EXHIBIT 10.43
1399 MOFFETT PARK DRIVE, SUNNYVALE, CA
STANDARD NNN LEASE -- MULTI-TENANT
WITNESSETH
This lease ("Lease") is entered into by and between Limar Realty Corp. #8, a
California corporation ("Landlord") and Infoseek Corporation, a California
corporation ("Tenant"). For and in consideration of the payment of rents and the
performance of the covenants herein set forth by Tenant, Landlord does lease to
Tenant and Tenant accepts the Premises described below subject to the agreements
herein contained.
1. BASIC LEASE TERMS
a. DATE OF LEASE: March 4, 1997
TENANT: Infoseek Corporation, a California corporation
Address (of the premises): 1399 Moffett Park Drive, Sunnyvale, CA 94086
Address (for notices): (Please provide if other than the Premises)
b. LANDLORD: Limar Realty Corp. #8
Address (for notices): 1730 El Camino Real, Suite 400
San Mateo, CA 94402
c. TENANT'S USE OF PREMISES: Office and related research/development activities.
d. PREMISES AREA: 1) Initial Premises: 47,888 Rentable Square Feet
consisting of Building A and the First Floor of Building B.
2) Must Take Premises: 13,500 Rentable Square Feet
consisting of the Second Floor of Building B.
e. BUILDING: 1399 Moffett Park Drive, Sunnyvale, CA 94086
f. INSURING PARTY: Landlord is the "Insuring Party" unless otherwise stated herein.
g. TERM OR INITIAL TERM (inclusive): Commencement Date: Approximately April 16, 1997 (See 129.)
Expiration Date: October 15, 2002 ("Expiration Date")
Number of Months: Approximately Sixty-six (66) Months
h. TENANT'S SHARE OF BUILDING: 61.77% (61.388 sq. ft/99,384 sq. ft.)
i. TENANT'S NUMBER OF PARKING SPACES: 4.2 Spaces per 1,000 Rentable Square Feet of Leased area.
j. INITIAL BASE RENT: Initial Premises: $69,437.60 per month.
Must Take Premises: $19,575.00 per month.
k. BASE RENT ADJUSTMENT:
(a) Cost of Living. Intentionally deleted.
(b) Step Increase. The step adjustment provisions of (P)4.b. apply for the periods shown below:
MONTHLY BASE RENT AMOUNT
PERIODS (INCLUSIVE) (61,388 RENTABLE SQUARE FEET)
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Month 13- Month 24 $ 92,082.00
Month 25- Month 36 $ 95,151.40
Month 37. Month 48 $ 98,220.80
Month 49. Month 60 $101,290.20
Month 61- Expiration Date $104,359.60
i. TOTAL TERM BASE RENT: $6,217,791.60. (Assumes Total term is exactly 66 Months and the Must Take Premises
commences with seventh Lease month.)
m. PREPAID BASE RENT: $69,437.60 in payment of the first months rent.
n. SECURITY DEPOSIT: 445,063.00
o. BROKER(S): BT Commercial Real Estate (Landlord) & Bishop Hawk, Inc. (Tenant)
p. EXHIBITS: Exhibits lettered "A" through "E" are attached hereto and made a part hereof.
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2. PREMISES, PARKING AND COMMON AREAS
a. PREMISES. The Premises as described In (P)1. and Exhibit A, are a portion
of a building herein sometimes referred to as the"Building" identified
in (P)1. The Premises, the Building, the Common Areas, the land upon
which the same are located, along with all other buildings and
improvements thereon or thereunder, are herein collectively referred to
as the "Property" as described in (P)1. and Exhibit B. Landlord hereby
leases to Tenant and Tenant leases from Landlord for the Term (as defined
below), at the rental, and upon all of the conditions set forth herein,
the real property referred to in the Basic Lease Terms, (P)1. as the
"Premises", including rights to the Common Areas as hereinafter
specified. Subject to any additional work Landlord has agreed herein to
do, Tenant hereby accepts the Premises in their condition existing as of
the date of the execution hereof, subject to all applicable zoning,
municipal, county and state laws, ordinances and regulations governing
and regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Tenant acknowledges that neither Landlord nor Landlord's Broker
has made any representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business. Tenant acknowledges that
prior to the Commencement Date the square footage specified for the
Premises in (P)1. may be revised as reasonably determined by Landlord
pursuant to the final approval of the Preliminary Plan, in which case all
amounts of Base Rent and Security Deposit shall be adjusted accordingly.
Tenant will not thereafter challenge such determination and agreement.
The rental payable by Tenant pursuant to this Lease is not subject to
revision in the event of any discrepancy in the rentable square footage
for the Premises. (See (P)29.)
b. VEHICLE PARKING. So long as Tenant is not in default, and subject to the
Rules and Regulations attached hereto as Exhibit C, and as established by
Landlord from time to time, Tenant shall be entitled to use the number or
parking spaces set forth in (P)1 on a non-reserved basis. If Tenant
commits, permits or allows any of the prohibited activities described in
the Lease or the Rules and Regulations then in effect, then Landlord
shall have the right, without notice, in addition to such other rights
and remedies that it may have, to remove or tow away the vehicle involved
and charge the cost to Tenant, which cost shall be Immediately payable
upon demand by Landlord.
c. COMMON AREAS - DEFINITION. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior
boundary line of the Property that are provided and designated by the
Landlord from time to time for the general non-exclusive use of
Landlord, Tenant and of other tenants of the Property and their
respective employees, suppliers, shippers, customers, and invitees,
including but not limited to common entrances, lobbies, corridors,
stairways and stairwells, public restrooms, elevators, parking areas to
the extent not otherwise prohibited by this Lease, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
ramps, driveways, landscaped areas and decorative walls.
d. COMMON AREAS - RULES AND REGULATIONS. Tenant agrees to abide by and
conform to the Rules and Regulations attached hereto as Exhibit C with
respect to the Property and Common Areas, and to cause its employees,
suppliers, shippers, customers, and invitees to so abide and conform.
Landlord or such other person(s) as Landlord may appoint shall have the
exclusive control and management of the Common Areas and shall have the
right, from time to time, to modify, amend and enforce said rules and
regulations. Landlord shall not be responsible to Tenant for the non-
compliance with said rules and regulations by other tenants, their
agents, employees and invitees.
e. BUILDING AND COMMON AREAS - CHANGES. Landlord shall have the right, in
Landlord's sole discretion, from time to time:
(1) To make changes to the Building interior and exterior and
Common Areas, including, without limitation, changes in the
location, size, shape, number, and appearance thereof,
including but not limited to the lobbies, windows, stairways,
air shafts, elevators, restrooms, driveways, entrances,
parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic, decorative walls,
landscaped areas and walkways;
(2) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
(3) To designate other land and improvements outside the
boundaries of the Property to be a part of the Common Areas,
provided that such other land and improvements have a
reasonable and functional relationship to the Property;
(4) To add improvements to the Common Areas;
(5) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Property or any
portion thereof; and
(6) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Property as
Landlord may, in the exercise of sound business judgment deem
to be appropriate.
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f. ACCEPTANCE. Landlord represents that it is the fee simple owner of the
Premises and has full fight and authority to make this Lease,. Landlord
hereby leases the Premises to Tenant and Tenant hereby accepts the same
from Landlord, in accordance with the provisions of this Lease. Landlord
covenants that Tenant shall have peaceful and quiet enjoyment of the
Premises during the Term (as defined below) of this Lease.
3. TERM. The term ("Term") of this Lease is for the period that commences at
12:01 a.m. on the Commencement Date and expires at 11:59 p.m. on the
Expiration Date. If Landlord, for any reason, cannot deliver possession of
the Premises to Tenant on or before the 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, there shall be
an abatement of Base Rent (as defined below) covering the period between the
Commencement Date and the date when Landlord delivers possession to Tenant,
all other terms and conditions of this Lease shall remain in full force and
effect, provided, however, that If Landlord cannot deliver possession of the
Premises to Tenant, this Lease shall be void. If a delay in possession is
caused by Tenant's failure to perform any obligation in accordance with this
Lease, the Term shall commence as of the Commencement Date, and there shall
be no reduction of Base Rent between the Commencement Date and the time
Tenant takes possession. (See (P)29.)
4. RENT
a. BASE RENT. Tenant shall pay Landlord in lawful money of the United
States, without notice, demand, offset or deduction, rent in the
amount(s) set forth in (P)1. commencing upon the Commencement Date set
forth in (P)3. payable in advance on the first day of each and every
calendar month ("Base Rent") provided, however, the first month's Base
Rent is due and payable upon execution of this Lease. Unless otherwise
specified In writing by Landlord, all installments of Base Rent shall be
payable at Limar Realty Corp. #8, Department #44292, P.O. Box 44000, San
Francisco, California 94144-4294. Base Rent for any partial month at the
beginning or end of this Lease will be prorated in accordance with the
number of days in the subject month.
For purposes of Section 467 of the Internal Revenue Code, the parties to
this Lease hereby agree to allocate the stated Base Rent provided herein
to the periods which correspond to the actual Base Rent payments as
provided under the terms and conditions of this Agreement.
b. STEP INCREASE. The Base Rent shall be increased periodically to the
amounts and at the times set forth in (P)1. based upon the actual
Commencement Date of the Lease. For example, if the actual Commencement
Date is April 12,1997, then the $92,082.00 rental amount will be
effective April 12, 1998.
c. RENT WITHOUT OFFSET AND LATE CHARGE. All Rent shall be paid without prior
demand or notice and without any deduction of offset whatsoever. All Rent
shall be paid in lawful currency of the United States of America. Tenant
acknowledges that late payment by Tenant to Landlord of any Rent will
cause Landlord to incur costs not contemplated by this Lease, the exact
amount of such cost 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 encumbrance or note secured by the Premises. Therefor,
if any Rent is not received by Landlord within five (5) days of its due
date, Tenant shall pay to Landlord a late charge equal to ten percent
(10%) 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 late
charge is in addition to any and all remedies available to the Landlord
and that the assessment and/or collection of the late charge shall not be
deemed a waiver of any other default. Additionally, all such delinquent
Rent or other sums, plus this late charge, shall bear interest from the
due date thereof at the lesser of ten percent (10%) per annum or the
maximum legal Interest rate permitted by law. Any payments of any kind
returned for insufficient funds will be subject to an additional handling
charge of $25.00, and thereafter, Landlord may require Tenant to pay all
future payments of Rent or other sums due by cashier's check.
d. RENT. The term "Rent" as used in this Lease shall refer to Base Rent,
prepaid rent, Real Property Taxes, Operating Expenses, repairs and
maintenance costs, insurance, utilities, late charges and other similar
charges payable by Tenant pursuant to this Lease either directly to
Landlord or otherwise.
5. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit a
security deposit ("Security Deposit") in the amount set forth in (P)1. with
Landlord. If Tenant is in default, Landlord can use the Security Deposit or
any portion of it to cure the default or to compensate Landlord for any
damages sustained by Landlord 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 restore the Security
Deposit to its full amount including any interest which would have been
earned on the portion of the Security Deposit expended or applied by the
Landlord, from the date of such expense or application. In no event will
Tenant have the right to apply any part of the Security Deposit to any Rent
due under this Lease. If Tenant is not in default at the expiration or
termination of this Lease, Landlord shall return the Security Deposit to
Tenant. Landlord's obligations with respect to the Security Deposit are
those of a debtor and not a trustee, and Landlord can commingle the
Security Deposit with Landlord's general funds. Landlord shall not be
required to pay Tenant interest on the Security Deposit. Landlord shall be
entitled to immediately endorse and cash Tenant's Security Deposit;
however, such endorsement and cashing shall not constitute Landlord's
acceptance of this Lease. In the event Landlord does not accept this Lease,
Landlord shall return said Security Deposit. Subject to the provisions of
(P)30. below, each time the Base Rent is increased, Tenant shall deposit
additional funds with Landlord sufficient to increase the Security Deposit
to an amount which bears the same relationship to the Base Rent as the
initial Security Deposit bore to the initial Base Rent.
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6. USE OF PREMISES
a. TENANT'S USE. Tenant shall use the Premises solely for the purposes
stated in (P)1. and for no other purposes without obtaining the prior
written consent of Landlord. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with
respect to the Premises or with respect to the suitability of the
Premises to the conduct of Tenant's business, nor has Landlord agreed to
undertake any modification, alteration or improvement to the Premises,
except as provided in writing in this Lease. Tenant acknowledges that
Landlord may from time to time, at Its sole discretion, but with
reasonable prior notice to Tenant, make such modifications, alterations,
deletions or improvements to the Premises as Landlord may reasonably deem
necessary or desirable, without compensation or notice to Tenant. Tenant
shall promptly comply with all laws, statutes, ordinances, orders and
governmental regulations affecting the Premises. Tenant shall not do or
permit anything to be done in or about the Premises or bring or keep
anything in the Premises that will in any way increase the premiums paid
by Landlord on its insurance related to the Premises. Tenant will not
perform any act or carry on any practices that may injure the Premises.
Tenant shall not use the Premises for sleeping, washing clothes, cooking
or the preparation, manufacture or mixing of anything that emits any
objectionable odor, noises, vibrations or lights onto such other tenants.
If sound insulation is required to muffle noise produced by Tenant on the
Premises, Tenant at its own cost shall provide all necessary insulation.
Tenant shall not do anything on the Premises which will overload any
existing parking or service to the Premises. Pets and/or animals of any
type shall not be kept on or about the Premises.
b. CC&R'S. Tenant agrees that this Lease is subject and subordinate to the
Covenants, Conditions and Restrictions for the Moffett Industrial Park
No.11, recorded May 5, 1980, as Recorders' Serial No.6721997 in the
Official Records of Santa Clara County, California, a copy of which is
attached hereto as Exhibit D, as they may be amended from time to time
("CC&R's"), and further agrees that the CC&R's are an integral part of
this Lease. Throughout the Term or any extension thereof, notwithstanding
any other provision hereof, Tenant shall faithfully and timely assume and
perform all obligations of Landlord and/or Tenant under the CC&R's and
any modifications or amendments thereto, including the payment of any
periodic or special dues or assessments against the Premises. Such dues
and assessments shall be included within the definition of Operating
Expenses pursuant to (P)13.b.11), and Tenant shall pay such amounts as
further set forth in (P)13. Tenant shall hold Landlord, its subsidiaries,
directors, officers, agents and employees harmless and indemnify
Landlord, its subsidiaries, directors, officers, agents and employees
against any loss, expense and damage, including attorneys' fees and
costs, arising out of the failure of Tenant to perform or comply with the
CC&R's.
c. RULES AND REGULATIONS. Tenant shall comply with and use the Premises In
accordance with the Rules and Regulations attached hereto as Exhibit C
and to any reasonable modifications to such Rules and Regulations as
Landlord may adopt from time to time.
7. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
a. EMISSIONS. Tenant shall not:
1) Permit any vehicle on the Premises or in the Commons Areas to emit
exhaust which is in violation of any governmental law, rule,
regulation or requirement;
2) Discharge, emit or permit to be discharged or emitted, any liquid,
solid or gaseous matter, or any combination thereof, into the
atmosphere or on, into or under the Premises, any building or other
improvements of which the Premises are a part, or the ground or any
body of water which matter, as reasonably determined by Landlord or
any governmental entity, does or may pollute or contaminate the same,
or is, or may become, radioactive or does, or may, adversely affect
the (a) health or safety of persons, wherever located, whether on the
Premises or anywhere else, (b) condition, use or enjoyment of the
Premises or any other real or personal property, whether on the
Premises or anywhere else, or (c) Premises or any of the improvements
thereto including buildings, foundations, pipes, utility lines,
landscaping or parking areas;
3) Produce, or permit to be produced, any intense glare, light or heat:
4) Create, or permit to be created, any sound pressure level which will
interfere with the quiet enjoyment of any real property outside the
Premises, or which will create a nuisance or violate any governmental
law, rule, regulation or requirement;
5) Create, or permit to be created, any vibration that is discernible
outside the Premises; or
6) Transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation which is or may be
harmful or hazardous to any person or property in, or about the
Premises, or anywhere else.
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b. STORAGE AND USE.
1) STORAGE. Subject to the uses permitted and prohibited to Tenant
under this Lease, Tenant shall store in appropriate leak proof
containers all solid, liquid or gaseous matter, or any combination
thereof, which matter, if discharged or emitted into the atmosphere,
the ground or any body of water, does or may (a) pollute or
contaminate, the same, or (b) adversely affect the (i) health or
safety of persons, whether on the Premises or anywhere else, (ii)
condition, use or enjoyment of the Premises or any real or personal
property, whether on the Premises or anywhere else, or (iii)
Premises.
2) USE. In addition, without Landlord's prior written consent, Tenant
shall not use, store or permit to remain on or about the Premises any
solid, liquid or gaseous matter which is, or may become radioactive.
If Landlord does give its consent, Tenant shall store the materials
in such a manner that no radioactivity will be detectable outside a
designated storage area and Tenant shall use the materials in such a
manner that (a) no real or personal property outside the designated
storage area shall become contaminated thereby and (b) there are and
shall be no adverse effects on the (i) health or safety of persons,
whether on the Premises or anywhere else, (ii) condition, use or
enjoyment of the Premises or any real or personal property thereon or
therein, or (iii) Premises or any of the improvements thereto or
thereon.
3) HAZARDOUS MATERIALS. Subject to the uses permitted and prohibited to
Tenant under this Lease, Tenant shall store, use, employ, transport
and otherwise deal with all Hazardous Materials (as defined below)
employed on or about the Premises in accordance with all federal,
state, or local law, ordinances, rules or regulations applicable to
Hazardous Materials in connection with or respect to the Premises.
c. DISPOSAL OF WASTE.
1) REFUSE DISPOSAL. 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 incinerators, containers or other equipment used for storage
or disposal of such materials in a clean and sanitary condition.
2) SEWAGE DISPOSAL. Tenant shall properly dispose of all sanitary sewage
and shall not use the sewage disposal system (a) for the disposal of
anything except sanitary sewage or (b) amounts in excess of the
lesser of: (i) that reasonably contemplated by the uses permitted
under this Lease or (ii) that permitted by any governmental entity.
Landlord shall cause the sewage disposal system to be free of all
obstructions as of the Commencement Date. During the Term hereof,
Tenant shall keep the sewage disposal system free of all obstructions
and in good operating condition.
3) DISPOSAL OF OTHER WASTE. Tenant shall properly dispose of all other
waste or other matter delivered to, stored upon, located upon or
within, used on, or removed from, the Premises In such a manner that
it does not, and will not, adversely affect the (a) health or safety
of persons, wherever located, whether on the Premises or elsewhere,
(b) condition, use or enjoyment of the Premises or any other real or
personal property, wherever located, whether on the Premises or
anywhere else, or (c) Premises or any of the improvements thereto or
thereon including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
d. INFORMATION. Tenant shall provide Landlord with any and all information
regarding Hazardous Materials in the Premises, including copies of all
filings and reports to governmental entities at the time they are
originated, and any other information requested by Landlord. In the event
of any accident, spill or other incident involving Hazardous Materials,
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.
e. COMPLIANCE WITH LAW. Notwithstanding any other provision in this Lease
to the contrary, Tenant shall comply with all laws, statutes, ordinances,
regulations, rules and other governmental requirements in complying with
its obligations under this Lease, and in particular, relating to the
storage, use and disposal of Hazardous Materials.
f. INDEMNITY. Tenant hereby agrees to indemnify, defend and hold Landlord,
its agents, employees, lenders, directors, representatives, successors
and assigns harmless from and against any and all actions, causes of
action, losses, damages, costs, claims, expenses, penalties, obligations
or liabilities of any kind whatsoever (including but not limited to
reasonable attorneys' fees) arising out of or relating to any Hazardous
Materials employed, used, transported across, or otherwise dealt with by
Tenant (or invitees, or persons or entities under the control of Tenant)
in connection with or with respect to the Premises and the Property.
Notwithstanding any other provision of this Lease, the indemnity
obligation of Tenant pursuant to this (P)7.f. shall survive the
termination of this Lease and shall relate to any occurrence as described
in this (P)7.f. occurring in connection with this Lease. For purposes of
this Lease the term "Hazardous Materials" shall mean any hazardous, toxic
or dangerous waste, substance or material, pollutant or contaminant, as
defined for purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.),
as amended, or the Resource Conservation and Recovery Act (42 U.S.C.
Sections 6901 et seq.), as amended, or any other federal, state, or local
law, ordinance, rule or regulation applicable to the Premises, or any
substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous, or any
substance which contains gasoline,
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diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls
(PCB's), or radon gas, urea formaldehyde, asbestos or lead.
8. SIGNS.
a. Tenant shall not place any sign upon the Premises or the Property,
except that Tenant may, with Landlord's prior written consent, install
(but not on the roof) such signs as are reasonably required to advertise
Tenant's own business provided such signs are in compliance with all
applicable governmental requirements and the CC&R's. The installation of
any sign on the PremIses or Property by or for Tenant shall be subject
to the provisions of (P)12. (Repairs and Maintenance). Landlord
reserves all rights to install signs advertising "for sale" or "for
lease" on the Property, to the extent such signs do not unreasonably
Interfere with the conduct of Tenant's business.
b. Notwithstanding anything set forth in (P)8.a. above, Tenant shall be
entitled to construct a "front-lit" monument sign on the common area of
the Premises indicating the Tenant's company name or logo. Furthermore,
Tenant shall be entitled to install two signs which may be either
"front-lit" or "back-lit" on the exterior walls of the Premises
indicating its company name or logo. The location, size, materials,
design, etc. of any such sign shall be subject to Landlord's written
approval.
Notwithstanding anything set forth in this (P)8, all signage installed
by Tenant on the Premises shall be in compliance with the Covenants,
Conditions & Restrictions governing the Building.
9. PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency all taxes
assessed against and levied upon Tenant owned leasehold improvements, trade
fixtures, furnishings, equipment and all personal property of Tenant
contained in the Premises or elsewhere. When possible, Tenant shall cause
its leasehold Improvements, trade fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from the real
property of Landlord. If any of Tenant's said personal property shall be
assessed with Landlord's real property, Tenant shall pay Landlord the taxes
attributable to Tenant within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Tenant's property.
10. REAL PROPERTY TAXES
a. PAYMENT OF TAXES. Landlord shall pay the Building's Real Property Taxes,
as defined in (P)10.c., during the Term of this Lease. Subject to 10.b.,
Tenant shall promptly reimburse Landlord according to (P)13. for
Tenant's Share of Building of such Real Property Taxes paid by Landlord.
b. ADVANCE PAYMENT. In order to ensure payment when due and before
delinquency of any or all Real Property Taxes, Landlord reserves the
right, at Landlord's option, to estimate the current Real Property Taxes
applicable to the Premises, and to require each installment of the Real
Property Taxes to be paid in advance to Landlord by Tenant, either: (i)
in a lump sum amount, at least twenty (20) days prior to the applicable
delinquency date, or (ii) monthly in advance with the payment of the
Base Rent. If Landlord elects to require payment monthly in advance the
monthly payment shall be that equal monthly amount which, over the
number of months remaining before the month in which the applicable tax
installment would become delinquent, would provide a fund large enough
to fully discharge before delinquency the estimated installment of Real
Property Taxes to be paid. When the actual amount of the applicable tax
bill is known, Landlord may, but is not required to, adjust the amount
of such equal monthly advance payment so as to provide the funds needed
to pay the applicable Real Property Taxes before delinquency. If the
amounts paid to Landlord by Tenant under the provisions of this (P)10.
are insufficient to discharge the obligations of Tenant to pay such Real
Property Taxes as the same become due, Tenant shall pay to Landlord,
upon Landlord's demand, such additional sums as are necessary to pay
such obligations. All moneys paid to Landlord under this (P)10. may be
intermingled with other moneys of Landlord and shall not bear interest.
In the event of a breach by Tenant in the performance of the obligations
of Tenant under this Lease, then any balance of funds paid to Landlord
under the provisions of this (P)10. may, at the option of Landlord, be
treated as an additional Security Deposit under (P)5.
c. DEFINITION OF "REAL PROPERTY TAXES". As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary; and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax or other
fee, charge, or excise which may be imposed as a substitute for any of
the foregoing (other than inheritance, personal income or estate taxes)
imposed upon the Premises by any authority having the direct or indirect
power to tax, including any city, county, state or federal government,
or any school, agricultural, sanitary, fire, street, drainage or other
improvement district thereof, levied against any legal or equitable
interest of Landlord in the Premises, Landlord's right to rent or other
income therefrom, and/or Landlord's business of leasing the Premises.
The term "Real Property Taxes" shall also include any tax, fee, levy,
assessment or charge, or any increase therein, imposed by reason of
events occurring, or changes in applicable law taking effect, during the
Term of this Lease, including but not limited to a change in the
ownership of the Premises or in the improvements thereon, the execution
of this Lease, or any modification, amendment or transfer thereof, and
whether or not contemplated by the parties hereto.
11. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Tenant, Tenant shall pay a reasonable proportion, to
be determined by Landlord, of all charges jointly metered with other
premises.
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12. REPAIRS AND MAINTENANCE
a. LANDLORD'S OBLIGATIONS. Landlord shall keep the Property, including the
foundation, exterior walls, roof, all plumbing facilities leading up to
(but not situated within) the Building and the common area of the
Building, and the equipment whether used exclusively for the Premises or
in common with other premises, in good condition and repair subject to
reimbursement by Tenant in accordance with (P)13. There shall be no
abatement of Rent or liability to Tenant on account of any injury or
interference with Tenant's business with respect to any improvements,
alterations or repairs made by Landlord to the Property or any part
thereof.
b. TENANT'S OBLIGATIONS.
1) GENERAL. Tenant shall, at Tenant's sole cost and expense and at all
times, contract for janitorial services and supplies, keep the
Premises in good order, condition and repair, including, without
limiting the generality of the foregoing, all equipment or
facilities serving the Premises, such as heating, air
conditioning and ventilation ("HVAC"), subject to (P)34. below,
plumbing facilities situated within the Premises electrical,
lighting facilities, boilers, fired or unfired pressure vessels,
fixtures, interior walls, ceilings, floors, windows, doors, plate
glass, and skylights. Tenant shall not cause or permit any
Hazardous Material to be spilled or released in, on, under or
about the Premises (including through the plumbing or sanitary
sewer system) and shall promptly, at Tenant's expense: take all
investigatory and/or remedial action reasonably recommended,
whether or not formally ordered or required, for the cleanup of
any contamination of, and for the maintenance, security and/or
monitoring of the Premises, the elements surrounding same, or
neighboring properties, that was caused or materially contributed
to by Tenant, or pertaining to or involving any Hazardous
Materials and/or storage tank brought onto the Premises by or for
Tenant or under its control. Tenant, in keeping the Premises in
good order, condition and repair, shall exercise and perform good
maintenance practices. Tenant's obligations shall include
restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good
order, condition and state of repair.
2) CONTRACTS. Tenant shall, at Tenant's sole cost and expense, procure
and maintain contracts, with copies to Landlord, in customary form
and substance for, and with contractors specializing and
experienced in, the inspection, maintenance and service of heating,
air conditioning and ventilation equipment, if any, located on the
Premises. Tenant shall keep a detailed preventative maintenance
schedule and log snowing the frequency of maintenance on all HVAC,
mechanical, electrical and other systems of the Premises and
provide Landlord with a copy of same quarterly. (See (P)34.)
3) AS-IS CONDITION. The parties affirm that Landlord, its
subsidiaries, officers, directors, agents and/or employees have
made no representations to Tenant respecting the condition of the
Premises except as specifically stated herein.
4) AMERICANS WITH DISABILITIES ACT. Tenant acknowledges that as of the
Commencement Date, the Premises may not comply with the Americans
with Disabilities Act of 1990 ("ADA") Landlord shall be obligated
to cause the Premises to so comply, except to the extent that any
ADA issues are triggered by tenant improvements which are installed
other than Landlord's Tenant Improvements as outlined in (P)28
hereof. Tenant acknowledges that Landlord will provide the existing
elevator in the Premises in its "as is" condition and Tenant shall
be responsible for any ADA compliance required by Tenant's use of
the elevator for any purpose whatsoever. Tenant shall, at its cost,
at any time during the Term as required by any applicable
governmental agency having jurisdiction over the Premises, make
such modifications and alterations to the Premises as may be
required in order to fully comply with the provisions of the ADA,
as from time to time amended, and any and all regulations issued
pursuant to or in connection with the ADA in such a manner as to
satisfy the applicable governmental agency or agencies requiring
redemption. Tenant shall at least thirty (30) days prior to the
commencement of any construction in connection with satisfaction of
the ADA, give written notice to Landlord of its intended
commencement of construction together with sufficient details so as
to reasonably disclose to Landlord the nature of the proposed
construction, copies of any notices received by Tenant from
applicable governmental agencies in connection with the ADA and
such other documents or information as Landlord may reasonably
request. In any event, notwithstanding anything to the contrary
contained in this Lease, prior to the termination of the Term,
Tenant shall, at its cost, make such modifications and alterations
to the Premises as may be required to comply fully with the ADA as
from time to time amended and any and all regulations issued
thereunder. Tenant shall give the Landlord thirty (30) days prior
written notice as described above in connection with any such
construction. Any and all construction required to so comply with
the ADA shall be completed by Tenant prior to the expiration of the
Term.
5) ELEVATOR. Notwithstanding anything to the contrary set forth in
(P)12.b.4) above, the parties hereby acknowledge that the existing
elevator in its present size and configuration ("Elevator") is not
in compliance with the guidelines as set forth in the ADA. Landlord
and Tenant agree to use their mutual best efforts to obtain the
necessary City of Sunnyvale Building Official approval ("City
Approval") for the continued use of the Elevator for the Premises.
Should there be changes required to be made to the
condition/configuration of the Elevator in order to obtain said
City Approval, Landlord agrees to perform said required changes at
its sole cost, providing such cost does not exceed $10,000.00.
However, if the cost referred to in the preceding sentence exceeds
said $10,000.00 sum, the Tenant shall bear the entire amount of
said cost which exceeds said $10,000.00 amount.
Should the City Approval not be obtained, Landlord shall have a new
elevator installed to replace the Elevator in order to obtain City
Approval, and Landlord and Tenant shall share the cost, including
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related permit, architectural and engineering fees, on a 50%/50%
basis, provided, however, Landlord's obligation shall not exceed
Seventeen Thousand Five Hundred Dollars ($17,500). Landlord further
agrees to loan to Tenant Tenant's share of such cost, in which case
Tenant shall repay Landlord via amortization payments over the
Initial Term of the Lease with 10% Interest, payable monthly as
additional Rent.
c. COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Tenant shall, at its own cost
and expense, promptly and properly observe and comply with all present
and future orders, regulations, directions, rules, laws, ordinances, and
requirements of all governmental authorities (including but not limited
to state, municipal, county and federal governments and their
departments, bureaus, boards and officials) arising from the use or
occupancy of, or applicable to, the Premises or privileges appurtenant
to or in connection with the enjoyment of the Premises. Tenant shall
also comply with all such rules, laws, ordinances and requirements at
the time Tenant makes any alteration, addition or change to the
Premises.
d. MISCELLANEOUS.
1) Landlord and Tenant shall each do all acts required to comply with
all applicable laws, ordinances and rules of any public authority
relating to their respective maintenance obligations as set forth
herein.
2) Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford the Tenant the
right to make repairs at Landlord's expense or to terminate this
Lease because of Landlord's failure to keep the Premises and the
Property in good order, condition and repair. Specifically, Tenant
waives the provisions of California Civil Code Sections 1941 and
1942 with respect to Landlord's obligations for Tenant
tenantability of the Premises and Tenant's right to make repairs
and deduct the expenses of such repairs from Rent.
3) 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, as determined by Landlord or Landlord's structural engineer.
The cost of any such determination made by Landlord's structural
engineer shall be paid for by Tenant upon demand.
4) Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's obligations
under this Lease be reduced or abated in any manner whatsoever by
reason of any inconvenience, annoyance, interruption or injury to
business arising from Landlord making any repairs or changes which
Landlord is required to make or is permitted to make by this Lease
or by any tenant's lease or is required by law to make in or to any
portion of the Premises. Landlord shall nevertheless use reasonable
efforts to minimize any interference with Tenant's business in the
Premises.
5) Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the Premises'
mechanical, electrical, plumbing, HVAC or other systems serving,
located in or passing through the Premises. Upon request by
Landlord, Tenant shall provide Landlord with evidence reasonably
acceptable to Landlord of service contracts on such systems.
6) Upon the expiration or early termination of this Lease, Tenant
shall return the Premises to Landlord clean and in the same
condition as on the date Tenant took possession, except for normal
wear and tear. Any damage to the Premises, including any structural
damage, resulting from Tenant's use or from the removal of Tenant's
fixtures, furnishings and equipment shall be repaired by Tenant at
Tenant's expense.
7) Landlord may, at Landlord's option, choose to perform any of the
Tenant's obligations In this (P)12. The cost of any such Tenant's
obligations so performed by Landlord shall be at Tenant's sole cost
and expense. Landlord agrees to make every reasonable effort to
obtain commercially competitive prices for such work, excluding
emergency work. Tenant shall reimburse Landlord for any such costs
incurred by Landlord in the performance of such Tenant's
obligations within ten (10) days of receipt of a billing from
Landlord.
13. OPERATING EXPENSES
a. PAYMENT BY TENANT. During the Term of this Lease, Tenant shall pay to
Landlord, as additional Rent, on a monthly basis Tenant's Share of the
Operating Expenses of the Property, except that until Rent has commenced
on the Must Take Space in accordance with (P)29.b., Tenant's Share shall
be limited to 48.18% (47,888 sq.ft./99,384 sq.ft.).
b. OPERATING EXPENSES. The term "Operating Expenses" shall mean all
expenses, costs and disbursements (not specifically excluded from the
definition of Operating Expenses below) of every kind and nature which
Landlord shall pay or become obligated to pay because of or in
connection with the ownership, maintenance, repair and operation of the
Property or any portion thereof (including all Common Areas of the
Property). Operating Expenses shall include, but not be limited to, the
following:
1) Wages and salaries of all employees engaged in the operation,
maintenance and security of the Property, including taxes,
insurance and benefits relating thereto; and the rental cost and
overhead of any office and storage space used to provide such
services.
2) All supplies and materials used in the operation, repair or
maintenance of the Property.
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3) Cost of all utilities, including surcharges, for the Property,
including the cost of water, power and lighting which are not
separately billed to and paid for by Tenant.
4) Cost of all maintenance and service agreements for the Property and
the equipment thereon, including but not limited to, security
services, exterior window cleaning, janitorial service, engineers,
gardeners and trash removal services.
5) All Insurance Costs, as such term is defined in (P)16.
6) Cost of repairs and general maintenance (excluding repairs and
general maintenance paid by proceeds of Insurance or by Tenant or
other third parties, and alterations attributable solely to the
other tenants of the Property).
7) A management fee for the property management of the Property which
fee the parties hereto stipulate shall be three percent (3%) of
Rent. Management of the Property can be contracted to Landlord or
its affiliate.
8) The costs of any additional services not provided to the Property
at the Commencement Date but thereafter provided by Landlord in its
management of the Property.
9) The cost of any capital improvements made to the Property after the
Commencement Date that reduce other operating expenses or are
required under any governmental law or regulation, such cost
thereof to be amortized over such reasonable period as Landlord
shall determine consistent with applicable governmental
requirements.
10) Real Property Taxes, as that term is defined in (P)10.
11) Assessments, dues and other amounts payable pursuant to the CC&R's
described in (P)6.b.
c. OPERATING EXPENSES SHALL NOT INCLUDE:
1) Costs paid for directly by Tenant;
2) Principal and interest payments on loans secured by deeds of trust
recorded against the Property or the Building of which the Property
is a part;
3) Real estate sales or leasing brokerage commissions; or
4) Executive salaries of off-site personnel employed by Landlord
except for the charge (or pro rata share) of the property manager
of the Property.
d. EXTRAORDINARY SERVICES. Tenant shall pay within ten (10) days of receipt
of an invoice from Landlord the cost of additional or extraordinary
services provided to Tenant and not paid or payable by Tenant pursuant
to other provisions of this Lease.
e. IMPOUND. Landlord reserves the right, at Landlord's option, to estimate
the annual cost of Operating Expenses performed by Landlord ("Projected
Operating Expenses) and to require same to be paid in advance. Tenant
shall pay to Landlord, monthly in advance as additional Rent, one-
twelfth (1/12) of the Projected Operating Expenses.
f. ADJUSTMENT.
1) ACCOUNTING. Within ninety (90) days (or as soon thereafter as
possible) after the close of each calendar year or portion thereof
of occupancy, Landlord shall provide Tenant a statement of such
year's actual Operating Expenses showing the actual Operating
Expenses compared to the Projected Operating Expenses. If the
actual Operating Expenses are more than the Projected Operating
Expenses then Tenant shall pay Landlord, within ten (10) days of
receipt of a bill therefor, the difference. If the actual Operating
Expenses are less than the Projected Operating Expenses, then
Tenant shall receive a credit against future Operating Expenses
payments equal to the difference; provided, that in the case of an
overpayment for the final lease year of the Term, Landlord shall
credit the difference against any sums due from Tenant to Landlord
in accordance with the terms of this Lease; and if no sums are due
and unpaid, shall promptly refund the amount to Tenant.
2) PRORATION. Tenant's liability to pay Operating Expenses shall be
prorated on the basis of a 365 (or 366, as the case may be) day
year to account for any fractional portion of a year included at
the commencement or expiration of the Term of this Lease.
3) SURVIVAL. Landlord and Tenant's obligations to pay for or credit
any increase or decrease in payments pursuant to this (P)13.
shall survive this Lease.
g. FAILURE TO PAY. Failure of Tenant to pay any of the charges required to
be paid under this (P)13. shall constitute a material default and breach
of this Lease and Landlord's remedies shall be as specified In (P)21.
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h. OPERATING EXPENSE AUDIT. Within twelve (12) months of receipt of any
billing statement ("Statement"), and upon thirty (30) days prior written
notice Tenant shall have the right to examine, to copy and to have an
audit conducted of all books and records of Landlord at Landlord's
office pertaining to the Operating Expenses for the period covered by
the Statement. If Tenant disputes the inclusion or amount of any item or
items in any such Statement, the Parties will use good faith efforts to
settle such dispute within thirty (30) days after notice of the dispute.
In the event that such dispute is not settled within this time period,
the dispute shall be resolved by a firm of real estate audit
professionals ("Audit Professionals") mutually acceptable to Landlord
and Tenant. Audit Professionals shall mean for the purposes of this
(P)13.h. an independent firm of Certified Public Accountants with
experience in real estate expense reviews. If Landlord and Tenant
cannot agree on Audit Professionals within fifteen (15) days, then
Landlord and Tenant shall each, within fifteen (15) days, select one
(1) independent firm of Audit Professionals, and such two (2) Audit
Professionals shall together select a third firm of Audit
Professionals, which third firm shall be the Audit Professionals who
shall resolve the dispute. The Audit Professionals shall be entitled
to review all records relating to the disputed items. The
determination of the Audit Professionals shall be final and binding
upon both Landlord and Tenant. The expenses of the Audit Professionals
shall be borne by Tenant unless said audit discloses an overall
overstatement of Operating Expenses of five percent (5%) or more for
the period being audited, in which case Landlord shall pay the audit
expenses. If the Audit Professionals determine that Tenant has made an
over-payment or under-payment, then the procedures in (P)13.f.1) shall
be followed.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises, or the
Property without Landlord's prior written consent unless such alterations
are non-structural and have a total aggregate cost of less than $3,000.00
per occurrence. If Landlord gives its consent to such alterations, Landlord
may post notices in accordance with the laws of the state in which the
Premises are located. All alterations made by Tenant, whether or not subject
to the approval of Landlord, shall be performed by Tenant and its
contractors in a first class workmanlike manner and permits and inspections
shall be obtained from all required governmental entities. Any alterations
made shall remain on and be surrendered with the Premises upon expiration or
termination of this Lease, except that Landlord may, within thirty (30) days
before or thirty (30) days after expiration of the Term, elect to require
Tenant to remove some or all of the alterations which Tenant may have made
to the Premises, unless Landlord has previously agreed in writing that any
one or more particular such improvements need not be removed at the end of
the Term. If Landlord so elects, Tenant shall at its own cost restore the
Premises to the condition designated by Landlord in its election, before the
last day of the Term or within thirty (30) days after notice of its election
is given, whichever is later. 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 plans and specifications
approved by Landlord. Tenant shall pay all costs for such construction and
shall keep the Premises free and clear of all mechanics' liens which may
result from construction by Tenant.
15. RELEASE AND INDEMNITY. As material consideration to Landlord, Tenant agrees
that Landlord shall not be liable to Tenant for any damage to Tenant or
Tenant's property from any cause, except for damages resulting from
Landlord's gross negligence or willful misconduct, and Tenant waives all
claims against Landlord for damage to persons or property arising for any
reason, except for damage resulting directly from Landlord's breach of its
express obligations under this Lease which Landlord has not cured within a
reasonable time after written notice of such breach from Tenant. Tenant
shall indemnify and hold Landlord harmless from all damages including
attorneys' fees and costs arising out of any damage to any person or
property occurring in, on or about the Premises or Tenant's use of the
Premises or Tenant's breach of any term of this Lease.
16. INSURANCE
a. PAYMENT FOR INSURANCE. Regardless of whether the Landlord or Tenant is
the Insuring Party, Tenant shall pay for all insurance for the Premises
required under this (P)16. ("Insurance Costs"). Premiums for policy
periods commencing prior to or extending beyond the Lease Term shall be
prorated to correspond to the Lease Term. Payment shall be made by
Tenant to Landlord within ten (10) days following receipt of an invoice
for any amount due.
b. LIABILITY INSURANCE.
1) CARRIED BY TENANT. Whether or not Tenant is the Insuring Party,
Tenant shall obtain and keep in force during the Term of this Lease
a commercial general liability policy of insurance protecting
Tenant and Landlord (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon,
involving or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be on an occurrence basis providing single limit
coverage in an amount not less than $3,000,000 per occurrence with
an "Additional Insured-Managers or Landlords of Premises"
endorsement and contain an "Amendment of the Pollution Exclusion"
for damage caused by heat, smoke or fumes from a hostile fire or
other such forms as may be acceptable to Landlord. The policy shall
not contain any intra-insured exclusions as between insured persons
or organizations, but shall include coverage for liability assumed
under this Lease as an "insured contract" for the performance of
Tenant's Indemnity obligations under this Lease. The limits of said
insurance required by this Lease or as carried by Tenant shall not,
however, limit the liability of Tenant nor relieve Tenant of any
obligation hereunder. All insurance to be carried by Tenant shall
be primary to and not contributory with any similar insurance
carried by Landlord, whose insurance shall be considered excess
insurance only. All insurance coverage required pursuant to this
(P)16. which is to name Landlord as a named insured shall also name
Landlord's subsidiaries, directors, agents, officers and employees
as named insureds.
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2) Carried by Landlord. In the event Landlord is the Insuring Party,
Landlord shall also maintain liability insurance as described in
(P)18.b.1), In addition to and not in lieu of the Insurance
required to be maintained by Tenant. In the event Tenant is the
Insuring Party, Landlord shall in addition carry Landlord's Risk
Coverage and insure the Premises on Landlord's umbrella policy.
Tenant shall not be named as an additional insured therein under
any insurance obtained by Landlord in accordance with this
(P)16.b.2).
c. PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
1) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain and keep
in force during the Term of this Lease a policy or policies in the
name of Landlord, with loss payable to Landlord and to the holders
of any mortgages, deeds of trust or ground leases on the Premises
("Lender(s)"), insuring loss or damage to the Premises. The amount
of such insurance shall be equal to the full replacement cost of
the Premises, as the same shall exist from time to time, or the
amount required by Lender(s), but in no event more than the
commercially reasonable and available insurable value thereof if,
by reason of the unique nature or age of the improvements involved,
such latter amount Is less than full replacement cost. Such policy
or policies shall insure against all risks of direct physical loss
or damage (including the perils of flood and earthquake), including
coverage for any additional costs resulting from debris removal and
reasonable amounts of coverage for the enforcement of any ordinance
or law regulating the reconstruction or replacement of any
undamaged sections of the Premises required to be demolished shall
also contain an agreed valuation provision in lieu of any
coinsurance clause, waiver of subrogation and inflation guard
protection causing an increase in the annual property Insurance
coverage amount by a factor of not less than the adjusted U.S.
Department of Labor Consumer Price Index for All Urban Consumers
for the city nearest to where the Premises are located. If such
insurance coverage has a deductible clause, then Tenant shall be
liable for such deductible amount. Even if Landlord is the Insuring
Party, Tenant's personal property shall be insured by Tenant under
(P)16.d. rather than by Landlord.
2) RENTAL VALUE. The Insuring Party shall, in addition, obtain and
keep in force during the term of this Lease a policy or policies in
the name of Landlord, with loss payable to Landlord and Lender(s),
insuring the loss of the full rental and other charges payable by
Tenant to Landlord under this Lease for one (1) year (including all
Real Property Taxes, Insurance Costs and any scheduled Rent
Increases). Said insurance shall provide that in the event the
Lease is terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date of
the completion of repairs or replacement of the Premises, to
provide for one full years loss of Rent from the date of any such
loss. Said insurance shall contain an agreed valuation provision in
lieu of any coinsurance clause, and the amount of coverage shall be
adjusted annually to reflect the projected Rent, Real Property
Taxes, insurance Costs and other expenses, if any, otherwise
payable by Tenant, for the next twelve (12) month period. Tenant
shall be liable for any deductible amount in the event of such
loss.
3) ADJACENT PREMISES. If the Premises are part of a larger building,
or if the Premises are part of a group of buildings owned by
Landlord which are adjacent to the Premises, the Tenant shall pay
for any increase in the premiums for the property insurance of such
building or buildings if said increase is caused by Tenant's acts,
omissions, use or occupancy of the Premises.
4) TENANT'S IMPROVEMENTS. If the Landlord is the Insuring Party, the
Landlord shall not be required to insure Tenant's personal property
and leasehold improvements unless the item in question has become
the property of Landlord under the terms of this Lease. If Tenant
is the Insuring Party, the policy carried by Tenant under this
(P)16.c. shall insure Tenant's personal property and leasehold
improvements.
d. TENANT'S PROPERTY INSURANCE. Subject to the requirements of (P)16.e.,
Tenant at its cost shall either by separate policy, or at Landlord's
option, by endorsement to a policy already carried, maintain insurance
coverage on all of Tenant's personal property and Tenant owned leasehold
improvements in, on or about the Premises similar in coverage to that
carried by the insuring Party under (P)16.c. Such insurance shall be
full replacement cost coverage with a deductible of not to exceed
$10,000 per occurrence. The proceeds from any such insurance shall be
used by Tenant for the replacement of personal property or the
restoration of Tenant owned leasehold improvements. Tenant shall be the
Insuring Party with respect to the insurance required by this (P)16.d.
and shall provide Landlord with written evidence that such insurance is
in force.
e. INSURANCE POLICIES. If Tenant is the Insuring Party, Insurance required
per this (P)16. shall be with companies duly licensed to transact
business in the state where the Premises are located, and maintaining
during the policy term a "General Policyholders Rating" of at least A-
X, or such other minimal rating as may be required by Lender(s) as set
forth in the most current issue of "Best's Insurance Guide." Tenant
shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in this (P)16. If Tenant is the Insuring
Party, Tenant shall cause to be delivered to Landlord certified copies
of policies of such insurance or certificates evidencing the existence
and amounts of such insurance with the insureds and loss payable clauses
as required by this Lease. No such policy shall be cancelable or subject
to modification except after thirty (30) days prior written notice to
Landlord. Tenant shall at least thirty (30) days prior to the expiration
of such policies, furnish Landlord with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Landlord may order
such insurance and charge the cost thereof to Tenant, which amount shall
be payable by Tenant to Landlord upon demand. If the Insuring Party
shall fail to procure and maintain the insurance required to be carried
by the Insuring Party under this (P)16., the other Party may, but shall
not be required to, procure and maintain the same, but at Tenant's
expense.
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f. MUTUAL WAIVER. Notwithstanding anything to the contrary contained in
this Lease, to the extent that this release and waiver does not
invalidate or impair their respective insurance policies, the parties
hereto release each other and their respective agents, employees,
officers, directors, shareholders, successors, assignees and subtenants
from all liability for injury to any person or damage to any property
that is caused by or results from a risk which is actually insured
against pursuant to the provisions of this Lease without regard to the
negligence or willful misconduct of the parties so released. Each party
shall use its best efforts to cause each insurance policy it obtains to
provide that the insurer thereunder waives all right of recovery by way
of subrogation as required herein in connection with any injury or
damage covered by the policy. If such insurance policy cannot be
obtained with such waiver of subrogation, or if such waiver of
subrogation is only available at additional cost and the party for whose
benefit the waiver is not obtained does not pay such additional costs
after reasonable notice, then the party obtaining such insurance shall
promptly notify the other party of the inability to obtain insurance
coverage with the waiver of subrogation.
17. DAMAGE AND DESTRUCTION
a. DAMAGE - INSURED. In the event that the Building containing the Premises
is damaged by fire or other casualty which is covered under insurance
pursuant to the provisions of (P)18. above, Landlord shall restore such
damage provided that: (i) the destruction of the Building containing the
Premises does not exceed sixty percent (60%) of the then replacement
value of the Building containing the Premises; (ii) the insurance
proceeds are available (inclusive of any deductible amounts) to pay one
hundred percent (100%) of the cost of restoration; and (iii) in the
reasonable judgment of Landlord, the restoration can be completed within
two hundred and seventy (270) days after the date of the damage or
casualty under the laws and regulations of the state, federal, county
and municipal authorities having jurisdiction. The deductible amount of
any insurance coverage shall be paid by Tenant. If such conditions apply
so as to require Landlord to restore such damage pursuant to this
(P)17.a., this Lease shall continue in full force and effect, unless
otherwise agreed to in writing by Landlord and Tenant. Tenant shall be
entitled to a proportionate reduction of Rent while such restoration
lakes place, such proportionate reduction to be based on the extent to
which the damage and restoration efforts interfere with Tenant's
business in the Premises. Tenant's right to a reduction of Rent
hereunder shall be Tenant's sole and exclusive remedy in connection with
any such damage.
b. DAMAGE - UNINSURED. In the event that the Building containing the
Premises is damaged by a fire or other casualty and Landlord is not
required to restore such damage in accordance with the provisions of
(P)17.a. immediately above, Landlord shall have the option to either (i)
repair or restore such damage, with the Lease continuing in full force
and effect, but Rent to be proportionately abated as provided in
(P)17.a. above; or (ii) give notice to Tenant at any time within thirty
(30) days after the occurrence of such damage terminating this Lease as
of a date to be specified in such notice which date shall not be less
than thirty (30) nor more than sixty (60) days after the date on which
such notice of termination is given. In the event of the giving of such
notice of termination, this Lease shall expire and all interest of
Tenant in the Premises shall terminate on the date so specified in such
notice and the Rent, reduced by any proportionate reduction in Rent as
provided for in (P)17.a. above, shall be paid to the date of such
termination. Notwithstanding the foregoing, if Tenant delivers to
Landlord the funds necessary to make up the shortage (or absence) in
insurance proceeds and the restoration can be completed in a two hundred
seventy (270) day period, as reasonably determined by Landlord, and the
destruction of the Building containing the Premises does not exceed
sixty percent (60%) of the then replacement value, Landlord shall
restore the Premises as provided in (P)17.a. above.
c. END OF TERM CASUALTY. Notwithstanding the provisions of (P)17.a. and
(P)17.b. above, either Landlord or Tenant may terminate this Lease if
the Building containing the Premises is damaged by fire or other
casualty (and Landlord's reasonably estimated cost of restoration of the
Building containing the Premises exceeds ten percent (10%) of the then
replacement value of the Building containing the Premises) and such
damage or casualty occurs during the last twelve (12) months of the Term
of this Lease (or the Term of any renewal option, if applicable) by
giving the other notice thereof at any time within thirty (30) days
following the occurrence of such damage or casualty. Such notice shall
specify the date of such termination which date shall not be less than
thirty (30) nor more than sixty (60) days following the date on which
such notice of termination is given. In the event of the giving of such
notice of termination, this Lease shall expire and all interest of
Tenant in the Premises shall terminate on the date so specified in such
notice and the Rent shall be paid to the date of such termination.
d. TERMINATION BY TENANT. In the event that the destruction to the Building
containing the Premises cannot be restored as required herein under
applicable laws and regulations within two hundred seventy (270) days of
the damage or casualty, notwithstanding the availability of insurance
proceeds, Tenant shall have the right to terminate this Lease by giving
the Landlord notice thereof within thirty (30) days of date of the
occurrence of such casualty specifying the date of termination which
shall not be less than thirty (30) days nor more than sixty (60) days
following the date on which such notice of termination is given. In the
event of the giving of such notice of termination, this Lease shall
expire and all interest of Tenant in the Premises shall terminate on the
date so specified in such notice and the Rent, reduced by any
proportionate reduction in Rent as provided for in (P)17.a. above, shall
be paid to the date of such termination.
e. RESTORATION. Landlord agrees that, in any case in which Landlord is
required to, or otherwise agrees to restore the Building containing the
Premises, Landlord shall proceed with due diligence to make all
appropriate claims and applications for the proceeds of insurance and to
apply for and obtain all permits necessary for the restoration of the
Building containing the Premises. Landlord shall use reasonable efforts
to enforce any and all provisions in any mortgage, deed of trust or
other encumbrance on the Building containing the Premises requiring
Landlord and Lender to permit insurance proceeds to be used for
restoration. Landlord shall restore the Premises to the condition
existing prior to the date of the damage if permitted by applicable law.
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18. CONDEMNATION
a. DEFINITIONS. The following definitions shall apply: (1) "Condemnation"
means (a) the exercise of any governmental power of eminent domain,
whether by legal proceedings or otherwise by condemnor, or (b) the
voluntary sale or transfer by Landlord to any condemnor either under
threat of condemnation or while legal proceedings for condemnation are
proceeding; (2) "Date of Taking" means the date the condemnor has right
to possession of the property being condemned; (3) "Award" means all
compensation, sums or anything of value awarded, paid or received on a
total or partial Condemnation; and (4) "Condemnor" means any public or
quasi-public authority, or private corporation or individual, having
power of Condemnation.
b. OBLIGATIONS TO BE GOVERNED BY LEASE. If during the Term of the Lease
there is any taking of all or any part of the Building containing the
Premises, the rights and obligations of the parties shall be determined
strictly pursuant to this Lease.
c. TOTAL OR PARTIAL TAKING. If the Building containing the Premises are
totally taken by Condemnation, this Lease shall terminate on the Date of
Taking. If any portion of the Building containing the Premises is taken
by Condemnation, this Lease shall remain in effect, except that Tenant
can 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 thirty (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 thirty (30) days nor later than ninety (90) days after
Tenant 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 full force and effect, on the Date of Taking the Base Rent
shall be reduced by an amount in the same ratio as the total number of
square feet in the building(s) which are a part of the Premises taken
bears to the total number of square feet in the building(s) which are a
part of the Premises immediately before the Date of Taking. Any Award
for the taking of all or any part of the Premises under the power of
eminent domain or any payment made under threat of the exercise of such
power shall be the property of Landlord, whether such Award shall be
made as compensation for diminution in value of the leasehold or for the
taking of the fee, or as severance damages; provided, however, that
Tenant shall be entitled to any compensation separately awarded to
Tenant for Tenant's relocation expenses and/or loss of Tenant's trade
fixtures.
19. ASSIGNMENT OR SUBLEASE
a. Tenant shall not assign or encumber its interest in this Lease or the
Premises or sublease all or any part of the Premises or allow any other
person or entity (except Tenant's authorized representatives, employees,
invitees or guests) to occupy or use all or any part of the Premises
without first obtaining Landlord's consent, which consent shall not be
unreasonably withheld. Any assignment, encumbrance or sublease without
Landlord's prior written consent shall be voidable and at Landlord's
election, shall constitute a default. If Tenant is a partnership, a
withdrawal or change, voluntary, involuntary or by operation of law of
any partner, or the dissolution of the partnership, shall be deemed a
voluntary assignment. If Tenant consists of more than one person, a
purported assignment, voluntary or involuntary or by operation of law
from one person to the other shall be deemed a voluntary assignment. If
Tenant is a corporation, any dissolution, merger, consolidation or other
reorganization of Tenant, or sale or other transfer of a controlling
percentage of the capital stock of Tenant, or the sale of at least fifty
percent (50%) of the value of the assets of Tenant shall be deemed a
voluntary assignment. All Rent received by Tenant from its subtenants in
excess of the Rent payable by Tenant to Landlord under this Lease
applicable to the portion of the Premises subleased shall be paid to
Landlord, or any sums to be paid by an assignee to Tenant in
consideration of the assignment of this Lease shall be paid to Landlord.
If Tenant requests Landlord to consent to a proposed assignment or
subletting, Tenant shall pay to Landlord, whether or not consent is
ultimately given, an amount equal to Landlord's reasonable attorneys'
fees and costs incurred in connection with such request up to $1,000.00
per request. Tenant shall, upon completion of any assignment or
subletting of all or any portion of the Premises, immediately and
irrevocably assign to Landlord as security for Tenant's obligations
under the Lease, all Rent from any such subletting or assignment.
Landlord, as assignee and attorney in fact for Tenant, shall have the
right to collect all rent and other revenues collectible pursuant to any
such sublet or assignment and apply such rent and other revenues towards
Tenant's obligations under the Lease provided, however, that Landlord
shall have no right to collect such rent and other revenues until the
occurrence of an act of default under this Lease.
b. No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the
transfer of this Lease by testacy or intestacy). Each of the following
acts shall be considered an involuntary assignment: (a) if Tenant is or
becomes bankrupt or insolvent, makes an assignment for the benefit of
creditors, or institutes proceedings under the Bankruptcy Act in which
Tenant is the bankrupt; or if Tenant is a partnership or consists of
more than one person or entity, if any partner of the partnership or
other person or entity is or becomes bankrupt or insolvent, or makes an
assignment for the benefit of creditors; or (b) if a writ of attachment
or execution is levied on this Lease; or (c) if in any proceeding or
action to which Tenant is a party, a receiver is appointed with
authority to take possession of the Premises. An involuntary assignment
shall constitute a default by Tenant and Landlord shall have the right
to elect to terminate this Lease, in which case this Lease shall not be
treated as an asset of Tenant.
c. Landlord may at its option, elect to terminate the Lease instead of
approving the requested assignment or sublease. Should Landlord so elect
to terminate this Lease, all of the obligations of the parties
thereunder shall terminate on the later of sixty (60) days following
Landlord's notice to Tenant of its election hereunder,
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or the effective date of the proposed assignment or subletting sought by
the Tenant, but in no event later than one hundred twenty (120) days
following the date of Landlord's election under this (P)19.c. At the
time of termination, all obligations of both parties hereunder shall
terminate as to obligations thereafter accruing except as otherwise
expressly provided in this Lease.
20. DEFAULT. The occurrence of any of the following shall constitute a default
by Tenant: (a) a failure of Tenant to pay Rent within five (5) days of its
due date; (b) abandonment and vacation of the Premises (failure to occupy
and operate the Premises for ten(10) consecutive days shall be deemed an
abandonment and vacation); or (C) failure to timely perform any other
provision of this Lease.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if Tenant is
in default. (These remedies are not exclusive; they are cumulative and in
addition to any remedies now or later allowed by law):
a. Landlord may continue this Lease in full force and effect, and this
Lease will continue in effect so long as Landlord does not terminate
Tenant's right to possession, and Landlord shall have the right to
collect Rent when due. During the period Tenant is in default, Landlord
can enter the Premises and relet the Premises, or any part of the
Premises, to third parties for Tenant's account. Tenant shall be liable
Immediately to Landlord for all costs Landlord Incurs in reletting the
PremIses, including without limitation, brokers' commissions, expenses
of remodeling the Premises required by the reletting, and like costs.
Reletting can be for a period shorter or longer than the remaining Term
of this Lease. Tenant shall pay to Landlord the Rent due under this
Lease on the dates the Rent is due, less the Rent Landlord receives from
any reletting. No act by Landlord allowed by this (P)21 .a. shall
terminate this Lease unless Landlord notifies Tenant in writing that
Landlord elects to terminate this Lease. After Tenant's default and for
so long as Landlord does not terminate Tenant's right to possession of
the Premises, if Tenant obtains Landlord's consent, Tenant shall have
the right to assign or sublet its interest in this Lease, but Tenant
shall not be released from liability. Landlord's consent to such a
proposed assignment or subletting shall not be unreasonably withheld. If
Landlord elects to relet the Premises as provided in this (P)21 .a.,
Rent that Landlord receives from reletting shall be applied to the
payment of: first, any indebtedness from Tenant to Landlord other than
Rent due from Tenant; second, all costs, including for maintenance
incurred by Landlord in reletting; and third, Rent due and unpaid under
this Lease. After deducting the payments referred to in this (P)21.a.,
any sum remaining from the Rent Landlord receives from reletting shall
be held by Landlord and applied in payment of future Rent as Rent
becomes due under this Lease. In no event shall Tenant be entitled to
any excess Rent received by Landlord. If, on the date Rent is due under
this Lease, the Rent received from the reletting is less than the Rent
due on that date, Tenant shall pay to Landlord, in addition to the
remaining Rent due, all reasonable costs including for maintenance
Landlord incurred in reletting that remain after applying the Rent
received from the reletting as provided in this (P)21.a.; and
b. Landlord may terminate Tenant's right to possession of the Premises at
any time. No act by Landlord other than giving express written notice
thereof to Tenant shall terminate this Lease. Acts of maintenance,
efforts to relet the Premises, or the appointment of a receiver on
Landlord's initiative to protect Landlord's interest under this Lease
shall not constitute a termination of Tenant's right to possession. Upon
termination 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 termination of Tenant's right to possession; (2)
the Worth of the amount by which the unpaid Rent that would have been
earned after the date of termination until the time of award exceeds the
amount of the loss of Rent that Tenant proves could have been reasonably
avoided; (3) the Worth of the amount of the unpaid Rent that would have
been earned after the award throughout the remaining Term of the Lease
to the extent such unpaid Rent exceeds the amount of the loss of Rent
that Tenant proves could have been reasonably avoided; and (4) any other
amount, including but not limited to, all reasonable expenses incurred
to relet the Premises, court costs, attorneys' fees and collection costs
necessary to compensate Landlord for all detriment caused by Tenant's
default. The "Worth", as used above in (1) and (2) in this (P)21.b. is
to be computed by allowing interest at the lesser of 18 percent per
annum or the maximum legal interest rate permitted by law. The "Worth",
as used above in (3) in this (P)21.b. is to be computed by discounting
the amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%).
22. ENTRY OF PREMISES. Landlord and/or its authorized representatives shall have
the right to enter the Premises after reasonable notice, except for any case
of emergency, for any of the following purposes: (a) to determine whether
the Premises are in good condition and whether Tenant is complying with its
obligations under this Lease; (b) to do any necessary maintenance and to
make any restoration to the Premises that Landlord has the right or
obligation to perform; (C) to post "for sale" signs at any time during the
Term, or to post "for rent" or "for lease" signs during the last one hundred
eighty (180) days of the Term or during any period while Tenant is in
default; (d) to show the Premises to prospective brokers, agents, buyers,
tenants or persons interested in leasing or purchasing the Premises, at any
time during the Term; or (e) to repair, maintain or improve the Premises and
to erect scaffolding and protective barricades around and about the Premises
but not so as to prevent entry to the Premises and to do any other act or
thing necessary for the safety or preservation of the Premises. Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss
of business, nuisance or other damage arising out of Landlord's entry onto
the Premises as provided in this (P)22. Tenant shall not be entitled to an
abatement or reduction of Rent if Landlord exercises any rights reserved in
this (P)22. Landlord shall conduct its activities on the Premises as
provided herein in a commercially reasonable manner that will lessen the
inconvenience, annoyance or disturbance to Tenant.
23. SUBORDINATION
a. Automatic Subordination. Without the necessity of any additional
document being executed by Tenant for the purpose of effecting a
subordination, and at the election of Landlord or any Lender(s) against
the Building
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containing the Premises, this Lease shall be subject and subordinate at
all times to (i) all ground leases or underlying leases which may now
exist or hereafter be executed affecting the Building containing the
Premises (ii) the lien of any mortgage or deed of trust which may
hereafter be executed affecting the Building containing the Premises,
and (iii) the lien of any mortgage or deed of trust which may hereafter
be executed in any amount for which the Premises, ground leases or
underlying leases, or Landlord's Interest or estate in any of said items
is specified as security. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or deed of
trust is foreclosed or a conveyance In lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination, attorn to
and become the Tenant of the successor in interest to Landlord. In
connection with any such termination of a ground lease or underlying
lease or any foreclosure or conveyance in lieu of foreclosure made in
connection with any mortgage or deed of trust, then so long as Tenant is
not in default pursuant to this Lease, Tenant shall not be disturbed in
its possession of the Premises or in the enjoyment of its rights
pursuant to this Lease during the Term of this Lease or any extension or
renewal thereof.
b. ADDITIONAL SUBORDINATION. From time to time at the request of Landlord,
Tenant covenants and agrees to execute and deliver within ten (10) days
following the date of written request from Landlord, documents
evidencing the priority or subordination of this Lease with respect to
any ground lease or underlying lease or the lien of any mortgage or deed
of trust in connection with the Building containing the Premises. Any
and all such documents shall be in such form as is reasonably acceptable
to Tenant and Landlord as well as the Lender(s) and other applicable
party. Any subordination agreement so requested by Landlord shall
provide for Tenant to attorn to the successor in interest to Landlord
and shall further provide that Tenant shall not be disturbed in its
possession of the Premises or in the enjoyment of its rights pursuant to
this Lease so long as Tenant is not in default with respect to its
obligations pursuant to the Lease. Any such Subordination, Non-
disturbance and Attornment Agreement shall be recorded in the official
records of the office of the County Recorder in the County in which the
Premises is located.
c. NOTICE FROM LENDER. Tenant shall be entitled to rely upon any notice
given by Lender(s) in connection with the Premises requesting that
Tenant make all future Rent payments to such Lender(s), and Tenant shall
not be liable to Landlord for any payment made to such Lender(s) in
accordance with such notice.
24. ESTOPPEL CERTIFICATE -- TENANT FINANCIAL STATEMENTS. Tenant, at any time and
from time to time, upon not less than ten (10) days written notice from
Landlord, will execute, acknowledge and deliver to Landlord and, at
Landlord's request, to any existing or prospective purchaser, ground lessor
or mortgagee of any part of the Premises, a certificate of Tenant stating;
(a) that Tenant has accepted the Premises (or if Tenant has not done so,
Tenant has not accepted the Premises and specifying the reasons therefor);
(b) the Commencement and Expiration Dates of this Lease; (c) that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that same is in full force and effect as modified and stating
the modifications); (d) whether or not to the best of Tenant's knowledge
there are then existing any defenses against the enforcement of any of the
obligations of Tenant under this Lease (and, if so, specifying same); (e)
whether or not to the best of Tenant's knowledge there are then existing any
defaults by Landlord in the performance of its obligations under this Lease
(and, if so, specifying same); (f) the dates, if any, to which the Rent and
other charges under this Lease have been paid; (g) whether or not there are
Rent increases during the Lease Term and if so the amount of same; (h)
whether or not the Lease contains any options or rights of first offer or
first refusal; (i) the amount of any Security Deposit or other sums due
Tenant; (j) the current notice address for Tenant; and (k) any other
information that may reasonably be required by any of such persons. It is
intended that any such certificate of Tenant delivered pursuant to this
(P)24. may be relied upon by Landlord and any existing or prospective
purchaser, ground lessor or mortgagee of the Building containing the
Premises. Tenant agrees, at any time upon request by Landlord, to deliver to
Landlord the current financial statements of Tenant with an opinion of a
certified public accountant, if available, including a balance sheet and
profit and loss statement for the most recent prior three years all prepared
in accordance with generally accepted accounting principles consistently
applied.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No
act or conduct of Landlord, including without limitation, acceptance of the
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only written notice
from Landlord to Tenant shall constitute acceptance of the surrender of the
Premises and accomplish termination of the Lease. Landlord's consent to or
approval 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 act by Tenant. Any waiver by Landlord of any
Default must be in writing and shall not be a waiver of any other Default
concerning the same or any other provision of the Lease.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the Term, Tenant
shall surrender to Landlord the Premises and all tenant improvements and
alterations in the same condition as existed at the Commencement Date,
except for ordinary wear and tear and alterations which Tenant has the right
or is obligated to remove under the provisions of (P)14. herein. Tenant
shall remove all personal property including, without limitation, all
wallpaper, paneling and other decorative improvements or fixtures and shall
perform all restoration made necessary by the removal of any alterations or
Tenant's personal property before the expiration of the Term. Including, for
example, restoring all wall surfaces to their condition as of the
Commencement Date. Landlord can elect to retain or dispose of in any manner
Tenant's personal property not removed from the Premises by Tenant prior to
the expiration of the Term. Tenant waives all claims against Landlord for
any damage to Tenant resulting from Landlord's retention or disposition of
Tenant's personal property. Tenant shall be liable to Landlord for
Landlord's reasonable cost for storage, removal and disposal of Tenant's
personal property.
If Tenant with Landlord's consent remains in possession of the Premises
after expiration of the Term or after the date in any notice given by
Landlord to Tenant terminating this Lease, such possession by Tenant shall
be deemed to be a month to month tenancy cancelable by either party on
thirty (30) days written notice given at any time by
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either party and all provisions of this Lease, except those pertaining to
Term, renewal options and Base Rent shall apply and Tenant shall pay monthly
Base Rent in an amount equal to one hundred fifty percent (150%), of the
Base Rent for the last full calendar month immediately preceding expiration
of the Term.
27. NOTICES. All notices, demands, or other communications required or
contemplated under this Lease shall be in writing and shall be deemed to
have been duly given 48 hours from the time of mailing if mailed by
registered or certified mail, return receipt requested, postage prepaid, or
24 hours from the time of shipping by overnight carrier, or the actual time
of delivery if delivered by personal service to the parties at the addresses
specified in (P)1. Either Tenant or Landlord may change the address to which
notices are to be given to such party hereunder by giving written notice of
such change of address to the other in accordance with the notice provisions
hereof.
28. LANDLORD'S TENANT IMPROVEMENTS. Landlord will provide the following Tenant
Improvements hereinafter "Landlord's Tenant Improvements" as part of the
Base Rental rate in accordance with the provisions of the Work Letter
Agreement attached as Exhibit E.
a. New T-bar ceiling.
b. New drop in parabolic light fixtures.
c. New building standard carpet.
d. New paint.
e. Majority open office.
f. Up to twenty new private office/conference rooms with sidelight glass.
g. Functional HVAC system using existing units, certified by an HVAC
contractor to be in good operating condition with no known material
defects.
h. Window blinds on exterior windows.
i. Lobby upgrades including wallcovering, flooring and lighting.
j. Adequate number (per City code) of clean and sanitary restroom
facilities.
k. All architectural and planning expenses pertaining to the above.
l. Lunch Room to include fifteen (15) lineal feet of building standard
counter and upper and lower cabinets and plumbing limited to a working
sink with garbage disposal, but exclusive of any kitchen equipment or
other plumbing.
m. Perimeter wall of Computer Room.
To the extent that Tenant is willing to accept the Premises with a lesser
degree of Landlord Tenant Improvements than is represented by the above
list, Landlord will credit Tenant with a $19.60/month rent reduction for the
5 1/2 year Term for each $1,000 of cost savings to Landlord.
Any additional Tenant Improvements for upgrades, hard wall partitioning,
cabling, computer room Improvements (other than the perimeter wall), et
cetera are to be paid for by Tenant. At Tenant's request, Landlord will
provide additional generic Tenant Improvements during the initial
construction and then amortize the cost thereof into the Rent over the
initial Lease Term.
If not already completed, Tenant will immediately design a preliminary space
plan to be mutually approved by Landlord and Tenant and incorporated into
the Lease. Tenant and Landlord shall mutually agree on finishes including
carpet colors, et cetera.
29. COMMENCEMENT DATE AND EXPIRATION DATE
a. INITIAL PREMISES. The Term of the Lease as to the "Initial Premises"
containing 47,888 rentable square feet as outlined on the attached
Exhibit A shall commence on or about April 18,1997 and more particularly
upon the earlier of (the "Commencement Date"):
1) Substantial completion of "Landlord's Tenant Improvements" (which
may be subject to completion of certain "punch list" items) and
Landlord or Tenant having obtained permission to occupy by the
City, or
2) Commencement of Tenant's actual move-in of personnel. Provided,
however, Tenant shall be allowed to enter the Premises no earlier
than April 1, 1997, to install wiring, furniture and equipment, and
to work in the main Computer Room in the Premises no earlier than
March 17, 1997, provided that in either such case such early
occupancy does not delay the completion of "Landlord's Tenant
improvements".
b. MUST TAKE PREMISES. The Term of the Lease (and the commencement of Rent)
as to the "Must Take Premises" consisting of 13,500 rentable square feet
as outlined on the attached Exhibit A shall commence
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upon the earlier of: (i) Tenant's actual move in of personnel to the
"Must Take Premises", or (ii) the beginning of the seventh Lease month
(i.e., six (6) months after the actual Commencement Date of the Lease).
c. EXPIRATION DATE. Regardless of the actual Commencement Date, the
Expiration Date shall be October 15, 2002.
30. SECURITY DEPOSIT: Notwithstanding the provisions of (P)5. of the Lease,
Tenant shall provide a Security Deposit of $445,063.00 which is equal to
five (5) month's Initial Base Rent on the Initial Premises and Must Take
Premises. Commencing with the second Lease year provided Tenant is not then
in default and that Tenant's equity public market capitalization is then at
least $180 million, the amount of the Security Deposit shall be reduced at
the commencement of the following Lease years so that the Security Deposit
is as follows:
SECURITY DEPOSIT =
LEASE YEAR # # MONTHS OF THEN CURRENT RENT
------------ -------------------------------
2 4 Months @ $92,082.00 per Month
3 3 Months @ $95,151.40 per Month
4 2 Months @ $98,220.80 per Month
However, if at any time and from time to time during the Lease Term,
Tenant's equity public market capitalization is less than $180 million, the
amount of the Security Deposit shall be increased within thirty (30)
calendar days thereafter to an amount equal to five (5) months of then
current Rent, subject to Tenant still being able to have the Security
Deposit reduced per the table above if Tenant's equity public market
capitalization is later restored to more than $180 million.
31. OPTION TO RENEW
a. GRANT OF OPTION. Tenant shall have the right, at its option, to extend
the Lease for one (1) period of five (5) years ("Extended Term")
commencing at the expiration of the Initial Term, provided that at the
time of exercise and at the time of commencement of such Extended Term,
Tenant is not in default under this Lease.
b. EXERCISE OF OPTION. If Tenant decides to extend the Lease for the
Extended Term, Tenant shall give written notice to Landlord of its
election to extend not less than nine (9) months prior to the expiration
of the Initial Term. Tenant's failure to give timely notice to Landlord
of Tenant's election to extend shall be deemed a waiver of Tenant's
right to extend. The terms and conditions applicable to the Extended
Term shall be the same terms and conditions contained in this Lease
except that Tenant shall not be entitled to any further option to
extend. The Base Rent for the Extended Term shall be as determined in
accordance with (P)31.c.
c. DETERMINATION OF BASE RENT DURING THE EXTENDED TERM.
1) AGREEMENT ON INITIAL BASE RENT. Landlord shall not be obligated to
provide Tenant with the proposed fair market rental value until
eight (8) months prior to the expiration of the Initial Term.
Landlord and Tenant shall have thirty (30) days after Landlord
provides the proposed fair market rental value in which to agree on
the initial Base Rent (I.e., the Base Rent for the first twelve
(12) months) during the Extended Term, which shall be ninety-five
percent (95%) of the fair market rental value of the Premises
during said Extended Term. The fair market rental value of the
Premises during said Extended Term shall be based on the uses of
the Premises permitted under this Lease, the quality, size, design
and location of the Premises, and the rental value for lease
renewals or extensions of comparable size, quality and location. If
Landlord and Tenant agree on the initial Base Rent for the Extended
Term during the thirty (30) day period, they shall immediately
execute an amendment to this Lease stating the new initial Base
Rent.
2) SELECTION OF APPRAISERS. If Landlord and Tenant are unable to
agree on the. Initial Base Rent for the Extended Term within the
thirty (30) day period, then within ten (10) days after the
expiration of the thirty (30) day period and provided that Tenant
has timely exercised the subject renewal option in accordance with
(P)31.b., Landlord and Tenant each at its own cost and by giving
notice to the other party, shall appoint a competent and
disinterested real estate appraiser with at least five (5) years
full-time commercial appraisal experience in the market area to
appraise the fair market rental value of the Premises and set the.
Initial Base Rent during said Extended Term. If either Landlord
or Tenant does not appoint an appraiser within said ten (10) days,
the single appraiser appointed shall be the sole appraiser and
shall set the initial Base Rent during said Extended Term. If two
(2) appraisers are appointed by Landlord and Tenant as stated
herein, they shall meet promptly and attempt to set the Initial
Base Rent for said Extended Term. If the two (2) appraisers are
unable to agree within thirty (30) days after the second appraiser
has been appointed, they shall attempt to select a third appraiser
meeting the same qualifications within ten (10) days after the last
day the two (2) appraisers are given to set the Initial Base Rent.
If they are unable to agree on the third appraiser, either
Landlord or Tenant, by giving ten (10) days' notice to the other
party, can apply to the then President of the Real Estate Board of
Santa Clara County or to the Presiding Judge of the Superior Court
of Santa Clara County, for the selection of a third appraiser who
meets the qualifications stated herein. Landlord and Tenant each
shall bear one-half (1/2) of the cost of appointing the third
appraiser and of paying the third appraiser's fee. The
-17-
third appraiser, however selected, shall be a person who has not
previously acted In any capacity for either Landlord or Tenant, or
their affiliates.
3) VALUE DETERMINED BY THREE (3) APPRAISERS. Within thirty (30) days
after the selection of the third appraiser, a majority of the
appraisers shall set the Initial Base Rent for the Extended Term.
If a majority of the appraisers are unable to set the Initial Base
Rent within the stipulated period of time, Landlord's appraiser
shall arrange for simultaneous exchange of written appraisals from
each of the appraisers and the three (3) appraisals shall be added
together and their total divided by three (3); the resulting
quotient shall be the Initial Base Rent for the Premises during the
Extended Term. If, however, the low appraisal and/or the high
appraisal are/is more than fifteen percent (15%) lower and/or
higher than the middle appraisal, such low appraisal and/or high
appraisal shall be disregarded. If only one (1) appraisal is
disregarded, the remaining two (2) appraisals shall be added
together and their total divided by two (2); the resulting quotient
shall be the Initial Base Rent for the Premises during the Extended
Term. If both the low appraisal and the high appraisal are
disregarded as stated in this (P)31 .c.3), the middle appraisal
shall be the Initial Base Rent for the Premises during the Extended
Term.
4) MINIMUM INITIAL BASE RENT LEVEL. Notwithstanding any other
provision of this Lease, in no event shall the Initial Base Rent
for the Extended Term be less than the Base Rent prevailing
immediately prior to the expiration of the Initial Term.
5) ANNUAL INCREASE. The monthly Base Rent for the Extended Term shall
be increased by five cents ($ .05) per Rentable Square Foot at the
beginning of each of Lease years 2, 3, 4 and 5 of the Extended
Term.
32. ADDITIONAL POWER. Landlord shall allow Tenant to install, at Tenant's sole
cost, a generator outside of the Building close to the computer room in a
location approved by Landlord, to provide backup power in the event of a
power failure. Landlord shall cooperate with Tenant and the City of
Sunnyvale to complete this item.
33. RIGHT OF FIRST REFUSAL (ROFR). Provided Tenant is not in default during the
Term of the Lease, should Landlord receive an offer from a third party
("Third Party Offer") to lease all or part of the Expansion Area as outlined
on the attached Exhibit A, Landlord shall notify Tenant in writing of the
general business terms of the Third Party Offer and Tenant shall have the
right to lease the space outlined in the Third Party Offer under the same
Rent and Tenant Improvement Allowance terms thereof, provided Tenant
exercise this Right within five (5) business days from the date of
Landlord's notice. The terms and conditions of the Lease for the Expansion
Area (except for Rent and Tenant Improvement Allowance) shall be the same as
the original Lease and be coterminous with the original Lease or any
extension thereof. Tenant's ROFR shall be subject to rights of then existing
tenants.
However, if the term of the Lease as to the Expansion Area is less than
sixty-six (66) months, Landlord shall adjust the Tenant Improvement
Allowance to reflect the shorter amortization term for the Tenant
Improvements.
34. HVAC CAPITAL REPLACEMENTS. Notwithstanding the provisions of (P)12.b.,
Landlord shall be responsible only during the first two years of the Term of
the Lease at its own cost and without reimbursement from Tenant, for the
replacement of HVAC units as they wear out and for any "Major HVAC Repair"
(defined as a single occurrence repair or replacement costing in excess of
$1,500 per unit).
35. NON-DISTURBANCE AGREEMENT. Upon request by Tenant, Landlord shall use its
best efforts to provide a Non-Disturbance Agreement to Tenant from its
Lender(s) on behalf of Tenant.
36. MISCELLANEOUS PROVISIONS.
a. TIME OF ESSENCE. Time is of the essence of each provision of this Lease.
b. SUCCESSOR. This Lease shall be binding on and inure to the benefit
of the parties and their successors, except as provided in (P)19.
c. LANDLORD'S CONSENT. Any consent required by Landlord under this Lease
must be granted in writing and may be withheld or conditioned by
Landlord in its sole and absolute discretion unless otherwise provided.
d. COMMISSIONS. Each party represents that it has not had dealings with any
real estate broker, finder or other person with respect to this Lease in
any manner, except for the Broker(s) identified in (P)1., who shall be
compensated by Landlord in accordance with the separate agreement
between Landlord and the Broker(s).
e. LITIGATION. If either party commences any litigation against the other
party or files an appeal of a decision arising out of or in connection
with the Lease, the prevailing party shall be entitled to recover from
the other party reasonable attorneys' fees and costs of suit. If
Landlord employs a collection agency to recover delinquent charges,
Tenant agrees to pay all collection agency and attorneys' fees charged
to Landlord in addition to Rent, late charges, interest and other sums
payable under this Lease.
f. LANDLORD'S SUCCESSORS. In the event of a sale or conveyance by Landlord
of the Building containing the Premises, the same shall operate to
release Landlord from any liability under this Lease, and in such event
Landlord's successor in interest shall be solely responsible for all
obligations of Landlord under this Lease.
-18-
g. INTERPRETATION. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are located.
This Lease constitutes the entire agreement between the parties with
respect to the Premises, except for such guarantees or modifications as
may be executed in writing by the parties from time to time. When
required by the context of this Lease, the singular shall include the
plural, and the masculine shall include the feminine an/or neuter.
"Party" shall mean Landlord or Tenant. If more than one person or
entity constitutes Landlord or Tenant, the obligations imposed upon that
party shall be joint and several. The enforceability, invalidity or
illegality of any provision shall not render the other provisions
unenforceable, invalid or illegal.
h. AUCTIONS. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without
first having obtained Landlord's prior written consent. Notwithstanding
anything to the contrary in this Lease, Landlord shall not be obligated
to exercise any standard of reasonableness in determining whether to
grant such consent.
i. QUIET POSSESSION. Upon payment by Tenant of the Rent for the Premises
and the observance and performance of all of the covenants, conditions
and provisions on Tenant's part to be observed and performed under this
Lease, Tenant shall have quiet possession of the Premises for the entire
Term hereof subject to all of the provisions of this Lease.
j. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
k. OFFER. Preparation of this Lease by Landlord or Landlord's agent and
submission of same to Tenant shall not be deemed an offer to lease to
Tenant. This Lease is not intended to be binding until executed by all
Parties hereto.
l. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. The parties shall
amend this Lease from time to time to reflect any adjustments that are
made to the Base Rent or other Rent payable under this Lease. As long as
they do not materially change Tenant's obligations hereunder, Tenant
agrees to make reasonable non-monetary modifications to this Lease as
may be reasonably required by Lender(s) in connection with the obtaining
of normal financing or refinancing of the property of which the Premises
are a part.
m. CONSTRUCTION. The Landlord and Tenant acknowledge that each has had its
counsel review this Lease, and hereby agree that the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation
of this Lease or in any amendments or exhibits hereto.
n. CAPTIONS. Article, section and paragraph captions are not a part hereof.
o. EXHIBITS. For reference purposes the Exhibits are listed below:
Exhibit A: The Premises
Exhibit B: The Property
Exhibit C: Rules and Regulations
Exhibit D: Covenants, Conditions and Restrictions
Exhibit E: Work Letter Agreement
LANDLORD: TENANT:
LIMAR REALTY CORP. #8, a California corporation INFOSEEK CORPORATION, a California corporation
By: /s/ Theodore H. Krusttschnitt By: /s/ Andrew E. Newton
________________________________ _______________________________
Theodore H. Kruttschnitt Name: Andrew E. Newton
President _______________________________
Title: VP & General Counsel
_______________________________
Date: March 10, 1997 Date: March 10, 1997
_______________________________ _______________________________
-19-
EXHIBIT A
The Premises
------------
This Exhibit A is attached to and made a part of that certain Lease (the
"Lease") dated March 4, 1997, by and between Limar Realty Corp. #8 as
Landlord and Infoseek Corporation as Tenant.
[FIGURE DEPICTING PROPERTY LEASED APPEARS HERE]
-20-
EXHIBIT B
The Property
------------
This Exhibit B is attached to and made a part of that certain Lease (the
"Lease") dated March 4, 1997, by and between Limar Realty Corp. #8 as
Landlord and Infoseek Corporation as Tenant.
[FIGURE DEPICTING PROPERTY LEASED APPEARS HERE]
-21-
EXHIBIT B
The Property
------------
(Continued)
REAL PROPERTY in the City of Sunnyvale, County of Santa Clara, State of
California, described as follows:
PARCEL ONE:
All of Parcel B, as shown on that certain Map entitled, "Parcel Map being a
resubdivision of Parcel 2 as shown on that certain map recorded March 1, 1978 in
Book 413 of Maps, at page 54, Santa Clara County Records", which map was filed
for record in the Office of the Recorder of the County of Santa Clara, State of
California on October 29, 1979 in Book 452 of Maps, at page 32.
PARCEL TWO:
An easement 15.00 feet in width for the purpose of ingress and egress. The
Easterly line of said easement being more particularly described as follows:
Beginning at the most Southerly corner of Parcels A and B, in the Northerly
line of Moffett Park Drive as said Parcels and Drive are shown on that Map
entitled "Parcel Map", recorded October 29, 1979 in Book 452 of Maps at page 32,
Santa Clara County Records; thence from said point of beginning along the common
line of Parcels A and B, North 14 degrees 43' 20" East 707.06 feet to the
terminus of this easement.
APN: 110-37-002
ARB: 110-04-024.08
-22-
EXHIBIT C
Rules & Regulations
-------------------
This Exhibit C is attached to and made a part of that certain Lease dated March
4, 1997 by and between Limar Realty Corp. #8 as Landlord and Infoseek
Corporation as Tenant.
For the purpose of these Rules & Regulations the word Premises shall refer to
the Premises Tenant is leasing and the Property containing the Premises as
described In paragraph 2. of the Lease.
1. No sign, placard, picture, advertisement, name or notice (collectively,
"Signs") shall be installed or displayed on any part of the Premises without
the prior written consent of Landlord, except that Tenant may post Signs
inside the Building which are not visible from the exterior of the Building.
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.
2. Except as consented to in writing by Landlord, no draperies, curtains,
blinds, shades, screens or other devices shall be hung at or used in
connection with any window or exterior door or doors of the Premises and no
awning shall be permitted on any part of the Premises. Tenant shall not
place anything against or near glass partitions or doors or windows which
may appear unsightly from outside the Premises.
3. Neither Tenant nor any employee or invitee of Tenant, shall make any
structural roof or terrace penetrations.
4. Tenant shall not cause any unnecessary labor by carelessness or indifference
to the good order and cleanliness of the Premises. Landlord shall not in any
way be responsible to any Tenant for any loss of property on the Premises,
or for any damage to any Tenant's property.
5. Landlord will furnish Tenant, free of charge, with six (6) keys to the
Premises. Tenant shall not make or have made additional keys without
Landlord's prior written consent, and Tenant shall not alter any lock or
install a new additional lock or bolt on any door of its Premises without
Landlord's prior written consent. Tenant, upon the termination of its
tenancy, shall deliver to Landlord the keys of all locks for doors on the
Premises, and in the event of loss of any keys furnished by Landlord, shall
pay Landlord therefor.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's reasonable
instructions in their installation.
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 reasonable right to prescribe the
weight, size and position of all equipment, materials, furniture or other
property brought into the Premises. Heavy objects shall, if considered
necessary by Landlord, stand on such platforms as determined by Landlord to
be necessary to properly distribute the weight. Business machines and
mechanical equipment belonging to Tenant, which cause noise or vibration
that may be transmitted to the structure of the Premises to such a degree as
to be objectionable to Landlord, shall be placed and maintained by Tenant,
at Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibrations. 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 Premises 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 by reason of noise,
odors or vibrations not bring or keep or permit to be brought or kept in the
Premises any animal life form, other than human, except seeing eye dogs when
in the company of their masters.
9. Intentionally deleted.
10. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to comply with any governmental energy-saving
rules, laws or regulations of which Tenant has actual notice.
11. Landlord reserves the right, exercisable with one hundred twenty (120) days
prior written notice but without liability to Tenant, to change the name and
street address of the Premises.
12. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and other equipment which is not
required to be continuously run.
13. 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 for the violation of
this rule shall be borne by the Tenant who, or whose employees or invitees,
shall have caused it.
-23-
EXHIBIT C
Rules & Regulations
-------------------
(continued)
14. Tenant shall not sell, or permit the retail sale 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 Business Park. Tenant
shall not use the Premises for any business or activity other than that
specifically provided for in Tenants Lease. Notwithstanding the above,
Tenant shall have the right to install vending machines for use by Tenant,
its employees and invitees.
15. Tenant shall not interfere with radio or television broadcasting or
reception from or in neighboring areas.
16. Intentionally deleted.
17. Canvassing, soliciting and distribution of handbills or any other written
materials, and peddling in the Business Park are prohibited, and Tenant
shall cooperate to prevent same.
18. Landlord reserves the right to exclude or expel from the Premises 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
Premises or in violation of the CC&R's.
19. Tenant shall store all its trash and garbage within its Premises or in
reasonable locations specifically identified by Landlord for such purposes.
Tenant shall not place in any trash box or receptacle any material 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 reasonable directions issued from time to time by Landlord.
20. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging nor shall the Premises by used for
any improper, immoral or objectionable purpose. No cooking shall be done or
permitted by any tenant on the Premises, except that use by Tenant in its
kitchen, if any, located in the Premises and Underwriters Laboratory's
approved equipment for brewing coffee, tea, hot chocolate and similar
beverages and microwaving food shall be permitted, provided that such
kitchen equipment and use is in accordance with all applicable federal,
state, county and city laws, ordinances, rules and regulations.
21. Tenant shall not use in any part of the Premises any hand truck except those
equipped with rubber tires and side guards or such other reasonable
material-handling equipment as Landlord may approve.
22. Without the written consent of Landlord, Tenant shall not use the name of
the Business Park in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
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 locking doors and securing
other means of entry to the Premises closed.
25. The requirements of Tenant will be attended to only upon appropriate
application to the office of Landlord 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.
26. Tenant shall not park its vehicles in any parking areas outside the Business
Park. Tenant shall not store or abandon vehicles in the Business Park
parking areas nor park any vehicles in the Business Park parking areas other
than automobiles, motorcycles, motor driven or non-motor driven bicycles,
four-wheeled trucks, or other equipment used in the operation of Tenant's
business. Tenant, its agents, employees and invitees shall not park any one
(1) vehicle in more than one (1) parking space.
27. Landlord reserves the right to make such other reasonable Rules and
Regulations as, in its judgment, may from time to time be appropriate for
safety and security, for care and cleanliness of the Premises and for the
preservation of good order therein. Tenant agrees to abide for all such
Rules and Regulations hereinabove stated and any additional Rules and
Regulations which are adopted.
28. Tenant shall be responsible for the observance of all of the foregoing Rules
and Regulations by Tenant's employees, agents, clients, customers, invitees
and guests.
-24-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
This Exhibit D is attached to and made a part of that certain Lease dated
February 25, 1997, by and between Limar Realty Corp. #8 as Landlord and Infoseek
Corporation as Tenant.
Recording Requested By:
TITLE INSURANCE & TRUST COMPANY
TS-425904-1
When Recorded, Mail to:
PRUDENTIAL INSURANCE COMPANY
155 Moffett Park Drive
Building A, Suite 101
Sunnyvale, CA 94086
ATTN: Lee Cashion
DECLARATION OF PROTECTIVE COVENANTS
-----------------------------------
MOFFETT INDUSTRIAL PARK NO. 11
------------------------------
THIS DECLARATION, made this 5th day of April, 1980 by The PRUDENTIAL
INSURANCE COMPANY OF AMERICA (hereinafter called Prudential), a New Jersey
corporation,
WITNESSETH:
WHEREAS Prudential is the Owner of that certain real property located in the
City of Sunnyvale, County of Santa Clara, State of California, described in
Exhibit "A" (hereinafter called Moffett Industrial Park No. 11), and
WHEREAS Prudential proposes to subdivide Moffett Industrial Park No. 11 and
to subject it to the following restrictions:
NOW, THEREFORE, Prudential hereby declares that Moffett Industrial Park No.
11 is and shall be held, conveyed, encumbered, leased and used subject to the
following uniform restrictions, covenants and equitable servitudes in
furtherance of a plan for the subdivision, improvement and sale thereof and to
enhance the value, desirability and attractiveness of Moffett Industrial Park
No. 11, the restrictions set forth herein shall run with the real property
included within Moffett Industrial Park No. 11 shall be binding upon all persons
having or acquiring any interest in such real property or any part thereof,
shall inure to the benefit
-25-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
of every portion of Moffett Industrial Park No. 11 and any interest therein and
shall inure to the benefit of and be binding upon each successor in interest of
Prudential and may be enforced by Prudential or its successors in interest or by
any Owner (as defined in Article I below) or his successors in interest.
I. GENERAL PROVISIONS
---------------------
A. Definitions.
1. "Architectural Control Committee" means Prudential, or any committee
which Prudential may appoint by an appropriate instrument recorded
with the Santa Clara County Recorder.
2. "Lot" means each lot shown on the parcel or subdivision map or maps
for Moffett Industrial Park No. 11.
3. "Site" mean a parcel consisting either of a Lot, a portion of a Lot,
contiguous Lots, or portions of contiguous Lots.
4. "Improvements" means all improvements to a Site including, but without
limitations, buildings loading areas, trackage, parking areas,
pavement, poles, fences, landscaping, signs and structures of any
type.
5. "Building" means the main portion of any building or similar structure
and all projections or extensions thereof, including garages, outside
platforms and docks.
6. "Owner" means the person or persons, partnership or corporation in
whom title to a Site is vested, as shown by the official records of
the Office of the County Recorder of Santa Clara County, "Owner" does
not mean mortgagees,
-26-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
trustees and beneficiaries of deeds of trust or holders of any
indebtedness secured by a mortgage or deed of trust.
B. Purposes of Restrictions.
The purposes of these covenants, conditions and restrictions is to insure
proper development and use of Moffett Industrial Park No. 11, to protect the
Owner of each Site against such improper development and use of other Sites
as will depreciate the value of his Site, to prevent the erection of
structures of unsuitable or inharmonious design or construction, to secure
and maintain sufficient setbacks from streets and between structures, to
maintain Common Landscaping (as defined in Article V) and in general to
provide for a high quality of improvement of Moffett Industrial Park No. 11
in accordance with a general plan.
II. REGULATION OF IMPROVEMENTS
------------------------------
A. Minimum Setback Lines.
No improvement shall be constructed upon any Site within thirty-five (35)
feet of the right-of-way line of any public street. No improvement other
than landscaping, paving and fences shall be constructed upon any Site
within twenty (20) feet of any other Site. The Architectural Control
Committee may approve lesser setback lines if in its opinion a variation
would be compatible with the general development of Moffett Industrial Park
No. 11.
B. Ground Coverage.
No more than fifty percent (50%) of the surface of any Site shall be covered
with a building or buildings for warehouse use or thirty-five percent (35%)
for all other uses.
C. Construction Operations.
-27-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
Construction of all improvements shall be expedited so that none shall
remain in a partially finished condition any longer than reasonably
necessary for the completion thereof.
D. Excavation.
No excavation shall be made on, and no sand, gravel or soil shall be removed
from, any Site, except in connection with the construction of improvements,
and upon completion thereof, exposed openings shall be backfilled, and
disturbed ground shall be graded, leveled and paved or landscaped.
E. Landscaping.
Within ninety (90) days of the occupancy or completion of any Building on a
Site, whichever occurs first, such Site shall be landscaped in accordance
with plans approved by the Architectural Control Committee. The Owner of the
Site shall maintain such landscaping in good order and condition.
F. Signs.
No billboard or advertising signs shall be permitted on any Site other than
those approved by the Architectural Control Committee which identify the
name, business and products of the person or firm occupying the Site or
offer the Site for sale or lease.
G. Parking Areas.
Each site shall have facilities for parking sufficient to serve the business
conducted thereon without using adjacent streets thereof, and no use shall
be made of any Site which would require parking in excess of the parking
spaces on the Site. In any event, the number and size of the parking spaces
on each
-28-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
Site shall conform with all ordinances of the City of Sunnyvale applicable
with respect thereto. Parking areas shall be laid out and constructed
according to plans approved by the Architectural Control Committee and shall
be maintained thereafter in good condition. Except with the approval of the
Architectural Control Committee, no parking shall be permitted within
thirty-five (35) feet of the right-of-way line of any street.
H. Loading Areas.
All vehicle loading and unloading in connection with an Owner's business
shall be conducted upon his Site, and sufficient space shall be provided
therefore. Loading Areas shall be screened from view from streets and
adjoining properties by a visual barrier not less than six (6) feet in
height. Except with the prior written approval of the Architectural Control
Committee, loading areas shall not be located between any building and any
street or any closer than seventy-five (75) feet to the right-of-way line of
any street.
I. Storage Areas.
No materials, supplies, equipment or trash containers shall be stored on a
Site except inside a building or behind a visual barrier no less than six
(6) feet in height or rising two (2) feet above the stored materials,
supplies or equipment, whichever is higher, screening such storage areas
from view from streets and adjoining Sites. Except with the prior written
approval of the Architectural Control Committee, storage areas shall not be
located between any building and any street.
-29-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
J. Building Regulations
All Buildings shall be constructed and maintained in accordance with the
following standards unless an exception is approved in writing by the
Architectural Control Committee:
1. Exterior walls shall be of masonry, concrete or approved equal
material.
2. Exterior walls shall be painted or otherwise finished in a manner
acceptable to the Architectural Control Committee. Exterior walls shall
not be repainted or refinished unless and until the Architectural
Control Committee shall have approved the color or refinishing materials
to be used.
3. All buildings shall be maintained in good order and repair and
condition. All exterior painted surfaces shall be maintained in first-
class condition and shall be repainted at least once every five (5)
years.
4. All electrical, telephone and other utility lines shall be
underground and shall not be exposed on the exterior of any Building.
5. All electrical and mechanical apparatus, equipment, fixtures (other than
lighting fixtures) conduit, ducts, vents, flues and pipes located on the
exterior of any Building shall be concealed from view and shall be
architecturally treated in a manner acceptable to the Architectural
Control Committee.
III. APPROVAL OF PLANS
----------------------
No improvement shall be erected, placed, altered, maintained or permitted to
remain on any Site until plans and specifications showing plot layout and all
exterior elevations, with materials and
-30-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
colors therefore and structural designs, signs and landscaping shall have been
submitted to and approved in writing by the Architectural Control Committee.
Such plans and specifications shall be submitted in writing over the signature
of the Owner of the Site or his authorized agent. Approval shall be based, among
other things, on adequacy of Site dimensions; adequacy of structural design;
effect of location and use of improvements on neighboring Sites; improvement
operations, and uses; relation of topography, grade, and finished ground
elevation of the Site being improved to that of neighboring Sites; proper facing
of main elevation with respect to nearby streets; and conformity of the plans
and specifications to the purpose and general plan and intent of this
Declaration. The Architectural Control Committee shall not arbitrarily or
unreasonably withhold its approval of such plans and specifications. If the
Architectural Control Committee fails either to approve or disapprove such plans
and specifications within thirty (30) days after the same have been submitted to
it, it shall be conclusively presumed that the Architectural Control Committee
has approved said plans and specifications, subject, however, to the
restrictions contained in Articles II and IV hereof.
Neither the Architectural Control Committee nor its successors or assigns
shall be liable in damages to anyone submitting plans to them for approval, or
to any Owner by reason of mistake in judgment, negligence, or nonfeasance
arising out of or in connection with the approval or disapproval or failure to
approve any such plans. Every person who submits plans to the Architectural
-31-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
Control Committee for approval agrees, by submission of such plans, and every
Owner agrees, by acquiring title to a Site, that he will not bring any action or
suit against the Architectural Control Committee to recover any such damages.
IV. REGULATION OF OPERATIONS AND USE
------------------------------------
A. Permitted Operations and Uses.
Except as provided in paragraphs B and C below, any industrial use will be
permitted on a Site including, but without limitation, manufacturing,
processing, storage, wholesale, office, laboratory, professional and
research and development. Such retail uses as may be required for the
convenience of Owners and their employees shall be permitted and such retail
uses may include, but without limitation, restaurants, drug stores, barber
and beauty shops, show repair shops, cleaners, motels, post offices, banks
and automobile service stations. Such municipal, governmental and public
utility uses as may be necessary or appropriate shall be permitted.
B. Prohibited Operations and Uses.
No Site shall be used as a junk yard, stock yard, or slaughter yard or for
commercial excavation of building or construction materials, fat rendering
or distillation of bones, dumping, disposal, incineration or reduction of
garbage, sewage, offal, dead animals or refuse, or the smelting of
iron, tin, zinc or other ores or the prospecting or drilling for natural
gas, oil or like substances, except with the prior written permission of the
Architectural Control Committee, and then only in such manner as will not
materially inconvenience other Owners or materially
-32-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
depreciate the value of adjacent property.
C. Nuisance.
No noxious or offensive activity shall be carried on nor shall anything be done
on any Site which may be or become an annoyance or nuisance to the Owners or
occupants of other Sites or which will be offensive by reason of odor, fumes,
dust, dirt, fly-ash, smoke, noise, glare or which will be hazardous by reason of
danger of fire or explosion.
V. COMMON LANDSCAPING
---------------------
The Owner of each Site shall maintain landscaping existing thereon at the
time of purchase ("Common Landscaping") in a condition that meets the approval
of the Architectural Control Committee. In the event that the Owner of any Site
does not maintain Common Landscaping in such condition or the landscaping
described in Article II E as therein provided, Prudential or its agents shall
have the right to maintain such landscaping in such condition. Prudential or its
agents shall have the right at any reasonable time to enter into any Site for
the purpose of such maintenance and for such other purposes as are reasonably
related thereto. Prudential shall use due diligence and reasonable care in
repairing, maintaining and installing Common Landscaping to see that such
repair, maintenance and installation does not interfere with the Owner's use of
its Site. In the event that Prudential or its agents should undertake any such
maintenance on any Site, the Owner thereof shall reimburse Prudential for all of
Prudential's costs incurred in such maintenance. In any
-33-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
legal proceeding brought by Prudential to recover such costs, the Owner shall be
obligated to pay for the costs and expenses of such proceeding, including
reasonable attorneys' fees.
VI. ENFORCEMENT
---------------
A. Interpretation.
In case of uncertainty as to the meaning of any article, section,
subsection, paragraph, sentence, clause, phrase or word of this Declaration
the interpretation of Prudential shall be final, conclusive and binding upon
all interested parties.
B. Abatement and Suit.
Violation or breach of any restriction herein contained shall give to
Prudential and every Owner the right to enter the property upon or as to
which said violation or breach exists and to summarily abate and remove at
the expense of the Owner thereof, any structure, thing or condition that may
be or exist thereon contrary to the intent and meaning of the provisions
hereof, or to prosecute a proceeding at law or in equity against the person
or persons who have violated or are attempting to violate any of these
restrictions to enjoin or prevent them from doing so, to cause said
violation to be remedied or to recover damages for said violation.
In any legal or equitable proceeding for the enforcement of this Declaration
the losing party or parties shall pay the attorneys' fees of the prevailing
party or parties, in such amount as may be fixed by the court in such
proceedings. All remedies
-34-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
provided herein or at law or in equity shall be cumulative and not
exclusive.
C. Inspection.
Prudential may from time at any reasonable hour or hours, enter and
inspect any property subject to these restrictions to ascertain compliance
therewith.
D. Failure to Enforce Not a Waiver of Rights.
Except as provided in the last paragraph of Article III hereof, the failure
of Prudential or any Owner to enforce any restriction contained herein shall
in no event be deemed to be a waiver of the right to do so thereafter nor of
the right to enforce any other restriction contained herein.
VII. EXTINGUISHMENT, CONTINUATION AND MODIFICATION
--------------------------------------------------
This Declaration, every provision hereof and every covenant, condition and
restriction contained herein shall continue in full force and effect for a
period of forty (40) years from the date hereof; provided, however, that this
Declaration, or any provision hereof, or any covenant, condition or restriction
contained herein, may be terminated, extended, modified, or amended with the
written consent of the Owners of sixty-five percent (65%) of the land in Moffett
Industrial Park No. 11 (exclusive of portions thereof now or hereafter dedicated
to public use); provided, further, that so long as Prudential owns at least
twenty percent (20%) of Moffett Industrial Park No. 11, no such termination,
extension, modification or amendment shall be effective without the written
consent of Prudential. No such termination, extension, modification or
amendment shall be effective until a proper instrument in
-35-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
writing has been executed and acknowledged and recorded in the Office of the
Recorder of Santa Clara County, California.
VIII. MOFFETT INDUSTRIAL PARK NO. 11 OWNERS ASSOCIATION
-------------------------------------------------------
A. Membership.
Each Owner shall be a member of the Moffett Industrial Park No. 11 Owners
Association, an unincorporated association (hereinafter called the
"Association").
B. Transfer of Rights and Duties.
The rights and duties of Prudential under this Declaration shall be
transferred to and automatically assumed by the Association upon the
earliest of the following to occur:
1. The sale of ninety percent (90%) of Moffett Industrial Park No. 11 by
Prudential to Owners as evidenced by the official records of the Santa
Clara County Recorder; or
2. The recordation by Prudential of an appropriate instrument with the
Santa Clara County Recorder transferring the rights and duties of
Prudential under this Declaration to the Association.
C. Organization.
The members of the Association may at any time meet and adopt by-laws or
rules of procedure to govern the operation of the Association. Until
such by-laws or rules of procedure are adopted, meetings of the
Association may be called by any member thereof upon seven (7) days'
written notice to each member setting for the time and place thereof,
provided that
-36-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
notice may be waived in writing at any time by any member or members not so
notified; twenty-five percent (25%) of the members of the Association shall
constitute a quorum; and the Association may act by a vote of a majority of
its members present at a meeting, duly called, at which a quorum is present
or without a meeting by unanimous written consent of its members.
IX. ASSIGNABILITY OF PRUDENTIAL'S RIGHTS AND DUTIES
---------------------------------------------------
Any and all of the rights, powers and reservations of Prudential herein
contained may be assigned to any person, corporation or entity which assumes in
writing the duties of Prudential pertaining to the particular rights, powers and
reservations assigned, and thereafter to the extent of such assignment, such
person, corporation or entity shall have the same rights and powers and be
subject to the same obligations and duties as are herein given to and assumed by
Prudential.
X. CONSTRUCTIVE NOTICE AND ACCEPTANCE
-------------------------------------
Every Owner is and shall be conclusively deemed to have consented and agreed
to every covenant, condition and restriction contained herein, whether or not
any reference to this Declaration is contained in the instrument by which such
Owner acquired an interest in any portion of Moffett Industrial Park No. 11
-37-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
IN WITNESS WHEREOF, Prudential, the declarant herein, has caused its name to
be hereunto subscribed as of the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Lee Cashion
_________________________________
Lee Cashion, General Manager, REO
STATE OF CALIFORNIA SS.
COUNTY OF SANTA CLARA
-----------
On April 24, 1980 before me, the undersigned, a Notary Public in and
--------------
for said State, personally appeared Lee Cashion known to
-----------
me to be the President, and General Manager, R.E.O. known to me to be _______
-----------------------
Secretary of the Corporation that executed the within instrument, known to me
as to be the persons who executed the within instrument on behalf of the
corporation therein named, and acknowledged to me that such corporation
executed the within instrument pursuant to its by-laws or a resolution of its
board of directors.
WITNESSS my hand and official seal.
Signature /s/ Judith L. Vedda
--------------------
Judith L. Vedda
-38-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
EXHIBIT "A"
ALL THAT CERTAIN REAL PROPERTY IN THE CITY OF SUNNYVALE, COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL ONE
All of Parcels B and C, as shown upon that certain map entitled, "Parcel Map
being a resubdivision of Parcel 2 as shown on that certain map recorded March 1,
1978 in Book 413 of Maps at Page 54 - Santa Clara County Records", which map was
filed for record in the office of the recorder of the County of Santa Clara,
State of California, on October 29, 1979, in Book 452 of Maps, at page 32.
PARCEL TWO
All of Parcel A, as shown upon that certain map entitled, "Parcel Map being a
resubdivision of Parcel 3 as shown on Map recorded in Book 413 of Maps at Page
54 - Santa Clara County Records", which map was filed for record in the office
of the recorder of the County of Santa Clara, State of California, on February
23, 1979, in Book 435 of Maps at page 56.
PARCEL THREE
All of Parcel 4 and 5, as shown upon that certain map entitled, "Parcel Map
being a resubdivision of Parcel 7 as shown on map recorded in Book 214 of Maps
at Page 23 - Santa Clara County Records", which map was filed for record in the
office of the recorder of the County of Santa Clara, State of California, on
March 1, 1978, in Book 413 of Maps, at page 54.
PARCEL FOUR
All of Parcel A, as shown upon that certain map entitled, "Parcel Map being a
resubdivision of Parcel 3 as shown on map recorded in Book 413 of Maps at Page
54 - Santa Clara County Records", which map was filed for record in the office
of the recorder of the County of Santa Clara, State of California, on February
23, 1979, in Book 435 of Maps, at page 56; Certificate of Correction dated
October 22, 1979, which was filed for record in the office of the recorder of
the County of Santa Clara, State of California on October 22, 1979, in Book 1291
of maps at page 700.
-39-
EXHIBIT D
Covenants, Conditions and Restrictions
--------------------------------------
(continued)
THE UNDERSIGNED BEING FEE OWNER TO THAT PROPERTY DESCRIBED IN EXHIBIT
"B" HEREBY ACCEPTS THE ENCUMBERANCE ON SAID PROPERTY CREATED BY THE WITHIN
DECLARATION OF PROTECTIVE COVENANTS - MOFFETT INDUSTRIAL PARK NO. 11 DATED APRIL
5, 1980 AND EXECUTED BY PRUDENTIAL INSURANCE COMPANY OF AMERICA.
DATE: April 22, 1980 /s/ William L. Marocco
------------------- -------------------------
William L. Marocco
STATE OF CALIFORNIA SS.
COUNTY OF SANTA CLARA
-----------
On April 22, 1980 before me, the undersigned, a Notary Public in and for said
--------------
State, personally appeared WILLIAM L. MAROCCO known to me to be the person
------------------
______ whose name __________ subscribed to the within instrument and
acknowledged that HE executed the same, WITNESSS my hand and official seal.
--
Signature /s/ Janice M. Webb
------------------
JANICE M. WEBB
-40-
EXHIBIT "B"
ALL THAT CERTAIN REAL PROPERTY IN THE CITY OF SUNNYVALE, COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
All of Parcel A, as shown upon that certain map entitled, "Parcel Map being a
resubdivision of Parcel 2 as shown on that certain map recorded March 1, 1978,
in Book 413 of Maps at Page 54 - Santa Clara County Records", which map was
filed for record in the office of the recorder of the County of Santa Clara,
State of California, on October 29, 1979, in Book 452 of Maps, at page 32.
-41-
EXHIBIT E
Work Letter Agreement
---------------------
This Exhibit E is attached to and made a part of that certain Lease (the
"Lease") dated March 4, 1997, by and between Limar Realty Corp. #8 as Landlord
and Infoseek Corporation as Tenant
This Work Letter Agreement supplements the Lease covering certain Premises (the
"Premises") described in the Lease. All terms not defined herein shall have the
same meaning as set forth In the Lease.
1. Construction of Premises
1.1 Landlord shall furnish and install within the Premises those items of
general construction (the "AGGREGATE IMPROVEMENTS") shown on the plans
and specifications finally approved by Landlord and Tenant, pursuant to
(P)12. below ("FINAL PLANS") In compliance with all applicable codes and
regulations. All Tenant Building Work (as defined below) shall be
constructed pursuant to this Work Letter and shall be performed only by
Landlord's contractor.
2. Construction Plans for Premises
All plans and drawings required by this (P)2. shall be prepared in
accordance with the schedule provided in (P)5. below.
2.1 Preparation of Space Plan
Landlord's architect will prepare or has prepared, at Landlord's expense,
a preliminary space plan ("Preliminary Plan") for the Premises. If the
Preliminary Plan has been prepared, it is attached hereto as Exhibit E-1
and is deemed approved by Landlord and Tenant. The Tenant's Design
Development Drawings and Final Plans (as described below) shall be
prepared in agreement with the Preliminary Plan. Tenant agrees to
cooperate with the Landlord's architect and engineers who, based upon the
Preliminary Plan or upon other input from Tenant, shall prepare detailed
space plans sufficient to convey the architectural design of the
Premises, including preliminary partition layout and reflective ceiling
plans ("TENANT'S DESIGN DEVELOPMENT DRAWINGS"). Tenant's Design
Development Drawings shall be submitted to Tenant for approval. If Tenant
shall disapprove of any portion of Tenant's Design Development Drawings,
Tenant shall advise Landlord of such revisions, and reasons therefore.
Landlord shall then submit to Tenant for Tenant's approval a redesign of
Tenant's Design Development Drawings, incorporating those revisions
requested by Tenant and approved by Landlord. Landlord shall have the
final right to approve Tenant's Design Development Drawings.
2.2 Preparation of Final Plans
Based on Tenant's Design Development Drawings Landlord shall cause its
architect and engineer to prepare, as appropriate, architectural plans,
drawings and specifications and mechanical and electrical working
drawings for (i) all of the Premises showing the subdivision, layout,
finish and decoration work (including carpeting and other floor
coverings) desired by the Tenant and (ii) any internal or external
communications or special utility facilities which will require
conduiting or other improvements within common areas (collectively,
"FINAL PLANS"; the work shown thereon being called the "TENANT BUILDING
WORK"). Tenant's Final Plans shall be approved in the same manner as
provided in (P)2.1. above for approval of Tenant's Design Development
Drawings.
2.3 Requirements of Tenant's Final Plans
Tenant's Final Plans shall:
(i) Be compatible with the Building shell and with the design,
construction and equipment of the Building;
(ii) Comply with all applicable laws and ordinances, and the rules and
regulations of all governmental authorities having jurisdiction;
(iii) Comply with all applicable insurance regulations for the Building;
and
(iv) Include locations and complete dimensions.
2.4 Changes at Tenant's Expense
The cost of any changes to Tenant's Preliminary Plan, Tenant's Design
Development Drawing and Final Plans required by Tenant after Tenant has
approved them shall be charged against Tenant. The cost thereof shall
include all direct architectural and/or engineering fees and expenses and
construction costs in connection therewith, as well as including
compensation by Tenant for the costs of any delays which arise from such
changes, such as costs including but not limited to lost Rent.
-42-
EXHIBIT E
Work Letter Agreement
---------------------
(continued)
3. ALLOWANCE FOR WORK
3.1 Landlord shall pay for the Tenant Building Work in accordance with the
Final Plans approved by Landlord. All items of Tenant Building Work (but
not Tenant's trade fixtures) shall become the property of Landlord upon
expiration or earlier termination of the Lease and shall remain on the
Premises at all times during the Term of this Lease.
4. CONSTRUCTION
4.1 Following Landlord's approval of the Final Plans and the cost of Tenant
Building Work, a contractor or contractors selected by Landlord shall
commence and diligently proceed with the construction of all of the
Tenant Building Work, subject to delays beyond the reasonable control of
the Landlord or its contractor or subcontractors. Promptly upon the
commencement of the Tenant Building Work, Landlord shall furnish Tenant
with a schedule setting forth the projected completion dates therefore
and showing deadlines for any actions required to be taken by Tenant
during construction, and Landlord may from time to time during the
prosecution of the Tenant Building Work modify or amend such schedule due
to delays encountered by Landlord. Landlord shall make a reasonable
effort to meet such a schedule (as the same may be modified or amended).
5. SCHEDULE
Preparation and approval of Final Plans by both parties shall proceed in
a timely manner and each action shall be completed as soon as practically
possible.
6. DELAYS
The Term of the Lease shall not commence until Landlord has substantially
completed all work to be performed by Landlord in this Work Letter
Agreement; provided, however, that If Landlord shall be delayed in
substantially completing said Work as a result of any of the following
'Tenant Delays':
(i) Tenant's failure to complete any action item on or before the due
date which is the responsibility of Tenant, or
(ii) Tenant's changes to Final Plans after the final approval date, or
(iii) Tenant's request for materials, finishes, or installations other
than as approved by Landlord,
Then as soon as reasonably possible following the Commencement Date,
Landlord shall provide to Tenant a reasonably detailed statement of the
number of days of net Tenant Delays, determined on a critical path basis,
and Tenant shall pay to Landlord, as Additional Rent under this Lease, the
product of the per diem Rent times the number of days of such net Tenant
Delays, such payment to be made within thirty (30) days of the receipt of
the invoice from Landlord together with said detailed statement.
[Initials] [Initials]
------------------- -----------------
Landlord's Initials Tenant's Initials
-43-
FIRST AMENDMENT TO LEASE
This First Amendment. To Lease is made and entered into this 9th day of June,
1997, by and between Limar Realty Corp. #8 ("Landlord") and Infoseek Corporation
("Tenant").
RECITALS
This First Amendment To Lease (the "First Amendment") is made with reference to
and in reliance upon the following facts:
A. Landlord and Tenant are parties to that certain Lease dated March 4, 1997,
(the "Lease") pursuant to which Tenant leased from Landlord certain space
(the "Premises") located at 1399 Moffett Park Drive, Sunnyvale, California.
B. Landlord and Tenant wish to modify some of the provisions of the Lease
including without limitation the Premises Area, Base Rent, Security Deposit
and Tenant's Share of Building and wish to establish the exact Commencement
Date and Expiration Date of the Lease.
THEREFORE, for valuable consideration, receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. BASIC LEASE TERMS: The Basic Lease Terms as set forth in (P)1. of
the Lease are hereby deleted and are replaced in its entirety with the
following:
A. DATE OF LEASE: March 4, 1997
TENANT: Infoseek Corporation, a California corporation
ADDRESS (OF THE PREMISES): 1399 Moffett Park Drive, Sunnyvale, CA 94086
ADDRESS (FOR NOTICES): (Please provide if other than the Premises)
B. LANDLORD: Limar Realty Corp. #8
ADDRESS (FOR NOTICES): 1730 So. El Camino Real, Suite 400
San Mateo, CA 94402
C. TENANTS USE OF PREMISES: Office and related research/development activities.
D. PREMISES AREA: 1) Initial Premises: 47,096 Rentable Square Feet
consisting of Building A and the First Floor of Building B.
2) Must Take Premises: 11,106 Rentable Square Feet consisting of the
Second Floor of Building B.
E. BUILDING: 1399 Moffett Park Drive, Sunnyvale, CA 94086
F. INSURING PARTY: Landlord is the "INSURING PARTY" unless otherwise stated herein.
G. TERM OR INITIAL TERM (inclusive):
Commencement Date: May 14, 1997 ("Commencement Date")
Expiration Date: November 13, 2002 ("Expiration Date")
Number of Months: Sixty-six (66) Months
H. TENANT'S SHARE OF BUILDING: 63.33% (58,202 sq. ft./91,900 sq. ft.)
L TENANTS NUMBER OF PARKING SPACES: 4.2 Spaces per 1,000 Rentable Square Feet of Leased area.
J. INITIAL BASE RENT: Initial Premises: $68,289.20 per month.
Must Take Premises: $16,103.70 per month.
K. BASE RENT ADJUSTMENT:
A) COST OF LIVING. Intentionally deleted.
B) STEP INCREASE. The step adjustment provisions of (P)4.b. apply for the periods shown below:
MONTHLY BASE RENT AMOUNT
PERIODS (INCLUSIVE) (58,202 RENTABLE SQUARE FEET)
------------------ -----------------------------
Month 13 - Month 24 $ 87,303.00
Month 25 - Month 36 $ 90,213.10
Month 37 - Month 48 $ 93,123.20
Month 49 - Month 60 $ 96,033.30
Month 61- Month 66 $ 98,943.40
-44-
L. TOTAL TERM BASE RENT: $5,909,824.20. (Total term of 66 Months and assumes the Must
Take Premises commences with the seventh Lease month.)
M. PREPAID BASE RENT: $68,289.20 in payment of the first months rent.
N. SECURITY DEPOSIT: $421,964.50
O. BROKER(S): BT Commercial Real Estate (Landlord) & Bishop Hawk, Inc.
(Tenant)
EXHIBITS: Exhibits lettered "A" through "E", attached to the Lease dated March 4, 1997
are made a part hereof.
2. OPERATING EXPENSES: The provisions of (P)13.a. of the Lease are hereby
deleted and replaced in its entirety with the following:
A. PAYMENT BY TENANT: During the Term of this Lease, Tenant shall pay to
Landlord, as additional Rent, on a monthly basis, Tenant's Share of the
Operating Expenses of the Property, except that until Rent has
commenced on the Must Take Space in accordance with (P)29.b., Tenant's
Share shall be limited to 51.25% (47,096 sq.ft/9l,900 sq.ft.).
3. COMMENCEMENT DATE AND EXPIRATION DATE: The provisions of (P)29.
of the Lease are hereby deleted and replaced in its entirety with the
following:
A. INITIAL PREMISES: The Term of the Lease as to the Initial Premises
containing 47,096 rentable square feet as outlined on Exhibit A
attached to the Lease dated March 4, 1997 shall commence on May 14,
1997 (the "COMMENCEMENT DATE").
B. MUST TAKE PREMISES: The Term of the Lease (and the commencement of
Rent) as to the Must Take Premises consisting of 11,106 rentable square
feet as outlined on Exhibit A attached to the Lease dated March 4, 1997
shall commence upon the earlier of: (i) Tenant's actual move in of
personnel to the Must Take Premises, or (ii) November 14, 1997.
C. EXPIRATION DATE: The Expiration Date shall be November 13, 2002.
4. SECURITY DEPOSIT: The provisions of (P)30. of the Lease are hereby deleted
and replaced in its entirety with the following:
Notwithstanding the provisions of (P)5. of the Lease, Tenant shall
provide a Security Deposit of $421,964.50 which is equal to five (5)
month's Initial Base Rent on the Initial Premises and Must Take
Premises. Commencing with the second Lease year, provided Tenant is not
then in default and that Tenants equity public market capitalization is
then at least $180 million, the amount of the Security Deposit shall be
reduced at the commencement of the following Lease years so that the
Security Deposit is as follows:
SECURITY DEPOSIT =
LEASE YEAR # # MONTHS OF THEN CURRENT RENT
------------ -----------------------------
2 4 Months @ $87,303.00 per Month
3 3 Months @ $90,213.10 per Month
4 2 Months @ $93,123.20 per Month
However, if at any time and from time to time during the Lease Term,
Tenant's equity public market capitalization is less than $180 million, the
amount of the Security Deposit shall be increased within thirty (30)
calendar days thereafter to an amount equal to five (5) months of then
current Rent, subject to Tenant still being able to have the Security
Deposit reduced per the table above if Tenants equity public market
capitalization is later restored to more than $180 million.
All other terms and conditions of said Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
date first written above.
TENANT LANDLORD
INFOSEEK CORPORATION LIMAR REALTY CORP. #8
By: /s/ Andrew E. Newton By: /s/ Thedore H. Kruttschnitt
---------------------- ----------------------------
Print Name: Andrew E. Newton Print Name: Theodre H. Kruttschnitt
---------------------- -----------------------
Its: Vice President & General Counsel Its: President
-------------------------------- ---------------
-45-
EXHIBIT B
Depiction of Subleased Premises and Sublease Common Areas
[Attached]
-46-
1399 MOFFETT PARK DRIVE, SUNNYVALE
BUILDING "C"
29408 TOTAL SQ. FT.
[FLOOR PLAN OF FIRST FLOOR]
[FLOOR PLAN OF SECOND FLOOR]
-47-
EXHIBIT C
Depiction of Demising Wall
[DEPICTION OF DEMISING WALL APPEARS HERE]
-48-