Exhibit 10.9
STANDARD LEASE AGREEMENT
Industrial Gross - Multi-Tenant
For and in consideration of the rental and of the covenants and agreements
hereinafter set forth to be kept and performed by the Tenant, Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord the Premises described
below in Section 1.2 for the term, at the rental and subject to and upon all of
the terms, covenants and agreements hereinafter set forth.
1. Basic Lease Provisions.
1.1 Parties: This Lease, dated for reference purposes only, January 16,
1998 is made by and between Tasman Associates (hereinafter "Landlord") and
Test Design Corporation, a California corporation (hereinafter "Tenant").
1.2 Premises: Those premises commonly known as 1157 Tasman Drive,
Sunnyvale, California deemed to be approximately 1109 square feet, more or
less, as defined in Paragraph 2 and as shown in Exhibit "A" attached hereto
and made a part hereof (hereinafter the "Premises").
1.3 Building: Commonly described as being located at 1157-1191 in the
City of Sunnyvale, County of Santa Clara, State of California, as more
particularly shown in Exhibit "A" attached hereto and made a part hereof.
Tenant acknowledges that the sole purpose of any floor plan provided herein is
to identify the location of the Premises in the Building. Landlord makes no
representation or warranty in the attached floor plan as to the usable or
rentable square footage of the Premises.
1.4 Use: Machine shop and related legal uses subject to Paragraph 7.
1.5 Term: 2 Years, commencing on January 1, 1998 (hereinafter
"Commencement Date") and ending December 31, 1999.
1.6 Base Rent: One Thousand One Hundred Sixty Four and 45/lOOths Dollars
($1,164.45) per month, payable on the first (1st) day of each month subject to
Paragraph 4 below.
1.7 Base Rent Increase: On January 1, 1999 the monthly Base Rent payable
under Paragraph 1.6 above shall be adjusted to One Thousand Two Hundred
Nineteen and 90/lOOths Dollars ($1,219.90).
1.8 Rent Paid Upon Execution: Upon execution of this Lease, Tenant shall
pay the sum of $1,164.45 for the first month's rent.
1.9 Security Deposit: Upon execution of this Lease, Tenant shall pay to
Landlord the sum of Two Hundred Twenty One and 90/lOOths Dollars ($221.90) as
an increase to the existing security deposit to total One Thousand Two Hundred
Nineteen and 90/lOOths Dollars ($1,219.90), as defined in Paragraph 5 below.
1.10 Tenant's Share of Operating Expenses: Eleven and fourteen hundreds
percent (11.14%) of the Building and Two and eighteen hundreds percent (2.18%)
of the Project, as defined in Paragraphs 2.2 and 4.2 below.
1.11 Property Tax Base Year: The Real Property Taxes levied against the
Project, as further defined in Paragraph 6.1 below, for the fiscal year of 1993
- - 1994 shall be considered the "Property Tax Base Year" for calculations
defined in Paragraph 6.1 below.
1.12 Property Insurance Base Year: The property insurance, as further
defined in Paragraph 13.2 below, paid for the period January 4, 1995 - January
3, 1996 shall be considered the "Property Insurance Base Year" for
calculations defined in Paragraph 13.2 below.
1.13 Parking: Tenant shall have the non-exclusive use of Four (4)
parking spaces.
1.14 Additional Lease Provisions: None
1.15 Work of Improvement. Any obligations of Landlord and Tenant to
perform work and supply material and labor to prepare the Premises for
occupancy shall be set forth in detail in Exhibit B. Landlord and Tenant shall
expend all funds and do all acts required of them in Exhibit B and shall have
the work performed promptly and diligently in a first-class workmanlike manner.
2. Premises, Parking ,Common Areas, Work of Improvement:
2.1 Premises. The Premises are a portion of a building, herein sometimes
referred to as the "Building" identified in Paragraph 1.3. "Building" shall
include adjacent parking structures used in connection therewith. The
Premises, the Building, the Common Areas (as defined below) and 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 "Project".
2.2 Vehicle Parking. Tenant shall be entitled to the non-exclusive use
of unreserved and unassigned parking spaces the number of which is specified in
Paragraph 1.13 above, on those portions of the Common Area designed by Landlord
for parking. Tenant shall not use more parking spaces than the number
specified. Said parking spaces shall be used only for parking by vehicles no
larger than full size passenger automobiles or pick-up trucks, herein called
"Permitted Size Vehicles". Vehicles other than Permitted Size Vehicles are
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herein referred to as "Oversized Vehicles". Tenant shall not at any time
park or permit the parking of Tenant's vehicles or trucks, or the vehicles or
trucks of Tenant, its employees, invitees, suppliers or others, in any portion
of the Common Area not designated by Landlord for such use by Tenant. Tenant
shall not abandon any inoperative vehicles or equipment on any portion of the
Common Area, nor shall Tenant, its employees, invitees, suppliers or others
park or store any vehicle (Permitted Size or otherwise) on any portion of the
Common Area, including designated parking areas, unattended for any period
longer than twenty-four (24) hours. If Tenant commits, permits or allows any of
the prohibited activities described in the Lease or the rules 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 paid by
Tenant to Landlord upon demand from Landlord.
2.3 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 Project that are provided and designated by Landlord from time to
time for the general non-exclusive use of Landlord, Tenant, and the other
tenant and other authorized users of the Project and their respective
employees, suppliers, shippers, customers and invitees. including, but not
limited to common entrances, lobbies, corridors, stairways and stairwells,
public restrooms, elevators, escalators, parking areas to the extent not
otherwise prohibited by this Lease, loading and unloading areas, trash areas,
roadways, sidewalk, walkways, parkways, ramps, driveways, landscaped areas and
decorative walls.
2.4 Common Areas - Tenant's Rights. Landlord hereby grants to Tenant,
for the benefit of Tenant and its employees, suppliers, shippers. customers and
invitees, during the term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges reserved by
Landlord under the terms hereof or under the terms of any rules and regulations
or restrictions governing the use of the Project. Under no circumstances shall
the right herein granted to use the Common Area be deemed to include the right
to store any property, temporarily or permanently, in the Common Areas or to
construct or install any improvements in the Common Area. Any such storage
shall be permitted only by the prior written consent of Landlord or Landlord's
designated agent, which consent may be revoked at any time. In the event that
any unauthorized storage shall occur, the Landlord shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove the property and charge the cost to Tenant, which cost shall be
immediately payable by Tenant to Landlord upon demand by Landlord. Landlord
shall have the right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and charge the cost to
Tenant, which cost shall be immediately payable by Tenant to Landlord upon
demand by Landlord.
2.5 Common Areas - Rules and Regulations/CC&R's. 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
establish, modify, amend and enforce reasonable rules and regulations with
respect thereto. Tenant agrees to abide by and conform to all such rules and
regulations, as well as any private conditions, covenants, and restrictions of
public record now or hereafter affecting the Premises and any amendment
thereof, and to cause its employees, suppliers, shippers, customers and
invitees to abide and conform. Landlord shall not be responsible to Tenant for
the non-compliance with said rules and regulations by other tenants or
authorized users of the Project. Any failure by Tenant or its agents, employees
or representatives to observe and comply with the rules and regulations
established by Landlord with respect to the Common Areas shall be a default by
Tenant hereunder.
2.6 Common Areas - Changes. Landlord shall have the right at Landlord's
sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas and walkways; (b) To close
temporarily any of the Common Areas for maintenance purposes, so long as
reasonable access to the Premises remains available; (c) To designate other
land outside the boundaries of the Project to be a part of the Common Areas;
(d) To add additional buildings and improvements to the Common Areas; (e) To
use the Common Areas while engaged in making additional improvements, repairs
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or alterations to the Project, or any portion thereof, (f) To close, at
reasonable times, all or any portion of the parking areas for any reasonable
purpose, including without limitation, the prevention of a dedication thereof,
or the accrual of the rights of any person or public therein; and, (g) To do
and perform such other acts and make such other changes in, to or with respect
to the Common Areas and the Project as Landlord may, in the exercise of sound
business judgment, deem to be appropriate.
Notwithstanding the foregoing, Lessor shall at all times provide the
parking spaces required by applicable law and except as provided immediately
below, in no event shall the number of parking spaces that Tenant is entitled
to under Paragraph 2.2 be reduced. The preceding sentence to the contrary
notwithstanding, in the event by reason of any rule, regulation, order, law,
statute or ordinance of any governmental or quasi-governmental authority
relating to or affecting parking on the Project, or any other cause beyond
Landlord's reasonable control, Landlord is required to have the right to
proportionately reduce the number of Tenant's parking spaces and the non-
exclusive parking spaces of the tenants of the Building.
3. Term
3.1 Term. The term (the "Lease Term") and Commencement Date of this
Lease shall be as specified in Paragraph 1.5 of the Basic Lease Provisions,
unless terminated earlier pursuant to this Lease.
3.2 Delay in Commencement. Tenant agrees that in the event of the
inability of Landlord for any reason to deliver possession of the Premises to
Tenant on said Commencement Date set forth in Paragraph 1.5 of the Basic Lease
Provisions, Landlord shall not be liable for any damage thereby nor shall such
inability affect the validity of this Lease or the obligations of Tenant
hereunder, but in such case Tenant shall not be obligated to pay rent or other
monetary sums until possession of the Premises is tendered to Tenant; provided
that if the delay in delivery of possession exceeds thirty (30) days, then the
expiration date of the term of the Lease shall be extended by the period of
time computed from the scheduled commencement date to the date possession is
tendered. If Tenant occupies the Premises prior to said commencement date, such
occupancy shall be subject to all provisions hereof, such occupancy shall not
advance the termination date, and Tenant shall pay rent for such period at the
initial monthly rates as set forth below.
3.3 Commencement After Construction. If Landlord is obligated under
Paragraph 1.15 of the Basic Lease Provisions and Exhibit B to perform
construction or remodeling work, then possession shall not be deemed tendered
and the term of this Lease shall not commence until the first to occur of the
following:
(a) The date on which all improvements to be constructed by Landlord have
been substantially completed except for punch list items which do not prevent
Tenant from using the Premises for its intended use; such work as Landlord is
required to perform but which is delayed because of fault or neglect of Tenant,
acts of Tenant or Tenant's agents (including, without limitation, delays caused
by work done on the Premises by Tenant or Tenant's agents or by acts of
Tenant's contractors or subcontractors) or delays caused by change orders
requested by Tenant or required because of errors or omissions in plans
submitted by Tenant; and such work as Landlord is required to perform but
cannot complete until Tenant performs necessary portions of construction work
it has elected or is required to do; or,
(b) After a Certificate of Occupancy, or its equivalent, is granted by
the proper governmental agency or, if no Certificate of Occupancy, or its
equivalent, is issued by any local agency, then after notification by
Landlord's architect or contractor that Landlord's construction work has been
completed; or
(c) Upon the occupancy of the Premises by any of Tenant's operating
personnel.
3.4 If the term commences on a date other than as set forth in Paragraph
1.5 of the Basic Lease Provisions above, then Landlord and Tenant shall execute
a written acknowledgment stating the date of commencement.
4. Rent
4.1 Base Monthly Rent. Tenant shall pay to Landlord as base monthly rent
for the Premises in advance on the first day of each calendar month of the term
of this Lease without deduction, offset, prior notice or demand, in lawful
money of the United States, the sum as defined in Paragraphs 1.6 and 1.7 of the
Basic Lease Provisions (the "Base Rent"). If the Commencement Date is not the
first day of a month, or if the Lease expiration or termination date is not the
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last day of a month, a prorated monthly installment shall be paid at the then
current rate for the fractional month during which the Lease commences and/or
terminates.
Concurrently with Tenant's execution of this Lease, Tenant shall pay to
Landlord in the form of a Cashier's Check or Certified Check the sum as defined
in Paragraph 1.8 of the Basic Lease Provisions as Base Rent for the period
defined in Paragraph 1.8 of the Basic Lease Provisions.
4.2 Additional Rent. Commencing on the date set forth in Section 1.5 of
the Basic Lease Provisions above, and continuing throughout the Lease Term,
Tenant shall pay, as additional rent, Tenant's Share (as defined in Section
4.5(a)) of (i) Operating Expenses as required by Section 4.5, 8.1 and 9.2 and
as defined in Paragraph 4.5 below; (ii) Real Property Tax increases over and
above the base year as required by Section 6.1; and, (iii) the cost of any
increased premiums over and above the base year for property insurance,
pursuant to Section 13.2. All Operating Expenses, real property tax increases,
insurance cost increases, late charges, costs, expenses and other sums which
Tenant is required to pay under this Lease, together with all interest and
penalties that may accrue thereon in the event of Tenant's failure to pay such
amounts, and all reasonable damages, costs and attorneys' fees and expenses
which Landlord may incur by reason of any default of Tenant, or failure on
Tenant's part to comply with the terms of this Lease, shall be deemed to be
additional rent ("Additional Rent") and shall be paid in addition to the Base
Rent, and, in the event of non-payment by Tenant, Landlord shall have all the
rights and remedies with respect thereto as Landlord has for the non-payment of
the Base Rent.
4.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Base Monthly Rent, Additional Rent and other sums due hereunder
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs include,
but are not limited to, processing, accounting charges and late payment fees
which may be imposed on Landlord by the terms of any mortgage or trust deed
covering the Premises. Accordingly, if any installment of Base Monthly Rent,
Additional Rent or any other sum due from Tenant shall not be received by
Landlord or Landlord's designee within Four (4) days after such amount shall be
due, Tenant shall pay to Landlord as Additional Rent a late charge equal to ten
percent (10%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payments by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder. In no event shall this provision for a
late charge be deemed to grant to Tenant a grace period or extension of time
within which to pay any installment of Base Monthly Rent or Additional Rent or
prevent Landlord from exercising any right or remedy available to Landlord upon
Tenant's failure to make such payment when due. In the event any payment of
Base Monthly Rent or Additional Rent is not received by Landlord by the
thirtieth (30th) day after the due date for such payment or installment, such
payment or installment shall bear interest at the Permitted Rate, as defined in
Paragraph 20.17 below, commencing on the thirty-first (31st) day after the due
date for such payment or installment and continuing until the same is paid.
4.4 Returned Check Fee. A twenty-five dollar ($25.00) charge will be
paid by Tenant as Additional Rent to Landlord for each check returned unpaid by
the bank and Tenant shall replace the payment with a Cashier's Check or
Certified Check. If Tenant has two (2) or more checks returned for insufficient
funds at any time during its tenancy, Landlord, at its option, may request all
payments, current and future, be made by Cashier's Check or Certified Check.
4.5 Operating Expenses. Tenant shall pay to Landlord during the term
hereof, in addition to the Base Rent, Tenant's Share, as hereinafter defined,
of all Operating Expenses, as hereinafter defined, during each calendar year of
the term of this Lease, in accordance with the following provisions:
(a) "Tenant's Share" is defined, for purposes of this Lease, as the
respective percentages set forth in Paragraph 1.10 of the Basic Lease
Provisions, which percentages have been determined by dividing the approximate
square footage of the Premises by the total approximate square footage of both
the space contained within the Building and all buildings located in the
Project. Tenant's Share used in calculating Tenant's Share of any Operating
Expense shall be determined by the specific charge and its relationship to the
Building versus the Project, which determination shall be made by Landlord in
its reasonable discretion. It is understood and agreed that the square footage
figures set forth in the Basic Lease Provisions are approximate, which Landlord
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and Tenant agree are reasonable and shall not be subject to revision except in
connection with an actual change in the size of the Premises, or a change in
the space available for lease in the Project.
(b) "Operating Expenses" as defined, for purposes of this Lease, shall
include all costs and expenses incurred by Landlord in connection with the
ownership and operating of the Project, including but not limited to the
following:
(i) The operating, repair, maintenance, and replacement in neat,
clean, good order and condition of the following:
(aa) the Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation systems, Common Area
lighting facilities, electric rooms, elevators, fences and gates;
(bb) Common Area signage (i.e., address, directional, Project
identity and tenant directories);
(cc) fire detection systems, including sprinkler systems; and,
(dd) security services, if provided.
(ii) The cost of water, gas, electricity and other utilities to serve
the Common Areas or which are not separately metered to the Premises;
(iii) trash disposal services;
(iv) reserves set aside for maintenance, repair and/or replacement of
the Common Areas;
(v) Real Property Tax increases as provided in Paragraph 6.1;
(vi) property insurance increases as provided in Paragraph 13.2;
(vii) the cost of liability insurance carried by Landlord with respect
to the Common Areas;
(viii) any deductible portion of an insured loss concerning the Project
or any portion thereto;
(ix) the cast of any capital improvements made to the Building or
Project by Landlord that have the effect of reducing Operating Expenses or
avoiding increases in Operating Expenses or, subject to the terms of Paragraph
9.3(b) below, the cost of any capital improvements that are required under any
governmental law or regulation that was not applicable to the Building at the
time it was constructed, which cost shall be amortized over such reasonable
period of time as Landlord shall determine with interest on the unamortized
balance at the rate often percent (10%) per annum or such higher rate as may
have been paid by Landlord on funds borrowed for the purpose of constructing
such capital improvements;
(x) fees for licenses and permits required for the operation of the
Building, Common Areas and Project;
(xi) the reasonable cost of contesting the validity or applicability
of any governmental enactment's or assessments, including without limitation
property tax assessments, which may affect Operating Expenses;
(xii) the repair, maintenance or patching, but not replacement, of the
roof membrane of the Building; and,
(xiii) any other services to be provided by Landlord that are stated
elsewhere in this Lease to be an operating expense.
(c) The inclusion of the improvements, facilities and services set forth
in Paragraph 4.5(b) shall not be deemed to impose an obligation by Landlord to
either have said improvements or facilities or to provide those services.
Without limiting the generality of the foregoing, nothing contained in
Paragraph 4.5(b) or elsewhere in this Lease shall create or imply an obligation
or duty on the part of Landlord to provide any security services or protection
for the Premises, the Building, Common Area and/or the Project.
(d) Tenant's share of Operating Expenses shall be payable by Tenant within
Thirty (30) days after a reasonably detailed statement of actual expenses is
presented to Tenant by Landlord. At Landlord's option, however, an amount may
be estimated by Landlord from time to time of Tenant's share of annual
Operating Expenses and the same shall be payable monthly or quarterly, as
Landlord shall designate, during the Lease Term herein, on the same day as the
Base Rent is due hereunder. In the event that Tenant pays Landlord's estimate
of Tenant's Share of Operating Expenses as aforesaid, Landlord shall provide
Tenant with a reasonably detailed statement reconciling Tenant's Share of the
actual Operating Expenses. Said detailed statement shall be provided on an
annual basis, or within thirty (30) days of the expiration of this Lease or
Tenant's vacation of the Premises. If Tenant's payments under this Paragraph
4.5 (d) during the preceding year exceed Tenant's Share as indicated on said
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statement, Tenant shall be entitled to credit the amount of such overpayment
against Tenant's Share of Operating Expenses next falling due. If Tenant's
payments under this Paragraph during said preceding year were less than
Tenant's Share, as indicated on said statement, Tenant shall pay to Landlord
the amount of the deficiency within thirty (30) days after delivery by Landlord
to Tenant of said statement. Tenant has the right to audit the books regarding
additional rent or operating expenses.
5. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum, as defined in Paragraph 1.9 of the
Basic Lease Provisions outlined above, in the form of a Cashier's Check or
Certified Check payable to Landlord. Said sum shall be held by Landlord as a
security deposit for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof, including any extension or renewal of the term. If
Tenant defaults with respect to any provisions of this Lease, including but not
limited to the provisions relating to the payment of rent, additional rent and
any of the monetary sums due herewith, Landlord may use, apply or retain all or
any part of this security deposit for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of Tenant's default
or to compensate Landlord for any other loss or damage which Landlord may
suffer by reason of Tenant's default. If any portion of said deposit is so used
or applied, Tenant shall, within ten (10) days after written demand therefore,
deposit cash with Landlord in an amount sufficient to restore the security
deposit to its original amount; Tenant's failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep this security
deposit separate from its general funds, and Tenant shall not be entitled to
interest on such deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the security deposit or any
balance thereof shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration of the Lease
Term and after Tenant has vacated the Premises. In the event of termination of
Landlord's interest in the Lease, Landlord shall transfer said deposit to
Landlord's successor in interest whereupon Landlord shall be automatically
released of all liability for return of such deposit or the accounting
therefore.
Tenant hereby agrees not to look to the mortgages, as mortgagee, mortgagee
in possession, or successor in title to the property, for accountability for
any security deposit required by the Landlord hereunder, unless said sums have
actually been received by said mortgagee as security for the Tenant's
performance of this Lease. If at any time the Base Rent is increased, the
security deposit shall be increased by the same amount.
6. Taxation
6.1 Payment of Real Property Taxes as Additional Rent. Tenant shall pay,
as Additional Rent, Tenant's Share (as defined in Paragraph 4.5(a)) of the
amount, if any, by which Real Property Taxes levied against the Premises, the
Building and/or the Project for any year of the Lease Term exceeds the Real
Property Taxes levied against the Premises, the Building and/or the Project for
the fiscal tax year ended immediately prior to the execution of this Lease (or
if the Premises were not completely constructed as of the end of such fiscal
tax year, then the first fiscal tax year in which the Premises were assessed as
fully completed) (as further defined in Paragraph 1.11 of the Basic Lease
Provisions). Such payment shall be made by Tenant to Landlord within ten (10)
days after receipt of Landlord's written statement setting forth the amount of
such increase and the reasonable computation thereof Tenant's liability for
Real Property Tax Increases shall be prorated to reflect the commencement and
termination dates of this Lease.
6.2 Definition of "Real Property Tax". For the purpose of this Lease,
"Real Property Taxes" means and includes all taxes, assessments (including,
but not limited to, assessments for public improvements or benefits), taxes
based on vehicles utilizing parking areas, taxes based or measured by the rent
paid, payable or received under this Lease, taxes on the value, use, or
occupancy of the Premises, the Buildings and/or the Parcel, Environmental
Surcharges, and all other governmental impositions, fees and charges of every
kind and nature whatsoever, whether or not customary or within the
contemplation of the parties hereto and regardless of whether the same shall be
extraordinary or ordinary, general or special, unforeseen or foreseen, similar
or dissimilar to any of the foregoing which, at any time during the Lease Term,
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shall be applicable to the Premises, the Building and/or the Project, or
assessed, levied or imposed upon the Premises, the Building and/or the Project,
or become due and payable and a lien or charge upon the Premises, the Building
and/or the Project, or become due and payable and a lien or charge upon the
Premises, the Building and/or the Project, or any part thereof, under or by
virtue of any present or future laws, statutes, ordinances, regulations or the
term "Property Taxes" shall not include any federal, state or local net
income, estate, or inheritance tax imposed on Landlord.
6.3 Personal Property Taxes.
(a) Tenant shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises or elsewhere. When possible,
Tenant shall cause said trade fixtures, furnishings, equipment and all other
personal property to be assessed and billed separately from the real property
of Landlord.
(b) f any of Tenant's personal property shall be assessed with Landlord's
real property, Tenant shall pay to Landlord the taxes attributable to Tenant
within Thirty (30) days after receipt of a written statement setting forth the
taxes applicable to Tenant's property. Tenant has the right to review the tax
statement.
6.4 Other Taxes. Tenant shall, as Additional Rent, pay or reimburse
Landlord for any tax based upon, allocable to, or measured by the area of the
Premises; or by the rent paid, payable or received under this Lease; any tax
upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of the Premises or any
portion thereof, any privilege tax, excise tax, business and occupation tax,
gross receipts tax, sales and/or use tax, water tax, sewer tax, employee tax,
occupational license tax imposed upon Landlord or Tenant with respect to the
Premises; any tax upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises.
7. Use
7.1 Use. The Premises shall be used and occupied by Tenant only for the
purpose as set forth in Paragraph 1.4 of the Basic Lease Provisions above and
for no other purpose whatsoever.
7.2 Suitability. If the Premises are completed as of the date of
execution hereof, then Tenant, by execution of this Lease, shall be deemed to
have accepted the Premises in the condition existing as of the date of
execution and in any event this Lease shall be subject to all applicable zoning
ordinances and to any municipal, county and state laws and regulations
governing and regulating the use of the Premises, and further to have accepted
tenant improvements to be constructed by Landlord, if any, as being completed
in accordance with the plans and specifications for such improvements. Tenant
acknowledges that neither Landlord nor Landlord's agent has made any
representation, warranty, estimation or promise of any kind as to the
suitability of the Premises for the conduct of Tenant's business, the condition
of the Building or Premises or the use or occupancy which may be made thereof.
Tenant hereby warrants to Landlord that Tenant (i) has made its own
investigation and examination of all the relevant data relating to or affecting
the Premises; (ii) is relying solely on its own judgment in entering into this
Lease; and, (iii) is satisfied that the Premises are suitable for Tenant's
intended use and that the Building and Premises meet all governmental
requirements for such intended use.
7.3 Uses Prohibited.
(a) Tenant shall not do or permit anything to be done in or about the
Premises which will increase the existing rate of insurance upon the Premises
(unless Tenant shall pay any increased premium as a result of such use or acts)
or cause the cancellation of any insurance policy covering said Premises or any
building of which the Premises may be a part, nor shall Tenant sell or permit
to be kept, used or sold in or about said Premises any articles which may be
prohibited by a standard form policy of fire insurance.
(b) Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of any building of which the Premises may be a part or
injure or annoy them or use or allow the Premises to be used for any unlawful
or objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises and Tenant shall keep the Premises
in a clean, attractive condition, free of any objectionable noises, odors, dust
or debris.
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(c) Tenant shall not use the Premises or permit anything to be in or
about the Premises which will in any way conflict with or violate any law,
statute, zoning restriction, ordinance, governmental rule, regulation,
requirements now in force or which may hereafter be enacted or promulgated.
Tenant shall, at its sole cost and expense, promptly comply with all laws,
statutes, ordinances and governmental rules, regulations or requirements now in
force or which may hereafter be in force and with requirements of any board of
fire underwriters or other similar body now or hereafter constituted relating
to or affecting the condition, use or occupancy of the Premises. Tenant shall
also comply, at its sole cost, with the provisions of all recorded documents
affecting the Premises insofaras the same relate to or affect the condition,
use or occupancy of the Premises. Tenant shall obtain, prior to taking
possession of the Premises, any permits, licenses or other authorizations
required for the lawful operation of its business at the Premises. The judgment
of any court of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any law, statute, ordinance or governmental rule, regulation, recorded
document, or requirement, shall be conclusive of that fact as between Landlord
and Tenant. Tenant shall indemnify and hold Landlord harmless from and against
any and all loss, expense, cost, damage, reasonable attorney's fees, penalties
or liability arising out of the failure of Tenant or Tenant's agents or
employees to comply with any applicable law, statute, ordinance, rule,
regulation, order, requirement or recorded document.
(d) Tenant shall not store, park or operate any vehicles inside the
Building, other than those operated by electricity.
8. Utilities And Waste Disposal
8.1 Utilities. Tenant shall pay as Additional Rent prior to delinquency
for all water, gas, heat, light, power, telephone, sewage, air conditioning and
ventilating, scavenger, trash disposal, janitorial, landscaping and all other
materials and utilities supplied to the Premises and all taxes and surcharges
thereon. If any such services are not separately metered to Tenant, Tenant
shall pay a reasonable proportion of all charges which are jointly metered or
maintained by Landlord as an Operating Expense, the determination to be made by
Landlord, and payment shall be made by Tenant within ten (10) days of receipt
of a statement for such charges. The lack or shortage of any utilities or
services described above due to any cause whatsoever shall not affect any
obligation of Tenant hereunder, and Tenant shall faithfully keep and observe
all the terms, conditions and covenants of this Lease and pay all rentals due
hereunder, all without diminution, credit or deduction.
8.2 Waste Disposal. Tenant shall store its waste either inside the
Premises or in its own dumpsters located within outside trash enclosures.
Tenant shall not store, place or maintain any garbage, trash, rubbish, other
refuse or Tenant's personal property in any area of the Common Area or exterior
of the Premises at any time. Tenant, at its sole expense, shall be responsible
to maintain and keep the designated trash enclosures and Common Area free of
garbage, trash, rubbish, other refuse or Tenant's personal property.
9. Maintenance and Repairs, Alterations and Additions
9.1 Landlord's Obligations. Subject to the provisions of Section 14 and
except for damage caused by a negligent or intentional act or omission of
Tenant and Tenant's agents, employees or invitees, Landlord, at Landlord's
expense, shall keep in good order, condition and repair the foundations,
exterior walls and the exterior roof of the Premises. Landlord shall not,
however, be obligated to paint such exterior, nor shall Landlord be required to
maintain the interior surface of exterior walls, ceiling or doors, nor shall
Landlord be required to maintain, repair or replace windows, doors, skylights
or plate glass. Landlord shall have no obligation to make repairs under this
Paragraph 9.1 until a reasonable time after receipt of written notice of the
need for such repairs. Landlord shall maintain, repair or patch the roof
membrane (as an Operating Expense), and Tenant shall pay Tenant's Share of the
cost thereof, pursuant to Paragraph 4.5 above. Tenant expressly waives the
benefits of any statute (including, without limitation, the provisions of
subsection I of Section 1932, Section 1941 and Section 1942 of the California
Civil Code and any similar law, statute or ordinance now or hereafter in
effect) which would otherwise afford Tenant the right to make repairs at
Landlord's expense (or to deduct the cost of such repairs from rent due
hereunder) or to terminate this Lease because of Landlord's failure to keep the
Premises in good order, condition and repair.
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9.2 Tenant's Obligations.
(a) Subject to the provisions of Sections 9.1 and 14, Tenant, at Tenant's
expense, shall maintain in good order, condition and repair the Premises and
every part thereof, regardless of whether the damaged portion of the Premises
or the means of repairing the same are accessible to Tenant, including, but not
limited to floors, ceilings, windows, doors, skylights, interior walls, and the
interior surfaces of the exterior walls, plumbing, heating, air conditioning
and ventilating equipment, telecommunications equipment and intrabuilding
network cabling, electrical and lighting facilities and equipment including
circuit breakers and exterior lighting attached to the Premises. In addition,
Landlord shall, at Tenant's expense, maintain in good order, condition and
repair any sidewalks, landscaping (including but not limited to irrigation
systems and backflow prevention devices), driveways, parking lots, fences and
signs located in the areas which are adjacent to and included with the
Premises, unless such items are to be maintained by Landlord as an Operating
Expense, pursuant to Paragraphs 4.5, 8.1 and 9.1 above. Where there is any
rooftop mounted heating and/or air conditioning equipment, said maintenance
shall include, without limitation, a periodic agreement with a reputable and
licensed heating and air conditioning service company. If Tenant's use of the
Premises is limited to normal business hours (8:00 am to 6:00 pm), such
agreement shall provide for service at least as often as every ninety (90)
days. If Tenant's use extends beyond normal business hours, this service shall
be as often as may be required by Landlord. If Tenant does not provide Landlord
with a copy of said maintenance contract within sixty (60) days from
commencement date set forth in Paragraph 1.5 of the Basic Lease Provisions and
Section 3.1 above, Landlord may elect, at its option, to keep and maintain the
heating and air conditioning systems of the Premises and in such event, Tenant
shall pay to Landlord upon demand the full cost of such maintenance and repairs
to such systems.
(b) All glass in or around the building, both interior and exterior, is
at the sole risk of Tenant, and any broken glass shall promptly be replaced by
Tenant at Tenant's expense with glass of the same kind, size and quality
according to the current local code.
(c) In the event the Premises is damaged due to an attempted burglary or
forcible entry into Premises, Tenant shall be responsible for any ensuing
damage to the Premises or that larger building of which Premises is part
thereof.
(d) In the event Tenant fails to perform Tenant's obligations under this
Section 9, Landlord shall give Tenant notice to do such acts as are reasonably
required to so maintain the Premises. If Tenant, within ten (10) days after
notice from Landlord, fails to commence to do the work and diligently prosecute
it to completion, then Landlord shall have the right (but not the obligation)
to do such acts and expend such funds at the expense of Tenant as are
reasonably required to perform such work. Any amount so expended by Landlord
shall be paid by Tenant promptly after demand with interest at the Permitted
Rate from the date of such work until paid. Landlord shall have no liability to
Tenant for any damage, inconvenience or interference with the use of the
Premises by Tenant as a result of performing any such work.
(e) Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Premises in the same condition as received, broom clean,
ordinary wear and tear and damage by fire, earthquake, act of God or the
elements alone excepted. On the last day of the Lease Term or upon the sooner
termination of the Lease, Tenant shall, to the reasonable satisfaction of
Landlord surrender the Premises in good condition (and free of all Hazardous
Materials used, generated or stored by Tenant and its agents, employees and
contractors) the HVAC equipment inspected and in good working order, Tenant
further agrees to remove all Tenant's personal property and trade fixtures from
the Premises and repair any damage to the Premises caused by or in connection
with the removal of any articles of personal property, business or trade
fixtures, machinery, equipment or furniture, including without limitation
thereto, repairing the floor and patching and painting the walls where required
by Landlord to Landlord's reasonable satisfaction. Tenant agrees that all
Tenant's personal property and trade fixtures not removed shall be deemed to be
abandoned by Tenant and may be removed by Landlord at Tenant's expense. Tenant
shall continue to pay rent at the rate paid by Tenant prior to the termination
of the Lease until such time that the Premises are returned in a condition as
required above; however, said payment of rent does not constitute an extension
or renewal of lease nor does it constitute a month-to-month tenancy, it shall
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constitute immediate compensation for Tenant's detention of the Premises and
does not preclude Landlord from obtaining additional monetary damages for
Tenant's delay in surrendering the Premises, as set forth below. Tenant shall
indemnify the Landlord against any loss or liability resulting from delay by
Tenant in so surrendering the Premises, including without limitation, any
claims made by any succeeding tenant founded on such delay.
9.3 Alterations.
(a) Tenant shall not construct any improvements or additions or otherwise
alter, change or improve the Premises without Landlord's prior written
approval, and not until Landlord shall have first approved the plans and
specifications therefor, which approvals shall not be unreasonably withheld.
Landlord's approval of the plans, specifications and working drawings for
Tenant's alterations shall create no responsibility or liability on the part of
Landlord for their completeness, design sufficiency, or compliance with all
laws, rules and regulations of governmental agencies or authorities. All such
approved alterations, or improvements shall be installed by Tenant at Tenant's
expense using a licensed contractor first approved by Landlord in compliance
with the approved plans and specifications therefor and in strict accordance
with all laws. All such construction shall be done in a good and workmanlike
manner using new materials of good quality. As a condition to consenting to any
leasehold improvement or alteration or change requested by Tenant, the cost of
which may exceed Twenty-five Thousand Dollars ($25,000), Landlord shall have
the right to require Tenant to post a completion bond in an amount and in a
form satisfactory to Landlord. In no event shall Tenant make any structural
changes to the Premises or make any changes to the Premises which would weaken
or impair the structural integrity of the Building or the roof membrane
integrity of the Building. Tenant shall not commence construction of any
alterations, additions, or improvements until (i) all required governmental
approvals and permits shall have been obtained, (ii) all requirements regarding
insurance imposed by this Lease have been satisfied, and (iii) Tenant shall
have given Landlord at least five (5) days prior written notice of its
intention to commence such construction. All alterations, additions and
improvements constructed by Tenant shall remain the property of Tenant during
the Lease Term but shall not be damaged, altered, or removed from the Premises.
At the expiration or sooner termination of the Lease Term, all alterations,
additions, or improvements shall be surrendered to Landlord as a part of the
realty and shall then become Landlord's property, and Landlord shall have no
obligation to reimburse Tenant for all or any portion of the value or cost
thereof, however, Landlord may, at its option, require Tenant to remove any
alterations, additions, or improvements in which case Tenant shall so remove
such alterations, additions or improvements prior to the expiration or sooner
termination of the Lease Term.
(b) Alterations Required by Law. If during the term of this Lease, any
alteration, addition or change of any sort, whether structural or otherwise to
all or any portion of the Premises is required by law (including, but not
limited to, alterations required by the Americans with Disabilities Act of 1990
or any amendments thereto or any regulations prorogated thereunder
(collectively the "ADA") because of (i) Tenant's use or occupancy of the
Premises or change of use or occupancy of the Premises, (ii) Tenant's
application for any permit or governmental approval, (iii) Tenant's
construction or installation of any leasehold improvements or trade fixtures,
(iv) any violation by Tenant of any Law (including any requirement of the ADA),
(v) any special use of the Premises or any part thereof by Tenant or any
subtenant or assignee of Tenant (including, but not limited to any use for a
facility which constitutes, or if open to the public would generally constitute
a "place of public accommodation" under the ADA requirements), or (vi) any
special needs of the employees of Tenant or any assignee or subtenant of
Tenant, then Tenant shall promptly make the same at its sole cost and expense.
Within ten (10) days after receipt, Tenant shall notify Landlord in writing and
provide Landlord with copies of (i) any notices alleging any violation of any
Law relating to the Premises or Tenant's occupancy or use of the Premises,
including any notices alleging violation-of the relating ADA to any portion of
the Project or the Premises; (ii) any claims made or threatened in writing
regarding non-compliance with the ADA or any Law relating to the Project or the
Premises; or (iii) any governmental or regulatory actions or investigations
instituted or threatened regarding non-compliance with the ADA or any Law
relating to any portion of the Project or the Premises.
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10. Entry by Landlord
Landlord and Landlord's agents shall have the right at reasonable times to
enter the Premises to inspect the same or to maintain or repair, make
alterations or additions to the Premises or any portion thereof or to show the
Premises to prospective purchasers, tenants or lenders. Landlord may, at any
time, place on or about the Premises any ordinary "for sale" signs; Landlord
may at any time during the last one hundred eighty (180) days of the term of
the Lease place on or about the Premises any ordinary "for lease" signs.
Tenant hereby waives claim for abatement of rent or for damages for any injury
or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby.
11. Liens
Tenant shall keep the Premises and any building of which the Premises are
a part free from any liens arising out of work performed, materials furnished
or obligations incurred by Tenant and shall indemnify, hold harmless and defend
Landlord from any liens and encumbrances arising out of any work performed or
materials furnished to or at the direction of Tenant. In the event that Tenant
shall not, within twenty (20) days following the imposition of any such liens,
cause such lien to be released of record by payment or posting of a proper
bond, Landlord shall have, in addition to all other remedies provided herein
and by law, the right, but not the obligation, to cause the same to be released
by such means as it shall deem proper, including payment of the claim giving
rise to such lien. All such sums paid by Landlord and all expenses incurred by
it in connection therewith including attorneys' fees and costs shall be payable
to Landlord by Tenant on demand with interest at the Permitted Rate (as defined
in Paragraph 20.17 below). Landlord shall have the right at all times to post
and keep posted on the Premises any notices permitted or required by law, or
which Landlord shall deem proper, for the protection of Landlord and the
Premises, and any other party having an interest therein, from mechanics' and
material person's liens and Tenant shall give to Landlord at least ten (10)
business days prior written notice of the expected date of commencement of any
work relating to alterations, improvements or additions to the Premises.
12. Indemnity
12.1 Indemnity. Tenant agrees to indemnify, protect and defend Landlord
and Landlord's Agents and Lenders against and hold Landlord and Landlord's
Agents and Lenders harmless from any and all claims, causes of action,
judgments, obligations or liabilities and all reasonable expenses incurred in
investigating or resisting the same (including reasonable attorneys' fees), on
account of, or arising out of (i) the operation, condition, maintenance, use or
occupancy of the Premises, (ii) any bodily injury, death or property damage
occurring in or about the Premises, (iii) any act, omission or neglect of
Tenant or its Agents, or (iv) any breach or default in the performance in a
timely manner of any obligation on Tenant's part to be performed under this
Lease. In the event any action or proceeding is brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend same at
Tenant's expense by counsel satisfactory to Landlord. Tenant, as a material
part of the consideration to Landlord, hereby assumes all risk of damage to
property or injury to persons, in, upon or about the Premises arising from any
cause and Tenant hereby waives all claims in respect thereof against Landlord.
The provisions of this Paragraph 12.1. shall survive termination of the Lease
with respect to any damage, injury or death occurring or accruing prior to such
termination.
12.2 Exemption of Landlord from Liability. Landlord shall not be liable
for injury and Tenant waives all claims against Landlord to Tenant's business
or loss of income therefrom or for damage which may be sustained by the person,
goods, wares, merchandise or property of Tenant, its employees, invitees,
customers, agents or contractors or any other person in or about the Premises,
caused by or resulting from fire, steam, electricity, gas, water or rain, which
may leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the same,
whether the said damage or injury results from conditions arising upon the
Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Tenant. Landlord shall not be liable for any damages arising from any act or
neglect of any other tenant, if any, of the Building in which the Premises are
located, or of the Project.
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13. Insurance
13.1 Tenant's Insurance. Tenant shall, at its own expense, maintain in
full force and effect during the Lease Term the following insurance:
(a) Tenant shall maintain a policy or policies of comprehensive general
liability insurance, including fire and property damage carried with a company
or companies satisfactory to Landlord, which will insure Tenant and Landlord
(and such others as are designated by Landlord) against liability for personal
injury, bodily injury, death, and damage to property (including but not limited
to, Tenant's personal property, inventory, trade fixtures and improvements
constructed by Tenant within the Premises with coverage for the full actual
replacement cost thereof), occurring in or about, or resulting from any
occurrence in or about, the Premises or use or occupancy of the Premises (and
Tenant's operations on the Premises) or arising out of Tenant's or its agents',
employees', or representatives' use of the building, Common Areas or Project
with combined single limit coverage of not less than one million dollars
($l,000,000.00). Such comprehensive general liability insurance shall be
extended to include a "blanket contractual liability" endorsement insuring
Tenant's performance of Tenant's obligation to indemnify Landlord contained in
Section 12.1 and all of the other broadened liability features normally
contained in an extended liability endorsement. If Landlord's lender, insurance
advisor or counsel reasonably determines at any time that the amount of such
coverage is not adequate, Tenant shall increase such coverage to such amount as
Landlord's lender, insurance advisor or counsel reasonably deems adequate. The
limits of such insurance shall not limit the liability of Tenant. Tenant shall
deliver to Landlord, prior to possession, and at least thirty (30) days prior
to the expiration of any policy, a certificate of insurance evidencing the
existence of the policy required hereunder and such certificate shall certify
that the policy (i) names Landlord as additional insured, (ii) shall not be
canceled or reduced in coverage without thirty (30) days prior written notice
to Landlord, (iii) insures performance in the indemnity set forth in Paragraphs
12.1 and 19.5 above (including, provided Tenant uses Hazardous Materials
pursuant to Paragraph 19 above, without limitation, "Pollution Liability" );
(iv) provides coverage which is primary and not contributing with and not in
excess of coverage which Landlord may carry; and (v) contains a cross-liability
endorsement. In the event Tenant fails to procure and maintain such insurance,
Landlord may (but shall not be required to) procure same at Tenant's expense
after ten (10) days prior written notice. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after thirty (30)
days prior written notice to Landlord by the insurer. All such policies shall
be written as primary policies, not contributing with and not in excess of
coverage which Landlord may carry. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by Tenant provided
such blanket policies expressly afford coverage to the Premises and to Tenant
as required by this Lease.
(b) Tenant, at its sole cost, shall procure and maintain in force during
the Lease term, "all-risk" property insurance, including vandalism, boiler
and machinery, sprinkler damage, and malicious mischief on all leasehold
improvements installed in the Premises by Tenant at its expense and all
equipment, trade fixtures, inventory fixtures and personal property located on,
in or about the Premises. Such insurance shall be an amount equal to the full
replacement cost of the aggregate of the foregoing.
(c) The policies required to be maintained by Tenant pursuant to
subparagraphs (a) and (b) above shall be with companies, on forms, with
deductible amounts (if any) and loss payable clauses satisfactory to Landlord
and shall include Landlord and the beneficiary of any deed of trust encumbering
the Premises as additional insureds, and shall provide that such parties may,
although additional insureds, recover for any loss suffered by Tenant's
neglect.
13.2 Property Insurance. Landlord shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or
damage to the Premises, the Building and all other buildings located in the
Project, in the amount of full replacement cost thereof, including protection
against those perils included within the classification of "all risk"
insurance plus a policy of rental income insurance in the amount of 100% of 12
months rent (including, without limitation, sums payable as Additional Rent)
plus, at Landlord's option, flood insurance and earthquake insurance and any
other coverages which may be required from time to time by Landlord's Lender.
Tenant shall have no interest in nor any right to the proceeds of any insurance
procured by Landlord on the Premises, the Building or the project. Landlord
shall not be required to cause such insurance to cover any of Tenant's personal
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property, inventory, trade fixtures or any modifications, alterations or
improvements made or constructed by Tenant to or within the Premises. During
the term of this Lease, Tenant shall pay to Landlord, as Additional Rent,
Tenant's Share (as defined in Paragraph 4.5(a) above) of the amount of any
increase in premium for the insurance maintained by Landlord under this
Paragraph 13.2 over and above the premium paid for such insurance by Landlord
during the first full year of the term of this Lease ("Property Insurance Base
Year", as further defined in Paragraph 1.12 of the Basic Lease Provisions)
including, without limitation, any increase in premium due to Lender's
requirements or increase in insured value . Tenant shall pay such increases to
Landlord within ten (10) days after receipt by Tenant of a copy of the premium
statement or other reasonably satisfactory evidence of the amount due, which
shall include the method of calculation of Tenant's share thereof if the
insurance covers other improvements than the Premises. If the term of this
Lease does not expire concurrently with the expiration of the period covered by
the insurance, Tenant's liability for premium increases shall be prorated on an
annual basis.
13.3 Mutual Waiver of Subrogation. Tenant and Landlord hereby mutually
waive their respective rights of recovery against each other of any loss of or
damage to the property of either party, to the extent such loss or damage is
covered by any insurance policy required to be maintained by this Lease or
otherwise in force at the time of such loss or damage. Each party shall obtain
any special endorsements, if required by the insurer, whereby the insurer
waives its right of subrogation against the other party hereto. The provisions
of this Subparagraph 13.3 shall not apply in those instances in which the
waiver of subrogation would cause either party's insurance coverage to be
voided or otherwise made uncollectible; or, if any such insurance policy cannot
be obtained with such a waiver of subrogation, then the party obtaining such
insurance shall notify the other party of that fact and thereon shall be
relieved of the obligation to obtain such a waiver of subrogation rights from
the insurer with respect to the particular insurance involved.
14. Damage or Destruction
14.1 Partial Damage-Insured. Subject to the provisions of Paragraphs 12
and 13 above, and if at any time during the term of this Lease there is partial
damage to the Premises that is not caused by the fault, omission, or negligence
of Tenant, its agents, employees, contractors, or invitees, which is covered
under an insurance policy required to be maintained pursuant to Section 13.2,
then Landlord shall repair such damage as soon as reasonably possible and this
Lease shall continue in lull force and effect. If there is a monetary
deductible applicable to the aforementioned insurance policy coverage which is
required to be paid prior to coverage of such casualty or damage, it shall be
the sole responsibility for Tenant to reimburse Landlord for said monetary
deductible. Tenant shall reimburse Landlord within thirty (30) days of receipt
by Tenant of a copy of the monetary deductible statement. In the event of
damage to the Premises or the Building by fire or other causes resulting from
fault, omission or negligence of Tenant, its agents, employees, contractors, or
invitees, such damage shall be promptly reported to Landlord and shall be
repaired by and at expense of Tenant under direction and supervision of
Landlord and there shall be no abatement of rent during the period of repair.
Tenant shall indemnify and hold harmless Landlord from and against any damages,
injuries, losses, claims, liabilities or causes of action arising out of or
relating to the repair or restoration of the Premises or Building.
14.2 Partial Damage--Uninsured. In the event the improvements on the
Premises are damaged, except by a negligent or willful act or omission of
Tenant or from an attempted burglary or forcible entry pursuant to Section 9.2
(c), by any casualty not covered under an insurance policy required to be
maintained pursuant to Section 13.2, then Landlord may, at Landlord's option,
either (a) repair such damage as soon as reasonably possible at Landlord's
expense, in which event this Lease shall continue in full force and effect or
(b) give written notice to Tenant within thirty (30) days after the date of
occurrence of such damage of Landlord's intention to cancel and terminate this
Lease as of the date of the occurrence of the damage. In the event Landlord
elects to terminate this Lease pursuant to this Section 14.2, Tenant shall have
the right within ten (10) days of receipt of the required notice to notify
Landlord, in which event this Lease shall continue in full force and effect,
and Tenant shall proceed to make such repairs as soon as reasonably possible
(or Landlord may elect, in its sole discretion, to require Tenant to pay to
Landlord within ten (10) days following written request therefor, or furnish
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evidence reasonably satisfactory to Landlord of Tenant's ability to fund that
portion of the cost of such repair or restoration which is not covered by
insurance proceeds, in which event Landlord shall proceed to make such
repairs). If Tenant does not give such notice within the ten (10) day period,
this Lease shall be canceled and terminated as of the date of the occurrence of
such damage. All insurance proceeds available from the fire and property damage
insurance carried by Landlord pursuant to Section 13.2 shall be paid to and
become the property of Landlord. If this Lease is not so terminated, then upon
receipt of the insurance proceeds (if the loss is covered by insurance) and the
issuance of all necessary governmental permits, Landlord shall commence and
diligently prosecute to completion the restoration of the leased Premises, to
the extent then allowed by law, to substantially the same condition in which
the leased Premises was immediately prior to such damage. Landlord's obligation
to restore shall be limited to the building and interior improvements
constructed by Landlord as they existed as of the commencement date. Landlord's
obligation to repair or restore the Premises shall not include restoration of
Tenant's trade fixtures, equipment, merchandise, or any improvements
alterations or additions made by Tenant to the Premises.
14.3 Total Destruction. If the Premises are totally destroyed during the
term of this Lease from any cause whether or not covered by the insurance
required under Section 13.2 (including any destruction required by any
authorized public authority), this Lease, at Landlord's option, may
automatically terminate as of the date of such total destruction. If Lease is
not terminated pursuant to this Section, Landlord shall immediately begin the
process of reconstructing the Premises and all rent for the Premises shall be
abated during the period of reconstruction.
14.4 Damage Near End of the Term. If the Premises are partially destroyed
or damaged during the last six (6) months of the term of this Lease, Landlord
may at Landlord's option cancel and terminate this Lease as of the date of
occurrence of such damage by giving written notice to Tenant of Landlord's
election to do so within thirty (30) days after the date of occurrence of such
damage. Tenant's obligation to pay rent shall cease on effective cancellation
date.
14.5 Landlord's Obligations. The Landlord shall not be required to repair
any injury or damage by fire or other cause, or to make any restoration or
replacement of any paneling, decorations, office fixtures, partitions,
railings, ceilings, floor covering, equipment, machinery or fixtures or any
other improvements or property installed in the Premises by Tenant or at the
direct or indirect expense of Tenant. Tenant shall be required to restore or
replace same in the event of damage.
14.6 Abatement of Rent; Tenant's Remedies.
(a) If the Premises are partially destroyed or damaged and Landlord
or Tenant repairs them pursuant to this Lease, the rent payable hereunder for
the period during which such damage and repair continues shall be abated in
proportion to the extent to which Tenant's use of the Premises is impaired;
provided, however there shall be no abatement of rent if the damage or
destruction was caused by the fault, omission, negligence or willful misconduct
of Tenant or any of its agents, employees or representatives. Except for
abatement of rent, if any, Tenant shall have no claim against Landlord for any
damage suffered by reason of any such damage, destruction or restoration.
(b) If Landlord shall be obligated to repair or restore the Premises
under this Section 14 and shall not commence such repair or restoration within
ninety (90) days after such obligation shall accrue, Tenant, at Tenant's
option, may cancel and terminate this Lease by written notice to Landlord at
any time prior to the commencement of such repair or restoration. In such
event, the Lease shall terminate as of the date of such notice.
14.7 Termination--Advance Payments. Upon termination of this Lease
pursuant to Section 14, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Tenant to Landlord. Landlord
shall, in addition, return to Tenant so much of Tenant's security deposit as
has not therefore been applied by Landlord.
15. Condemnation
15.1 Definition of Terms. For the purposes of this Lease, the term (1)
"Taking" means a taking of the Premises or damage to the Premises related to
the exercise of the power to eminent domain and includes a voluntary conveyance
in lieu of court proceedings, to any agency, authority, public utility, person
or corporate entity empowered to condemn property; (2) "Total Taking" means
the taking of the entire Premises or so much of the Premises as to prevent or
substantially impair the use thereof by Tenant for the uses herein specified;
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(3) "Partial Taking" means the taking of only a portion of the Premises which
does not constitute a Total Taking; (4) "Date of Taking" means the date upon
which the title to the Premises, or a portion thereof, passes to and vests in
the condemnor or the effective date of any order for possession if issued prior
to the date title vests in the condemnor, and (5) "Award" means the amount of
any award made, consideration paid, or damages ordered as a result of a Taking.
15.2 Rights. The parties agree that in the event of a Taking all rights
between them or in and to an Award shall be as set forth herein and Tenant
shall have no right to any Award except as set forth herein.
15.3 Total Taking. In the event of a Total Taking during the term hereof;
(1) the rights of Tenant under the Lease and the leasehold estate of Tenant in
and to the Premises shall cease and be terminated as of the date of Taking; (2)
Landlord shall refund to Tenant any prepaid rent; (3) Tenant shall pay to
Landlord any rent or charges due Landlord under the Lease, each prorated as of
the Date of Taking; (4) To the extent the Award is not payable to the
beneficiary of any mortgage affecting the Premises, Tenant shall receive from
the Award those portions of the Award attributable to trade fixtures of Tenant;
and (5) the remainder of the Award shall be paid to and be the property of
Landlord.
15.4 Partial Taking. In the event of a Partial Taking during the term
hereof, (1) the rights of Tenant under the Lease and the leasehold estate of
Tenant in and to the portion of the Premises taken shall cease and terminate as
of the Date of Taking; (2) from and after the Date of Taking the monthly
installment of rent shall be an amount equal to the product obtained by
multiplying the monthly installment of rent immediately prior to the Taking by
the quotient obtained by dividing the number of square feet of floor area
contained in the Premises after the Taking by the number of square feet of
floor area contained in the Premises prior to the Taking; (3) To the extent the
Award is not payable to the beneficiary of any mortgage affecting the Premises,
Tenant shall receive from the Award the portions of the Award attributable to
trade fixtures of Tenant, and (4) the remainder of the Award shall be paid to
and be the property of Landlord. Each party waives the provisions of California
Code of Civil Procedure Section 1265.130 allowing either party to petition the
Superior Court to terminate this Lease in the event of a Partial Taking.
16. Assignment & Subletting
16.1 Landlord's Consent Required. Tenant's interest in this Lease is not
assignable, by operation of law or otherwise, nor shall Tenant have the right
to sublet the Premises, transfer any interest of Tenant therein or permit any
use of the Premises by another party, without the prior written consent of
Landlord to each such assignment, subletting, transfer or use, which consent
Landlord agrees not to withhold unreasonably subject to the provisions of
Subparagraph 16.3 below. A consent to one assignment, subletting, occupancy or
use by another party shall not be deemed to be a consent to any subsequent
assignment, subletting, occupancy or use by another party. Any assignment or
subletting without such consent shall be void and shall, at the option of
Landlord, terminate this Lease.
Landlord's waiver or consent to any assignment or subletting hereunder
shall not relieve Tenant from any obligation under this Lease unless the
consent shall so provide.
16.2 Transferee Information Required. If Tenant desires to assign its
interest in this Lease or sublet the Premises, or transfer any interest of
Tenant therein, or permit the use of the Premises by another party (hereinafter
collectively referred to as a "Transfer"), Tenant shall give Landlord at
least fifteen (15) business days prior written notice of the proposed Transfer
and of the name and legal composition of the proposed transferee, a financial
statement of the proposed transferee, the nature of the (including a list of
the type and quantities of all Hazardous Materials to be used by the transferee
on the Premises), the payment to be made or other consideration to be given to
Tenant on account of the Transfer, and such other pertinent information as may
be requested by Landlord, all in sufficient detail to enable Landlord to
evaluate the proposed Transfer and the prospective transferee.
16.3 Landlord's Rights. It is the intent of the parties hereto that this
Lease shall confer upon Tenant only the right to use and occupy the Premises,
and to exercise such other rights as are conferred upon Tenant by this Lease.
The parties agree that this Lease is not intended to have a bonus value nor to
serve as a vehicle whereby Tenant may profit by a future Transfer of this Lease
or the right to use or occupy the Premises as a result of any favorable terms
contained herein, or future changes in the market for leased space. It is the
intent of the parties that any such bonus value that may attach to this Lease
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shall be and remain the exclusive property of Landlord, except as provided in
Paragraph 16.3(b) below. In the event Tenant seeks to Transfer its interest in
this Lease or the Premises, Landlord shall have the following options, which
may be exercised at its sole choice without limiting Landlord in the exercise
of any other right or remedy which Landlord may have by reason of such proposed
Transfer.
(a) In the event of a Transfer constituting either an assignment of the
entire Lease or a sublease of substantially all of the Premises for the balance
of the Lease Term, Landlord may elect to terminate this Lease effective as of
the proposed effective date of the proposed Transfer and release Tenant from
any further liability hereunder accruing after such termination date by giving
Tenant written notice of such termination within fifteen (15) days after
receipt by Landlord of Tenant's notice of intent to Transfer as provided above.
If Landlord makes such election to terminate this Lease, Tenant shall surrender
the Premises, in accordance with Paragraph 9.2(e), on or before the effective
termination date; or
(b) Landlord may consent to the proposed Transfer on the condition that
Tenant agrees to pay to Landlord, as additional rent, seventy-five percent
(75%) of any and all rents or other consideration (including key money)
received by Tenant from the transferee by reason of such Transfer in excess of
the rent payable by Tenant to Landlord under this Lease (less any brokerage
commissions, attorneys' fees and advertising expenses incurred by Tenant in
connection with the Transfer). Tenant expressly agrees that the foregoing is a
reasonable condition for obtaining Landlord consent to any Transfer: or
(c) Landlord may reasonably withhold its consent to the proposed
transfer.
16.4 Attorneys' Fees. In the event Landlord shall consent to a sublease
or assignment under this Section 16, Tenant shall pay Landlord's reasonable
attorneys' fees not to exceed $500.00 incurred in connection with giving such
consent.
17. Subordination. The following provisions shall govern the relationship of
this Lease to any underlying lease, mortgage or deed of trust which now or
hereafter affects the Premises or Landlord's interest or estate therein and any
renewal, modification, consolidation, replacement, or extension thereof (a
"Security Instrument").
17.1 Priority. This Lease is subject and subordinate to all Security
Instruments existing as of the Commencement Date. However, if any Lender so
requires, this Lease shall become prior and superior to any such Security
Instrument.
17.2 Subsequent Security Instruments. At Landlord's election, this Lease
shall become subject and subordinate to any Security Instrument created after
the Commencement Date. Notwithstanding such subordination, Tenant's right to
quiet possession of the Premises shall not be disturbed so long as Tenant is
not in default and performs all of its obligations under this Lease, unless
this Lease is otherwise terminated pursuant to its terms.
17.3 Documents. Tenant shall execute any reasonable document or
instrument required by Landlord or any Lender to make this Lease either prior
or subordinate to a Security Instrument, which may include such other matters
as the Lender customarily requires in connection with such agreements,
including provisions that the Lender, if it succeeds to the interest of
Landlord under this Lease, shall not be (i) liable for any act or omission of
any prior landlord (including Landlord), (ii) subject to any offsets or
difference which Tenant may have against any prior landlord (including
Landlord), (iii) bound by any rent or additional rent paid more than one (1)
month in advance of the date due under this Lease, (iv) liable for any defaults
on the part of Landlord occurring prior to the time that Lender takes
possession of the Premises in connection with enforcement of its Security
Instrument, (v) liable for the return of any security deposit unless such
deposit has been delivered to Lender, and (vi) bound by any agreement or
modification of the Lease made without the prior written consent of the Lender.
17.4 Tenant's Attornment. Tenant shall attorn (1) to any purchase of the
Premises at any foreclosure sale or private sale conducted pursuant to any
Security Instrument encumbering the Premises; (2) to any grantee or transferee
designated in any deed given in lieu of foreclosure; or (3) to the lessor under
any underlying ground lease should such ground lease be terminated.
18. Default; Remedies
18.1 Default. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
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(a) Default in payment when due of any installment of rent or other
payment required to be made by Tenant hereunder, where such default shall not
have been cured within ten (10) days after written notice of such default is
given to Tenant;
(b) The abandonment or vacation of the Premises by Tenant;
(c) A failure by Tenant to observe and perform any other provision of the
Lease to be observed or performed by Tenant, where such failure shall have
continued for thirty (30) days after written notice thereof by Landlord to
Tenant; provided, however, that if the nature of such default is such that the
same cannot reasonably be cured within such thirty (30) day period, Tenant
shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to completion;
(d) Tenant or any guarantor of Tenant's obligations hereunder shall
commence any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization, or
relief of debtors, or seek appointment of a receiver, trustee, custodian, or
other similar official for it or for all or any substantial part of its
property;
(e) Tenant or any such guarantor shall take any corporate action to
authorize any of the actions set forth in Clause (d) above; or,
(f) Any case, proceeding or other action against Tenant or any guarantor
of Tenant's obligations hereunder shall be commenced seeking to have an order
for relief entered against it as debtor, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
property, and such case, proceeding or other action (i) results in the entry of
an order for relief against it which is not fully stayed within seven (7)
business days after the entry thereof or (ii) is not dismissed within forty-
five (45) days of filing such case, action or proceeding.
(g) Levy of a writ of attachment or execution of Tenant's interest under
this Lease where such writ continues for a period often (10) days;
(h) an assignment, sublease or other transfer of this Lease or Tenant's
interest in the Premises or portion thereof contrary to the provisions of
Section 16; or
(i) execution of an assignment for the benefit of creditors of
substantially all assets of Tenant available by law for the satisfaction of
judgment creditor.
18.2 Remedies. In the event of any such material default or breach by
Tenant, Landlord may at any time thereafter, with or without notice and demand
and without limiting Landlord in the exercise of any right or remedy at law or
in equity which Landlord may have by reason of such default or breach:
(a) Maintain this Lease in full force and effect and recover the rent and
other monetary charges as they become due, without terminating Tenant's right
to possession, irrespective or whether Tenant shall have abandoned the
Premises. In the event Landlord elects to not terminate the Lease, Landlord
shall have the right to attempt to re-let the Premises at such rent and upon
such conditions and for such a term, and to do all acts necessary to maintain
or preserve the Premises as Landlord deems reasonable and necessary without
being deemed to have elected to terminate the Lease including removal of all
persons and property from the Premises; such property may be removed and stored
in a public warehouse or elsewhere at the cost of and for the account of
Tenant. In the event any such re-letting occurs, this Lease shall terminate
automatically upon the new tenant taking possession of the Premises.
Notwithstanding that Landlord fails to elect to terminate the Lease initially,
Landlord at any time during the Term of this Lease may elect to terminate this
Lease by virtue of such previous default of Tenant.
(b) Terminate this Lease by giving Tenant written notice of termination
or other lawful means. On the giving of the notice all of tenant's rights in
the Premises and the Building and Project shall terminate. Upon the giving of
the notice of termination, Tenant shall surrender and vacate the Premises in
the condition required by Paragraph 9.2(e), and Landlord may re-enter and take
possession of the Premises and all the remaining improvement or property and
eject Tenant or any of Tenant's subtenants, assignees or the person or persons
claiming any right under or through Tenant or eject some and not others or
eject none. This Lease may also be terminated by a judgment specifically
providing for termination. Any termination under this paragraph shall not
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release Tenant from the payment of any sum then due Landlord or from any claim
for damages or rent previously accrued or then accruing against Tenant. In no
event shall any one or more of the following actions by Landlord constitute a
termination of this Lease:
(i) maintenance and preservation of the Premises;
(ii) efforts to relet the Premises;
(iii) appointment of a receiver in order to protect Landlord's
interest hereunder;
(iv) consent to any subletting of the Premises or assignment of
this Lease by Tenant, whether pursuant to provisions hereof concerning
subletting and assignment or otherwise; or
(v) any other action by Landlord or Landlord's agents intended to
mitigate the adverse effects from any breach of this Lease by Tenant.
(c) In the event this Lease terminated pursuant to Subparagraph 18.2(b)
above, or otherwise, Landlord shall be entitled to damages in the following
sums:
(i) the worth at the time of award of the unpaid rent which has
been earned at the time of termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform Tenant's
obligations under the Lease, or which in ordinary course of things would be
likely to result therefrom including, without limitation, the following: (A)
expenses for cleaning, repairing or restoring the Premises; (B) expenses for
altering, remodeling or otherwise improving the Premises for the purpose of
reletting, including installation of leasehold improvements (whether such
installation be funded by a reduction of rent, direct payment or allowance to
the succeeding lessee, or otherwise); (C) real estate broker's fees,
advertising costs and other expenses of reletting the Premises; (D) costs of
carrying the Premises such as taxes and insurance premiums thereon, utilities
and security precautions; (E) expenses in retaking possession of the Premises;
(F) attorneys' fees and court costs; and (G) any unamortized real estate
brokerage commission paid in connection with this Lease.
(v) The "worth at the time of award" of the amounts referred to
in Subparagraphs (i) and (ii) of this paragraph 18.2(c) is computed by allowing
interest at the Permitted Rate. The "worth at the time of award" of the
amounts referred to in Subparagraph (iii) of this Paragraph 18.2(c) is computed
by discounting such amount at the discount rate of the Federal Reserve Board of
San Francisco at the time of award plus one percent (1%). The term "rent" as
used in this Paragraph 18 shall include all sums required to be paid by Tenant
to Landlord pursuant to the terms of this Lease, including, without limitation,
Base Rent, Additional Rent and Operating Expenses.
18.3 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord hereunder within a
reasonable time, but in no event later than thirty (30) days after written
notice by Tenant to Landlord and to the holder of any first mortgage or deed of
trust covering the Premises whose name and address shall have theretofore been
furnished to Tenant in writing, specifying wherein Landlord has failed to
perform such obligation, provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performance within such thirty-day period and thereafter diligently prosecutes
the same to completion. Any money judgment obtained by Tenant based upon
Landlord's breach of this Lease shall be satisfied only Out of the proceeds of
the sale or disposition of Landlord's interest in the Premises (whether by
Landlord or by execution of judgment).
19. Hazardous Materials.
19.1 Definitions. As used herein, the term "Hazardous Material" shall
mean any substance: (i) the presence of which requires investigation or
remediation under any federal, state or local statute, regulation, ordinance,
order, action, policy or waste, "hazardous substance", pollutant or
contaminant under any federal, state or local statute, regulation, rule or
ordinance or amendments thereto including, without limitation, the
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Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 9601 et seq.) and/or the Resource Conservation and Recover Act (42
U.S.C. Section 6901 et seq.); (iii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous and is or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United States,
the State of California or any political subdivision thereof; (iv) the presence
of which on the Premises causes or threatens to cause a nuisance upon the
Premises or to the adjacent properties or poses or threatens to pose a hazard
to the health or safety of persons on or about the Premises; (v) the presence
of which on adjacent properties could constitute a trespass by Landlord or
Tenant; (vi) without limitation which contains gasoline, diesel fuel or other
petroleum hydrocarbons; (vii) without limitation which contains polychlorinated
biphenyl's (PCBs), asbestos or urea formaldehyde foam insulation; or (viii)
without limitation radon gas.
19.2 Permitted Use. Subject to the compliance by Tenant with the
provisions of Paragraphs 19.3, 19.4, 19.5, 19.6, 19.7, 19.8 and 19.9 below,
Tenant shall be permitted to use and store on the Premises those Hazardous
Materials listed in Paragraph 19.11 attached hereto, in the quantities set
forth in Paragraph 19.11.
19.3 Hazardous Materials Management Plan.
(a) Prior to Tenant using, handling, transporting or storing any
Hazardous Material at or about the Premises (including, without limitation,
those listed in Paragraph 19.11), Tenant shall submit to Landlord a Hazardous
Materials Management Plan ("HMMP") for Landlord's review and approval, which
approval shall not be unreasonably withheld. The l-LMMP shall describe: (aa)
the quantities of each material to be used, (bb) the purpose for which each
material is to be used, (cc) the method of storage of each material, (dd) the
method of transporting each material to and from the Premises and within the
Premises (ee) the methods Tenant will employ to monitor the use of the material
and to detect any leaks or potential hazards, and (ff) any other information
any department of any governmental entity (city, state or federal) requires
prior to the issuance of any required permit for the Premises or during
Tenant's occupancy of the Premises. Landlord may, but shall have no obligation
to review and approve the foregoing information and HMMP, and such review and
approval or failure to review and approve shall not act as an estoppel or
otherwise waive Landlord's rights under this Lease or relieve Tenant of its
obligations under this Lease. If Landlord determines in good faith by
inspection of the Premises or review of the HMMP that the methods in use or
described by Tenant are not adequate in Landlord's good faith judgment to
prevent or eliminate the existence of environmental hazards, then Tenant shall
not use, handle, transport, or store such Hazardous Materials at or about the
Premises unless and until such methods are approved by Landlord in good faith
and added to an approved HMMP. Once approved by Landlord, Tenant shall strictly
comply with the HMMP and shall not change its use, operations or procedures
with respect to Hazardous Materials without submitting an amended HMMP for
Landlord's review and approval as provided above.
(b) Tenant shall pay to Landlord when Tenant submits an HMMP (or amended
HMMP) the amount reasonably determined by Landlord to cover all Landlord's
costs and expenses reasonably incurred in connection with Landlord's review of
the HMMP which costs and expenses shall include, among other things, all
reasonable out-of-pocket fees of attorneys, architects, or other consultants
incurred by Landlord in connection with Landlord's review of the HMMP. Landlord
shall have no obligation to consider a request for consent to a proposed HMMP
unless and until Tenant has paid all such costs and expenses to Landlord,
irrespective of whether Landlord consents to such proposed HMMP. Tenant shall
pay to Landlord on demand the excess, if any, of such costs and expenses
actually incurred by Landlord over the amount of such costs and expenses
actually paid by Tenant, and Landlord shall promptly refund to Tenant the
excess, if any, of such costs and expenses actually paid by Tenant over the
amount of such costs and expenses actually incurred by Landlord.
19.4 Use Restriction. Except as specifically allowed in Paragraph 19.2
above, Tenant shall not cause or permit any Hazardous Material to be used,
stored, generated, discharged, transported to or from, or disposed of in or
about the Premises, or any other land or improvements in the vicinity of the
Premises. Without limiting the generality of the foregoing, Tenant, at its sole
cost, shall comply with all Laws relating to the storage, use, generation,
transport, discharge and disposal by Tenant or its Agents of any Hazardous
Material. If the presence of any Hazardous Agents results in contamination of
the Premises or any soil, air, ground or surface waters under, through, over,
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on, in or about the Premises, Tenant, at its expense, shall promptly take all
actions necessary to return the Premises and/or the surrounding real property
to the condition existing prior to the appearance of such Hazardous Material.
In the event there is a release, discharge or disposal of or contamination of
the Premises by a Hazardous Material which is of the type that has been stored,
handled, transported or otherwise used or permitted by Tenant or its Agents on
or about the Premises, Tenant shall have the burden of proving that such
release, discharge, disposal of contamination is not the result of the acts or
omissions of Tenant or its Agents.
19.5 Tenant Indemnity. Tenant shall defend, protect, hold harmless and
indemnify Landlord and its Agents and Lenders with respect to all actions,
claims, losses (including, diminution in value of the Premises), fines,
penalties, fees (including, but not limited to, attorneys' and consultants'
fees) costs, damages, liabilities, remediation costs, investigation costs,
response costs and other expenses arising out of resulting from, or caused by
any Hazardous Material used, generated, discharged, transported to or from,
stored, or disposed of by Tenant or its Agents in, on, under, over through or
about the Premises and/or the surrounding real property. Tenant shall not
suffer any lien to be recorded against the Premises as a consequence of the
disposal of any Hazardous Material on the Premises by Tenant or its Agents,
including any so called state, federal or local "super fund" lien related to
the "clean up" of any Hazardous Material in, over, on, under, through or
about the Premises.
19.6 Compliance. Tenant shall immediately notify Landlord of any inquiry,
test, investigation, enforcement proceeding by or against Tenant or the
Premises concerning any Hazardous Material. Any remediation plan prepared by or
on behalf of Tenant must be submitted to Landlord prior to conducting any work
pursuant to such plan and prior to submittal to any applicable government
authority and shall be subject to Landlord's consent. Tenant acknowledges that
Landlord, as the owner of the Property, at its election, shall have the sole
right to negotiate, defend, approve and appeal any action taken or order issued
with regard to any Hazardous Material by any applicable governmental authority.
19.7 Assignment and Subletting. It shall not be unreasonable for Landlord
to withhold its consent to any proposed assignment or subletting if (i) the
proposed assignee's or subtenant's anticipated use of the Premises involves the
storage, generation, discharge, transport, use or disposal of any Hazardous
Material; (ii) if the proposed assignee or subtenant has been required by any
prior landlord, lender or governmental authority to "clean up" or remediate
any Hazardous Material; (iii) if the proposed assignee or subtenant is subject
to investigation or enforcement order or proceeding by any governmental
authority in connection with the use, generation, discharge, transport,
disposal of storage of any Hazardous Material.
19.8 Surrender. Upon the expiration or earlier termination of the Lease,
Tenant, at its sole cost, shall remove all Hazardous Materials from the
Premises that Tenant or its Agents introduced to the Premises. If Tenant fails
to so surrender the Premises, Tenant shall indemnify, protect, defend and hold
Landlord harmless from and against all damages resulting from Tenant's failure
to surrender the Premises as required by this Paragraph, including without
limitation, any actions, claims, losses, liabilities, fees, (including but not
limited to attorneys' and consultants' fees), fines costs, penalties, or
damages in connection with the condition of the Premises including, without
limitation, damages occasioned by the inability to relet the Premises or a
reduction in the fair market and/or rental value of the Premises by reason of
the existence of any Hazardous Material in, on, over, under, through or around
the Premises.
19.9 Right to Appoint Consultant. Landlord shall have the right to
appoint a consultant to conduct an investigation to determine whether any
Hazardous Material is being used, generated, discharged, transported to or
from, stored or disposed of in, on, over, through, or about the Premises, in an
appropriate and lawful manner and in compliance with the requirements of this
Lease. If Tenant has violated any Law or covenant in this Lease regarding the
use, storage or disposal of Hazardous Materials on or about the Premises,
Tenant shall reimburse Landlord for the cost of such investigation. Tenant, at
its expense, shall comply with all reasonable recommendations of the consultant
required to conform Tenant's use, storage or disposal of Hazardous Materials to
the requirements of applicable Law or to fulfill the obligations of Tenant
hereunder.
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Tenant shall defend, protect, hold harmless and indemnify Landlord and its
agents and employees with respect to all actions, claims, losses, fines,
penalties, fees, costs, damages and liabilities (including but not limited to
attorneys' and consultants' fees) arising out of or in connection with any
Hazardous Material used, generated, discharged, transported to or from, stored,
or disposed of in, on, under, through or about the Premises and/or the
surrounding real and personal property. Tenant shall not suffer any lien to be
recorded against the Premises as a consequence of a Hazardous Material,
including any so called state, federal or local "super fund" lien related to
the "clean up" of a Hazardous Material in, over, on, under, through, or about
the Premises.
19.10 Holding Over. If any action of any kind is required or requested to
be taken by any governmental authority to clean-up, remove, remediate or
monitor any Hazardous Materials (the presence of which is the result of the
acts or omissions of Tenant or its Agents) and such action is not completed
prior to the expiration or earlier termination of the Lease, Tenant shall be
deemed to have impermissibly held over until such time as such required action
is completed, and Landlord shall be entitled to all damages directly or
indirectly incurred in connection with such holding over, including, without
limitation, damages occasioned by the inability to re-let the Premises or a
reduction of the fair market and/or rental value of the Premises.
19.11 Materials. Tenant shall provide the list of its Hazardous Chemicals
to be legally used during its tenancy in the following section provided below
in this Paragraph 19.11, or attach a separate list and so indicate below or
indicate "NONE" and initial below to indicate if no Hazardous Materials will
be used:
Materials: Quantities: Location and Method of Storage:
Cleaning Solvent 10 gallons Shop Sealed Steel Drum
Way Oil 20 gallons Shop Sealed Steel Drum
Hydrolic Oil 15 gallons Shop Sealed Steel Drum
Spindle Oil 15 gallons Shop Sealed Steel Drum
Water Immersable Oil 20 gallons Shop Sealed Plastic Pail
19.12 Provisions Survive Termination. The provisions of this Paragraph
19.0 shall survive the expiration or termination of this Lease.
19.13 Controlling Provisions. The provisions of this Paragraph 19.0 are
intended to govern the rights and liabilities of the Landlord and Tenant
hereunder respecting Hazardous Materials to the exclusion of any other
provisions in this Lease that might otherwise be deemed applicable. The
provisions of this Paragraph 19.0 shall be controlling with respect to any
provisions in this Lease that are inconsistent with this Paragraph 19.0.
20. Miscellaneous
20.1 Estoppel Certificate.
(a) Tenant shall at any time, upon not less than ten (10) days prior
written notice from Landlord, execute, acknowledge and deliver to Landlord a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and
the date to which the rent and other charges are paid in advance, if any, (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults
on the part of Landlord hereunder, or specifying such defaults if any are
claimed; (iii) evidence the status of this Lease as may be required by a lender
making a loan to Landlord to be secured by a deed of trust covering the
Premises, Building or Project or a purchaser of the same from Landlord, (iv)
certify that all improvements to be constructed on or in the Premises by
Landlord have been substantially completed except for punch list items which do
not prevent Tenant from using the Premises for its intended use; and (v)
certify such other matters relating to the Lease and/or the Premises as may be
requested by a lender making a loan to Landlord or a purchaser of the Premises,
Building or Project from Landlord. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
month's rent has been paid in advance; and, (iv) the improvements to be
constructed on the Premises by Landlord have been substantially completed
except for punch list items which do not prevent Tenant from using the Premises
for its intended use.
IG 21
(c) If Landlord desires to finance, refinance or sell said Premises, or
any part hereof, Tenant hereby agrees to deliver to Landlord, its agent or any
prospective purchaser or lender designated by Landlord such financial
statements of Tenant as may be reasonably required by such lender or
prospective purchaser. Such statements shall include the past three years
financial statements of Tenant. All such financial statements shall be received
by Landlord in confidence and shall be used only for the purposes herein set
forth. Tenant's financial statements shall be held strictly confidential.
20.2 Transfer of Landlord's Interest. In the event of a sale or
conveyance by Landlord of Landlord's interest in the Premises other than a
transfer for security purposes only, Landlord shall be relieved from and alter
the date specified in such notice of transfer of all obligations and
liabilities accruing thereafter on the part of the Landlord, provided that any
funds in the hands of Landlord at the time of transfer in which Tenant has an
interest, shall be delivered to the successor of Landlord. This Lease shall not
be affected by any such sale and Tenant agrees to attorn to the purchaser or
assignee provided all Landlord's obligations hereunder are assumed in writing
by the transferee.
20.3 Captions; Attachments; Defined Terms.
(a) The captions of the paragraphs of this Lease are for convenience only
and shall not be deemed to be relevant in resolving any question of
interpretation or construction of any section of this Lease.
(b) Exhibits attached hereto, and addendums and schedules initialed by
the parties, are deemed by attachment to constitute part of this Lease and are
incorporated herein.
(c) The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in neuter gender include the
masculine and feminine and words in the masculine or feminine gender include
the neuter. If there be more than one Landlord or Tenant, the obligations
hereunder imposed upon Landlord or Tenant shall be joint and several. If the
Tenants are husband and wife, the obligations shall extend individually to
their sole and separate property as well as to their community property. The
term "Landlord" shall mean only the owner or owners at the time in question
of the fee title or a tenant's interest in a ground lease of the Premises. The
obligations contained in this Lease to be performed by Landlord shall be
binding on Landlord's successors and assigns only during their respective
periods of ownership.
(d) Law. As used in this Lease, the term "Law" or "Laws" shall mean
any judicial decision, statute, constitution, ordinance, resolution,
regulation, rule, administrative order, or other requirement of any government
agency or authority having jurisdiction over the parties to this Lease or the
Premises or both, in effect at the Commencement Date of this Lease or any time
during the Lease Term, including, without limitation, any regulation, order, or
policy of any quasi-official entity or body (e.g. board of fire examiners,
public utility or special district).
(e) Agent. As used in this Lease, the term "Agent" shall mean, with
respect to either Landlord or Tenant, its respective agents, employees,
contractors (and their subcontractors), and invitees (and in the case of
Tenant, its subtenants).
(f) Lender. As used in this Lease, the term "Lender" shall mean any
beneficiary, mortgagee, secured party or other holder of any deed of trust,
mortgage or other written security device or agreement affecting Landlord's
interest in the Premises.
20.4 Entire Agreement. This instrument along with any exhibits and
attachments hereto constitutes the entire agreement between Landlord and Tenant
relative to the Premises and this Agreement and the exhibits and attachments
may be altered, amended or revoked only by an instrument in writing signed by
both Landlord and Tenant. Landlord and Tenant agree hereby that all prior or
contemporaneous oral agreements between and among themselves and their agents
or representatives relative to the leasing of the Premises are merged in or
revoked by this Agreement.
20.5 Severability. If any term or provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
20.6 Costs of Suit.
(a) If Tenant or Landlord shall bring any action for any relief against
the other, declaratory or otherwise, arising out of this Lease, including any
suit by Landlord for the recovery of rent or possession of the Premises, the
IG 22
losing party shall pay the successful party a reasonable sum for attorneys'
fees which shall be deemed to have accrued on the commencement of such action
and shall be paid whether or not such action is prosecuted to judgment.
The attorney's fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse attorneys' fees
reasonably incurred in good faith.
20.7 Landlord as Party Defendant.. Should Landlord, without fault on
Landlord's part, be made a party to any litigation instituted by Tenant or by
any third party against Tenant, or by or against any person holding under or
using the Premises by license of Tenant, or for the foreclosure of any lien for
labor or material furnished to or for Tenant or any such other person or
otherwise arising out of or resulting from any act or transaction of Tenant or
of any such other person, Tenant covenants to save and hold Landlord harmless
from any judgment rendered against Landlord or the Premises or any part
thereof, and all costs and expenses, including reasonable attorneys fees,
incurred by Landlord in or in connection with such litigation. Such indemnity
obligation shall survive termination of this Lease.
20.8 Waiver of Jury Trial. Landlord and Tenant hereby waive their
respective right to trial by jury of any cause of action, claim, counterclaim,
cross-complaint in any action, proceeding and/or hearing brought by either
Landlord against Tenant or Tenant against Landlord on any matter whatsoever
arising out of, or in any way connected with, this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, or any claim or
injury or damage, or the enforcement of any remedy under any law, statute or
regulation, emergency or otherwise, now or hereafter in effect.
20.9 Time; Joint and Several Liability. Time is of the essence of this
Lease and each and every provision hereof, except as to the conditions relating
to the delivery of possession of the Premises to Tenant. All the terms,
covenants and conditions contained in this Lease to be performed by either
party, if such party shall consist of more than one person or organization,
shall be deemed to be joint and several, and all rights and remedies of the
parties shall be cumulative and non-exclusive of any other remedy at law or in
equity.
20.10 Binding Effect: Choice of Law. Each provision of this Lease to be
performed by Tenant shall be construed as both a covenant and condition.
Subject to any provisions hereof restricting assignment or subletting any
Tenant and subject to Section 18.2, all of the provisions hereof shall bind and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California
20.11 Waiver. No covenant term or condition or the breach thereof shall
be deemed waived, except by written consent of the party against whom the
waiver is claimed, and any waiver or the breach of any covenant, term or
condition shall not be deemed to be a waiver of any preceding or succeeding
breach of the same of any other covenant, term or condition. Acceptance by
Landlord of the performance by Tenant after the time the same shall have become
due shall not constitute a waiver by Landlord of the breach or default of any
covenant, term or condition unless otherwise expressly agreed to by Landlord in
writing.
Landlord's failure to enforce against Tenant or any other tenant of the
Building or the Project any of the rules or regulations made by Landlord shall
not be deemed a waiver of such rules or regulations. No act or thing done by
Landlord, its agents or employees during this Lease Term shall be deemed an
acceptance of a surrender of the Premises and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and is signed
by Landlord. The delivery of keys to any of Landlord's agents or employees
shall not serve to terminate this Lease or surrender the Premises. No payment
by Tenant, or receipt and acceptance by Landlord, of a lesser amount than the
rent due shall be deemed to be other than on account of the earliest stipulated
rent or additional rent, nor shall any endorsement or statement on any check or
any letter accompanying a payment as rent be deemed an accord and satisfaction.
The receipt and acceptance by Landlord of any delinquent rent shall not
constitute a waiver of any other default; it shall only be a waiver of timely
payment for the particular rent payment involved. Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance
of such rent or pursue any other remedy available to Landlord.
20.12 Surrender of Premises. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of the Landlord, terminate all or any existing subleases
or subtenancies, or may, at the option of Landlord, operate as an assignment to
it or any or all such subleases or subtenancies.
IG 23
20.13 Holding Over.
(a) Surrender of Possession. Tenant shall surrender possession of the
Premises immediately upon the expiration or earlier termination of the Lease.
If Tenant shall continue to occupy or possess the Premises after such
expiration or termination without the consent of Landlord, then Tenant shall be
a tenant at will. If Landlord has consented to such holdover in writing, Tenant
shall be a tenant from month-to-month. All the terms, provisions and conditions
of the Lease shall apply to the month-to-month tenancy except those terms,
provisions and conditions pertaining to the Lease Term, and except that the
rental shall be immediately adjusted upward upon the expiration or earlier
termination of the Lease to equal the greater of (i) one hundred fifty percent
(150%) of the then prevailing monthly rental rate for similar commercial space,
as determined by Landlord; or (ii) one hundred fifty percent (150%) of the
Rental for the Premises in effect under this Lease on the day immediately prior
to the date of the expiration or earlier termination of the Lease.
The month-to-month tenancy may be terminated by Landlord or Tenant upon
thirty (30) days prior notice to the non-terminating party. In the event that
Tenant fails to surrender the Premises upon such expiration or earlier
termination, then Tenant shall indemnify and hold Landlord harmless against all
losses or liability resulting from or arising out of Tenant's failure to
surrender the Premises. This includes, but is not limited to any amounts
required to be paid or damages incurred due to the loss of any tenant or
prospective tenant who was to have occupied the Premises after said termination
or expiration and any related attorneys' fees and brokerage commissions.
20.14 Payment of Money After Termination. No payment of money by Tenant
to Landlord after the termination of the Lease by Landlord or after the giving
of any notice of termination to Tenant by Landlord, which Landlord is entitled
to give Tenant under the Lease, shall reinstate, continue or extend the Term of
the Lease or shall affect any such notice given to Tenant prior to the payment
of such money. It is agreed that after the service of such notice or the
commencement of any suit by Landlord to obtain possession of the Premises,
Landlord may receive and collect when due any and all payments owed by Tenant
under the Lease and otherwise exercise its rights and remedies. The making of
any such payments by Tenant shall not waive such notice or in any manner affect
any pending suit or judgment obtained.
20.15 Signs and Auctions.
(a) Tenant shall not place any sign upon the Premises or conduct any
auction thereon without Landlord's prior written consent. All such signs placed
on the Premises by Tenant and consented to by Landlord shall comply with all
recorded documents affecting the Premises and applicable statutes, ordinances,
rules and regulations of governmental agencies having jurisdiction thereof. At
Landlord's option, Tenant shall, at the expiration or earlier termination of
the Lease, remove any sign which it has placed on the Premises and shall at its
sole cost, repair any damage caused by the installation or removal of such
sign.
(b) Obtaining permits for Tenant signs as may be required by any
governmental agency shall be the responsibility of Tenant.
20.16 Reasonable Consent. Except as limited elsewhere in this Lease,
wherever in this Lease Landlord or Tenant is required to give consent or
approval to any action on the part of the other, such consent or approval shall
not be unreasonably withheld. In the event of failure to give any such consent,
the other party shall be entitled to specific performance at law and shall have
such other remedies to it under this Lease, but in no event shall Landlord or
Tenant be responsible in monetary damages for failure to give consent unless
said failure is withheld maliciously or in bad faith.
20.17 Interest on Past Due Obligations. Any installment of Base Rent or
Additional Rent due from Tenant, or any other sum due under this Lease from
Tenant, which is not received by Landlord when due, shall bear interest from
said due date until paid, at an annual rate equal to the lower of (the
"Permitted Rate"): (a) twelve percent (12%); or (b) five percent (5%) plus
the rate established by the Federal Reserve Bank of San Francisco, as of the
twenty-fifth (25th) day of the month immediately preceding the due date, on
advances to member banks under Sections 13 and 13(a) of the Federal Reserve
Act, as now in effect or hereafter from time to time amended. Payment of such
interest shall not excuse or cure any default by Tenant. In addition, Tenant
shall pay all costs and attorneys' fees incurred by Landlord in collection of
such amounts.
20.18 Recording. Tenant shall not record this Lease without Landlord's
prior written consent (which may be given or withheld in Landlord's sole and
absolute discretion), and such recordation shall, at the option of Landlord,
constitute a non-curable default of Tenant hereunder.
IG 24
20.19 Notices. All notices or demands of any kind required or desired to
be given by Landlord or Tenant hereunder shall be in writing and shall be
deemed delivered on the date received if personally delivered to Landlord or
Tenant, as the case may be, or if mailed, then forty-eight (48) hours after
depositing the notice or demand in the United States mail, certified or
registered, postage prepaid, addressed to the Landlord or Tenant respectively
at the addresses set forth after their signatures at the end of this Lease.
20.20 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Tenant is a corporation Tenant shall, within thirty (30)
days after execution of this Lease, deliver to Landlord a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
20.21 Limitation on Landlord's Liability. Tenant, for itself and its
successors and assigns (to the extent this Lease is assignable), hereby agrees
that in the event of any actual or alleged, breach or default by Landlord under
this Lease that:
(a) Tenant's sole and exclusive remedy and recourse against Landlord
shall be as against Landlord's interest in the Project;
(b) No partner or Landlord shall be sued or named as a party in a suit or
action (except as may be necessary to secure jurisdiction of the partnership);
(c) No service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(d) No partner of Landlord shall be required to answer or otherwise plead
to any service of process;
(e) No judgment will be taken against any partner of Landlord;
(f) Any judgment taken against any partner of Landlord may be vacated and
set aside at any time nunc pro tunc;
(g) No writ of execution will ever be levied against the assets of any
partner of Landlord; and,
(h) The covenants and agreements of Tenant set forth in this Paragraph
20.21 shall be enforceable by Landlord and any partner of Landlord.
20.22 Construction of Lease Provisions. Although printed provisions of
this Lease were prepared by Landlord, the doctrine or rule that ambiguities in
an agreement or document are to be construed against the drafting party, shall
not be utilized in interpreting this Lease and this Lease shall instead be
construed or interpreted in accordance with the general tenor of the language
to reach a fair and equitable result.
20.23 Confidentiality. Tenant hereby agrees not to disclose the terms of
this lease (specifically including, without limitation, the rent or rental rate
to be paid by Tenant hereunder and/or any tenant improvement allowance to be
furnished by Landlord to Tenant) to any existing or prospective tenant of the
Building or other third party; provided, however, Tenant may disclose the terms
of this Lease to its accountant, bookkeeper or tax advisor or any employee of
Tenant who has a need to know such information for a legitimate business
purpose, or if Tenant is otherwise required to disclose such confidential
information as permitted hereunder of the requirements of this Paragraph and
shall require each such person to comply with such confidentiality
requirements. In the event Tenant or any person to whom it discloses such
confidential information fails in any respect to comply with its obligations
under this Paragraph, Tenant shall be liable to Landlord for breach of this
Paragraph 20.23 and Landlord may bring an action against Tenant for damages as
a result of such breach. In addition, nothing stated herein shall preclude or
prohibit Landlord from seeking an injunction to prevent disclosure of such
confidential information or an order compelling specific protection of such
confidential information. The provisions of this Paragraph 20.23 shall survive
the termination of this Lease.
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND BY EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT AT THE
TIME THIS LEASE IS EXECUTED THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT.
IG 25
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO LEGAL
COUNSEL FOR APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY LANDLORD
OR BY SOUTH BAY DEVELOPMENT COMPANY, ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT OR THE CONSEQUENCES OF THIS LEASE OR THE TRANSACTION
RELATING THERETO. THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN
LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
In Witness Whereof, Landlord and Tenant have executed this Lease the date and
year first above written.
LANDLORD: TENANT:
TASMAN ASSOCIATES, TESTDESIGN CORPORATION,
a California general partnership a California corporation
By: /s/ James D. Mair By: /s/ Douglas W. Smith
------------------------------- ------------------------------
James D. Mair Douglas W. Smith
Its: General Partner Its: President
Dated: 2/2/98 Dated: 1/26/98
---------------------------- ---------------------------
Address: 511 Division Street Address: 1157 Tasman Drive
Campbell, CA 95008 Sunnyvale, CA 94089
IG 26
FIRST ADDENDUM
This First Addendum ("First Addendum") is made by and between Test Design
Corporation, a California corporation ("Tenant") and Tasman Associates, a
California general partnership ("Landlord"), for the property located at 1157
Tasman Drive, Sunnyvale, California (the "Lease") as of the date set forth
below with reference to the following facts:
A. By Lease Agreement dated January 16, 1998 (the "Lease"), Landlord
has leased to Tenant certain property commonly known as 1157 Tasman Drive,
Sunnyvale, California (the "Premises").
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. The tenant shall lease 1159 Tasman Drive, Sunnyvale, California on a
month to month tenancy. However, Tenant may terminate the Lease of 1159 Tasman
Drive only, by providing Landlord with written notice that Tenant desires to
cancel the Lease, with such cancellation date being not less than 30 days from
the date said written notice is received by Landlord from Tenant. Landlord may
terminate the lease by providing Tenant with notice that the Landlord desires
to cancel the Lease, with such cancellation date being not less than 15 days
from the date said notice is received by Tenant from Landlord.
2. Tenant's monthly rent at 1159 Tasman Drive shall be One Thousand One
Hundred Sixty Four and 45/lOOths Dollars ($1,164.45) commencing February 1,
1998.
3. Concurrently with Tenant's execution hereof, Tenant shall increase
the existing Security Deposit by $1,164.45 , for a total of $2,384.35.
4. Landlord will actively market the above referenced premises for lease
to a third party and Tenant shall cooperate with Landlord in allowing access to
the premises for showing to third parties without prior notification.
All other terms and conditions of the Lease shall remain the same in full force
and effect.
As entered into this 26th day of January, 1998.
---- -------
LANDLORD: TENANT:
TASMAN ASSOCIATES, TESTDESIGN CORPORATION,
A California general partnership a California corporation
By: /s/ James D. Mair By: /s/ Douglas W. Smith
-------------------------------- ----------------------
James D. Mair Douglas W. Smith
Its: General Partner Its: President
Dated: 2/2/98 Dated: 1/26/98
FIRST AMENDMENT
This First Amendment to Lease ("First Amendment") is made by and between
TestDesign Corporation, a California corporation ("Tenant") and Tasman
Associates, a California general partnership ("Landlord"), as of the date set
forth below with reference to the following facts:
A. By Lease Agreement dated January 16, 1998 (the "Lease"), Landlord
has leased to Tenant certain property commonly known as 1157 Taxman Drive,
Sunnyvale, California.
B. Landlord and Tenant desire to amend the Lease to acknowledge their
mutual understanding of the Lease as provided below.
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Landlord and Tenant mutually agree that the name of Tenant, as
defined in the first paragraph of the Lease, shall be changed to inTEST
Sunnyvale, a Delaware corporation.
All other terms and conditions of the Lease shall remain the same and in full
force and effect.
LANDLORD: TENANT:
Tasman Associates, inTEST Sunnyvale Corporation,
a California general partnership a Delaware corporation
By: /s/ James D. Mair By: /s/ Douglas W. Smith
-------------------------------- ------------------------------
Printed: James D. Mair Printed: Douglas W. Smith
Its: General Partner Its: Executive Vice President,
Chief Operating Officer
Dated: 2/24/99 Dated: 2/11/99
By: /s/ Hugh T. Regan, Jr.
------------------------------
Printed: Hugh T. Regan, Jr.
Its: Chief Financial Officer
Dated: 2/16/99