i.(2) is initialed, Base Monthly Rent
shall be increased periodically to the amounts and at the times set forth in
Section 1.i.(2).
d. Payment. All rent shall be paid by Tenant to Landlord (i) monthly
in advance on the first day of every calendar month, at the address shown in
Section 1, or such other place as Landlord may designate in writing from time
to time, (ii) without prior demand or notice and without any deduction or
offset whatsoever, and (iii) in lawful currency of the United States of
America. All rent due for any partial month shall be prorated.
e. Late Charge and Default Rate. Tenant acknowledges that late
payment by Tenant to Landlord of any rent or other sums due under this Lease
will cause Landlord to incur additional costs, the exact amount of such costs
being extremely difficult and impracticable to ascertain. Such costs include,
without limitation, processing and accounting charges and late charges that may
be imposed on Landlord by the terms of any note secured by the Premises.
Therefore, if any rent or other sum due from Tenant is not received within five
(5) days of when due, Tenant shall pay to landlord an additional sum equal to 5%
of such overdue payment. Landlord and Tenant hereby agree that such late charge
represents a fair and reasonable estimate of the costs that Landlord will incur
by reason of any such late payment and that the assessment and/or collection of
the late charge shall not be
3 - OFFICE BUILDING LEASE
deemed a waiver of any default or of any other right or remedy of Landlord.
Additionally, all such delinquent rent or other sums, plus this late charge,
shall bear interest at the prime rate of the U.S. National Bank of Oregon, plus
two percentage points, on a fully floating basis (herein the "Default Rate")
from the date first due until the date paid in full. If any payment is returned
for insufficient funds, thereafter Landlord may require Tenant to pay all
future payments by cashier's check.
f. Prepaid Rent. Upon the execution of this Lease, Tenant shall pay
to Landlord the prepaid rent set forth in Section 1, and if Tenant is not in
default of any provisions of this Lease, such prepaid rent shall be applied
toward the Base Monthly Rent due for the first month of the term (or the first
month following any Base Monthly Rent abatement period, if applicable). Upon a
default by Tenant prior to such application, Landlord shall have the right,
without waiver of the default or prejudice to other remedies, to use the prepaid
rent or any of it to cure the default or to compensate Landlord for all or any
damages resulting from the default. Landlord is not a trustee for the prepaid
rent and the same may be commingled with Landlord's general funds. The prepaid
rent shall not bear interest.
6. RENTAL ADJUSTMENT.
a. Definitions. For the purpose of this Section 6, the following
terms are defined as follows:
(1) "Operating Expense Allowance" shall mean that portion of
Tenant's Percentage of the Operating Expenses that is equal to Operating
Expenses incurred by Landlord with respect to the Premises for the Base
Year as identified in Section 1.
(2) "Operating Expenses" shall consist of all direct costs of
operation, maintenance, repair and replacement of the Project and the
Common Areas of the entire Project ("Operating Expenses"), as determined by
standard accounting practices (including establishment of reasonable
reserves), including the following costs by way of illustration, but not
limitation:
(a) Real Property Taxes;
(b) water, sewer, HVAC, garbage and other utility charges;
(c) legal, accounting, and other consulting fees;
(d) the cost of insurance which Landlord or its lenders deem
appropriate for the Project;
(e) the cost of janitorial, maintenance, security and/or
other services and supplies;
(f) the cost (amortized over a reasonable period set by
Landlord, together with interest at the rate described in Section 5c)
of any capital improvements made to the Project or the Common Areas by
Landlord or replacement of any equipment needed to operate the
Building or the Common Areas at the same quality levels as prior to
the replacement;
(g) cost incurred in the management of the Project
(including Project management office rental, a management fee, and, in
the event Landlord is directly participating in the administration of
the Project, an administrative fee);
(h) the cost of repairs and maintenance of the Project,
including the plumbing, heating, ventilating, air conditioning and
electrical systems installed or furnished by Landlord;
(i) personal property taxes attributable to personal
property used in connection with the Project; and
(j) costs and expenses of repairs, resurfacing, repairing,
maintenance, painting, lighting, cleaning, refuse removal, security
and similar items, including appropriate reserves.
Operating expenses shall not include depreciation on buildings or
equipment therein, real estate brokers' commissions, nor costs charged to
specific lessees under their respective leases.
(3) "Real Property Taxes" shall include any form of tax,
assessment, fee, levy, charge, or other imposition imposed by any authority
having the direct power to tax, including any city, county, state or
federal government, or any school, improvement or special assessment
district, against the Project or any portion thereof or interest therein,
including, but not limited to the following:
(a) any tax against Landlord's business of leasing the Premises;
(b) any tax or other imposition in substitution, partially or
totally, of any assessment, tax, fee, levy or charge previously
included within the definition of Real Property Tax, including but not
limited to, any assessment that may be imposed for services such as
fire protection, street, sidewalk and road maintenance, refuse removal
or other services formerly provided without charge or with less charge
to property owners or occupants;
4 - OFFICE BUILDING LEASE
(c) any assessment, tax, fee, levy or charge allocable to or
measured by the area of the Project or Premises, the rent payable
hereunder, the number of parking spaces at the Project or similar
criteria, including, without limitation, any gross income tax or
excise tax;
(d) any assessment, tax, fee, levy or charge upon this
transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises; and
(e) any local improvement district assessments and any
assessments under recorded covenants.
"Real Property Taxes" shall not include Landlord's federal or state
net income, franchise, inheritance or estate taxes.
b. Payments. For each calendar year during this Lease, or portion
thereof, Tenant shall pay its Percentage (see Sections 1 and 2 above) of the
amount by which Operating Expenses for that year exceed the Operating Expense
for the Base Year. Landlord shall estimate, from time to time, Tenant's payment
amount. This estimated amount shall be divided into equal monthly installments,
one payable with each installment of Base Monthly Rent. As soon as practical
following each calendar year, Landlord shall prepare an accounting of actual
Operating Expenses incurred during the prior calendar year and such accounting
shall reflect Tenant's Percentage. If the additional rent paid by Tenant under
this Section 6b during the preceding calendar year was less than the actual
amount of Tenant's Percentage of Operating Expenses, Landlord shall so notify
Tenant and Tenant shall pay such amount to Landlord within thirty (30) days of
receipt of such notice. Tenant shall have thirty (30) days from receipt of such
notice to contest the amount due; failure to so notify Landlord shall represent
final determination of Tenant's share of Operating Expenses. If Tenant's
payments were greater than the actual amount due, then such overpayment shall be
credited by Landlord to all present rent next due under this Section 6b.
c. Survival. Even though this Lease has expired or been terminated,
when final determination is made of Tenant's Percentage of Operating Expenses
for the year in which this Lease expires or terminates, Tenant shall
immediately pay any shortfall due. Conversely, any overpayment made shall be
rebated by Landlord to Tenant, unless Tenant at that time is indebted to
Landlord.
7. SECURITY DEPOSIT. See attached Addendum One
8. USE.
a. Permitted Use. Tenant shall use the Premises for the uses set
forth in Section 1 above, and for no other purpose without the prior written
consent of Landlord. Nothing contained herein shall be deemed to give Tenant any
exclusive right to such use in the Project. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation of the
suitability of the Premises for the conduct of Tenant's business.
b. Restrictions. Tenant shall not use or occupy the Premises in
violation of any applicable statute, order, regulation, ordinance, approval, or
Certificate of Occupancy ("Laws") and shall upon written notice from Landlord,
discontinue any use declared by any governmental authority or determined by
Landlord to be such a violation. Tenant shall comply with any direction of any
governmental authority which shall, by reason of the nature of Tenant's use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with respect
to the Premises or with respect to the use or occupancy thereof. Tenant shall
not do or permit anything to be done in or about the Premises that would
increase the Project insurance premiums or violate any insurance underwriting
standards; in addition to any other remedy and without waiver of default,
Landlord shall have the right to collect from Tenant the amount of any premium
increase cause =d by Tenant's violation of the foregoing. Tenant shall not (i)
do or permit anything to be done in or about the Premises which will interfere
with the rights of other occupants of the Project, or injure or annoy them, (ii)
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor (iii) cause, maintain or permit any nuisance in, on
or about the Premises nor cause or suffer any waste. Tenant shall comply with
all master plans, restrictive covenants, and obligations created by private
contracts which affect the use and operation of the Premises. Landlord reserves
the right to prescribe the weight and position of all heavy objects which Tenant
desires to place in the Premises. Tenant shall be responsible for all structural
engineering required to determine structural load. Tenant shall not create nor
allow to be emitted from the Premises any odor, noise, heat, light or vibration;
any insulation or other remedial measures
5 - OFFICE BUILDING LEASE
required shall be accomplished by or under the supervision of Landlord, but
Tenant shall immediately pay all costs incurred in connection therewith.
9. NOTICES.
Any notice required or permitted to be given hereunder must be in
writing and shall be given by personal delivery or by registered or certified
mail (regular mail to any P.O. Box) addressed to Landlord or Tenant, as the case
may be, at the address(es) designated in Section 1. A notice shall be deemed
given upon such personal delivery or upon such mailing. Either party may specify
a different address for notice purposes by written notice to the other, except
that Landlord may, in any event, use the Premises as Tenant's address for notice
purposes.
10. BROKERS.
Tenant warrants that it has had no dealings with any broker or agent
regarding this Lease except for those brokers, if any, named in Section 1.
Tenant shall defend, indemnify, and hold Landlord harmless against any liability
based upon a breach of this warranty, including attorneys fees.
11. HOLDING OVER.
If Tenant holds over after the expiration of the term hereof without
the express written consent of Landlord, Tenant shall become a Tenant at
sufferance only, which tenancy may be terminated by Landlord upon ten (10) days
written notice. Such tenancy shall be on the terms hereof, except at a Base
Monthly Rent rate equal to the greater of Landlord's scheduled rent for the
Premises or one hundred twenty-five percent (125%) of the Base Monthly Rent in
effect upon the date of such expiration (subject to adjustment as provided in
Section 6 hereof), prorated on a daily basis. Acceptance by Landlord of rent
after such expiration shall not result in a renewal of this Lease. The
provisions of this Section are in addition to and do not affect Landlord's right
of re-entry or any rights of Landlord hereunder or as otherwise provided by law.
If Tenant fails to surrender the Premises upon the expiration of this Lease or
upon other termination of this Lease or of Tenant's right of possession, Tenant
shall defend, indemnify and hold Landlord harmless from all resulting loss or
liability, including without limitation, any claim made by any succeeding tenant
founded on or resulting from such failure to surrender and any attorneys fees
and costs.
12. TAXES ON TENANT'S PROPERTY.
Tenant shall pay before delinquency all taxes levied against any
personal property or trade fixtures of Tenant in the Premises. If any such taxes
are levied against Landlord or Landlord's property or if the assessed value of
the Premises is increased by the inclusion therein of a value placed upon such
personal property or trade fixtures of Tenant and if Landlord, after written
notice to Tenant, pays the taxes based upon such increased assessment (which
Landlord shall have the right to do regardless of the validity thereof, but only
under proper protest if requested by Tenant), Tenant shall, upon demand, repay
to Landlord the taxes so levied against Landlord. The foregoing shall also
apply, if Landlord so elects, with respect to any fixtures in the Premises which
are assessed at a valuation higher than the valuation of "Building Standard"
improvements. If the records of the County Assessor are not available or
sufficiently detailed to serve as a basis for making said determination, the
actual cost of construction shall be used.
13. CONDITION OF PREMISES.
Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the Premises, the
Building or the Project, nor the suitability of the same for the conduct of
Tenant's business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises, the Building and the Project were in
satisfactory condition at such time and that Landlord has fully complied with
the requirements of the Work Letter Agreement. Without limiting the foregoing,
Tenant specifically acknowledges and accepts the various inconveniences that may
be associated with the use of the Premises and the rest of the Project, such as
certain construction obstacles, delays in use of freight elevator service,
certain elevators not being available to Tenant, the presence of work crews,
uneven air conditioning services, and other typical conditions incident to
recently constructed or improved office space.
14. ALTERATIONS.
a. Consent Requirement. Tenant shall not make any alterations to the
Premises, the Building or to the Project, including any changes to the existing
landscaping, without Landlord's prior written consent in each instance. Any
alterations made shall remain on and be surrendered with the Premises upon
expiration or termination of this Lease, except that Landlord may elect in its
consent (or at any time, if consent was not obtained), to require Tenant to
remove any alterations which Tenant may have made to the Premises. If Landlord
so elects, at its cost Tenant shall accomplish such removal and restore the
Premises to the condition designated by Landlord in its election.
b. Request. Any request for Landlord's consent to alterations shall
be made at least thirty (30) days before any work may be commenced and shall be
accompanied by (i) detailed and costed plans and specifications for all
alterations, and (ii) Tenant's written agreement to provide, upon completion of
work, a complete set of as-built plans and specifications. All alterations
shall be constructed only after obtaining Landlord's prior written
6 - OFFICE BUILDING LEASE
consent and only in conformity with all Laws. The issuance of Landlord's consent
shall not be a waiver of nor an opinion regarding Tenant's obligation to comply
with all Laws.
c. Construction. Should Landlord consent in writing to Tenant's
alteration of the Premises, Tenant shall contract with a contractor approved by
Landlord for the construction of such alterations, shall secure all appropriate
governmental approvals and permits, and shall complete such alterations with due
diligence in compliance with the plans and specifications approved by Landlord.
All such construction shall be performed in a manner which will not interfere
with the quiet enjoyment of other tenants in the Project. Landlord may post
notices of nonresponsibility. Tenant shall pay all costs for construction of
alterations and shall keep the Premises and the Project free and clear of all
liens which may result from work by third parties authorized by Tenant. If any
such lien is filed, the same shall be an event of default hereunder. It shall be
a further event of default for Tenant to fail to remove such lien within ten
(10) days of the filing thereof. Landlord may, at Landlord's option, require
Tenant to obtain a payment and performance bond in an amount equal to 100% of
the estimated cost of the alteration. If such bond is required by Landlord,
Tenant shall deliver satisfactory evidence of same to Landlord prior to the
commencement of the work.
d. Removal of Personal Property. If Tenant shall fail to remove all
of its personal property from the Premises upon expiration or termination of
this Lease, Landlord may, at its option, remove, store and sell the same in any
manner that Landlord shall choose, without liability to Tenant. Tenant agrees to
pay Landlord any and all expenses incurred by Landlord in so doing.
15. REPAIRS.
a. Tenant Obligations. By entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair. Tenant
shall, at its expense, keep, maintain and preserve the Premises in first class
condition and repair, and shall make all repairs to the Premises and every part
thereof. Tenant shall,, upon the expiration or sooner termination of the term
hereof, surrender the Premises to Landlord in the same condition as when
received, usual and ordinary wear and tear excepted. Except as provided in the
Work Letter Agreement, Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof.
b. Landlord Obligations. Notwithstanding Section 15a, Landlord shall
repair and maintain the structural portions of the Building and the plumbing,
heating, ventilating, air conditioning, elevator and electrical systems
furnished by Landlord; the cost of the foregoing shall be Operating Expenses,
unless such maintenance and repairs are caused by the act, neglect or omission
of Tenant, its agents, servants, employees or invitees, in which case Tenant
shall pay to Landlord, as additional rent, the cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any such repairs
or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. There shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein. Tenant waives the right, if any,
to make repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect.
16. LIENS.
Tenant shall not permit any statutory, consensual or other lien to be
filed against the Premises, the Building or the Project, nor against Tenant's
leasehold interest in the Premises. Landlord shall have the right at all times
to post notices of nonresponsibility. If any such lien is filed and not removed
within ten (10) days of filing, Landlord may, without waiving its rights and
remedies based on such breach and without releasing Tenant from any of its
obligations, cause such lien to be released by any means, including payment.
Tenant shall pay to Landlord at once, upon notice by Landlord, any sum expended
by Landlord in connection with any such lien, together with interest at the
Default Rate.
17. ENTRY ON PREMISES.
Landlord and its authorized representatives shall have the right,
after reasonable notice under the circumstances (but without notice in case of
emergency) to enter the Premises at all reasonable times for any of the
following purposes: (a) To determine whether Tenant is complying with its
obligations under this Lease; (b) To do any maintenance, restoration,
improvement and/or janitorial work that Landlord has the right or obligation to
perform; (c) To post "for sale" or "for lease" signs; (d) To show the Premises
to brokers, agents, buyers, lenders, tenants or other persons interested in the
Premises; and/or (e) to do any other act or thing necessary for the safety or
preservation of the Premises or the Project. Landlord may erect temporary
scaffolding or barricades in and around the Premises, but not so as to prevent
access to the Premises. Landlord shall conduct its activities on the Premises as
provided herein in a manner that will cause the least inconvenience, annoyance
or disturbance to Tenant. Landlord shall at all times have and retain a key with
which to unlock all the doors in, upon and about the Premises, excluding
Tenant's vaults and safes. Tenant shall not alter any lock or install a new or
additional lock or bolt on any door of the Premises.
Landlord shall not be liable in any manner, and Tenant shall not be
entitled to any rent reduction, for any inconvenience, disturbance, loss or
other damage arising out of Landlord's activities referenced in this Section 17.
7 - OFFICE BUILDING LEASE
Any entry to the Premises by Landlord shall not be construed or deemed to be an
eviction of Tenant from the Premises or any portion thereof.
18. UTILITIES AND SERVICES.
It is Landlord's policy that utilities and services be furnished as
set forth in Exhibit "C" hereto. Landlord's failure to furnish any of such items
shall not result in any liability to Landlord, Tenant shall not be entitled to
any abatement or reduction of rent by reason of such failure, and no eviction of
Tenant shall result from such failure. If Tenant uses more water or electrical
power than is considered reasonable or normal by Landlord, Landlord may at its
option require Tenant to pay, as additional rent, the cost, as fairly determined
by Landlord, incurred by such extraordinary usage. In addition, Landlord may
install separate meter(s) for the Premises, at Tenant's sole expense, and Tenant
thereafter shall pay all charges so metered.
19. BANKRUPTCY.
If Tenant shall file a petition in bankruptcy or be the subject of
involuntary proceedings in bankruptcy not vacated within thirty (30) days, or if
a receiver or trustee shall be appointed of Tenant's property, or if Tenant
shall make an assignment for the benefit of creditors, or if this Lease shall,
by operation of law or otherwise, pass to any person or persons other than
Tenant, then in any such event this Lease shall automatically terminate, unless
Landlord shall elect otherwise within a reasonable period of time. In such case,
notwithstanding any other provisions of this Lease, Landlord, in addition to any
and all rights and remedies allowed by law or equity, shall, upon such
termination, be entitled to recover damages in the amount provided in Section 25
below. For purposes of the Section 19 (and therefore also of Section 25a(4)),
"Tenant" shall mean and include the Tenant named herein, any assignee or
subtenant, and any partner, co-tenant, or guarantor in or of such Tenant or any
assignee or subtenant.
20. INDEMNIFICATION AND RELEASE.
a. Indemnification. Tenant shall indemnify, defend and hold Landlord,
its property manager, and also all partners, shareholders, officers, directors,
employees and agents of each (collectively the "Protected Parties") harmless,
from all claims, losses, causes of action, damages, costs and expenses
(including attorneys fees incurred by or demanded from the Protected Parties)
arising from (i) the use of the Premises or the Project by Tenant or its agents
or visitors, (ii) any activity, work or thing done, permitted or suffered by
Tenant in or about the Premises, the Building, or the Project, (iii) any breach
or default by Tenant hereunder, and/or (iv) any act, neglect, fault or omission
of Tenant or of its agents or employees. In any litigation against Landlord by
reason of any of the foregoing, Tenant, upon notice from Landlord, shall defend
the same at Tenant's expense by counsel approved in writing by Landlord.
b. Release. Neither Landlord nor any Protected Party shall be liable
to Tenant for any loss, injury or damage to Tenant or to any other person, or to
its or their property, irrespective of the cause of such injury, damage or loss,
unless solely caused by the negligence of Landlord.
21. EXCLUSIONS.
The provisions of this Section 21 shall be operative notwithstanding
Section 20b above. Neither Landlord nor any other Protected Party shall be
liable in any circumstances for (i) any loss, injury or damage caused by other
leases or persons in or about the Building or Project, or (ii) consequential
damages of any kind or type, or (iii) loss or damage to any personal property by
theft or otherwise. Landlord or its agents shall not be liable for interference
with light or other incorporeal hereditaments. Landlord has no liability for or
with respect to an incident or condition not immediately reported by Tenant to
Landlord in writing.
22. TENANT'S INSURANCE. Please refer to Exhibit I.
8 - OFFICE BUILDING LEASE
23. DAMAGE OR DESTRUCTION.
a. Restoration. If during the term, the Premises, Building or
Project is more than 25% destroyed (based upon replacement cost) from any
cause, or rendered permanently unusable from any cause, Landlord may, in its
sole discretion, terminate this Lease by delivery of notice to Tenant within
thirty (30) days of such event without compensation to Tenant. If Landlord does
not elect to terminate this Lease, and if, in Landlord's estimation, the
Premises cannot be restored and/or made usable within one hundred eighty (180)
days following such destruction, the Landlord shall notify Tenant and Tenant
may terminate this Lease by delivery of notice to Landlord within thirty (30)
days of receipt of Landlord's notice. If neither Tenant nor Landlord terminates
this Lease as provided herein, then Landlord shall commence to restore the
Premises in compliance with then existing laws and shall complete such
restoration with due diligence. In such event, this Lease shall remain in full
force and effect, without abatement of rent. Tenant shall not be entitled to
any compensation or damages for loss of use of all or any part of the Premises
and/or any inconvenience or annoyance occasioned by such damage, repair,
reconstruction or restoration. Tenant hereby waives the provisions of any
statutes or court decisions which relate to the abatement of rent or
termination of leases when leased property is damaged or destroyed and agree
that such event shall be exclusively governed by the terms of this Lease.
b. Limitations. If damage is due to any cause other those fully
covered by Landlord's insurance, or occurs during the final twelve (12) months
of the term of this Lease, Landlord may elect to terminate this Lease. If
Landlord repairs or restores as herein provided, Landlord shall repair or
restore only those portions of the Building and the Premises which were
originally provided at Landlord's expense, and the repair and restoration of
items not provided at Landlord's expense shall be the obligation of Tenant.
24. EMINENT DOMAIN.
a. Definitions. The following definitions shall apply.
"Condemnation" means (a) the exercise of any governmental power of eminent
domain, whether by legal proceedings or otherwise by a Condemnor, and (b) the
voluntary sale or transfer by Landlord to any Condemnor either under threat of
condemnation or while legal proceedings for condemnation are proceeding. "Date
of Taking" means the earlier of the date that title or the right of possession
passes to the Condemnor. "Award" means all compensation, sums or anything of
value awarded, paid or received by reason of a Condemnation. "Condemnor" means
any public or quasi-public authority, or private corporation or individual,
having a power of condemnation.
b. Lease Governs. If during the term of the Lease there is any
taking of all or any part of the Premises or the Project, the rights and
obligations of the parties shall be determined pursuant to this Lease.
c. Termination or Continuation. If the Premises are totally taken
by condemnation, this Lease shall terminate on the Date of Taking. If only a
portion of the Premises is taken by Condemnation, this Lease shall terminate as
to the part so taken as of the Date of Taking, but shall in all other respects
remain in effect, except that Tenant shall have the right to elect to terminate
this Lease if the remaining portion of the Premises is rendered unsuitable for
Tenant's continued use of the Premises. If Tenant elects to terminate this
Lease, Tenant must exercise its right to terminate by giving notice to Landlord
within 30 days after the nature and extent of the Condemnation have been
finally determined. If Tenant elects to terminate this Lease, Tenant shall also
notify Landlord of the date of termination, which date shall not be earlier
than 30 days nor later than 90 days after Tenant
9 - OFFICE BUILDING LEASE
has notified Landlord of its election to terminate; except that this Lease shall
terminate on the Date of Taking if the Date of Taking falls on a date before the
date of termination as designated by Tenant. If any portion of the Premises is
taken by Condemnation and this Lease remains in effect, on the Date of Taking
the Base Monthly Rent shall be reduced by an amount in the same ratio as the
total number of square feet in the Premises taken bears to the total number of
square feet in the Premises immediately before the Date of Taking.
d. Landlord Right. Notwithstanding anything herein to the contrary,
if the Premises or the Project or any portion of either is taken by
Condemnation and the portion taken does not, in Landlord's sole judgment,
feasibly permit the continuation of the operation of the Premises or Project by
Landlord, then Landlord shall have the right to terminate this Lease by written
notice given within thirty (30) days after the nature or event of the
Condemnation have been finally determined.
e. Award. Tenant shall have no right or claim to all or any portion
of the Award; provided this shall not limit Tenant's right to seek and to
receive compensation for relocation expenses or the value of its personal
property taken, so long as receipt of such compensation does not decrease the
Award otherwise payable to Landlord.
25. DEFAULTS AND REMEDIES.
a. Defaults. The occurrence of any one or more of the following
events shall constitute a default hereunder by Tenant:
(1) The vacation or abandonment of the Premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any
absence by Tenant from the Premises for ten (10) business days or longer.
(2) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by Tenant
hereunder, as and when due.
(3) 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, other than as specified in Subparagraph 25a(1) or (2)
above, where such failure shall not be cured within the time period
specified in a written notice of such failure from Landlord to Tenant.
(4) The occurrence of any of the events set forth in Section 19
above.
b. Remedies. Landlord shall have the following remedies if Tenant
is in default. Landlord may terminate this Lease and/or Tenant's right to
possession of the Premises at any time. No act by Landlord other than giving
notice to Tenant shall terminate this Lease. Acts of maintenance, efforts to
relet the Premises, or the appointment of a receiver on Landlord's initiative
to protect Landlord's interest under this Lease shall not constitute a
termination of this Lease. Upon termination of this Lease or of Tenant's right
to possession, Landlord has the right to recover from Tenant: (1) The worth of
the unpaid rent that had been earned at the time of such termination; (2) The
worth of this amount of the unpaid rent that would have been earned after the
date of such termination; and (3) Any other amount, including court, attorney
and collection costs, necessary to compensate Landlord. "The Worth," as used
in Section (1) is to be computed by allowing interest at the Default Rate.
"The worth" as used for Section (2) is to be computed by discounting the amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time
of termination.
c. Additional Rights. All rights, options and remedies of Landlord
contained in this Lease shall be construed and held to be cumulative, and no
one of them shall be exclusive of the other or of any other right now or
hereafter allowed by law. Landlord shall have the right to pursue any one or
all of such remedies. No waiver of any default of Tenant hereunder shall be
implied from any acceptance by Landlord of any rent or other payments due
hereunder or any omission by Landlord to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect defaults other than as specified in said waiver.
26. ASSIGNMENT AND SUBLETTING.
a. General Restriction. Tenant shall not voluntarily assign or
encumber its interest in this Lease or in the Premises or sublease all or any
part of the Premises, or allow any other person or entity to occupy or use all
or any part of the Premises, without first obtaining Landlord's prior written
consent in each instance. Any assignment, encumbrance or sublease without
Landlord's prior written consent shall be voidable at Landlord's election and
shall constitute a default. For purposes hereof, in the event Tenant is a
partnership or consists of one or more persons or entities, a withdrawal or
change (whether voluntary, involuntary, or by operation of law) of a partner or
of one of such persons or entities, or if Tenant is a corporation, any transfer
of fifty percent (50%) of its stock in one or more transfers, shall constitute
a voluntary assignment and shall be subject to these provisions. No consent to
an assignment, encumbrances or sublease shall constitute a waiver of the
provisions of this Section.
b. Request. Tenant shall request in writing, consent to any
assignment or sublease. The request shall include the name of the proposed
assignee or subleases, the nature of the proposed assignee's or sublessee's
business, information concerning the financial responsibility of the proposed
assignee or subleases, and the terms of the proposed assignment or subletting.
Landlord shall, within thirty (30) days of receipt of such request and
information and of any additional information requested by Landlord, elect one
of the following: (1) consent to such proposed assignment or sublease (Landlord
shall have the right to impose reasonable conditions, including but not limited
to those discussed below); or (2) refuse such consent, which refusal shall be
on reasonable grounds.
10 - OFFICE BUILDING LEASE
c. Conditions. As a condition for granting its consent to any
assignment or sublease, Landlord may require that the rent payable by the
assignee or sublessee is at the then current published rental rates for the
Premises or comparable premises in the Building, but not less than the then
current Base Monthly Rent under this Lease and may require that the assignee or
sublessee remit directly to Landlord on a monthly basis all monies due to
Tenant by said assignee or sublessee. In addition, a condition to Landlord's
consent to any assignment, transfer or hypothecation of this Lease shall be the
delivery to Landlord of a true copy of the fully executed instrument of
assignment, transfer or hypothecation, and the delivery to Landlord of an
agreement executed by the assignee in form and substance satisfactory to
Landlord and expressly enforceable by Landlord, whereby the assignee assumes
and agrees to be bound by all the terms and provisions of this Lease and to
perform all of the obligations of Tenant hereunder. As a condition to
Landlord's consent to any sublease, such sublease shall provide that it is
subject and subordinate to this Lease and to all mortgages; that Landlord may
enforce the provisions of the sublease, including collection of rent; that in
the event of termination of this Lease for any reason, including without
limitation a voluntary surrender by Tenant, or in the event of any reentry or
repossession of the Premises by Landlord, Landlord may, at its option, either
(1) terminate the sublease or (2) take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, in which case such
subleases shall attorn to Landlord, but that nevertheless Landlord shall not be
liable for any previous act or omission of Tenant under such sublease, be
subject to any defense or offset previously accrued in favor of the subleases
against Tenant, or be bound by any previous modification of the sublease made
without Landlord's written consent, or by any previous prepayment by subleases
of more than one month's rent.
d. Costs. In the event that Landlord shall consent to an assignment
or sublease under the provisions of this Paragraph 26, Tenant shall pay
Landlord's processing costs and attorneys' fees incurred in giving such
consent.
e. No Release. Landlord's consent to any assignment or subletting
shall not relieve Tenant or any assignee or subleases from any obligation under
this Lease whether or not accrued.
27. SUBORDINATION.
a. Lease Status. Without the necessity of any additional document
being executed by Tenant, this Lease shall be subject and subordinate at all
times to: (1) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the land upon which the
Building is situated or both; and (2) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which the
Building, or any such land, ground leases or underlying leases, or Landlord's
interest or estate in any of said items, is specified as security.
b. Attornment and Documentation. In the event that any ground lease
or underlying lease terminates or any mortgage or deed of trust is foreclosed
or a conveyance in lieu of foreclosure is made, Tenant shall, notwithstanding
any subordination, attorn to and become the Tenant of the successor in interest
to Landlord, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, within ten (10) days of request, any additional
documents evidencing the subordination and/or attornment provided herein.
28. ESTOPPEL CERTIFICATE.
Within ten (10) days following any written request, Tenant shall
execute and deliver to Landlord an estoppel certificate regarding the status of
this Lease and any particular matters requested therein. Landlord and Tenant
intend that any materials delivered pursuant to this Section may be relied upon
by any then current or prospective lender or purchaser.
29. MISCELLANEOUS PROVISIONS.
The following are material provisions of this Lease.
a. Building Planning. In the event Landlord requires the Premises
for use in conjunction with another suite or for other reasons, upon notifying
Tenant in writing, Landlord shall have the right to move Tenant to other space
in the Building, at Landlord's sole cost and expense, and the terms and
conditions of this Lease shall remain in full force and effect, except that a
revised Exhibit A shall become part of this Lease and shall reflect the
location of the new space and Section 1 of this Lease shall be amended to
include and state all correct data as to the new space. However, if the
proposed new space does not meet with Tenant's approval, Tenant shall have the
right to terminate this Lease upon giving Landlord thirty (30) days' notice
within ten (10) days of receipt of Landlord's notification. If Tenant
terminates this Lease pursuant to this Section 29, Tenant shall vacate the
Building and the Premises within thirty (30) days of its delivery to Landlord
of the notice of termination.
b. Rules and Regulations. Tenant shall comply with the "Rules and
Regulations" attached hereto as Exhibit D, the "Parking Rules and Regulations"
attached hereto as Exhibit E, and all reasonable and nondiscriminatory
modifications and additions to either adopted from time to time by Landlord.
Tenant shall be responsible for compliance with the foregoing by all employees,
agents and visitors of Tenant. Landlord shall not be responsible to Tenant for
the violation or non-performance by any other tenant or occupant of the
Building or Project of any of said Rules and Regulations.
c. Applicable Law. This Lease shall be governed by the laws of the
state in which the Premises are located.
11 - OFFICE BUILDING LEASE
d. Successors and Assigns. Without diminishing the provisions of
Section 26 above, it is agreed that all of the covenants, conditions and
provisions of this Lease shall bind and benefit the parties hereto and their
respective successors and assigns.
e. Professional Fees. In the event of any other litigation between
Tenant and Landlord and/or any of the Protected Parties with respect to this
Lease, all cost and attorneys fees incurred by the prevailing party shall be
paid by the other party, including fees incurred at and in preparation for
trial and any appeal or review. If Landlord employs a collection agency to
recover delinquent charges, Tenant agrees to pay all collection agency fees
charged to Landlord.
f. Performance By Tenant. All covenants to be performed by Tenant
under this Lease shall be performed by Tenant at Tenant's sole cost and expense
and without any abatement of rent. If Tenant shall fail to pay any sum of
money owed to any party other than Landlord for which it is liable hereunder,
or if Tenant shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue after the time for cure specified in
notice of such failure given by Landlord, Landlord may, without waiving such
default or any other right or remedy, but shall not be obligated to, make any
such payment or perform any such other act to be made or performed by Tenant.
All sums so paid by Landlord and all necessary incidental costs, together with
interest thereon at the Default Rate from the date of expenditure by Landlord,
shall be payable to Landlord on demand.
g. Mortgage Protection. In the event of any default on the part of
Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises whose address
shall have been furnished to Tenant, and shall allow such beneficiary or
mortgagee a reasonable opportunity to cure the default prior to exercise of any
remedy.
h. Definition of Landlord. In the event of any transfer, assignment
or other conveyance of title to the Building or the lessee's interest in a
ground or master lease, the Landlord herein named (and in the case of any
subsequent transfers or conveyances, the then grantor) shall be automatically
freed and relieved from all liability thereafter arising hereunder, and the
transferee shall be deemed to have assumed such liability arising during its
ownership of the Premises.
i. Waiver. A waiver shall be accomplished only by a written
instrument which expressly states such waiver and is signed by the party
charged with the waiver. The waiver by Landlord of any breach of any term of
this Lease shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, nor shall any custom or practice between the parties
affect the right of Landlord to insist upon performance by Tenant in strict
accordance with the terms hereof. The subsequent acceptance of rent by
Landlord shall not be deemed a waiver of any preceding breach by Tenant,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
j. Identification of Tenant. If more than one person or entity
constitutes Tenant, each shall be jointly and severally liable hereunder, and
the term "Tenant" shall mean and include each of them jointly and severally.
The act of or notice from, or the signature of, any one or more of them, shall
be binding upon each and all of the persons and entities constituting Tenant.
k. Force Majeure. Landlord shall have no liability whatsoever to
Tenant on account of the inability of Landlord to fulfill, or delay in
fulfilling, any of Landlord's obligations under this Lease by reason of strike
or other labor trouble, acts of omissions of government, acts of God, or any
other cause, whether similar or dissimilar to the above, beyond Landlord's
reasonable control. The time period for performance of any obligation of
Landlord shall be extended by the period of any delay caused by any such
events.
l. Interpretation. The Section headings of this Lease are for
convenience only and shall have no effect whatsoever upon the interpretation of
any part hereof. This Lease has been completely reviewed by Tenant and by such
attorneys and others as Tenant desires and shall not be construed against
Landlord by reason of having been initially prepared by Landlord. Any
handwritten or typed modifications to this Lease shall be given only as much,
and not more, weight as the preprinted provisions hereof.
m. Time. Time is of the essence of every provision of this Lease.
n. Prior Agreement; Amendments. This Lease, including the Work
Letter Agreement and the Exhibits hereto, contains all of the agreements of the
parties with respect to the leasing of the Premises and supercedes any prior
agreement or understanding. This Lease may be amended only by a subsequent
writing signed by the parties hereto.
o. Separability. If any provision of this Lease is held to be
invalid, void or unenforceable as written, the parties intend and desire that
such provision be enforced to the fullest extent allowed by law and that such
holding is no way affect, impair or invalidate any other provision hereof.
p. Recording. Tenant shall not record this Lease or a memorandum
thereof without the prior written consent of Landlord.
q. Financial Statements. Tenant shall upon ten (10) days prior
written notice from Landlord provide Landlord with a current financial statement
and financial statements of the two (2) years prior to the current financial
12 - OFFICE BUILDING LEASE
statement year. Such statements shall be prepared in accordance with generally
accepted accounting principles and, if such is the normal practice of Tenant,
shall be audited by an independent certified public accountant.
r. Consent. Any consent required by Landlord under this Lease must
be granted in writing. No such consent shall be unreasonably withheld, but any
consent may be issued subject to reasonable conditions. As a condition to any
consent, Landlord may require that any other party or parties with a right of
consent issue such consent on terms acceptable to Landlord. The consent or
approval of Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
to or approval of any subsequent similar acts by Tenant.
s. Third Parties. The Protected Parties and the lenders of Landlord
shall have the right to enforce the provisions of this Lease which reference
them. Except for the foregoing, there are no third parties benefitted hereby,
this Lease being intended solely for the benefit of Landlord and Tenant.
t. Survival. The release and indemnity covenants of Tenant, the
right of Landlord to enforce its remedies hereunder, the attorneys fees
provisions hereof, the provisions of Section 30 hereof, as well as all
provisions of this Lease which contemplate performance after the expiration or
termination hereof or the termination of Tenant'' right to possession
hereunder, shall survive any such expiration or termination.
30. LIMITATION ON LIABILITY.
In consideration of the benefits accruing hereunder, Tenant agrees
that, regarding any claim against Landlord and/or any other Protected Party,
including in the event of any actual or alleged failure, breach or default by
Landlord:
(a) The sole and exclusive remedy of Tenant shall be against the
interest of Landlord in the Project, and neither Landlord nor any other
Protected Party shall have any other liability whatsoever.
(b) If Landlord is a partnership, the following provisions of this
item b. shall also apply: (i) No partner of Landlord shall be sued or named as
a party in any suit or action; (ii) No service of process shall be made against
any partner of Landlord (except as may be necessary to secure jurisdiction of
the partnership); (iii) No partner of Landlord shall be required to answer or
otherwise plead to any service or process; (iv) No judgment may be taken
against any partner of Landlord; (v) Any judgment taken against any partner of
Landlord may be vacated and set aside at any time without hearing; and (vi) No
writ of execution will ever be levied against the assets of any partner of
Landlord.
(c) These covenants and agreements contained in this Section 30 are
enforceable both by Landlord and also by any other Protected Party.
(d) Tenant agrees that each of the foregoing provisions shall be
applicable to any and all liabilities, claims and causes of action whatsoever,
including those based on any provisions of this Lease, any implied covenant,
and/or any statue or common law principle.
31. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE.
a. Emissions. Tenant shall not (i) discharge, emit or permit to be
discharged or emitted, any liquid, solid or gaseous matter, or any combination
thereof, into the atmosphere, the ground or any body of water, which does or
may pollute or contaminate the same, or does or may adversely affect the health
or safety of persons, or the use or enjoyment of the Premises; nor (ii)
transmit, receive or permit to be transmitted or received, any electromagnetic,
microwave or other radiation in, on or about the Premises.
b. Storage. If, with or without violation of this Lease, Tenant
possesses at the Premises any matter described in Section 31a(i) above or any
Hazardous Substances (as defined below), Tenant shall store the same in
appropriate leak proof containers and/or areas which comply with all laws and
all prudent practices.
c. Disposal of Waste. Tenant shall not keep any trash, garbage,
waste or other refuse on the Premises except in sanitary containers and shall
regularly and frequently remove same from the Premises. Tenant shall keep all
such containers in a clean and sanitary condition. Tenant shall properly
dispose of all sanitary sewage and shall not use the sewage system for the
disposal of anything except sanitary sewage, nor in excess of capacity. Tenant
shall not cause any obstruction in the sewage disposal system.
d. Compliance with Law. Notwithstanding any other provision in the
Lease to the contrary, Tenant shall comply with all Laws in complying with its
obligations under this Lease, and in particular, Laws relating to the storage,
use and disposal of Hazardous Substances (as defined below).
e. Indemnification for Breach. Tenant shall defend, indemnify and
hold Landlord, the other Protected Parties, the Project and the holder of a
trust deed or mortgage on the Project harmless from any loss, claim, liability
or expense, including, without limitation, attorneys fees and costs, at trial
and/or on appeal and review, arising out of or in connection with its failure
to observe or comply with the provisions of this Section 31. This indemnity
shall survive the expiration or earlier termination of the term of the Lease or
the termination of Tenant's right of possession and be fully enforceable
thereafter.
13 - OFFICE BUILDING LEASE
f. Indemnification Regarding Hazardous Substances. In addition to
the indemnity obligations contained elsewhere herein, Tenant shall indemnify,
defend and hold harmless Landlord, the other Protected Parties, the Premises,
the Project, and the holder of a trust deed or mortgage on the Project, from
and against all claims, losses, damages, monitoring costs, response costs,
liabilities, and other costs and expenses caused by, arising out of, or in
connection with, the generation, release, handling, storage, discharge,
transportation, deposit or disposal in, on, under or about the Premises by
Tenant or any of Tenant's agents of the following (collectively referred to as
"Hazardous Substances"): hazardous materials, hazardous substances, toxic
wastes, toxic substances, pollutants, petroleum products, underground tanks,
oils, pollution, asbestos, PCB's, radioactive materials, or contaminants, as
those terms are commonly used or as defined by federal, state, and/or local law
or regulation related to protection of health or the environment, including but
not limited to, the Resource Conservation and Recovery Act (RCRA) (42 U.S.C.
(S) 6901, et seq.); the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) (42 U.S.C. (S) 9601, et seq.); the Toxic Substances
Control Act (15 U.S.C. (S) 2601, et seq.); the Clean Water Act (33 U.S.C. (S)
1251, et seq.); the Clean Air Act (42 U.S.C. (S) 7401 et seq.); and ORS
Chapters 453, 465 and 466 as any of same may be amended from time to time,
and/or by any rules and regulations promulgated thereunder. Such damages,
costs, liabilities, and expenses shall include such as are claimed by any
regulating and/or administering agency, any ground lessor or master lessor of
the Project, the holder of any Mortgage or Deed of Trust on the Project, and/or
any successor of the Landlord named herein. This indemnity shall include (i)
claims of third parties, including governmental agencies, for damages, fines,
penalties, response costs, monitoring costs, injunctive or other relief; (ii)
the costs, expenses or losses resulting from any injunctive relief, including
preliminary or temporary injunctive relief; (iii) the expenses, including fees
of attorneys and experts, of reporting the existence of Hazardous Substances to
an agency of the State of Oregon or of the United States as required by
applicable laws and regulations; and (iv) any and all expenses or obligations,
including attorney's fees, incurred at, before and after any administrational
proceeding, trial, appeal and review. This indemnity shall survive the
expiration or earlier termination of the term of the Lease or the termination
of Tenant's right of possession and shall remain fully enforceable thereafter.
g. Information. Tenant shall give prior written notice to Landlord
of any use, whether incidental or otherwise, of Hazardous Substances on the
Premises, and shall immediately deliver to Landlord a copy of any notice of any
violation of any Law with respect to such use. Tenant shall also provide
Landlord, upon request, with any and all information regarding Hazardous
Substances in the Premises, including contemporaneous copies of all filings and
reports to governmental entities, and any other information requested by
Landlord. In the event of any accident, spill or other incident involving
Hazardous Substances, Tenant shall immediately report the same to Landlord and
supply Landlord with all information and reports with respect to the same. All
information described herein shall be provided to Landlord regardless of any
claim by Tenant that it is confidential or privileged.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date first above written.
Tenant: Tut Systems, Inc.
----------------------------------
/s/ Michael T. Sullivan
----------------------------------
By: /s/ Michael T. Sullivan
------------------------------
Its: V P
------------------------------
Landlord: See Attached
14 - OFFICE BUILDING LEASE
PETULA ASSOCIATES, LTD., an Iowa Corporation and PRINCIPAL MUTUAL
LIFE INSURANCE COMPANY, an Iowa Corporation dba CREEKSIDE VI
PETULA ASSOCIATES, LTD., an Iowa Corporation
By: /s/ JOHN N. URBAN
---------------------------------
Its: JOHN N. URBAN
VICE PRESIDENT
---------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, an Iowa Corporation
By: /s/ Kurt D. Schaeffer
---------------------------------
Its: Kurt D. Schaeffer
Assistant Director
Commercial Real Estate
--------------------------------
ADDENDUM ONE
1. Basic Lease Terms, No Tenant Improvement Allowance
Tenant has agreed to take the Premises in "as-is" condition, with minor cosmetic
touch-up painting, and carpet cleaning of the entire suite to be completed by
Landlord prior to commencement. Landlord will provide one standard building
suite sign and one directory listing.
7. Letter of Credit As Security Deposit
Upon execution of this Lease, Tenant shall provide Landlord with a Letter of
Credit as the security deposit set forth in Section 1 as security for the
performance by Tenant of the provisions of this Lease. Upon a default by Tenant,
Landlord shall have the right, without waiver of the default or prejudiced other
remedies, to use the security deposit or any portion of it to cure the default
or to compensate Landlord for any damages resulting from Tenant's default. Upon
demand, Tenant shall immediately pay to Landlord a sum equal to the portion of
the security deposit expended or applied by Landlord to maintain the security
deposit in the amount required by the following schedule. In no event will
Tenant have the right to apply any part of the security deposit to any rent or
to other sums due under this Lease. If Tenant is not in default at the
expiration or termination of this Lease, Landlord shall return the entire
scheduled amount remaining as security. Landlord is not a trustee of the
security deposit and Landlord can commingle the security deposit with Landlord's
general funds. Landlord shall not be required to pay Tenant interest on the
deposit. If Landlord sells its interest in the Premises during the term hereof
and deposits with or credits to the purchase the unapplied portion of the
security deposit, Landlord shall be discharged from liability with respect to
the security deposit.
If Tenant is not in default of the Lease, increments of the Letter of Credit
security deposit shall be released at Tenant's request in accordance with the
following schedule.
Letter of Credit Security Deposit Schedule
------------------------------------------
. Due upon lease execution: $ 26,842
. Deposit level required from April 1, 1997 through February 28, 1998: $ 26,842
. Deposit level required from March, 1998 through February 28, 1999: $ 22,584
. Deposit level required from March 1999 through February 29, 2000: $ 18,326
. Deposit level required from March 2000 through February 28, 2001: $ 13,856
. Deposit level required from March 2001 through February 28, 2002: $ 9,386
. Remaining final security deposit: $ 4,693
EXHIBIT A
[MAP OF CREEKSIDE SIX APPEARS HERE]
THE PREMISES
(Cross-hatched area)
EXHIBIT B
[MAP OF CREEKSIDE CORPORATE PARK APPEARS HERE]
THE PROJECT
(CROSS-HATCHED AREA)
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
1. Non-attended automatic elevator facilities Monday through Friday,
except holidays, from 8 A.M. to 6 P.M., and have one elevator available at all
other times.
2. Monday through Friday, except holidays, from 8 A.M. to 6 P.M., and on
Saturday mornings from 8 A.M. to 12 Noon (and other times for the sum of $10.00
per hour), ventilate the Premises and furnish air conditioning or heating on
such days and hours, when in the reasonable judgment of Landlord it may be
required for the comfortable occupancy of the Premises. Tenant agrees to
cooperate fully at all times with Landlord, and to abide by all reasonable
regulations and requirements which Landlord may prescribe for the proper
function and protection of said air conditioning system. Tenant agrees not to
connect any apparatus, device, conduit or pipe to the Building chilled and hot
water air conditioning supply lines. Tenant further agrees that neither Tenant
nor its employees, agents, visitors, licensees or contractors shall at any time
enter mechanical installations or facilities of the Building or adjust, tamper
with, touch or otherwise in any manner affect said installations or facilities.
The cost of maintenance and service calls to adjust and regulate the air
conditioning system shall be charged to Tenant if the need for maintenance work
results from either Tenant's adjustment of room thermostats or Tenant's failure
to comply with its obligations under this section. Such work shall be charged at
hourly rates equal to then-current journeymen's wages to air conditioning
mechanics.
3. During the usual business hours on business days, electric current as
required by the building standard office lighting and fractional horsepower
office business machines in an amount not to exceed 5 watts per square foot.
Tenant agrees, should its electrical installation or electrical consumption be
in excess of the aforesaid quantity or extend beyond normal business hours, to
reimburse Landlord monthly for the measured consumption at the average cost per
kilowatt hour charged to the building during the period. If a separate meter is
not installed at Tenant's cost, such excess cost will be established by an
estimate agreed upon by Landlord and Tenant, and if the parties fail to agree,
as established by an independent licensed engineer. Tenant agrees not to use
any apparatus or device in, or upon, or about the Premises which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Tenant further agrees not to connect any apparatus or devise with
wires, conduits or pipes, or other means by which such services are supplied,
for the purpose of using additional or unusual amounts of such services without
written consent of Landlord. Should Tenant use the same to excess, the refusal
on the part of Tenant to pay upon demand of Landlord the amount established by
Landlord for such excess charge shall constitute a breach of the obligation to
pay rent under this Lease and shall entitle Landlord to the rights therein
granted for such breach. At all times Tenant's use of electric current shall
never exceed the capacity of the feeders to the building or the risers or wiring
installation and Tenants shall not install or use or permit the installation or
use of any computer or electronic data processing equipment in the Premises
without the prior written consent of Landlord.
4. Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant, and if to be
kept clean by Tenant, no one other than persons approved by Landlord shall be
permitted to enter the Premises for such purposes. If the Premises are not used
exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant's expense, and to the satisfaction of Landlord, and by persons approved
by Landlord. Tenant shall pay to Landlord the cost of removal of any of
Tenant's refuse and rubbish to the extent that the same exceeds the refuse and
rubbish usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason of
accident or emergency or for repairs, alterations or improvements, in the
judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements, shall have been completed, and shall further have
no responsibility or liability for failure to supply elevator facilities,
plumbing, ventilating, air conditioning or electric service. It is expressly
understood and agreed that any covenants, express or implied, for Landlord to
furnish any service for the benefit of Tenant shall not be deemed breached if
Landlord is unable to furnish or perform the same by virtue of a strike or labor
trouble or any other cause whatsoever beyond Landlord's reasonable control.
5. Tenant shall not use or install in the Premises any heat generating
equipment, except as specifically authorized herein, or installed pursuant to
the Work Letter Agreement, without Landlord's prior written consent. The
inclusion of this restriction is to ensure that the HVAC system is adequate to
service the Building and the various uses of tenants that occupy the Building.
EXHIBIT C
EXHIBIT D
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside of
the Building or Project without the prior written consent of Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shadow, screens
or hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which is
visible from the exterior of the Premises, Tenant shall immediately discontinue
such use. Tenant shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators or stairways of the Project. The halls, passages, exits,
entrances, elevators and stairways are not open to the general public, but are
open, subject to reasonable regulations, to Tenant's business invitees.
Landlord shall in all cases retain the right to control and prevent access
thereto of all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation and interest of the Project and
its tenants; provided that nothing herein contained shall be construed to
prevent such access to personnel with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in illegal or
unlawful activities. No tenant and no employee or invitee of any tenant shall
go upon the roof(s) of the Project.
4. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any door of
its Premises. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord therefor.
5. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
6. No equipment, materials, furniture, packages, supplies, merchandise or
other property will be received in the Building or carried in the elevators
except between such hours and in such elevators as may be designated by
Landlord. Tenant's initial move in and subsequent deliveries of bulky items,
such as furniture, sofas and similar items shall, unless otherwise agreed in
writing by Landlord, be made during the hours of 6:00 p.m. to 6:00 a.m., or on
Saturday or Sunday. Deliveries during normal office hours shall be limited to
normal office supplies and other small items. No deliveries shall be made which
impede or interfere with other tenants or the operation of the Building.
7. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by Law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment in or
out of the Building must be acceptable to Landlord. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the building by maintaining or moving such
equipment or other property shall be repaired at the expense of Tenant.
8. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant shall
not use or permit to be used in the Premises any foul or noxious gas or
substance, or permit or allow the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the building by
reason of noise, odors, or vibrations, nor shall Tenant bring into or keep in or
about the Premises any birds or animals.
9. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord.
10. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
D-1
11. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
12. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 7:00 a.m. the following day, or such other hours as may
be established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the Building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall be liable to
Landlord for all acts of such persons. Landlord shall not be liable for damages
for any error with regard to the admission to or exclusion from the Building of
any person. Landlord reserves the right to prevent access to the Building in
case of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
13. Tenant shall entirely shut off all water faucets or other water
apparatus, and electricity, gas or air outlets before tenant and its employees
leave the Premises. Tenant shall be responsible for any damage or injuries
sustained by other tenants or occupants of the Building or by Landlord for
noncompliance with this rule.
14. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
15. Tenant shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any room-to-room
solicitation of business from other tenants in the Project. Tenant shall not
use the Premises for any business or activity other than that specifically
provided for in Tenant's Lease. Canvassing, soliciting and distribution of
handbills or any other written material, and peddling in the Project are
prohibited, and Tenant shall cooperate to prevent such activities.
16. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof(s) or exterior walls of the Building or Project.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Project or elsewhere.
17. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof, except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where and
how telephone and telegraph wires are to be introduced to the Premises. Tenant
shall not cut or bore holes for wires. Tenant shall not affix any floor
covering to the floor of the Premises in any manner except as approved by
Landlord. Tenant shall repair any damage resulting from noncompliance with this
rule.
18. Tenant shall not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
19. Landlord reserves the right to exclude or expel from the Project any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
20. Tenant shall store all its trash and garbage within its Premises or in
other facilities provided by Landlord. Tenant shall not place in any trash box
or receptacle any materials which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
21. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectional purpose. No
cooking shall be done or permitted on the Premises without Landlord's consent,
except that use by Tenant of Underwriters' Laboratory approved equipment for
brewing coffee, tea, hot chocolate and similar beverages or use of microwave
ovens for employee use shall be permitted, provided that such equipment and use
is in accordance with all applicable Laws.
22. Tenant shall not use in any space or in the public halls of the
Project any hand truck except those equipped with rubber ties and side guards or
such other material-handling equipment as Landlord may approve. Tenant shall
not bring any other vehicles of any kind into the Building or Project.
23. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
24. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
25. Tenant's requirements will be attended to only upon appropriate
application to the Project management office by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord.
D-2
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking
facilities which are appurtenant to the Project.
1. Tenant shall not park or permit the parking of any vehicle in any
parking areas designated by Landlord as areas for parking by visitors to the
Project. Tenant shall not leave vehicles in the parking areas overnight.
Tenant shall not park any vehicles in the parking areas other than automobiles
and motorcycles.
2. No overnight or extended term storage of vehicles shall be permitted.
3. Vehicles must be parked entirely within painted stall lines of a
single parking stall.
4. All directional signs and arrows must be observed.
5. The speed limit within all parking areas shall be 5 miles per hour.
6. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross-hatched areas; and
(f) in such other areas as may be designated by Landlord.
7. All responsibility for damage to vehicles is assumed by the parker.
8. Washing, waxing, cleaning or servicing of any vehicle in any area is
prohibited.
9. Landlord reserves the right to establish and change parking fees and to
modify and/or adopt such other reasonable and non-discriminatory rules and
regulations for the parking facilities as it deems necessary for the operation
of the parking facilities. Landlord may refuse to permit any person who violates
these rules to park in the parking facilities, and any violation of the rules
shall subject the car to removal at the owner's expense and without any
liability to Landlord whatsoever.
10. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the Project.
11. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
12. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Project and for the preservation of
good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
13. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
1 - OFFICE BUILDING LEASE
[LOGO OF FORUM PROPERTIES APPEARS HERE]
EXHIBIT E-1
Intentionally omitted.
[LOGO OF FORUM PROPERTIES APPEARS HERE]
EXHIBIT F
Intentionally omitted.
[LOGO OF FORUM PROPERTIES APPEARS HERE]
EXHIBIT G
Intentionally omitted.
[LOGO OF FORUM PROPERTIES APPEARS HERE]
EXHIBIT H
ENVIRONMENTAL DISCLOSURE AND CERTIFICATION STATEMENT
Creekside II Phase VI
---------------------
(Project Name)
DATE:____________________________Petula Assoc., Ltd., an Iowa corporation.,
And Principal Mutual Life Ins., Co.,
TO: Tut Systems Inc., and an Iowa corporation., dba KC Creekside and Forum Properties, Inc,
----------------------- ------------------------------------- -------------------------
Phase VI
(Lender) (Owner) (Manager, if applicable)
FROM: Name Michael T. Sullivan
--------------------------------------------------------------------
Position VP
--------------------------------------------------------------------
Company Tut Systems Inc.
--------------------------------------------------------------------
Address 2446 Estand Way, Pleasant Hill, CA 94523
--------------------------------------------------------------------
Phone
--------------------------------------------------------------------
RE: LEASE AGREEMENT DATED ________________, 19__________, BY AND BETWEEN
Petula Assoc., Ltd., an Iowa corporation., and Principal Mutual Life Ins.,
Co., An Iowa corporation., d.b.a. KC Creekside-Phase VI
AS LANDLORD (THE "LANDLORD"), AND Tut Systems Inc., AS TENANT,
FOR THE LEASING OF THESE CERTAIN PREMISES DESCRIBED IN THE ATTACHMENT
EXHIBIT A (THE "LEASED PREMISES").
___________________________________________________________________________
Notwithstanding anything to the contrary contained in the Lease Agreement, I
Michael T. Sullivan acting with full authority, knowledge and on behalf of
Tut Systems, Inc., (hereinafter called "Company"), represent and warrant that
the following disclosure accurately reflects Company's operations as they
pertain to the use or proposed use of hazardous materials, petroleum, chemical
and waste products in, on or about the Leased Premises. I further certify that
after careful review of all anticipated Company operations and activities in
Leased Premises and thorough inquiry into any and all potentially applicable
governmental rules and regulations pertaining to health, safety and
environmental control, Company will operate in the Leased Premises in complete
and full compliance with all required standards.
Furthermore, the company will obtain and renew, as required by Landlord, all
applicable environmental, health and safety permits, registrations and
applications needed for Company operations on or about the Leased Premises.
Company will continue to review and inspect operations, chemical use and waste
streams activities for the purpose of identifying and eliminating any potential
environmental, health and safety concerns that could contaminate the property
and environment or represent safety and health concerns or increase
environmental risk and liability.
Company assures Landlord and its Lender, representatives, affiliated entities,
successors and assignees that any and all potential problems will be
communicated to Landlord promptly, fixed and the risk eliminated. All potential
problems will be communicated to Landlord by Company and remedied within forty-
eight (48) hours of identification or at another time acceptable to Landlord;
such remediation to be approved in writing by Landlord first and to be in
conformance with paragraph 31.g. of the Lease Agreement.
Company understands that it will be fully accountable to Landlord and any and
all applicable governmental agencies for any non-compliance items and
environmental contamination to the Leased Premises or adjacent property.
Company also understands that this Environmental Disclosure and Certification
Statement is incorporated by reference into the Lease Agreement. Company agrees
to abide by the terms and conditions contained herein and in the Lease Agreement
at all times or at the sole discretion of Landlord, any such noncompliance will
be considered a default under the Lease Agreement. Landlord can then exercise
to the fullest extent any and all of its remedies in accordance with the Lease
Agreement and any other legal remedies available.
Company also understands that this Environmental Disclosure and Certification
Statement be reissued by Company to Landlord annually within thirty (30) days of
the anniversary of the original lease date or at any other time during the term
of the Lease Agreement.
"Company will not use, generate, store, treat or dispose of any hazardous
materials or waste as defined by any and all federal, state or local
environmental, health and safety rules, regulation decrees and laws
(collectively the "Environmental Laws"), that may apply to Company's operations
or the Leased Premises unless otherwise described below.
Company also assures Landlord that all Company's operations in or about the
leased premises will be conducted in full compliance with all the Environmental
Laws as required by any and all agencies with jurisdiction over the company's
operation or the Leased Premises."
Description of Company's operations.
- -----------------------------------
Sales office for northern California; high speed data transfer equipment
company.
List all petroleum products, chemicals, and waste to be used or generated by
- ----------------------------------------------------------------------------
Company.
- --------
N/A
List container sizes, maximum amounts at any given time and estimated annual
- ----------------------------------------------------------------------------
throughput during term of Lease Agreement.
- ------------------------------------------
N/A
Describe storage location and method for petroleum, chemical, and wastes used
- -----------------------------------------------------------------------------
and generated at the facility.
- ------------------------------
N/A
List all potential operation discharges from pipes, vents, flues and to building
- --------------------------------------------------------------------------------
drain.
- ------
N/A
List all required environmental permits and registrations, their assigned number
- --------------------------------------------------------------------------------
and expiration dates.
- ---------------------
N/A
________________________________________________________________________________
COMPANY:
Tut Systems Inc.,
------------------------------
By: /s/ Michael Sullivan
---------------------------
Its: VP
--------------------------
PRO MANUAL: Leasing -- Environmental Disclosure and Certification Statement
June 7, 1994
EXHIBIT I
LEASE INSURANCE LANGUAGE
Insurance By Tenant
Tenant shall, during the Lease Term, procure at its expense and keep in force
the following insurance:
(1) Commercial general liability insurance naming the Landlord, Landlord's
Agents and other protected parties shall be named as additional insured
against any and all claims for bodily injury and property damage occurring
in or about the Premises arising out of Tenant's use and occupancy of the
Premises. Such insurance shall have a combined single limit of not less
than One Million Dollars ($1,000,000) per occurrence with a Two Million
Dollar ($2,000,000) aggregate limit and excess umbrella liability insurance
in the amount of Two Million Dollars ($2,000,000). If the Tenant has other
locations that it owns or leases, the policy shall include an aggregate
limit per location endorsement. Such liability insurance shall be primary
and not contributing to any insurance available to Landlord and Landlord's
insurance shall be in excess thereto. In no event shall the limits of such
insurance be considered as limiting the liability of Tenant under this
lease.
(2) Personal property insurance insuring all equipment, trade fixtures,
inventory, fixtures and personal property located on or in the Premises for
perils covered by the causes of loss special form (all risk) and in
addition, coverage for flood, earthquake and boiler and machinery (if
applicable). Such insurance shall be written on a replacement cost basis in
an amount equal to one hundred percent (100%) of the full replacement value
of the aggregate of the foregoing.
(3) Workers' compensation insurance in accordance with statutory law and
employers' liability insurance with a limit of not less than $100,000 per
accident, $500,000 disease, policy limit and $100,000 disease, each
employee.
(4) Such other insurance as Landlord deems necessary and prudent or required by
Landlord's beneficiaries or mortgagees of any deed of trust or mortgage
encumbering the Premises.
The policies required to be maintained by Tenant shall be with companies rated
AX or better in the most current issue of Best's Insurance Reports. Insurers
shall be licenses to do business in the state in which the Premises are located
and domiciled in the U.S.A. Any deductible amounts under any insurance policies
required hereunder shall not exceed $1,000. Certificates of insurance (certified
copies of the policies may be required) shall be delivered to Landlord prior to
the commencement date and annually thereafter at lease thirty (30) days prior to
the expiration date of the old policy. Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms hereof
in a blanket policy, provided such blanket policy expressly affords coverage to
the Premises and to Landlord as required by this Lease. Each policy of insurance
shall provide notification to Landlord at least thirty (30) days prior to any
cancellation or modification to reduce the insurance coverage.
In the event Tenant does not purchase the insurance required by this lease or
keep the same in full force and effect, Landlord may, but shall not be obligated
to purchase the necessary insurance and pay the premium. The Tenant shall repay
to Landlord, as additional rent, the amount so paid promptly upon demand. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
additional rent, any and all reasonable expenses (including attorneys' fees) and
damages which Landlord may sustain by reason of the failure to Tenant to obtain
and maintain such insurance.
Subrogation
Landlord and Tenant hereby mutually waive their respective rights of recover
against each other for any loss of, or damage to, either parties' property, to
the extent that such loss or damage is insured by an insurance policy required
to be in effect at the time of such loss or damage. Each party shall obtain any
special endorsements, if required by its insurer whereby the insurer waives its
rights of subrogation against the other party. The provisions of this clause
shall not apply in those instances in which waiver of subrogation would cause
either party's insurance coverage to be voided or otherwise made uncollectible.
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CREEKSIDE CORPORATE PARK