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EXHIBIT 10.13
OFFICE BUILDING LEASE
BETWEEN
STEVENS CREEK INVESTORS, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
LANDLORD
AND
WAVE SYSTEMS CORPORATION
A DELAWARE CORPORATION
TENANT
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OFFICE BUILDING LEASE
TABLE OF CONTENTS
<Table>
<Caption>
Page
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1. BASIC LEASE TERMS ..........................................................1
2. PREMISES AND COMMON AREAS ..................................................2
3. TERM .......................................................................3
4. POSSESSION .................................................................3
5. RENT .......................................................................3
6. OPERATING EXPENSES .........................................................4
7. SECURITY DEPOSIT ...........................................................5
8. USE. .......................................................................6
9. NOTICES ....................................................................7
10. BROKERS ....................................................................7
11. SURRENDER; HOLDING OVER ....................................................7
12. TAXES ON TENANT'S PROPERTY .................................................8
13. ALTERATIONS ................................................................8
14. REPAIRS ....................................................................9
15. LIENS .....................................................................10
16. ENTRY BY LANDLORD .........................................................10
17. UTILITIES AND SERVICES ....................................................10
18. ASSUMPTION OF RISK AND INDEMNIFICATION ....................................11
19. INSURANCE .................................................................12
20. DAMAGE OR DESTRUCTION .....................................................14
21. EMINENT DOMAIN ............................................................15
22. DEFAULTS AND REMEDIES .....................................................15
23. LANDLORD'S DEFAULT ........................................................17
24. ASSIGNMENT AND SUBLETTING .................................................18
25. SUBORDINATION .............................................................20
26. ESTOPPEL CERTIFICATE ......................................................20
27. RULES AND REGULATIONS .....................................................21
28. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS .........21
29. DEFINITION OF LANDLORD ....................................................21
30. WAIVER ....................................................................21
31. PARKING ...................................................................21
32. FORCE MAJEURE .............................................................22
33. SIGNS .....................................................................22
34. LIMITATION ON LIABILITY ...................................................22
35. FINANCIAL STATEMENTS ......................................................22
36. QUIET ENJOYMENT ...........................................................22
37. MISCELLANEOUS .............................................................22
38. EXECUTION OF LEASE ........................................................23
39. FREE RENT PERIOD ..........................................................24
40. EARLY OCCUPANCY ...........................................................24
41. SYSTEMS FURNITURE .........................................................24
42. OPTION TO CANCEL ..........................................................24
43. OPTION TO EXTEND ..........................................................24
44. BUILDING IMPROVEMENTS .....................................................25
</Table>
EXHIBITS:
A Outline of Floor Plan of Premises
B Tenant Improvements
C Definition of Operating Expenses
D Standards for Utilities and Services
E Rules and Regulations
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OFFICE BUILDING LEASE
This OFFICE BUILDING LEASE ("Lease") is entered into as of the _____ day of
SEPTEMBER, 2002 by and between STEVENS CREEK INVESTORS, LLC, a California
limited liability company ("Landlord"), and WAVE SYSTEMS CORPORATION a Delaware
corporation ("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have the
following definitions and meanings:
(a) LANDLORD: STEVENS CREEK INVESTORS, LLC, a California limited liability
company.
(b) LANDLORD'S ADDRESS (FOR NOTICES):
STEVENS CREEK INVESTORS, LLC
c/o Matteson Real Estate Equities, Inc.
1991 Broadway, Suite 300
Redwood City, CA 94063-1994
Attention: James A. Blake
or such other place as Landlord may from time to time designate by notice to
Tenant.
(c) TENANT: WAVE SYSTEMS CORPORATION A DELAWARE CORPORATION.
(d) TENANT'S ADDRESS (FOR NOTICES):
Wave Systems Corporation
19925 Stevens Creek Boulevard
Suite 220
Cupertino, California 95014
Attention: Robert A. Stellato
(e) PROJECT: The parcel(s) of real property (the "Land") commonly known as
19925 Stevens Creek Boulevard and located in the City of Cupertino (the "City"),
County of Santa Clara (the "County"), State of California ("State"). The project
(the "Project") includes the Land, the Building (described below) and
appurtenant surface parking areas, landscaping, walkways and other common areas
located on the Land.
(f) BUILDING: A two (2) story office building within the Project, which
Building contains approximately 76,357 Rentable Square Feet, with the street
address of 19925 Stevens Creek Boulevard, Cupertino, California.
(g) PREMISES: Those certain premises comprising a portion of the SECOND floor
of Building as generally shown on the floor plan attached hereto as EXHIBIT "A",
which Premises contains approximately 10,028 total Rentable Square Feet.
(h) TENANT'S PERCENTAGE: Tenant's percentage of the Building on a Rentable
Square Foot basis, which is 13.13%.
(i) TERM: FIVE (5) Years AND FOUR (4) MONTHS.
(j) COMMENCEMENT DATE: OCTOBER 20, 2002 (SUBJECT TO PARAGRAPHS 4 AND 40).
EXPIRATION DATE: FEBRUARY 29, 2008.
(k) INTENTIONALLY OMITTED.
(l) INTENTIONALLY OMITTED.
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(m) MONTHLY BASE RENT: This Lease is intended to be a "triple net lease" as
more fully described in Paragraph 6 below. Monthly Base Rent is set forth below
in the following table, subject to adjustment as provided in this Lease:
<Table>
<Caption>
Monthly
Months Monthly Rent/rsf Base Rent
------ ---------------- ----------
1-4 FREE --
5-16 $ 1.40 14,039
17-28 1.44 14,440
29-40 1.48 14,841
41-52 1.52 15,243
53-64 1.57 15,744
</Table>
(n) INTENTIONALLY DELETED.
(o) SECURITY DEPOSIT: $14,039 PLUS $56,156 REFUNDABLE AS PROVIDED IN SECTION
7(b) BELOW.
(p) TENANT IMPROVEMENTS: All tenant improvements installed or to be installed
by Landlord within the Premises to prepare the Premises for occupancy pursuant
to the terms of EXHIBIT "B".
(q) INTENTIONALLY OMITTED.
(r) PERMITTED USE: General office use and computer hardware and software
research and development and no other use without the written consent of
Landlord.
(s) PARKING: FORTY (40 ) unassigned parking spaces, subject to the terms and
conditions of Paragraphs 31 below and the Rules and Regulations regarding
parking contained in EXHIBIT "E".
(t) BROKERS: CORNISH & CAREY COMMERCIAL (TENANT) AND CPS (LANDLORD).
(u) GUARANTOR(s): N/A.
(v) INTEREST RATE: The greater of ten percent (10%) per annum or two percent
(2%) in excess of the prime lending or reference rate of Wells Fargo Bank N.A.
or any successor bank in effect on the twenty-fifth (25th) day of the calendar
month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted to be charged by applicable law.
(w) EXHIBITS: A through E, inclusive, which Exhibits are attached to this Lease
and incorporated herein by this reference.
This Paragraph 1 represents a summary of the basic terms and definitions of this
Lease. In the event of any inconsistency between the terms contained in this
Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
2. PREMISES AND COMMON AREAS.
(a) PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as improved or to be improved with the Tenant Improvements
described in EXHIBIT "B".
(b) MUTUAL COVENANTS. Landlord and Tenant agree that the letting and hiring of
the Premises is upon and subject to the terms, covenants and conditions
contained in this Lease and each party covenants as a material part of the
consideration for this Lease to keep and perform its respective obligations
under this Lease.
(c) TENANT'S USE OF COMMON AREAS. During the Term of this Lease, Tenant shall
have the nonexclusive right to use in common with Landlord and all persons,
firms and corporations conducting business in the Project and their respective
customers, guests, licensees, invitees, subtenants, employees and agents
(collectively, "Project Occupants"), subject to the terms of this Lease, the
Rules and Regulations referenced in Paragraph 32 below and all covenants,
conditions and restrictions affecting the Project as of the Commencement Date,
the following common areas of the Building and/or the Project (collectively, the
"Common Areas"):
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(i) The Building's common entrances, hallways, lobbies, public
restrooms on multi-tenant floors, elevators, stairways and accessways,
loading docks, ramps, drives and platforms and any passageways and
serviceways thereto, and the common pipes, conduits, wires and appurtenant
equipment within the Building which serve the Premises (collectively,
"Building Common Areas"); and
(ii) The parking facilities of the Project which serve the Building,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, driveways, landscaped areas, plaza areas, fountains and similar
areas and facilities situated within the Project and appurtenant to the
Building which are not reserved for the exclusive use of any Project
Occupants (collectively, "Project Common Areas").
(d) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and access to
the Premises and parking to be provided to Tenant under this Lease is not
interfered with in an unreasonable manner, Landlord reserves for itself the
right from time to time to: (i) install, use, maintain, repair, replace and
relocate pipes, ducts, conduits, wires and appurtenant meters and equipment
above the ceiling surfaces, below the floor surfaces, within the walls and in
the central core areas of the Building; (ii) make changes to the design and
layout of the Project, including, without limitation, changes to buildings,
driveways, entrances, loading and unloading areas, direction of traffic,
landscaped areas and walkways, and parking spaces and parking areas; and (iii)
use or close temporarily the Building Common Areas, the Project Common Areas
and/or other portions of the Project while engaged in making improvements,
repairs or alterations to the Building, the Project, or any portion thereof.
3. TERM. The term of this Lease ("Term") will be for the period designated in
Subparagraph 1(i), commencing on the Commencement Date (except as provided in
Paragraph 4 below), and ending on the Expiration Date, subject to the terms of
this Lease. Each consecutive twelve (12) month period of the Term of this Lease,
commencing on the first day of the month following the month in which the
Commencement Date occurs, will be referred to herein as a "Lease Year".
4. POSSESSION. Landlord agrees to deliver possession of the Premises to Tenant
in accordance with the terms of EXHIBIT "B". If for any reason Landlord cannot
deliver possession of the Premises to Tenant on or prior to the Commencement
Date, then the validity of this Lease and the obligations of Tenant under this
Lease shall not be affected and Tenant shall have no claim against Landlord
arising out of Landlord's failure to deliver possession of the Premises on the
Commencement Date, but Tenant shall not be obligated to pay any sums due under
this Lease, and the Commencement Date and Expiration Date shall each be delayed
to reflect the actual date of delivery of possession of the Premises. In the
event Landlord has not delivered the Premises to Tenant within thirty (30) days
after the Commencement Date, Tenant shall have the right to terminate this Lease
by delivery to Landlord of a termination notice (the "Termination Notice") which
shall be effective ten (10) days after Tenant's delivery of the Termination
Notice to Landlord, unless within such 10-day period the Premises are delivered
to Tenant. In the event Tenant elects to terminate this Lease, Tenant must
deliver the Termination Notice to Landlord prior to the date the Premises are
delivered to Tenant. Upon such termination, neither party shall have any further
obligation or liability to the other under this Lease. By taking possession of
the Premises, Tenant is deemed to have accepted the Premises in its "as-is"
condition on the Commencement Date and to have acknowledged that there are no
items needing work or repair which are Landlord's responsibility, subject to any
"punch list" items identified in writing by Tenant within thirty (30) days after
taking possession of the Premises. Notwithstanding the foregoing, Landlord
hereby represents that as of the Commencement Date, the Premises shall be in
good working condition, all mechanical, electrical and plumbing systems shall be
in good working order, and the roof shall be in watertight condition. Tenant
acknowledges that except as expressly provided in this Lease, neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises, the Building, the Project or any portions thereof or with
respect to the suitability of same for the conduct of Tenant's business and
Tenant further acknowledges that, except as provided in EXHIBIT "B" hereto,
Landlord will have no obligation to construct or complete any improvements
within the Project.
5. RENT.
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on the
first day of each calendar month during the Term (except as otherwise provided
in Paragraph 39) without prior notice or demand, except that Tenant agrees to
pay the Monthly Base Rent for the first month of the Term directly to Landlord
concurrently with Tenant's delivery of the executed Lease to Landlord. If the
Term of this Lease commences or ends on a day other than the first day of a
calendar month, then the rent for such period will be prorated in the proportion
that the number of days this Lease is in effect during such period bears to the
number of days in such month. All rent must be paid to Landlord, without any
deduction or offset (except as otherwise expressly provided in this Lease), in
lawful money of the United States of America, at the address designated by
Landlord or to such other person or at such other place as
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Landlord may from time to time designate in writing. Monthly Base Rent will be
adjusted during the Term of this Lease as provided in Subparagraph l(m).
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance,
repairs and parking, will be considered additional rent for purposes of this
Lease, and the word "rent" as used in this Lease will include all such
additional rent unless the context specifically or clearly implies that only
Monthly Base Rent is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided in
Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. In addition to Monthly Base Rent, throughout the Term
of this Lease, Tenant agrees to pay Landlord as additional rent in accordance
with the terms of this Paragraph 6, an amount equal to the Operating Expenses,
as defined in EXHIBIT "C" attached hereto, multiplied by Tenant's Percentage
("Tenant's Operating Expenses"). It is intended that this Lease be a "triple net
lease" and, except as expressly provided to the contrary in this Lease, Landlord
shall not be required to make any expenditure or incur any liability in
connection with this Lease or the ownership, construction, maintenance,
operation or repair of the Premises which is not to be reimbursed by Tenant on a
pro rata basis as Tenant's Operating Expenses.
(b) ESTIMATE STATEMENT. Prior to the Commencement Date and on or about
March 1st of each subsequent calendar year during the Term of this Lease,
Landlord shall deliver to Tenant a statement ("Estimate Statement") wherein
Landlord will estimate the Operating Expenses for the then current calendar year
(the "Estimated Operating Expenses"). Tenant agrees to pay Landlord, as
"Additional Rent", one-twelfth (1/12th) of the amount equal to the Estimated
Operating Expenses multiplied by the Tenant's Percentage ("Tenant's Estimated
Operating Expenses") each month thereafter, beginning with the next installment
of rent due, until such time as Landlord issues a revised Estimate Statement or
the Estimate Statement for the succeeding calendar year. If the Estimate
Statement delivered on or about March 1 of any year provides for an increase in
the amount of Tenant's Estimated Operating Expenses over the amount then being
paid, Tenant shall pay Landlord the difference between (i) the amounts paid
during such calendar year pursuant to the previous Estimate Statement, and (ii)
the amount that would have been due for the same period under the newly issued
Estimate Statement, within thirty (30) days of delivery to Tenant of the new
Estimate Statement. If at any time during the Term of this Lease, but not more
often than quarterly, Landlord reasonably determines that Tenant's Operating
Expenses for the current calendar year will be greater than Tenant's Estimated
Operating Expenses set forth in the then current Estimate Statement, Landlord
may issue a revised Estimate Statement and thereafter Tenant agrees to pay
Tenant's Estimated Operating Expenses based on such revised Estimate Statement
until Tenant receives the next calendar year's Estimate Statement or a new
revised Estimate Statement for the current calendar year.
(c) ACTUAL STATEMENT. By May 1st of each calendar year during the Term of this
Lease, Landlord shall deliver to Tenant a statement ("Actual Statement") which
states the actual Operating Expenses for the preceding calendar year, including
reasonably detailed back-up information substantiating the Actual Statement. If
the Actual Statement reveals that Tenant's Operating Expenses is more than
Tenant's Estimated Operating Expenses paid by Tenant for the preceding calendar
year, Tenant agrees to pay Landlord the difference in a lump sum within thirty
(30) days of receipt of the Actual Statement. If the Actual Statement reveals
that Tenant's Percentage of the actual Operating Expenses is less than the
Additional Rent paid by Tenant for Operating Expenses on account of the
preceding calendar year, Landlord will credit any overpayment toward the next
monthly installment(s) of rent due under this Lease, or reimburse such
overpayment within thirty (30) days after delivery of the Actual Statement, if
this Lease has terminated or expired.
(d) OPERATING EXPENSE EXAMINATION. Notwithstanding anything in the Lease to the
contrary, Tenant shall have the right (together with its independent certified
public accounting firm, provided it is one of the so-called "big-five"
accounting firms or if at such time there is no group of accounting firms
commonly referred to as "big-five, then a nationally recognized firm of at least
one hundred and fifty (150) partners or principals who are certified public
accountants), after reasonable notice, at reasonable times, and no more than
once in any calendar year, to examine Landlord's books and records relating to
the operation of the Building to determine the accuracy of the Actual Statement,
and the extent to which it complies with the Definition of Operating Expenses as
described in Exhibit C of this Lease. If such examination reveals that Landlord
has overcharged Tenant, then within thirty (30) days after the results of such
examination are made available to Landlord, Landlord shall reimburse Tenant the
amount of such overcharge. If Landlord desires to contest the results of such
examination, Landlord may do so by submitting the results of the examination to
arbitration through JAMS San Jose or San Francisco offices within thirty (30)
days of receipt of the results of the examination, and the arbitration shall be
final and binding upon Landlord and Tenant. Tenant agrees to pay the cost of
such examinations, provided that, if the examination and/or arbitration process
finally determines that
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Landlord's determination of Operating Expenses was in error in Landlord's favor
by more than five percent (5%) of the amount of the Actual Statement, Landlord
shall pay the cost of such examinations.
(e) MISCELLANEOUS. Any reasonable delay or failure by Landlord in delivering
any Estimate Statement or Actual Statement pursuant to this Paragraph 6 will not
constitute a waiver of its right to require an increase in rent nor will it
relieve Tenant of its obligations pursuant to this Paragraph 6, except that
Tenant will not be obligated to make any payments based on such Estimate
Statement or Actual Statement until thirty (30) days after receipt of such
Estimate Statement or Actual Statement. Even though the Term has expired and
Tenant has vacated the Premises, when the final determination is made of
Tenant's Operating Expenses for the year in which this Lease terminates, Tenant
agrees to promptly pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease shall
promptly be rebated by Landlord to Tenant. Such obligation will be a continuing
one that will survive the expiration or earlier termination of this Lease.
7. SECURITY DEPOSIT.
(a) Cash Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant will deposit with Landlord the Security Deposit designated in
Subparagraph 1(o). The Security Deposit will be held by Landlord as security for
the full and 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. If Tenant fully and faithfully performs its obligations under this
Lease, including, without limitation, surrendering the Premises upon the
expiration or sooner termination of this Lease in compliance with Subparagraph
11(a) below, the Security Deposit or any balance thereof will be returned to
Tenant (or, at Tenant's direction, to the last assignee of Tenant's interest
hereunder) within thirty (30) days following the expiration of the Lease Term or
as required under applicable law, provided that Landlord may retain the Security
Deposit until such time as any outstanding rent or additional rent amount has
been determined and paid in full. The Security Deposit is not, and may not be
construed by Tenant to constitute, rent for the last month or any portion
thereof. If Tenant defaults with respect to any provisions of this Lease
including, but not limited to, the provisions relating to the payment of rent or
additional rent, Landlord may (but will not be required to) use, apply or retain
all or any part of the Security Deposit for the payment of any rent or any other
sum in default, or for the payment of any other amount which Landlord may spend
or become obligated to spend by reason of Tenant's default. If any portion of
the Security Deposit is so used or applied, Tenant agrees, within ten (10)
business days after Landlord's written demand therefor, to deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its original
amount and Tenant's failure to do so shall constitute a default under this
Lease. Landlord is not required to keep Tenant's Security Deposit separate from
its general funds, and Tenant is not entitled to interest on such Security
Deposit. Should Landlord sell its interest in the Premises during the Term
hereof, Landlord will comply with its obligations under California Civil Code
Section 1950.7(d) with regard to the relief of Landlord for further liability
with respect to the Security Deposit.
(b) Optional Letter of Credit. At Tenant's election, in lieu of the cash
portion of the security deposit of $56,156, Tenant may deliver to Landlord an
unconditional, irrevocable letter of credit in the amount of Fifty-Six Thousand
One Hundred Fifty-Six Dollars ($56,156) naming Landlord as beneficiary, which
letter of credit shall be transferable to any future owner of the Premises or
any mortgagee, and with an original term of no less than one year and automatic
extensions through the end of the Term of this Lease and sixty (60) days
thereafter to secure the full and faithful performance of each and every
obligation, covenant and condition to be performed or satisfied by Tenant
hereunder (the "Letter of Credit"). The Letter of Credit shall be issued by a
financial institution reasonably acceptable to Landlord which accepts deposits,
maintains accounts, is FDIC insured and has a local San Jose, or San Francisco
or Oakland office which will negotiate the Letter of Credit. Tenant shall keep
the Letter of Credit, at its expense, in full force and effect until the
sixtieth (60th) day after the Expiration Date or earlier termination of this
Lease, to insure the faithful performance by Tenant of all of the covenants,
terms and conditions of this Lease. The Letter of Credit shall provide sixty
(60) days' prior written notice to Landlord of cancellation, material change or
(if automatic extensions are not provided and granted by the issuer)
non-extension thereof, and shall further provide that in the event of a
nonextension of the Letter of Credit at least thirty (30) days prior to its
expiration, the beneficiary shall be entitled to present its written demand for
payment of the entire face amount of the Letter of Credit, and the funds so
obtained shall be held as the security deposit under this Lease. Any unused
portion of the funds so obtained by Landlord shall be returned to Tenant upon
replacement of the Letter of Credit or deposit by Tenant of immediately
available funds in the full amount required hereunder. If Landlord uses any
portion of the Letter of Credit security deposit to cure any default by Tenant
hereunder, Tenant shall replace the Letter of Credit or replenish the security
deposit with immediately available funds to the original amount within ten (10)
business days of notice from Landlord. Landlord shall not be required to keep
any cash security funds separate from its general funds, and shall not be
required to pay interest thereon. If an event of default occurs under this Lease
beyond any applicable grace or cure periods, Landlord may present its written
demand for payment of the amount due to Landlord and the funds so obtained from
the Letter of Credit shall become due and payable to Landlord. The terms of
Subparagraph 7(a) shall apply to Landlord's and Tenant's respective rights and
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obligations regarding the Letter of Credit and, if Tenant elects to provide the
Letter of Credit, Landlord shall have the right to review and approve the form
thereof, including the language of any draw certificate, prior to issuance of
the Letter of Credit.
(c) REDUCTION OF SECURITY DEPOSIT. The amount of the Security Deposit may be
reduced to a total amount of $14,841 at any time after the first (1st)
anniversary of the Lease Commencement Date, so long as (i) Tenant is not in
default beyond any applicable grace or cure period (provided that no reduction
shall occur until any such existing default has been cured within the applicable
period) under the Lease on the proposed reduction date, and (ii) Tenant has
achieved at least two (2) consecutive quarters of profitability with net profit
of an amount at least equal to one hundred fifty percent (150%) of the then
current annual rent for the Premises (including Tenant's percentage of Operating
Expenses). The foregoing calculations shall be made in accordance with GAAP as
shown on certified, audited financial statements of Tenant.
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the use or uses
set forth in Subparagraph 1(r) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord, which consent Landlord may withhold in its sole discretion. Nothing in
this Lease will be deemed to give Tenant any exclusive right to such use in the
Building or the Project.
(b) COMPLIANCE. At Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental licenses
and permits required for the proper and lawful conduct of Tenant's business from
the Premises, if any. Tenant agrees not to use, alter or occupy the Premises,
and Tenant, at its sole cost and expense, agrees to use and occupy the Premises
and cause the Premises to be used and occupied in compliance with: (i) any and
all laws, statutes, zoning restrictions, ordinances, rules, regulations, orders
and rulings now or hereafter in force and any requirements of any insurer,
insurance authority or duly constituted public authority having jurisdiction
over the Premises, the Building or the Project now or hereafter in force,
including, without limitation, the provisions of Title III of the Americans With
Disabilities Act of 1990, as same has been and may be subsequently amended, and
all rules and regulations promulgated pursuant thereto (the "ADA"), as it
relates to Tenant's use, alteration and occupancy of the Premises, (ii) the
requirements of the Board of Fire Underwriters and any other similar body, and
(iii) any recorded covenants, conditions and restrictions and similar regulatory
agreements, if any, which affect the use, occupation or alteration of the
Premises and/or the Building. Notwithstanding the forgoing, however, Tenant
shall not be required to perform any alterations or other modifications to the
Premises or other portions of the Project required by any applicable laws
(including, but not limited to, the ADA) unless such alterations or
modifications are related to or affected or triggered by (i) Alterations made by
Tenant or (ii) Tenant's particular use of the Premises (as opposed to Tenant's
use of the Premises for general office purposes). Landlord shall be responsible,
at Landlord's sole cost and expense, for causing the Premises to comply with all
applicable laws (including, but not limited to, the ADA), in effect as of the
Commencement Date. After the Commencement Date, Landlord shall comply with all
applicable laws affecting those portions of the Project for which Landlord is
responsible under this Lease. Tenant agrees not to do or permit (to the extent
of Tenant's reasonable control) anything to be done in or about the Premises
which will unreasonably obstruct or interfere with the rights of other tenants
or occupants of the Building, or injure or unreasonably annoy them, or use or
allow the Premises to be used for any unlawful purpose. Tenant agrees not to
cause, maintain or permit (to the extent of Tenant's reasonable control) any
nuisance or waste in, on, under or about the Premises or elsewhere within the
Project.
(c) HAZARDOUS MATERIALS. To the best of Landlord's knowledge, as of the
Commencement Date, no "Hazardous Materials" (as defined below) have been stored,
used, handled, generated, released or disposed of on, in, under or about the
Premises, the Building, the Common Areas or any other portion of the Project. To
the fullest extent permitted by law, Landlord agrees to promptly indemnify,
protect, defend and hold harmless Tenant and Tenant's partners, officers,
directors, employees, agents, successors and assigns from and against any and
all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs) which arise or
result from the presence of Hazardous Materials on, in, under or about the
Premises, the Building or any other portion of the Project and which are caused
or permitted (subject to Landlord's reasonable control) by Landlord, its agents,
employees, assignees, licensees, contractors or invitees. Except for ordinary
and general office supplies typically used in the ordinary course of business
within office buildings, such as copier toner, liquid paper, glue, ink and
common household cleaning materials (some or all of which may constitute
Hazardous Materials), Tenant agrees not to cause or permit (to the extent of
Tenant's reasonable control) any Hazardous Materials to be brought upon, stored,
used, handled, generated, released or disposed of on, in, under or about the
Premises, the Building, the Common Areas or any other portion of the Project by
Tenant, its agents, employees, subtenants, assignees, licensees, contractors or
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invitees (collectively, "Tenant's Parties"), without the prior written consent
of Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Upon the expiration or earlier termination of this Lease, Tenant
agrees to promptly remove from the Premises, the Building and the Project, at
its sole cost and expense, any and all Hazardous Materials, including any
equipment or systems containing Hazardous Materials which are installed, brought
upon, stored, used, generated or released upon, in, under or about the Premises,
the Building and/or the Project or any portion thereof by Tenant or any of
Tenant's Parties. To the fullest extent permitted by law, Tenant agrees to
promptly indemnify, protect, defend and hold harmless Landlord and Landlord's
partners, officers, directors, employees, agents, successors and assigns
(collectively, "Landlord Indemnified Parties") from and against any and all
claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs) which arise or
result from the presence of Hazardous Materials on, in, under or about the
Premises, the Building or any other portion of the Project and which are caused
or permitted (subject to Tenant's reasonable control) by Tenant or any of
Tenant's Parties (regardless of whether or not Landlord consented to Tenant's
use of such Hazardous Materials). Nothing contained in this subparagraph shall
impose liability on Tenant for any Hazardous Materials which come to be located
on, under or in the Project due to the actions of Landlord, any other tenant of
the Project, or any other person over which Tenant does not have the power to
exercise control. Tenant agrees to promptly notify Landlord of any release of
Hazardous Materials at the Premises, the Building or any other portion of the
Project which Tenant becomes aware of during the Term of this Lease, whether
caused by Tenant or any other persons or entities. In the event of any release
of Hazardous Materials caused or permitted by Tenant or any of Tenant's Parties
(subject to Tenant's reasonable control), Landlord shall have the right, but not
the obligation, to cause Tenant to immediately take all steps Landlord deems
necessary or appropriate to remediate such release and prevent any similar
future release to the satisfaction of Landlord and Landlord's mortgagee(s). As
used in this Lease, the term "Hazardous Materials" shall mean and include any
hazardous or toxic materials, substances or wastes as now or hereafter
designated under any law, statute, ordinance, rule, regulation, order or ruling
of any agency of the State, the United States Government or any local
governmental authority, including, without limitation, asbestos, petroleum,
petroleum hydrocarbons and petroleum based products, urea formaldehyde foam
insulation, polychlorinated biphenyls ("PCBs"), and freon and other
chlorofluorocarbons. The provisions of this Subparagraph 8(c) will survive the
expiration or earlier termination of this Lease.
9. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by overnight
courier or an express mailing service) or by mail, if sent by registered or
certified mail. Notices to Tenant shall be sufficient if delivered to Tenant at
the address designated in Subparagraph 1(d) and notices to Landlord shall be
sufficient if delivered to Landlord at the address designated in Subparagraph
1(b). Either party may specify a different address for notice purposes by
written notice to the other, except that the Landlord may in any event use the
Premises as Tenant's address for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(t). Each party represents and warrants to the
other, that, to its knowledge, no other broker, agent or finder (a) negotiated
or was instrumental in negotiating or consummating this Lease on its behalf, and
(b) is or might be entitled to a commission or compensation in connection with
this Lease. Landlord and Tenant each agree to promptly indemnify, protect,
defend and hold harmless the other from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including attorneys' fees and court costs) resulting from
any breach by the indemnifying party of the foregoing representation, including,
without limitation, any claims that may be asserted by any broker, agent or
finder undisclosed by the indemnifying party. The foregoing mutual indemnity
shall survive the expiration or earlier termination of this Lease.
11. SURRENDER; HOLDING OVER.
(a) SURRENDER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at the
option of Landlord, operate as an assignment to Landlord of any or all subleases
or subtenancies. Upon the expiration or earlier termination of this Lease,
Tenant agrees to peaceably surrender the Premises to Landlord broom clean and in
a state of good order, repair and condition, ordinary wear and tear and casualty
damage (if this Lease is terminated as a result thereof pursuant to Paragraph
20) excepted, with all of Tenant's personal property and Alterations (as defined
in Paragraph 13) removed from the Premises to the extent required under
Paragraph 13 and all damage caused by such removal repaired as required by
Paragraph 13. Prior to the date Tenant is to actually surrender the Premises to
Landlord, Tenant agrees to give Landlord reasonable prior notice of the exact
date Tenant will surrender the Premises so that Landlord and Tenant can schedule
a walk-through of the Premises to review the condition of the Premises. The
delivery of keys to any employee of Landlord or to Landlord's agent or any
employee thereof alone will not be sufficient to constitute a termination of
this Lease or a surrender of the Premises.
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(b) HOLDING OVER. Tenant will not be permitted to hold over possession of the
Premises after the expiration or earlier termination of the Term without the
express written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion. If Tenant holds over after the expiration or
earlier termination of the Term, Landlord may, at its option, treat Tenant as a
tenant at sufferance only, and such continued occupancy by Tenant shall be
subject to all of the terms, covenants and conditions of this Lease, so far as
applicable, except that the Monthly Base Rent for any such holdover period shall
be equal to one hundred fifty percent (150%) of the Monthly Base Rent in effect
under this Lease immediately prior to such holdover, prorated on a daily basis.
Acceptance by Landlord of rent after such expiration or earlier termination will
not result in a renewal of this Lease. The foregoing provisions of this
Paragraph 11 are in addition to and do not affect Landlord's right of re-entry
or any rights of Landlord under this Lease or as otherwise provided by law. If
Tenant fails to surrender the Premises upon the expiration of this Lease in
accordance with the terms of this Paragraph 11 despite demand to do so by
Landlord, Tenant agrees to promptly indemnify, protect, defend and hold Landlord
harmless from all claims, damages, judgments, suits, causes of action, losses,
liabilities, penalties, fines, expenses and costs (including attorneys' fees and
costs), including, without limitation, costs and expenses incurred by Landlord
in returning the Premises to the condition in which Tenant was to surrender it
and claims made by any succeeding tenant founded on or resulting from Tenant's
failure to surrender the Premises. The provisions of this Subparagraph 11(b)
will survive the expiration or earlier termination of this Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency, all
taxes and assessments (real and personal) levied against any personal property
or trade fixtures placed by Tenant in or about the Premises (including any
increase in the assessed value of the Premises based upon the value of any such
personal property or trade fixtures). If any such taxes or assessments are
levied against Landlord or Landlord's property, Landlord may, after written
notice to Tenant (and under proper protest if requested by Tenant) pay such
taxes and assessments, in which event Tenant agrees to reimburse Landlord all
amounts paid by Landlord within thirty (30) days after demand by Landlord;
provided, however, Tenant, at its sole cost and expense, will have the right,
with Landlord's cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes and assessments so paid
under protest.
13. ALTERATIONS. After installation of the initial Tenant Improvements for the
Premises pursuant to EXHIBIT "B", Tenant may, at its sole cost and expense, make
alterations, additions, improvements and decorations to the Premises
(collectively, "Alterations") subject to and upon the following terms and
conditions:
(a) PROHIBITED ALTERATIONS. Tenant may not make any Alterations which: (i)
affect any area outside the Premises; (ii) affect the Building's structure, the
proper functioning of the equipment, services or systems, or unreasonably limit
Landlord's access thereto; (iii) affect the outside appearance, character or use
of the Building or the Building Common Areas; (iv) in the reasonable opinion of
Landlord, lessen the value of the Building; or (v) will violate or require a
change in any occupancy certificate applicable to the Premises.
(b) LANDLORD'S APPROVAL. Before proceeding with any Alterations which are not
prohibited in Subparagraph 13(a) above, Tenant must first obtain Landlord's
written approval of the plans, specifications and working drawings for such
Alterations, which approval Landlord will not unreasonably withhold or delay;
provided, however, Landlord's prior approval will not be required for any such
Alterations which are not prohibited by Subparagraph 13(a) above and which cost
less than Twenty-Five Thousand Dollars ($25,000) as long as (i) Tenant delivers
to Landlord notice and a copy of any final plans, specifications and working
drawings for any such Alterations at least ten (10) days prior to commencement
of the work thereof, and (ii) the other conditions of this Paragraph 13 are
satisfied, including, without limitation, conforming to Landlord's rules,
regulations and insurance requirements which govern contractors. Landlord's
approval of plans, specifications and/or working drawings for Alterations will
not create any responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with applicable permits, laws,
rules and regulations of governmental agencies or authorities. Landlord's
failure to approve or disapprove any matter subject to its approval pursuant to
this Paragraph 13 within ten (10) business days after receipt of a request
therefor from Tenant shall be deemed approval of such matter.
(c) CONTRACTORS. Alterations may be made or installed only by contractors and
subcontractors that have been approved by Landlord, which approval Landlord will
not unreasonably withhold or delay. Before proceeding with any Alterations,
Tenant agrees to provide Landlord with ten (10) days prior written notice and
Tenant's contractors must obtain and maintain, on behalf of Tenant and at
Tenant's sole cost and expense, all necessary governmental permits and approvals
for the commencement and completion of such Alterations. Throughout the
performance of any Alterations, Tenant agrees to obtain, or cause its
contractors to obtain, workers compensation insurance and general liability
insurance in compliance with the provisions of Paragraph 19 of this Lease.
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(d) MANNER OF PERFORMANCE. All Alterations must be performed: (i) in accordance
with the approved plans, specifications and working drawings; (ii) in a
first-class and workmanlike manner; (iii) in compliance with all applicable
permits, laws, statutes, ordinances, rules, regulations, orders and rulings now
or hereafter in effect and imposed by any governmental agencies and authorities
which assert jurisdiction; (iv) in such a manner so as not to unreasonably
interfere with the occupancy of any other tenant in the Building, nor impose any
additional expense upon nor delay Landlord in the maintenance and operation of
the Building; (v) at such times, in such manner, and subject to such reasonable
rules and regulations as Landlord may from time to time reasonably designate,
and (vi) in compliance with Paragraph 15.
(e) OWNERSHIP. The Tenant Improvements, including, without limitation, all
affixed sinks, dishwashers, microwave ovens and other fixtures, and all
Alterations will become the property of Landlord and will remain upon and be
surrendered with the Premises at the end of the Term of this Lease; provided,
however, Landlord may, by written notice delivered to Tenant concurrently with
Landlord's approval of the final working drawings for any Alterations, identify
those Alterations which Landlord will require Tenant to remove at the end of the
Term of this Lease. If Landlord requires Tenant to remove any Alterations,
Tenant, at its sole cost and expense, agrees to remove the identified
Alterations on or before the expiration or earlier termination of this Lease and
repair any damage to the Premises caused by such removal (or, at Landlord's
option, Tenant agrees to pay to Landlord all of Landlord's costs of such removal
and repair).
(f) PLAN REVIEW. Tenant agrees to pay Landlord, as additional rent, the
reasonable costs of professional services and costs for general conditions of
Landlord's third party consultants if utilized by Landlord (but not Landlord's
"in-house" personnel) for review of all plans, specifications and working
drawings for any Alterations, within ten (10) business days after Tenant's
receipt of invoices either from Landlord or such consultants; provided that
Tenant's total obligation for any Alteration project shall not exceed One
Thousand Dollars ($1,000).
(g) PERSONAL PROPERTY. All articles of personal property owned by Tenant or
installed by Tenant at its expense in the Premises (including Tenant's business
and trade fixtures, furniture, movable partitions and equipment [such as
telephones, copy machines, computer terminals, refrigerators and facsimile
machines]) will be and remain the property of Tenant, and must be removed by
Tenant from the Premises, at Tenant's sole cost and expense, on or before the
expiration or earlier termination of this Lease. Tenant agrees to repair any
damage caused by such removal at its cost on or before the expiration or earlier
termination of this Lease.
(h) REMOVAL OF ALTERATIONS. If Tenant fails to remove by the expiration or
earlier termination of this Lease all of its personal property, or any
Alterations identified by Landlord for removal, Landlord may, at its option,
treat personal property and/or Alterations as abandoned and, at Tenant's sole
cost and expense, and in addition to Landlord's other rights and remedies under
this Lease, at law or in equity: (a) remove and store such items; and/or (b)
upon ten (10) business days prior notice to Tenant, sell, discard or otherwise
dispose of all or any such items at private or public sale for such price as
Landlord may obtain or by other commercially reasonable means. Tenant shall be
liable for all costs of disposition of Tenant's abandoned property and Landlord
shall have no liability to Tenant with respect to any such abandoned property.
Landlord agrees to apply the proceeds of any sale of any such property to any
amounts due to Landlord under this Lease from Tenant (including Landlord's
attorneys' fees and other costs incurred in the removal, storage and/or sale of
such items), with any remainder to be paid to Tenant.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to keep, repair, preserve and
maintain in first class condition and repair the Common Areas, the structural
portions of the Building, the roof, and the plumbing, heating, ventilating, air
conditioning, elevator and electrical systems installed or furnished by
Landlord, unless such maintenance and repairs are (i) attributable to items
installed in Tenant's Premises which are above standard interior improvements
(such as, for example, custom lighting, special HVAC and/or electrical panels or
systems, kitchen or restroom facilities and appliances constructed or installed
within Tenant's Premises) or (ii) caused in part or in whole by the breach by
Tenant of its obligations under this Lease, or any negligent or wrongful act by
Tenant, its agents, servants, employees or invitees, in which case Tenant will
pay to Landlord, as additional rent, the reasonable cost of such maintenance and
repairs. Landlord will not be liable for any failure to make any such repairs or
to perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant, which shall not exceed thirty (30) days in the ordinary
course of business, or such shorter time as is reasonable in the event of an
emergency. Except as provided in Paragraph 20 or Paragraph 23, Tenant will not
be entitled to any abatement of rent and Landlord will not have any liability by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building or the Premises or in or to fixtures, appurtenances and equipment
therein. Tenant waives the right to make repairs at Landlord's expense under any
law,
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statute, ordinance, rule, regulation, order or ruling (including, without
limitation, the provisions of California Civil Code Sections 1941 and 1942 and
any successor statutes or laws of a similar nature).
(b) TENANT'S OBLIGATIONS. Tenant agrees to keep, maintain and preserve the
Premises in first class condition and repair and, when and if needed, at
Tenant's sole cost and expense, to make all repairs to the Premises and every
part thereof. Tenant agrees to cause any mechanics' liens or other liens arising
as a result of work performed by Tenant or at Tenant's direction to be
eliminated as provided in Paragraph 15 below. Except as provided in Subparagraph
14(a) above and EXHIBIT "B", Landlord has no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof.
(c) TENANT'S FAILURE TO REPAIR. Tenant shall have thirty (30) days from the
date on which Landlord makes a written demand on Tenant to repair and maintain
the Premises properly, as required hereunder to the reasonable satisfaction of
Landlord, to perform such repairs and maintenance (or commence to perform, if
the nature of the performance is such that more than thirty (30) days is
reasonably required), or, if Tenant is required to use the Landlord's
contractor, as provided in Paragraph 14(b), upon such date as Landlord's
contractor is able to complete such repairs. If Tenant fails to perform such
repairs or maintenance as required under this Lease, Landlord may enter upon the
Premises and make such repairs and/or maintenance. If Landlord does enter upon
the Premises for such purposes as discussed herein, Landlord shall not
unreasonably interfere with Tenant's use of the Premises in performing such
repairs and/or maintenance, shall perform such repairs and/or maintenance in the
presence of a representative of Tenant (except in the case of emergencies) and
shall take appropriate measures to protect the confidentiality of Tenant's
files. Upon completion of such repairs and/or maintenance, Tenant agrees to pay
to Landlord as additional rent, Landlord's costs for making such repairs plus an
amount not to exceed ten percent (10%) of such costs for overhead, within ten
(10) business days of receipt from Landlord of a written itemized bill therefor.
Any amounts not reimbursed by Tenant within such ten (10) business day period
will bear interest at the Interest Rate until paid by Tenant.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or other
liens to be filed against all or any part of the Project, the Building or the
Premises, nor against Tenant's leasehold interest in the Premises, by reason of
or in connection with any repairs, alterations, improvements or other work
contracted for or undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees. At Landlord's
request, Tenant agrees to provide Landlord with enforceable, conditional and
final lien releases (or other evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials at the Premises. Landlord will have the right at all reasonable times
to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sole cost, promptly cause such liens to be released of
record or bonded so that it no longer affects title to the Project, the Building
or the Premises. If Tenant fails to cause any such liens to be so released or
bonded within twenty (20) days after Tenant receives notice of the filing
thereof, such failure will be deemed a material breach by Tenant under this
Lease without the benefit of any additional notice or cure period described in
Paragraph 22 below, and Landlord may, without waiving its rights and remedies
based on such breach, and without releasing Tenant from any of its obligations,
cause such liens to be released by any means it shall deem proper, including
payment in satisfaction of the claims giving rise to such liens. Tenant agrees
to pay to Landlord within ten (10) business days after receipt of invoice from
Landlord, any sum paid by Landlord to remove such liens, together with interest
at the Interest Rate from the date of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all times
have the right to enter the Premises to inspect the same, to supply janitorial
service and any other service to be provided by Landlord to Tenant hereunder, to
show the Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, and/or to repair the Premises as permitted or required by
this Lease. In exercising such entry rights, Landlord shall not unreasonably
interfere with Tenant's business, and will provide Tenant with reasonable
advance notice of any such entry (except in emergency situations). Landlord may,
in order to carry out such purposes, erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, provided that access to or use of the Premises is not thereby
impeded. Landlord will at all times have and retain a key with which to unlock
all doors in the Premises, excluding Tenant's vaults and safes. Landlord will
have the right to use any and all means that Landlord may reasonably deem proper
to open said doors in an emergency in order to obtain entry to the Premises. Any
entry to the Premises obtained by Landlord by any of said means, or otherwise,
will not be construed or deemed to be a forcible or unlawful entry into the
Premises, or an eviction of Tenant from the Premises. Landlord will not be
liable to Tenant for any damages or losses for any entry by Landlord effected by
the foregoing, except in the case of Landlord's negligence or willful
misconduct.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease so long as the
Premises are occupied, Landlord agrees to furnish or cause to be furnished to
the Premises the utilities and services described in the Standards for Utilities
and Services attached hereto as EXHIBIT "D", subject to the conditions and in
accordance with the standards set forth therein. Landlord may require Tenant
from
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time to time to provide Landlord with a list of Tenant's employees and/or agents
that are authorized by Tenant to subscribe on behalf of Tenant for any
additional services which may be provided by Landlord. Any such additional
services will be provided to Tenant at Tenant's cost, but at no profit to
Landlord. Landlord will not be liable to Tenant for any failure to furnish any
of the foregoing utilities and services if such failure is caused by all or any
of the following: (i) accident, breakage or repairs; (ii) strikes, lockouts or
other labor disturbance or labor dispute of any character; (iii) governmental
regulation, moratorium or other governmental action or inaction; (iv) inability
despite the exercise of reasonable diligence to obtain electricity, water or
fuel; or (v) any other cause beyond Landlord's reasonable control. In addition,
in the event of any stoppage or interruption of services or utilities, Tenant
shall not be entitled to any abatement or reduction of rent (except as expressly
provided in Subparagraphs 20(f), 21(b) or 23), no eviction of Tenant will result
from such failure and Tenant will not be relieved from the performance of any
covenant or agreement in this Lease because of such failure. In the event of any
failure, stoppage or interruption thereof, Landlord agrees to diligently attempt
to resume service promptly. If Tenant requires or utilizes more water or
electrical power than is considered reasonable or normal for general office use
by Landlord, Landlord may at its option require Tenant to pay, as additional
rent, the cost, as fairly determined by Landlord, incurred by such extraordinary
usage and/or Landlord may install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant agrees thereafter to pay all charges of the
utility providing service and Landlord will deduct any amounts for said water or
electrical power from Tenant's Operating Expenses calculation to account for the
fact Tenant is directly paying such metered charges, provided Tenant will remain
obligated to pay its proportionate share of Operating Expenses subject to such
adjustment. Landlord shall have the right at any time and from time-to-time
during the Term of the Lease to contract for service from any company or
companies providing electricity service ("Service Provider"). Tenant shall
cooperate with Landlord and the Service Provider at all times and, as reasonably
necessary, shall allow Landlord and Service Provider reasonable access to the
Building's electric lines, feeders, risers, wiring, and any other machinery
within the Premises. Provided Landlord is not in breach of its obligations under
this Lease, and is not negligent or engaged in willful misconduct, Landlord
shall in no way be liable or responsible for any loss, damage, or expense that
Tenant may sustain or incur by reason of any change, failure, interference,
disruption, or defect in the supply or character of the electric energy
furnished to the Premises, or if the quantity or character of the electric
energy supplied by the Service Provider is no longer available or suitable for
Tenant's requirements, no such change, failure, defect, unavailability, or
unsuitability shall constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under the Lease.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) ASSUMPTION OF RISK. Tenant, as a material part of the consideration to
Landlord, hereby agrees that neither Landlord nor any Landlord Indemnified
Parties (as defined in Subparagraph 8(c) above) will be liable to Tenant for,
and Tenant expressly assumes the risk of and waives any and all claims it may
have against Landlord or any Landlord Indemnified Parties with respect to, (i)
any and all damage to property or injury to persons in, upon or about the
Premises, the Building or the Project resulting from any act or omission of
Landlord, except to the extent of Landlord's breach of its obligations under
this Lease, negligence or willful misconduct, (ii) any such damage caused by
other tenants or persons in or about the Building or the Project, or caused by
quasi-public work, (iii) any loss of or damage to property by theft or
otherwise, or (iv) any injury or damage to persons or property resulting from
any casualty, explosion, falling plaster or other masonry or glass, steam, gas,
electricity, water or rain which may leak from any part of the Building or any
other portion of the Project or from the pipes, appliances or plumbing works
therein or from the roof, street or subsurface or from any other place, or
resulting from dampness. Notwithstanding anything to the contrary contained in
this Lease, neither Landlord nor any Landlord Indemnified Parties will be liable
for consequential damages arising out of any loss of the use of the Premises or
any equipment or facilities therein by Tenant or any Tenant Parties. Tenant
agrees to give prompt notice to Landlord in case of fire or accidents in the
Premises or the Building, or of defects therein or in the fixtures or equipment.
(b) INDEMNIFICATION. Tenant will be liable for, and agrees, to the maximum
extent permissible under applicable law, to promptly indemnify, protect, defend
and hold harmless Landlord and all Landlord Indemnified Parties, from and
against, any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs, including attorneys'
fees and court costs (collectively, "Indemnified Claims"), arising or resulting
from (i) any act or omission of Tenant or any Tenant Parties (as defined in
Subparagraph 8(c) above); (ii) the use of the Premises and Common Areas and
conduct of Tenant's business by Tenant or any Tenant Parties, or any other
activity, work or thing done, permitted or suffered by Tenant or any Tenant
Parties, in or about the Premises, the Building or elsewhere within the Project;
and/or (iii) any default by Tenant of any obligations on Tenant's part to be
performed under the terms of this Lease. In case any action or proceeding is
brought against Landlord or any Landlord Indemnified Parties by reason of any
such Indemnified Claims, Tenant, upon notice from Landlord, agrees to promptly
defend the same at Tenant's sole cost and expense by counsel approved in writing
by Landlord, which approval Landlord will not unreasonably withhold.
Notwithstanding the foregoing, Tenant's indemnity shall not include any
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Indemnified Claims attributable to the breach of this Lease by Landlord, or its
negligence or willful misconduct.
(c) SURVIVAL; NO RELEASE OF INSURERS. Tenant's indemnification obligations
under Subparagraph 18(b) will survive the expiration or earlier termination of
this Lease. Tenant's covenants, agreements and indemnification obligation in
Subparagraphs 18(a) and 18(b) above, are not intended to and will not relieve
any insurance carrier of its obligations under policies required to be carried
by Tenant pursuant to the provisions of this Lease.
19. INSURANCE.
(a) TENANT'S INSURANCE. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type in the
Premises pursuant to this Lease (which may be prior to the Commencement Date),
and continuing throughout the entire Term hereof and any other period of
occupancy, Tenant agrees to keep in full force and effect, at its sole cost and
expense, the following insurance:
(i) "All Risks" property insurance including at least the following
perils: fire and extended coverage, smoke damage, vandalism, malicious
mischief, sprinkler leakage (including earthquake sprinkler leakage). This
insurance policy must be upon all property owned by Tenant, for which
Tenant is legally liable, or which is installed at Tenant's expense, and
which is located in the Building including, without limitation, any
Alterations, and all furniture, fittings, installations, fixtures and any
other personal property of Tenant, in an amount not less than the full
replacement cost thereof.
(ii) Commercial General Liability Insurance or Comprehensive General
Liability Insurance (on an occurrence form) insuring bodily injury,
personal injury and property damage including the following divisions and
extensions of coverage: Premises and Operations; Owners and Contractors
protective; blanket contractual liability (including coverage for Tenant's
indemnity obligations under this Lease); products and completed operations;
and fire and water damage legal liability in an amount sufficient to cover
the replacement value of the Premises, including Tenant Improvements, that
are rented under the terms of this Lease. Such insurance must have the
following minimum limits of liability: bodily injury, personal injury and
property damage - $2,000,000 each occurrence, provided that if liability
coverage is provided by a Commercial General Liability policy the general
aggregate limit shall apply separately and in total to this location only
(per location general aggregate), and provided further, such minimum limits
of liability may be adjusted from year to year to reflect increases in
coverages as reasonably recommended by Landlord's insurance carrier as
being prudent and commercially reasonable for tenants of first class office
buildings comparable to the Building, rounded to the nearest five hundred
thousand dollars.
(iii) Worker's Compensation as required by the laws of the State with
the following minimum limits of liability: Coverage A - statutory benefits;
Coverage B - $1,000,000 per accident and disease. Tenant shall also obtain
and furnish evidence to Landlord of the waiver by Tenant's worker's
compensation insurance carrier of all rights of recovery by way of
subrogation against Landlord, so long as the insurance is not invalidated
thereby.
(iv) Any other form or forms of insurance as Tenant or Landlord or
any mortgagees of Landlord may reasonably require from time to time in
form, in amounts, and for insurance risks against which, a prudent tenant
would protect itself, but only to the extent coverage for such risks and
amounts are available in the insurance market at commercially acceptable
rates. Landlord makes no representation that the limits of liability
required to be carried by Tenant under the terms of this Lease are adequate
to protect Tenant's interests and Tenant should obtain such additional
insurance or increased liability limits as Tenant deems appropriate.
(b) SUPPLEMENTAL TENANT INSURANCE REQUIREMENTS.
(i) All policies must be in a form reasonably satisfactory to
Landlord and issued by an insurer admitted to do business in the State.
(ii) All policies must be issued by insurers with a policyholder
rating of "A-" and a financial rating of "VII" in the most recent version
of Best's Key Rating Guide.
(iii) All policies must contain a requirement to notify Landlord (and
Landlord's property manager and any mortgagees or ground lessors of
Landlord who are named as additional insureds, if any) in writing not less
than thirty (30) days prior to any material change, reduction in coverage,
cancellation or other termination thereof. Tenant agrees to deliver to
Landlord, as soon as practicable after placing the required insurance, but
in any event within the time frame specified in Subparagraph 19(a) above,
certificate(s) of insurance and/or if required by Landlord, certified
copies of each policy evidencing the existence of such insurance and
Tenant's
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compliance with the provisions of this Paragraph 19. Tenant agrees to cause
replacement policies or certificates to be delivered to Landlord not less
than thirty (30) days prior to the expiration of any such policy or
policies. If any such initial or replacement policies or certificates are
not furnished within the time(s) specified herein, then upon three (3)
business day's notice Landlord will have the right, but not the obligation,
to procure such insurance as Landlord deems necessary to protect Landlord's
interests at Tenant's expense. If Landlord obtains any insurance that is
the responsibility of Tenant under this Paragraph 19, Landlord agrees to
deliver to Tenant a written statement setting forth the cost of any such
insurance and showing in reasonable detail the manner in which it has been
computed and Tenant agrees to promptly reimburse Landlord for such costs as
additional rent.
(iv) General Liability policies under Subparagraphs 19(a)(iii) and
19(a)(iv) must name Landlord and Landlord's property manager (and at
Landlord's request, Landlord's mortgagees and ground lessors of which
Tenant has been informed in writing) as additional insureds and must also
contain a provision that the insurance afforded by such policy is primary
insurance and any insurance carried by Landlord and Landlord's property
manager or Landlord's mortgagees or ground lessors, if any, will be excess
over and non-contributing with Tenant's insurance.
(c) LANDLORD'S INSURANCE. Landlord shall obtain and maintain during the Term
such insurance on the Building as it may deem necessary or desirable, including,
without limitation, the following: (i) commercial general liability insurance
with a per-occurrence limit for personal injury and property damage in an amount
not less than $2,000,000, with a general aggregate limit of not less than
$4,000,000, (ii) employer's liability and workers' compensation insurance as
required by law, and (iii) "all-risk" insurance against loss or damage to the
Building, including earthquake (to the extent available at commercially
reasonable rates as determined by Landlord in its reasonable judgment) and flood
(if the Project is located in a flood zone), in an amount not less than ninety
percent (90%) of the full replacement cost thereof. Landlord shall determine the
amount of deductibles on all such insurance policies based on its reasonable
judgment, including consideration of premium costs, loss history, industry
practice and other factors it may deem relevant.
(d) TENANT'S USE. Tenant will not keep, use, sell or offer for sale in or upon
the Premises any article that may be prohibited by any insurance policy
periodically in force covering the Building or the Project Common Areas. If
Tenant's occupancy or business in, or on, the Premises, whether or not Landlord
has consented to the same, results in any increase in premiums for the insurance
periodically carried by Landlord with respect to the Building or the Project
Common Areas or results in the need for Landlord to maintain special or
additional insurance, Tenant agrees to pay Landlord the cost of any such
increase in premiums or special or additional coverage as additional rent within
ten (10) business days after being billed therefor by Landlord. In determining
whether increased premiums are a result of Tenant's use of the Premises, a
schedule issued by the organization computing the insurance rate on the
Building, the Project Common Areas or the Tenant Improvements showing the
various components of such rate, will be conclusive evidence of the several
items and charges which make up such rate. Tenant agrees to promptly comply with
all reasonable requirements of the insurance authority relating to the Premises.
(e) CANCELLATION OF LANDLORD'S POLICIES. If any of Landlord's insurance
policies are cancelled or cancellation is threatened or the coverage reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or subtenant of Tenant or by anyone
within Tenant's reasonable control who Tenant permits on the Premises and, if
Tenant fails to remedy the condition giving rise to such cancellation,
threatened cancellation, reduction of coverage, threatened reduction of
coverage, increase in premiums, or threatened increase in premiums, within three
(3) business days after notice thereof, Tenant will be deemed to be in material
default of this Lease and Landlord may, at its option, either terminate this
Lease or enter upon the Premises and attempt to remedy such condition, and
Tenant shall promptly pay Landlord the reasonable costs of such remedy as
additional rent. If Landlord is unable, or elects not to remedy such condition,
then Landlord will have all of the remedies provided for in this Lease in the
event of a default by Tenant.
(f) WAIVER OF CLAIMS; WAIVER OF SUBROGATION.
(i) Landlord and Tenant hereby waive their rights against each
other with respect to any claims or damages or losses which are caused by
or result from (a) damage to property or loss of income insured against
under any insurance policy carried by Landlord or Tenant (as the case may
be) pursuant to the provisions of this Lease and enforceable at the time of
such damage or loss, or (b) damage to property or loss of income which
would have been covered under any insurance required to be obtained and
maintained by Landlord or Tenant (as the case may be) under this Paragraph
19 of this Lease (as applicable) had such insurance been obtained and
maintained as required therein. The foregoing waivers shall be in addition
to, and not a limitation of, any other waivers or releases contained in
this Lease.
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(ii) Each party shall cause each property and loss of income
insurance policy required to be obtained by it pursuant to this Paragraph
19 to provide that the insurer waives all rights of recovery by way of
subrogation against either Landlord or Tenant, as the case may be, in
connection with any claims, losses and damages covered by such policy. If
either party fails to maintain property or loss of income insurance
required hereunder, such insurance shall be deemed to be self-insured with
a deemed full waiver of subrogation as set forth in the immediately
preceding sentence.
20. DAMAGE OR DESTRUCTION.
(a) PARTIAL DESTRUCTION. If the Premises or the Building are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost thereof, and Landlord's contractor reasonably estimates in a
writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred eighty (180) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration (including proceeds from
Tenant and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(e) below to cover Tenant's obligation for the costs
of repair, reconstruction and restoration of any portion of any Alterations for
which Tenant is responsible under this Lease), or Landlord would have received
such proceeds had Landlord maintained the insurance required of it under
Paragraph 19, then Landlord agrees to commence and proceed diligently with the
work of repair, reconstruction and restoration and this Lease will continue in
full force and effect.
(b) SUBSTANTIAL DESTRUCTION. Any damage or destruction to the Premises or the
Building which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction, Landlord may elect to either (i) repair, reconstruct
and restore the portion of the Building or the Premises damaged by such
casualty, in which case this Lease will continue in full force and effect,
subject to Tenant's termination right contained in Subparagraph 20(d) below; or
(ii) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate.
(c) NOTICE. Under any of the conditions of Subparagraph 20(a) or (b) above,
Landlord agrees to give written notice to Tenant of its intention to repair or
terminate, as permitted in such paragraphs, within the earlier of thirty (30)
days after the occurrence of such casualty, or ten (10) days after Landlord's
receipt of the estimate from Landlord's contractor, but in no event longer than
sixty (60) days after the casualty (the applicable time period to be referred to
herein as the "Notice Period").
(d) TENANT'S TERMINATION RIGHTS. If Landlord elects to repair, reconstruct and
restore pursuant to Subparagraph 20(b)(i) hereinabove, and if Landlord's
contractor estimates that as a result of such damage, Tenant cannot be given
reasonable use of and access to the Premises within one hundred eight (180) days
after the date of such damage, then Tenant may terminate this Lease effective
upon delivery of written notice to Landlord within thirty (30) days after
Landlord delivers notice to Tenant of its election to so repair, reconstruct or
restore.
(e) TENANT'S COSTS AND INSURANCE PROCEEDS. In the event of any damage or
destruction of all or any part of the Premises, Tenant agrees to immediately (i)
notify Landlord thereof, and (ii) deliver to Landlord all property insurance
proceeds received by Tenant with respect to any Alterations, but excluding
proceeds for Tenant's furniture, fixtures, equipment and other personal
property, whether or not this Lease is terminated as permitted in this Paragraph
20, and Tenant hereby assigns to Landlord all rights to receive such insurance
proceeds. If, due to Tenant's failure to obtain insurance for the full
replacement cost of any Alterations, Tenant fails to receive insurance proceeds
covering the full replacement cost of any Alterations which are damaged, Tenant
will be deemed to have self-insured the replacement cost of such items, and upon
any damage or destruction thereto, Tenant agrees to immediately pay to Landlord
the full replacement cost of such items, less any insurance proceeds actually
received by Landlord from Landlord's or Tenant's insurance with respect to such
items.
(f) ABATEMENT OF RENT. In the event of any damage, repair, reconstruction
and/or restoration described in this Paragraph 20, rent will be abated or
reduced, as the case may be, from the date of such casualty, in proportion to
the degree to which Tenant's use of the Premises is impaired during such period
of repair until such use is restored. Except for abatement of rent as provided
hereinabove, Tenant will not be entitled to any compensation or damages for loss
of, or interference with, Tenant's business or use or access of all or any part
of the Premises or for lost profits or any other consequential damages of any
kind or nature, which result from any such damage, repair, reconstruction or
restoration.
(g) INABILITY TO COMPLETE. Notwithstanding anything to the contrary contained
in this Paragraph 20, if Landlord is obligated or elects to repair, reconstruct
and/or restore the damaged portion of the Building or the Premises pursuant to
Subparagraph 20(a) or 20(b)(i) above, but is delayed from completing such
repair, reconstruction and/or restoration beyond the date which is sixty (60)
days after
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the date estimated by Landlord's contractor for completion thereof by reason of
any causes (other than delays caused by Tenant, its subtenants, employees,
agents or contractors or delays which are beyond the reasonable control of
Landlord as described in Paragraph32), then Tenant may elect to terminate this
Lease upon ten (10) days prior written notice given to Landlord after the
expiration of such ninety (90) day period.
(h) DAMAGE NEAR END OF TERM. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises occurs during the last twelve
(12) months of the Term of this Lease where Landlord's contractor estimates in a
writing delivered to Landlord and Tenant that the repair, reconstruction or
restoration of such damage cannot be completed within sixty (60) days after the
date of such casualty. If either party desires to terminate this Lease under
this Subparagraph (h), it shall provide written notice to the other party of
such election within ten (10) business days after receipt of Landlord's
contractor's repair estimates.
(i) WAIVER OF TERMINATION RIGHT. Landlord and Tenant agree that the foregoing
provisions of this Paragraph 20 are to govern their respective rights and
obligations in the event of any damage or destruction and supersede and are in
lieu of the provisions of any applicable law, statute, ordinance, rule,
regulation, order or ruling now or hereafter in force which provide remedies for
damage or destruction of leased premises (including, without limitation, the
provisions of California Civil Code Section 1932, Subsection 2, and Section
1933, Subsection 4 and any successor statute or laws of a similar nature).
(j) TERMINATION. Upon any termination of this Lease under any of the provisions
of this Paragraph 20, the parties will be released without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have accrued and are unpaid as of the date of termination
and matters which are to survive any termination of this Lease as provided in
this Lease.
21. EMINENT DOMAIN.
(a) SUBSTANTIAL TAKING. If the whole of the Premises or the Project, or such
part thereof as shall substantially interfere with Tenant's use and occupancy of
the Premises, as contemplated by this Lease, is taken for any public or
quasi-public purpose by any lawful power or authority by exercise of the right
of appropriation, condemnation or eminent domain, or sold to prevent such
taking, either party will have the right to terminate this Lease effective as of
the date possession is required to be surrendered to such authority.
(b) PARTIAL TAKING; ABATEMENT OF RENT. In the event of a taking of a portion of
the Premises, the Project, or the parking spaces for the Project or any portion
thereof, which does not substantially interfere with Tenant's use and occupancy
of the Premises, then, neither party will have the right to terminate this Lease
and Landlord will thereafter proceed to make a functional unit of the remaining
portion of the Premises or the Project (but only to the extent Landlord receives
proceeds therefor from the condemning authority), and rent will be abated with
respect to the part of the Premises which Tenant is deprived of on account of
such taking.
(c) CONDEMNATION AWARD. In connection with any taking of the Premises or the
Building, Landlord will be entitled to receive the entire amount of any award
which may be made or given in such taking or condemnation, without deduction or
apportionment for any estate or interest of Tenant, it being expressly
understood and agreed by Tenant that no portion of any such award will be
allowed or paid to Tenant for any so-called bonus or excess value of this Lease,
and such bonus or excess value will be the sole property of Landlord. Tenant
agrees not to assert any claim against Landlord or the taking authority for any
compensation because of such taking (including any claim for bonus or excess
value of this Lease); provided, however, if any portion of the Premises is
taken, Tenant will have the right to recover from the condemning authority (but
not from Landlord) the value of Tenant Improvements or Alterations to the
Premises installed by or at the cost of Tenant, and any other compensation as
may be separately awarded or recoverable by Tenant for the taking of Tenant's
furniture, fixtures, equipment and other personal property within the Premises,
for Tenant's relocation expenses, and for any loss of goodwill or other damage
to Tenant's business by reason of such taking.
(d) TEMPORARY TAKING. In the event of taking of the Premises or any part
thereof for temporary use, (i) this Lease will remain unaffected thereby and
rent will abate for the duration of the taking in proportion to the extent
Tenant's use of the Premises is interfered with, and (ii) Landlord will be
entitled to receive such portion or portions of any award made for such use. For
purpose of this Subparagraph 21(d), a temporary taking shall be defined as a
taking for a period of ninety (90) days or less.
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22. DEFAULTS AND REMEDIES.
(a) DEFAULTS. The occurrence of any one or more of the following events will be
deemed a default by Tenant:
(i) The abandonment of the Premises by Tenant, which for purposes
of this Lease means any vacating of the Premises for fifteen (15) days or
longer while in default of its obligation to pay rent or additional rent
after the expiration of any applicable cure period.
(ii) The failure by Tenant to make any payment of rent or additional
rent or any other payment required to be made by Tenant hereunder, as and
when due, where such failure continues for a period of three (3) days after
written notice thereof from Landlord to Tenant; provided, however, that any
such notice will be in lieu of, and not in addition to, any notice required
under applicable law (including, without limitation, the provisions of
California Code of Civil Procedure Section 1161 regarding unlawful detainer
actions or any successor statute or law of a similar nature).
(iii) The failure by Tenant to observe or perform any of the express
or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in Subparagraph 22(a)(i) or
(ii) above, where such failure continues (where no other period of time is
expressly provided) for a period of thirty (30) days after written notice
thereof from Landlord to Tenant. The provisions of any such notice will be
in lieu of, and not in addition to, any notice required under applicable
law (including, without limitation, California Code of Civil Procedure
Section 1161 regarding unlawful detainer actions and any successor statute
or similar law). If the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, then Tenant will not
be deemed to be in default if Tenant, commences such cure within such
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(iv) (A) The making by Tenant of any general assignment for the
benefit of creditors; (B) the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60)
days); (C) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
sixty (60) days; or (D) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease where such seizure is not discharged within
sixty (60) days.
(b) LANDLORD'S REMEDIES; TERMINATION. In the event of any default by Tenant, in
addition to any other remedies available to Landlord at law or in equity under
applicable law (including, without limitation, the remedies of Civil Code
Section 1951.4 and any successor statute or similar law), Landlord will have the
immediate right and option to terminate this Lease and all rights of Tenant
hereunder. If Landlord elects to terminate this Lease then, to the extent
permitted under applicable law, Landlord may recover from Tenant (i) The worth
at the time of award of any unpaid rent which had been earned at the time of
such 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 rent 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 rent loss that Tenant proves could be reasonably
avoided; plus (iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which, in the ordinary course of things, results therefrom
including, but not limited to: attorneys' fees and costs; brokers' commissions;
the costs of refurbishment, alterations, renovations and repair of the Premises
and removal (including the repair of any damage caused by such removal) and
storage (or disposal) of Tenant's personal property, equipment, fixtures,
Alterations, and any other items which Tenant is required under this Lease to
remove but does not remove, as well as the unamortized value of any free rent,
reduced rent, free parking, reduced rate parking and any other economic
concessions provided, granted or incurred by Landlord pursuant to this Lease.
The unamortized value of such concessions shall be determined by taking the
total value of such concessions and multiplying such value by a fraction, the
numerator of which is the number of months of the Lease Term not yet elapsed as
of the date on which the Lease is terminated, and the denominator of which is
the total number of months of the Lease Term. As used in Subparagraphs 22(b)(i)
and (ii) above, the "worth at the time of award" is computed by allowing
interest at the Interest Rate. As used in Subparagraph 22(b)(iii) above, the
"worth at the time of award" is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
(c) LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any default by
Tenant, in addition to any other remedies available to Landlord under this
Lease, at law or in equity, Landlord will also have the right, with or without
terminating this Lease, to re-enter the Premises (if the Premises are not being
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occupied by Tenant and its employees) and remove all property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere
and/or disposed of at the sole cost and expense of and for the account of Tenant
in accordance with the provisions of Subparagraph 13(h) of this Lease or any
other procedures permitted by applicable law. No re-entry or taking possession
of the Premises by Landlord pursuant to this Subparagraph 22(c) will be
construed as an election to terminate this Lease unless a written notice of such
intention is given to Tenant or unless the termination thereof is decreed by a
court of competent jurisdiction.
(d) LANDLORD'S REMEDIES; RE-LETTING. In the event of the abandonment of the
Premises by Tenant or in the event that Landlord elects to re-enter the Premises
or takes possession of the Premises pursuant to legal proceeding or pursuant to
any notice provided by law, then if Landlord does not elect to terminate this
Lease, Landlord may from time to time, without terminating this Lease, either
recover all rent as it becomes due or relet the Premises or any part thereof on
terms and conditions as Landlord in its sole and absolute discretion may deem
advisable with the right to make alterations and repairs to the Premises in
connection with such reletting. If Landlord elects to relet the Premises, then
rents received by Landlord from such reletting will be applied: first, to the
payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any cost of such reletting; third, to the
payment of the cost of any alterations and repairs to the Premises incurred in
connection with such reletting; fourth, to the payment of rent due and unpaid
hereunder and the residue, if any, will be held by Landlord and applied to
payment of future rent as the same may become due and payable hereunder. Should
that portion of such rents received from such reletting during any month, which
is applied to the payment of rent hereunder, be less than the rent payable
during that month by Tenant hereunder, then Tenant agrees to pay such deficiency
to Landlord immediately upon demand therefor by Landlord. Such deficiency will
be calculated and paid monthly.
(e) LANDLORD'S REMEDIES; PERFORMANCE FOR TENANT. All covenants and agreements
to be performed by Tenant under any of the terms of this Lease are to be
performed by Tenant at Tenant's sole cost and expense and without any abatement
of rent. If Tenant fails to pay any sum of money owed to any party other than
Landlord, for which it is liable under this Lease, or if Tenant fails to perform
any other act on its part to be performed hereunder, and such failure continues
for thirty (30) days after notice thereof by Landlord, Landlord may, without
waiving or releasing Tenant from its obligations, but shall not be obligated to,
make any such payment or perform any such other act to be made or performed by
Tenant. Tenant agrees to reimburse Landlord upon demand for all sums so paid by
Landlord and all necessary incidental costs, together with interest thereon at
the Interest Rate, from the date of such payment by Landlord until reimbursed by
Tenant. This remedy shall be in addition to any other right or remedy of
Landlord set forth in this Paragraph 22.
(f) LATE PAYMENT. If Tenant fails to pay any installment of rent or additional
rent within three (3) days after receipt of a written demand from Landlord, such
late amount will accrue interest at the Interest Rate and Tenant agrees to pay
Landlord as additional rent such interest on such amount from the date such
amount becomes due until such amount is paid. In addition, if more than one
regularly scheduled payment of rent or additional rent due under this Lease is
five (5) days or more late in any twelve (12) month period during the Lease
Term, then Tenant agrees to pay to Landlord concurrently with such late payment
amount, as additional rent, a late charge equal to five percent (5%) of the
amount due to compensate Landlord for the extra costs Landlord will incur as a
result of such late payment, without the necessity of prior notice or demand.
The parties agree that (i) it would be impractical and extremely difficult to
fix the actual damage Landlord will suffer in the event of Tenant's late
payment, (ii) such interest and late charge represents a fair and reasonable
estimate of the detriment that Landlord will suffer by reason of late payment by
Tenant, and (iii) the payment of interest and late charges are distinct and
separate in that the payment of interest is to compensate Landlord for the use
of Landlord's money by Tenant, while the payment of late charges is to
compensate Landlord for Landlord's processing, administrative and other costs
incurred by Landlord as a result of Tenant's delinquent payments. Acceptance of
any such interest and late charge will not constitute a waiver of the Tenant's
default with respect to the overdue amount, or prevent Landlord from exercising
any of the other rights and remedies available to Landlord. If Tenant incurs a
late charge more than three (3) times in any period of twelve (12) months during
the Lease Term, then, notwithstanding that Tenant cures the late payments for
which such late charges are imposed, Landlord will have the right to require
Tenant thereafter to pay all installments of Monthly Base Rent quarterly in
advance throughout the remainder of the Lease Term.
(g) INTENTIONALLY OMITTED.
(h) RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of
Landlord contained in this Lease will be construed and held to be cumulative,
and no one of them will be exclusive of the other, and Landlord shall have the
right to pursue any one or all of such remedies or any other remedy or relief
which may be provided by law or in equity, whether or not stated in this Lease.
Nothing in this Paragraph 22 will be deemed to limit or otherwise affect
Tenant's indemnification of Landlord pursuant to any provision of this Lease.
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23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord will
not be deemed in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to completion. Upon
any default by Landlord, Tenant may exercise any of its rights provided at law
or in equity, subject to the limitations on liability set forth in Paragraph 35
of this Lease. Without limiting the foregoing, in the event Landlord's breach of
its obligations under this Lease prevents Tenant from occupying the Premises and
conducting its business in the ordinary course for a period of at least three
(3) days, then commencing on the fourth (4th) day Tenant is prevented from such
occupancy and continuing until occupancy is restored, Tenant shall not be
required to pay any rent which would otherwise be due under this Lease. For all
purposes under this Lease, Landlord shall be liable to Tenant for any breach of
this Lease, negligence or willful misconduct of any employee, agent or
contractor of Landlord.
24. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTION ON TRANSFER. Except as expressly provided in this Paragraph 24,
Tenant will not, either voluntarily or by operation of law, assign or encumber
this Lease or any interest herein or sublet the Premises or any part thereof, or
permit the use or occupancy of the Premises by any party other than Tenant (any
such assignment, encumbrance, sublease or the like will sometimes be referred to
as a "Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold.
(b) CORPORATE AND PARTNERSHIP TRANSFERS. For purposes of this Paragraph 24, and
except as provided in subparagraph (c) below, if Tenant is a corporation,
partnership or other entity, any transfer, assignment, encumbrance or
hypothecation of fifty percent (50%) or more (individually or in the aggregate)
of any stock or other ownership interest in such entity, and/or any transfer,
assignment, hypothecation or encumbrance of any controlling ownership or voting
interest in such entity, will be deemed a Transfer and will be subject to all of
the restrictions and provisions contained in this Paragraph 24. Notwithstanding
the foregoing, the immediately preceding sentence will not apply to any
transfers of stock of Tenant if Tenant is a publicly-held corporation and such
stock is transferred publicly over a recognized security exchange or
over-the-counter market.
(c) PERMITTED CONTROLLED TRANSFERS. Notwithstanding the provisions of this
Paragraph 24 to the contrary, Tenant may assign this Lease or sublet the
Premises or any portion thereof ("Permitted Transfer"), without Landlord's
consent and without extending any sublease termination option to Landlord, to
any parent, subsidiary or affiliate corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity which acquires
all the assets of Tenant's business as a going concern, provided that: (i) at
least twenty (20) days prior to such assignment or sublease, Tenant delivers to
Landlord the financial statements and other financial and background information
of the assignee or sublessee described in Subparagraph 24(d) below; (ii) if an
assignment, the assignee assumes, in full, the obligations of Tenant under this
Lease (or if a sublease, the sublessee of a portion of the Premises or Term
assumes, in full, the obligations of Tenant with respect to such portion); (iii)
the financial net worth of the assignee or sublessee as of the time of the
proposed assignment or sublease equals or exceeds that of Tenant as of the date
of execution of this Lease or is adequate, in Landlord's reasonable judgment, to
perform the Tenant's obligations herein; (iv) Tenant remains fully liable under
this Lease; and (v) the use of the Premises under Paragraph 8 remains unchanged.
(d) TRANSFER NOTICE. If Tenant desires to effect a Transfer, other than a
Permitted Transfer, then at least thirty (30) days prior to the date when Tenant
desires the Transfer to be effective (the "Transfer Date"), Tenant agrees to
give Landlord a notice (the "Transfer Notice"), stating the name, address and
business of the proposed assignee, sublessee or other transferee (sometimes
referred to hereinafter as "Transferee"), reasonable information (including
references) concerning the character, ownership, and financial condition of the
proposed Transferee, the Transfer Date, any ownership or commercial relationship
between Tenant and the proposed Transferee, and the consideration and all other
material terms and conditions of the proposed Transfer, all in such detail as
Landlord may reasonably require. If Landlord reasonably requests additional
detail, the Transfer Notice will not be deemed to have been received until
Landlord receives such additional detail, and Landlord may withhold consent to
any Transfer until such information is provided to it.
(e) LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will elect to do
one of the following (i) consent to the proposed Transfer; (ii) refuse such
consent, which refusal shall be on reasonable grounds including, without
limitation, those set forth in Subparagraph 24(f) below; or (iii) if the
sublease or assignment is for 50% or more of the Premises and for substantially
the balance of the Lease Term, terminate this Lease as to all or such
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portion of the Premises which is proposed to be sublet or assigned and recapture
all or such portion of the Premises for reletting by Landlord.
(f) REASONABLE DISAPPROVAL. Landlord and Tenant hereby acknowledge that
Landlord's disapproval of any proposed Transfer pursuant to Subparagraph 24(e)
will be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i) the
proposed Transferee is a governmental entity; (ii) the portion of the Premises
to be sublet or assigned is irregular in shape with inadequate means of ingress
and egress; (iii) the use of the Premises by the Transferee (A) is not permitted
by the use provisions in Paragraph 8 hereof, or (B) violates any exclusive use
granted by Landlord to another tenant in the Building; (iv) the Transfer would
likely result in a significant and inappropriate increase in the use of the
parking areas or Project Common Areas by the Transferee's employees or visitors,
and/or significantly increase the demand upon utilities and services to be
provided by Landlord to the Premises; (v) the Transferee does not have the
financial capability to fulfill the obligations imposed by the Transfer and this
Lease; or (vi) the Transferee poses a business or other economic risk which
Landlord deems unacceptable. Notwithstanding anything to the contrary contained
in this Lease, it is expressly understood and agreed that no further subletting
under any sublease shall be permitted under any circumstances, except in the
event Landlord (with no obligation to do so) sub-subleases the Premises (or any
portion thereof) from such sublessee. Any sublease to which Landlord consents
shall expressly prohibit any such further subletting.
(g) ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, and, in the case
of an assignment, the delivery to Landlord of an agreement executed by the
Transferee in form and substance reasonably satisfactory to Landlord, whereby
the Transferee assumes and agrees to be bound by all of the terms and provisions
of this Lease and to perform all of the obligations of Tenant hereunder. As a
condition for granting its consent to any assignment, Landlord may require that
the assignee remit directly to Landlord on a monthly basis, all monies due to
Tenant by said assignee. As a condition to Landlord's consent to any sublease,
such sublease must provide that it is subject and subordinate to this Lease and
to all mortgages; that Landlord may enforce the provisions of the sublease,
including collection of rent; that in the event of termination of this Lease for
any reason, including without limitation a voluntary surrender by Tenant, or in
the event of any reentry or repossession of the Premises by Landlord, Landlord
may, at its option, either (i) terminate the sublease, or (ii) take over all of
the right, title and interest of Tenant, as sublessor, under such sublease, in
which case such sublessee will attorn to Landlord, but that nevertheless
Landlord will not (1) be liable for any previous act or omission of Tenant under
such sublease, (2) be subject to any defense or offset previously accrued in
favor of the sublessee against Tenant, or (3) be bound by any previous
modification of any sublease made without Landlord's written consent, or by any
previous prepayment by sublessee of more than one month's rent.
(h) EXCESS RENT. If Landlord consents to any assignment of this Lease, Tenant
agrees to pay to Landlord, as additional rent, one-half (1/2) of all sums and
other consideration in excess of the deductible expenses identified in the last
sentence of this subparagraph which are payable to and for the benefit of Tenant
by the assignee on account of the assignment, as and when such sums and other
consideration are due and payable by the assignee to or for the benefit of
Tenant (or, if Landlord so requires, and without any release of Tenant's
liability for the same, Tenant agrees to instruct the assignee to pay such sums
and other consideration directly to Landlord). If for any sublease, Tenant
receives rent or other consideration, either initially or over the term of the
sublease, in excess of the rent fairly allocable to the portion of the Premises
which is subleased based on square footage, Tenant agrees to pay to Landlord as
additional rent one-half (1/2) of the excess of each such payment of rent or
other consideration received by Tenant promptly after its receipt. In
calculating excess rent or other consideration which may be payable to Landlord
under this subparagraph, Tenant will be entitled to deduct commercially
reasonable third party brokerage commissions, tenant improvement costs and
attorneys' fees and other amounts reasonably and actually expended by Tenant in
connection with such assignment or subletting if acceptable written evidence of
such expenditures is provided to Landlord. In no event shall this subparagraph
apply to any Permitted Transfer.
(i) TERMINATION RIGHTS. If Tenant requests Landlord's consent to any assignment
or to the subletting of 50% or more of the Premises for substantially the
balance of the Term, Landlord will have the right, as provided in Subparagraph
24(e), to terminate this Lease as to all or such portion of the Premises which
is proposed to be sublet or assigned effective as of the date Tenant proposes to
sublet or assign all or less than all of the Premises. Landlord's right to
terminate this Lease as to less than all of the Premises proposed to be sublet
or assigned will not terminate as to any future additional subletting or
assignment as a result of Landlord's consent to a subletting of less than all of
the Premises or Landlord's failure to exercise its termination right with
respect to any subletting or assignment. Landlord will exercise such termination
right, if at all, by giving written notice to Tenant within fifteen (15) days of
receipt by Landlord of the Transfer Notice and the information requested under
subparagraph 24(d) above. Tenant understands and acknowledges that the option,
as provided in this Paragraph 24, to terminate this Lease as to all or such
portion of the Premises which is
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proposed to be sublet or assigned rather than approve the subletting or
assignment of all or a portion of the Premises, is a material inducement for
Landlord's agreeing to lease the Premises to Tenant upon the terms and
conditions herein set forth. In the event of any such termination with respect
to less than all of the Premises, the cost of segregating the recaptured space
from the balance of the Premises will be paid by Landlord and Tenant's future
monetary obligations under this Lease will be reduced proportionately on a
square footage basis to correspond to the balance of the Premises which Tenant
continues to lease.
(j) NO RELEASE. Except in the event Landlord terminates this Lease pursuant to
subparagraph 24(i), No Transfer will release Tenant of Tenant's obligations
under this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. The
acceptance of rent by Landlord from any other person will not be deemed to be a
waiver by Landlord of any provision hereof. Consent by Landlord to one Transfer
will not be deemed consent to any subsequent Transfer. In the event of default
by any Transferee of Tenant or any successor of Tenant in the performance of any
of the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such Transferee or successor. Landlord
shall not consent to subsequent assignments of this Lease or sublettings or
amendments or modifications to this Lease with assignees of Tenant, without
Tenant's consent, which consent shall not be unreasonably withheld or delayed.
(k) ADMINISTRATIVE AND ATTORNEYS' FEES. If Tenant effects a Transfer or
requests the consent of Landlord to any Transfer (whether or not such Transfer
is consummated), then, upon demand, Tenant agrees to pay Landlord a
non-refundable administrative fee of Two Hundred Fifty Dollars ($250.00), plus
any reasonable attorneys' and paralegal fees incurred by Landlord in connection
with such Transfer or request for consent (whether attributable to Landlord's
in-house or outside attorneys or paralegals or otherwise) not to exceed One
Thousand Dollars ($1000.00). Acceptance of the Two Hundred Fifty Dollar
($250.00) administrative fee and/or reimbursement of Landlord's attorneys' and
paralegal fees will in no event obligate Landlord to consent to any proposed
Transfer.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the Project, or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building; and (ii) the lien
of any mortgage or deed of trust which may now exist or hereafter be executed
for which the Building, the Project or any leases thereof, or Landlord's
interest and estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord reserves the right to subordinate any
such ground leases or underlying leases or any such liens to this Lease. If any
such ground lease or underlying lease terminates for any reason or any such
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant agrees to attorn to and become the tenant of such
successor in which event Tenant's right to possession of the Premises will not
be disturbed as long as Tenant is not in default under this Lease. Tenant hereby
waives its rights under any law which gives or purports to give Tenant any right
to terminate or otherwise adversely affect this Lease and the obligations of
Tenant hereunder in the event of any such foreclosure proceeding or sale. Tenant
covenants and agrees to execute and deliver, upon demand by Landlord and in the
form reasonably required by Landlord, any additional documents evidencing the
priority or subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any such
mortgage or deed of trust. If Tenant fails to sign and return any such documents
within ten (10) business days after receipt, Landlord may deliver to Tenant an
additional request for such documents and Tenant's failure to deliver such
documents within ten (10) days after delivery of such additional request will
constitute a default under this Lease.
26. ESTOPPEL CERTIFICATE.
(a) TENANT'S OBLIGATIONS. Within ten (10) business days following any written
request which Landlord may make from time to time, Tenant agrees to execute and
deliver to Landlord a statement, in a form as may reasonably be required by
Landlord or Landlord's lender, certifying: (i) the date of commencement of this
Lease; (ii) the fact that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect, and stating the date and nature of such modifications); (iii) the date
to which the rent and other sums payable under this Lease have been paid; (iv)
that there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (v) such other matters reasonably
requested by Landlord. Landlord and Tenant intend that any statement delivered
pursuant to this Paragraph 26 may be relied upon by any mortgagee, beneficiary,
purchaser or prospective purchaser of the Building or any interest therein.
(b) TENANT'S FAILURE TO DELIVER. Tenant's failure to deliver such statement
within such time will 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
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(iii) that not more than one (1) month's rent has been paid in advance. Without
limiting the foregoing, if Tenant fails to deliver any such statement within
such ten (10) day period, Landlord may deliver to Tenant an additional request
for such statement and Tenant's failure to deliver such statement to Landlord
within ten (10) days after delivery of such additional request will constitute a
default under this Lease. Tenant agrees to indemnify and protect Landlord from
and against any and all claims, damages, losses, liabilities and expenses
(including attorneys' fees and costs) attributable to any failure by Tenant to
timely deliver any such estoppel certificate to Landlord as required by this
Paragraph 26.
27. RULES AND REGULATIONS. Tenant agrees to observe and comply with the "Rules
and Regulations," a copy of which is attached hereto and incorporated herein by
this reference as EXHIBIT "E", and all reasonable and nondiscriminatory
modifications thereof and additions thereto from time to time put into effect by
Landlord. Landlord shall use its commercially reasonable efforts to enforce such
Rules and Regulations against other tenants and occupants of the Building;
however, Landlord will not be responsible to Tenant for the violation or
non-performance by any other tenant or occupant of the Building of any of the
Rules and Regulations. In the event of any conflict between the provisions of
this Lease and the Rules and Regulations, the provisions of this Lease shall
govern.
28. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
(a) MODIFICATIONS. If, in connection with Landlord's obtaining or entering into
any financing or ground lease for any portion of the Building or the Project,
the lender or ground lessor requests modifications to this Lease, Tenant, within
ten (10) business days after request therefor, agrees to execute an amendment to
this Lease incorporating such modifications, provided such modifications are
reasonable and do not increase the obligations of Tenant under this Lease, do
not decrease the rights of Tenant under this Lease, or adversely affect the
leasehold estate created by this Lease.
(b) CURE RIGHTS. In the event of any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgage covering the Premises or ground lessor of Landlord whose
address has been furnished to Tenant, and Tenant agrees to offer such
beneficiary, mortgagee or ground lessor a reasonable opportunity to cure the
default (including with respect to any such beneficiary or mortgagee, time to
obtain possession of the Premises by power of sale, subject to this Lease and
Tenant's rights hereunder, if such should prove necessary to effect a cure).
29. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease, so far
as covenants or obligations on the part of Landlord are concerned, means and
includes only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title (other
than a transfer for security purposes only), Landlord herein named (and in case
of any subsequent transfers or conveyances, the then grantor) will be
automatically relieved from and after the date of such transfer, assignment or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed, so long as the transferee assumes in writing all such covenants and
obligations of Landlord arising after the date of such transfer and the
transferee has the financial capabilities to perform Landlord's obligations
under this Lease. Landlord and Landlord's transferees and assignees have the
absolute right to transfer all or any portion of their respective title and
interest in the Project, the Building, the Premises and/or this Lease without
the consent of Tenant, and such transfer or subsequent transfer will not be
deemed a violation on Landlord's part of any of the terms and conditions of this
Lease.
30. WAIVER. The waiver by either party of any breach of any term, covenant or
condition herein contained will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor will any custom or practice which may develop between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of either party to insist upon performance in strict accordance with
said terms. The subsequent acceptance of rent or any other payment hereunder by
Landlord will not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent. No acceptance by
Landlord of a lesser sum than the basic rent and additional rent or other sum
then due will be deemed to be other than on account of the earliest installment
of such rent or other amount due, nor will any endorsement or statement on any
check or any letter accompanying any check be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or other amount or pursue any
other remedy provided in this Lease. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or approval will not be deemed
to waive or render unnecessary Landlord's consent or approval to or of any
subsequent similar acts by Tenant.
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31. PARKING.
(a) GRANT OF PARKING RIGHTS. So long as this Lease is in effect, Landlord
grants to Tenant a license to use the number and type of parking spaces
designated in Subparagraph 1(s) subject to the terms and conditions of this
Paragraph 31, and the Rules and Regulations regarding parking contained in
Exhibit "E" attached hereto. Tenant agrees to submit to Landlord or, at
Landlord's election, directly to Landlord's parking operator with a copy to
Landlord, written notice in a form reasonably specified by Landlord containing
the names, home and office addresses and telephone numbers of those persons who
are authorized by Tenant to use Tenant's parking spaces on a monthly basis
("Tenant's Authorized Users") and shall use reasonable efforts to identify each
vehicle of Tenant's Authorized Users by make, model and license number. Tenant
agrees to deliver such notice prior to the beginning of the Term of this Lease
and to periodically update such notice upon written request by Landlord or
Landlord's parking operator to reflect changes to Tenant's Authorized Users or
their vehicles. Tenant will not use, and will use commercially reasonable
efforts to cause Tenant's Authorized Users not to use any parking spaces which
have been specifically assigned by Landlord to other tenants or occupants or for
other uses such as visitor parking or which have been designated by any
governmental entity as being restricted to certain uses.
(b) PARKING RULES AND REGULATIONS. Tenant and Tenant's Authorized Users shall
comply with all rules and regulations regarding parking set forth in Exhibit "E"
attached hereto and Tenant agrees to use commercially reasonable efforts to
cause its Authorized Users to comply with such rules and regulations. Landlord
reserves the right from time to time to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for the parking
facilities as it deems reasonably necessary for the operation of the parking
facilities.; subject to the limitations set forth in Paragraph 27.
32. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required under this Lease by reason of
strikes, lock-outs, labor troubles, inability to procure standard materials,
failure of power, restrictive governmental laws, regulations or orders or
governmental action or inaction (including failure, refusal or delay in issuing
permits, approvals and/or authorizations which is not the result of the action
or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this Paragraph 32 will
not operate to excuse Tenant from prompt payment of rent or any other payments
required under the provisions of this Lease.
33. SIGNS. At Tenant's sole cost and expense, Tenant shall be entitled to have
Building standard identity signs installed and maintained in place throughout
the Term (on a non-exclusive basis) (a) at the entry doors to the Premises, (b)
on the directory board in the lobby of the Building, and (c) on the Building
monument sign. Tenant agrees to have Landlord maintain Tenant's foregoing
identification signs in such designated locations in accordance with this
Paragraph 33 at Tenant's sole cost and expense. Tenant has no right to install
Tenant identification signs in any other location in, on or about the Premises
or the Project, to change the name upon any such signage and Tenant will not
display or erect any other signs, displays or other advertising materials that
are visible from the exterior of the Building or from within the Building in any
interior or exterior common areas.
34. INTENTIONALLY LEFT BLANK.
35. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord and
at any time during the Term of this Lease, upon ten (10) business days prior
written notice from Landlord, Tenant agrees to provide Landlord with a current
financial statement for Tenant. Such statements are to be prepared in accordance
with generally accepted accounting principles and, if such is the normal
practice of Tenant, audited by an independent certified public accountant.
36. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent required under this Lease and paying all other charges and
performing all of the covenants and provisions on Tenant's part to be observed
and performed under this Lease, Tenant may peaceably and quietly have, hold and
enjoy the Premises in accordance with this Lease without hindrance or
molestation by Landlord or its employees or agents.
37. MISCELLANEOUS.
(a) CONFLICT OF LAWS. This Lease shall be governed by and construed solely
pursuant to the laws of the State, without giving effect to choice of law
principles thereunder.
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(b) SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all of
the covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
(c) PROFESSIONAL FEES AND COSTS. If either Landlord or Tenant should bring suit
against the other with respect to this Lease, then all costs and expenses,
including without limitation, actual professional fees and costs such as
appraisers', accountants' and attorneys' fees and costs, incurred by the party
which prevails in such action, whether by final judgment or out of court
settlement, shall be paid by the other party, which obligation on the part of
the other party shall be deemed to have accrued on the date of the commencement
of such action and shall be enforceable whether or not the action is prosecuted
to judgment. As used herein, attorneys' fees and costs shall include, without
limitation, attorneys' fees, costs and expenses incurred in connection with any
(i) postjudgment motions; (ii) contempt proceedings; (iii) garnishment, levy,
and debtor and third party examination; (iv) discovery; and (v) bankruptcy
litigation.
(d) TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
(e) TIME. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
(f) PRIOR AGREEMENT; AMENDMENTS. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
(g) SEPARABILITY. The provisions of this Lease shall be considered separable
such that if any provision or part of this Lease is ever held to be invalid,
void or illegal under any law or ruling, all remaining provisions of this Lease
shall remain in full force and effect to the maximum extent permitted by law
unless the provision invalidated is required for Tenant's practical realization
of the benefits of this Lease.
(h) RECORDING. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
(i) COUNTERPARTS. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the same
agreement.
(j) NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Project, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
(k) NON-DISCRIMINATION. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
38. EXECUTION OF LEASE.
(a) JOINT AND SEVERAL OBLIGATIONS. If more than one person executes this Lease
as Tenant, their execution of this Lease will constitute their covenant and
agreement that (i) each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant, and
(ii) the term "Tenant" as used in this Lease means and includes each of them
jointly and severally. The act of or notice from, or notice or refund to, or the
signature of any one or more of them, with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, expiration, termination
or modification of this Lease, will be binding upon each and all of the persons
executing this Lease as
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Tenant with the same force and effect as if each and all of them had so acted or
so given or received such notice or refund or so signed.
(b) TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this Lease as a
corporation or partnership, then Tenant represents and warrants that such entity
is duly qualified and in good standing to do business in California and that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf, and in the case of a corporation,
in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, if
requested by Landlord, and in accordance with the by-laws of Tenant, and, in the
case of a partnership, in accordance with the partnership agreement and the most
current amendments thereto, if any, copies of which are to be delivered to
Landlord on execution hereof, if requested by Landlord, and that this Lease is
binding upon Tenant in accordance with its terms.
(c) EXAMINATION OF LEASE. Submission of this instrument by Landlord to Tenant
for examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
39. FREE RENT PERIOD. During the initial four (4) months of the Lease Term,
Tenant shall not be obligated to Landlord for payment of any Base Monthly Rent
or Operating Expenses, except that Tenant shall be obligated only for payment of
that portion of Tenant's Percentage of Operating Expenses which is attributable
to the cost of providing utilities and janitorial services to the Building.
40. EARLY OCCUPANCY. Landlord shall permit Tenant to have early occupancy of
the Premises following execution of this Lease and payment of the sums required
upon Lease execution, for the purposes of installation of phones, cabling,
fixtures and furnishings, and for any other purpose permitted under this Lease,
provided such early occupancy does not interfere with Landlord's completion of
improvements to the Premises as required by this Lease.
41. SYSTEMS FURNITURE. In addition to the improvements to the Premises to be
provided by Landlord under the terms of this Lease, Landlord shall furnish and
install within the Premises prior to the Commencement Date, thirty-six (36)
eight foot by eight foot cubicle furniture systems for use by Tenant during the
term of the Lease (the "Systems Furniture"). Each such cubicle shall be wired
for 15 amps of power and installed with one voice and two data connections.
Tenant shall be provided with a picture and details of the Systems Furniture
proposed to be installed for its reasonable approval, prior to installation
within the Premises. The Systems Furniture shall remain the property of Landlord
and shall be surrendered by Tenant to Landlord at the termination of the Lease
in the same condition received, reasonable wear and tear excepted, provided that
Tenant shall have a license to use the Systems Furniture without payment of any
additional consideration during the Term.
42. OPTION TO CANCEL. Tenant shall have a one-time right to cancel the
remaining term of the Lease, with such cancellation to be effective, if
exercised, at the end of the first three Lease Years. In order to exercise the
right to cancel, Tenant must notify Landlord in writing no later than ninety
(90) days prior to the end of the third Lease Year of Tenant's election to
cancel, which notice, to be effective, must include payment to Landlord of a
Lease termination fee in the amount of One Hundred Thousand Dollars ($100,000).
Time is of the essence of this provision.
43. OPTION TO EXTEND. Landlord hereby grants to Tenant one option (the
"Option") to extend the term of the Lease, for an additional period of three (3)
years (the "Option Term"). The Option must be exercised, if at all, by written
notice (the "Option Notice") delivered by Tenant to Landlord not later than six
(6) months prior to the end of the Term. Further, the Option shall not be deemed
to be properly exercised if, as of the date of the Option Notice or at the end
of the Term, Tenant (i) has received a notice of default under this Lease, which
default has not been cured within any applicable cure period as of the date in
question, (ii) has assigned all or any portion of this Lease or its interest
herein except in a Permitted Transfer, or (iii) has sublet fifty percent (50%)
or more of the Premises. Provided Tenant has properly and timely exercised the
Option, the term of the Lease shall be extended by the Option Term, and all
terms, covenants and conditions of the Lease shall remain unmodified and in full
force and effect, except that (y) Tenant shall pay initial base rent determined
as set forth below in this paragraph, and (z) after the exercise of the Option,
Tenant shall have no options remaining. Landlord shall have no obligation
whatsoever in connection with any extension of the term of this Lease to
remodel, alter or improve the Premises for use by Tenant, to provide any
improvement or construction allowance to Tenant, or to pay or reimburse Tenant
for any remodeling, alterations or improvements to the Premises. The initial
base rent during the Option Term shall be ninety-five percent (95%) of the fair
market rental value of the Premises as of the commencement of the Option Term,
determined as provided below. As used herein, "fair market rental value" shall
mean the projected prevailing rental rate as of the first day of the Option Term
for similar commercial space improved or presumed to be improved with tenant
improvements of substantially similar age, quality and layout as then existing
in the Premises (but not including the value of any Alterations installed by
Tenant) and situated in similar office buildings in the Cupertino market,
including without limitation annual increases in the base rent.
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Promptly after delivery of the Option Notice, Landlord and Tenant shall meet and
confer and attempt to agree upon the fair market rental value of the Premises.
If they are not able to agree, either party may give written notice to the other
that the fair market rental value is to be determined by appraisal as provided
herein. Within twenty (20) days following such notice, each party shall by
written notice to the other appoint an independent and qualified appraiser. Each
of such appraisers shall, within thirty (30) days following appointment, give
written notice to both parties of the appraiser's determination of fair market
rental value. If the determinations of such appraisers are in agreement, the
initial base rent for the Option Term shall be ninety-five percent (95%) of the
fair market rental value so determined. If the difference between such
determinations is ten percent (10%) of the higher appraisal or less, the average
of the two determinations shall be the fair market rental value. If the
difference is more than such percentage, then during the ten-day period
following the appraisers' determinations, Landlord and Tenant shall again meet
and confer and attempt to agree upon the fair market rental value of the
Premises. If they are unable to agree, the two appraisers shall appoint an
independent M.A.I. appraiser with not less than five (5) years experience with
office leases in the area in which the building is located. Within thirty (30)
days following appointment, the third appraiser shall on written notice to the
parties determine the fair market rental value which is no less and no more than
the values determined by the other two appraisers, which determination shall be
binding upon the parties. Each party shall pay the fees and expenses of the
appraiser appointed by it and one-half of the fees and expenses of the third
appraiser. If base rent has not been determined as of the commencement of the
Option Term, Tenant shall pay the Base Rent in the amount specified by Landlord
until base rent is finally determined. Upon such determination any overpayment
or underpayment of base rent shall be reconciled.
44. BUILDING IMPROVEMENTS. Costs incurred by Landlord for improvements to the
Building HVAC system and replacement of the roof of the Building shall not be
included in Operating Expenses.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
TENANT: LANDLORD:
WAVE SYSTEMS CORPORATION, STEVENS CREEK INVESTORS, LLC
a Delaware corporation a California limited liability company
By: Matteson Real Estate Equities, Inc.
By: Manager
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OUTLINE OF FLOOR
PLAN OF PREMISES
[To be supplied]
EXHIBIT "A"
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TENANT IMPROVEMENTS
Landlord shall provide a "turn-key" tenant improvement build-out in accordance
with Exhibit A to the Lease, with existing improvements to remain in their AS-IS
condition except as modified per Exhibit A. All such improvements shall be at
Landlord's sole cost and expense with building standard materials reasonably
approved by Tenant. The improvements shall be substantially as outlined below,
subject to modifications as shown on the Floor Plan, which shall prevail to the
extent of any inconsistencies with the following:
1. Reception area/small waiting area.
2. Nine (9) 12 X 12 hard wall offices with sidelights.
3. One (1) 24 X 16 conference room with two (2) phone and two (2) data
connections in the center of the floor.
4. One (1) 18 X 10 conference room with two (2) voice and two (2) data
connections in the center of the floor.
5. One (1) 12 X 12 conference room with one (1) voice and one (1) data
connection in the center of the floor.
6. One (1) 500 sq. ft. hardware/software, tile floor lab partitioned into two
separate spaces with seven (7) 20A circuits with two (2) voice and four (4) data
connections.
7. One (1) 150 sq. ft. MIS lab/storage room with two (2) 20A circuits, one (1)
voice and four (4) data connections.
8. One (1) 150 sq. ft. server room with dedicated HVAC and four (4) 20A
circuits.
9. One (1) 16 X 15 break room/kitchen with lower and upper cabinetry as well
as sink area.
10. All wiring for voice and data connections as outlined above shall be tested
and terminated to a labeled patch panel in the location specified by Tenant,
at Lessor's sole cost.
11. Lessor shall provide power, at its sole cost, to satisfy Lessee's power
requirements set forth in this Exhibit B.
EXHIBIT "B"
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DEFINITION OF OPERATING EXPENSES
1. ITEMS INCLUDED IN OPERATING EXPENSES. The term "Operating Expenses" as used
in the Lease to which this EXHIBIT "C" is attached means: all costs and expenses
of operation and maintenance of the Building and the Common Areas (as such terms
are defined in the Lease), as determined by standard accounting practices,
including the following costs by way of illustration but not limitation, but
excluding those items specifically set forth in Paragraph 3 below:
(a) Real Property Taxes and Assessments (as defined in Paragraph 2 below) and
any taxes or assessments imposed in lieu thereof;
(b) any and all assessments imposed with respect to the Building pursuant to
any covenants, conditions and restrictions affecting the Project, the Common
Areas or the Building;
(c) water and sewer charges and the costs of electricity, heating, ventilating,
air conditioning and other utilities not separately metered to tenants of the
Building;
(d) utilities surcharges and any other costs, levies or assessments resulting
from statutes or regulations promulgated by any government or quasi-government
authority in connection with the use, occupancy or alteration of the Building or
the Premises or the parking facilities serving the Building or the Premises;
(e) costs of insurance obtained by Landlord pursuant to this Lease;
(f) waste disposal and janitorial services;
(g) costs incurred in the management of the Building, including, without
limitation: (i) supplies, (ii) wages and salaries (and payroll taxes and similar
governmental charges related thereto) of employees to the extent their jobs
relate to the management, operation and maintenance of the Building, (iii)
Building management office rental, supplies, equipment and related operating
expenses, and (iv) a management/administrative fee in the amount of two and
one-half percent (2.5%) of the monthly base rent.
(h) supplies, materials, equipment and tools including rental of personal
property used for maintenance;
(i) repair and maintenance of the elevators and the structural portions of the
Building, including the plumbing, heating, ventilating, air-conditioning and
electrical systems installed or furnished by Landlord;
(j) maintenance, costs and upkeep of all parking and Project Common Areas;
(k) depreciation on a straight line basis and rental of personal property used
in maintenance;
(l) except for the costs described in Section 44, amortization on a straight
line basis over the useful life [together with interest at the Interest Rate on
the unamortized balance] of all capitalized expenditures which are: (i)
reasonably intended to produce a reduction in operating charges or energy
consumption; or (ii) required under any governmental law or regulation that was
not applicable to the Building at the time it was originally constructed; or
(iii) for replacement of any Building equipment needed to operate the Building
at the same quality levels as prior to the replacement;
(m) costs and expenses of gardening and landscaping;
(n) maintenance of signs (other than signs of tenants of the Building);
(o) personal property taxes levied on or attributable to personal property used
in connection with the Building or the Common Areas;
(p) reasonable accounting, audit, verification, legal and other consulting fees
necessary to the general operation of the Project; and
(q) costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, lighting, cleaning, refuse removal, security and similar items.
2. REAL PROPERTY TAXES AND ASSESSMENTS. The term "Real Property Taxes and
Assessments", as used in this EXHIBIT "C", means: any form of assessment,
license fee, license tax, business license fee,
EXHIBIT "C"
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commercial rental tax, levy, charge, improvement bond, tax or similar imposition
imposed by any authority having the direct power to tax, including any city,
county, state or federal government, or any school, agricultural, lighting,
drainage or other improvement or special assessment district thereof, as against
any legal or equitable interest of Landlord in the Premises, Building, Common
Areas or the Project (as such terms are defined in the Lease), including the
following by way of illustration but not limitation:
(a) any tax on Landlord's "right" to rent or "right" to other income from the
Premises or as against Landlord's business of leasing the Premises;
(b) any assessment, tax, fee, levy or charge in substitution, partially or
totally, of any assessment, tax, fee, levy or charge previously included within
the definition of real property tax, it being acknowledged by Tenant and
Landlord that Proposition 13 was adopted by the voters of the State of
California in the June, 1978 election and that assessments, taxes, fees, levies
and charges may be imposed by governmental agencies for such services as fire
protection, street, sidewalk and road maintenance, refuse removal and for other
governmental services formerly provided without charge to property owners or
occupants. It is the intention of Tenant and Landlord that all such new and
increased assessments, taxes, fees, levies and charges be included within the
definition of "real property taxes" for the purposes of this Lease;
(c) any assessment, tax, fee, levy or charge allocable to or measured by the
area of the Premises or other premises in the Building or the rent payable by
Tenant hereunder or other tenants of the Building, including, without
limitation, any gross receipts tax or excise tax levied by state, city or
federal government, or any political subdivision thereof, with respect to the
receipt of such rent, or upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof but not on Landlord's other
operations;
(d) any assessment, tax, fee, levy or charge upon this transaction or any
document to which Tenant is a party, creating or transferring an interest or an
estate in the Premises; and/or
(e) any assessment, tax, fee, levy or charge by any governmental agency related
to any transportation plan, fund or system (including assessment districts)
instituted within the geographic area of which the Building is a part.
3. ITEMS EXCLUDED FROM OPERATING EXPENSES. Notwithstanding the provisions of
Paragraphs 1 and 2 above to the contrary, "Operating Expenses" will not include:
(a) Landlord's federal or state income, franchise, inheritance or estate taxes;
(b) any ground lease rental;
(c) costs incurred by Landlord for the repair of damage to the Building to the
extent that Landlord is reimbursed by insurance (or would be reimbursed had
Landlord carried the insurance required under this Lease) or condemnation
proceeds or by tenants, warrantors or other third persons;
(d) depreciation, amortization and interest payments;
(e) brokerage commissions, finders' fees, attorneys' fees, space planning costs
and other costs incurred by Landlord in leasing or attempting to lease space in
the Building;
(f) costs of a capital nature, including, without limitation, capital
improvements, capital replacements, capital repairs, capital equipment and
capital tools, all as determined in accordance with standard accounting
practices; except for the capital expenditures set forth in Subparagraph
1(l)above;
(g) interest, principal, points and fees on debt or amortization on any
mortgage, deed of trust or other debt encumbering the Building or the Project;
(h) costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements for tenants in the Building
(including the original Tenant Improvements for the Premises), or incurred in
renovating or otherwise improving, decorating, painting or redecorating space
for tenants or other occupants of the Building, including space planning and
interior design costs and fees;
(i) attorneys' fees and other costs and expenses incurred in connection with
negotiations or disputes with present or prospective tenants or other occupants
of the Building;
(j) costs of Landlord's general corporate overhead;
EXHIBIT "C"
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(k) all items and services for which Tenant or any other tenant in the Building
reimburses Landlord (other than through Operating Expense pass-through
provisions);
(l) electric power costs for which any tenant directly contracts with the local
public service company;
(m) costs arising from Landlord's charitable or political contributions;
(n) costs incurred in connection with the original construction of the
Building;
(o) expenses directly resulting from the breach of any tenant lease (including
this Lease), negligence and/or intentional misconduct of Landlord, its agents,
contractors or employees;
(p) any bad debt loss, rent loss, or reserves for bad debts, rent loss or any
other purpose;
(q) the wages of any employee who does not devote substantially all of his or
her time to the Building shall be equitably allocated to the Building and the
wages of any executive or administrative employees;
(r) fines, penalties and interest;
(s) costs incurred by Landlord with respect to goods and services (including
utilities sold and supplied to tenants and occupants of the Building) to the
extent that Landlord is reimbursed such costs other than through operating
expense payments;
(t) rentals and other related expenses incurred in leasing air conditioning
systems, elevators or other equipment ordinarily considered to be of a capital
nature, except equipment not affixed to the Building which is used while repairs
are being undertaken or in providing janitorial or similar services;
(u) except for the property management fee permitted under Paragraph 1(g) of
this EXHIBIT C, overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in or to the
Project to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis;
(v) advertising expenses, promotional expenses, and other costs of a similar
nature incurred in the leasing of space at the Project;
(w) insurance that is not required to be carried by Landlord pursuant to this
Lease, and is in excess of that which a prudent owner of a comparable building
would carry in the ordinary course of business, provided that this exclusion
shall not be deemed to cover earthquake insurance carried by Landlord as
permitted in this Lease;
(x) any costs incurred by Landlord for actions or services that are not
necessary for Landlord to perform to satisfy Landlord's obligations pursuant to
this Lease;
(y) the costs to repair or replace any damage or destruction covered by
Paragraph 20 in excess of insurance proceeds; and
(z) costs arising from the presence of any Hazardous Materials (not resulting
from the acts or omissions of Tenant).
EXHIBIT "C"
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STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
Subject to the terms and conditions of the Lease and provided Tenant remains in
occupancy of the Premises, Landlord will provide or make available the following
utilities and services:
1. Provide non-attended automatic elevator available for Tenant's nonexclusive
use at all other times.
2. On Monday through Friday, except holidays, from 7:30 a.m. to 6:00 p.m. (and
other times for a reasonable additional charge to be fixed by Landlord),
ventilate the Premises and furnish air conditioning or heating on such days and
hours, when in the reasonable judgment of Landlord it may be required for the
comfortable occupancy of the Premises. "Holidays" shall mean New Year's Day,
President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day and such other national holidays as are adopted by Landlord as
holidays for the Building. The air conditioning system achieves maximum cooling
when the window coverings are extended to the full length of the window opening
and adjusted to a 45 DEG. angle upwards. Landlord will not be responsible for
room temperatures if Tenant does not keep all window coverings in the Premises
extended to the full length of the window opening and adjusted to a 45 DEG.
angle upwards whenever the system is in operation. Tenant agrees to cooperate
fully at all times with Landlord, and to abide by all reasonable regulations and
requirements which Landlord may prescribe for the proper function and protection
of said air conditioning system. Tenant agrees not to connect any apparatus,
device, conduit or pipe to the chilled and hot water air conditioning supply
lines of the Building. Tenant further agrees that neither Tenant nor its
servants, employees, agents, visitors, licensees or contractors shall at any
time enter the mechanical installations or facilities of the Building or the
Project or adjust, tamper with, touch or otherwise in any manner affect said
installations or facilities. The reasonable cost of maintenance and service
calls to adjust and regulate the air conditioning system will be charged to
Tenant if the need for maintenance work results from either Tenant's adjustment
of room thermostats or Tenant's failure to comply with its obligations under
this Exhibit, including keeping window coverings extended to the full length of
the window opening and adjusted to a 45 DEG. angle upwards. Initially, Tenant
shall pay for after-hours HVAC services at the rate of Thirty-Five Dollars
($35.00) per hour, subject to reasonable adjustment at no profit to Landlord.
3. Landlord will make available to the Premises, 24 hours per day, seven days
a week, electric current as required by the Building standard office lighting
and fractional horsepower office business machines including copiers, personal
computers and word processing equipment in an amount not to exceed five (5)
watts per square foot per normal business day. Tenant agrees, should its
electrical installation or electrical consumption be in excess of the aforesaid
quantity or extend beyond normal business hours, to reimburse Landlord monthly
for the measured consumption at the average cost per kilowatt hour charged to
the Building during the period. If a separate meter is not installed at Tenant's
cost, such excess cost will be established by an estimate agreed upon by
Landlord and Tenant, and if the parties fail to agree, such cost will be
established by an independent licensed engineer selected in Landlord's
reasonable discretion, whose fee shall be shared equally by Landlord and Tenant.
Tenant agrees not to use any apparatus or device in, upon or about the Premises
(other than standard office business machines, personal computers and word
processing equipment) which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without the written consent of Landlord. Should Tenant
use the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge will
constitute a breach of the obligation to pay rent under this Lease and will
entitle Landlord to the rights therein granted for such breach. Tenant's use of
electric current will never exceed the capacity of the feeders to the Building,
or the risers or wiring installation and Tenants will not install or use or
permit the installation or use of any computer or electronic data processing
equipment in the Premises (except standard office business machines, personal
computers and word processing equipment) without the prior written consent of
Landlord.
4. Water will be available in public areas for drinking and lavatory purposes
only, but if Tenant requires, uses or consumes water for any purpose in addition
to ordinary drinking and lavatory purposes, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant agrees
to pay Landlord for the cost of the meter and the cost of the installation
thereof and throughout the duration of Tenant's occupancy Tenant will keep said
meter and installation equipment in good working order and repair at Tenant's
own cost and expense, in default of which Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof
EXHIBIT "D"
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from Tenant. Tenant agrees to pay for water consumed, as shown on such meter, as
and when bills are rendered, and on default in making such payment, Landlord may
pay such charges and collect the same from Tenant. Any such costs or expenses
incurred, or payments made by Landlord for any of the reasons or purposes
hereinabove stated will be deemed to be additional rent payable by Tenant and
collectible by Landlord as such.
5. Landlord will provide janitorial service to the Premises at least five (5)
days per week on each business day, provided the same are used exclusively as
permitted in this Lease, and are kept reasonably in order by Tenant, and unless
otherwise agreed to by Landlord and Tenant no one other than persons approved by
Landlord shall be permitted to enter the Premises for such purposes. If the
Premises are not used exclusively as permitted in this Lease, they will be kept
clean and in order by Tenant, at Tenant's expense, and to the satisfaction of
Landlord, and by persons approved by Landlord. Tenant agrees to pay to Landlord
the cost of removal of any of Tenant's refuse and rubbish to the extent that the
same exceeds the refuse and rubbish usually attendant upon the use of the
Premises as offices.
6. Subject to Landlord's obligation not to unreasonably interfere with
Tenant's access to or use of the Premises (as provided in the Lease), Landlord
reserves the right to stop service of the elevator, plumbing, ventilation, air
conditioning and electrical systems, when necessary, by reason of accident or
emergency or for repairs, alterations or improvements, when in the judgment of
Landlord such actions are desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and Landlord will have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations or by reason of the
requirements of any federal, state, county or municipal authority or failure of
gas, oil or other suitable fuel supply or inability by exercise of reasonable
diligence to obtain gas, oil or other suitable fuel supply. It is expressly
understood and agreed that any covenants on Landlord's part to furnish any
services pursuant to any of the terms, covenants, conditions, provisions or
agreements of this Lease, or to perform any act or thing for the benefit of
Tenant, will not be deemed breached if Landlord is unable to furnish or perform
the same by virtue of a strike or labor trouble or any other cause whatsoever
beyond Landlord's control.
7. As part of Operating Expenses, Landlord shall provide security services for
the Building and the Project, including, without limitation, equipment,
personnel, systems and procedures as reasonably determined by Landlord in its
sole discretion.
EXHIBIT "D"
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RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS. The following rules and regulations govern
the use of the Building and the Project Common Areas. Tenant will be bound by
such rules and regulations and agrees to cause Tenant's Authorized Users, its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
to observe the same.
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice may be installed or displayed on any part of the outside or inside of the
Building or the Project without the prior written consent of Landlord. Landlord
will have the right to remove, at Tenant's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls are to be printed, painted, affixed or inscribed at
the expense of Tenant and under the direction of Landlord by a person or company
designated or approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection with
any window or door of the Premises, or placed on any windowsill, which is
visible from the exterior of the Premises, Tenant will immediately discontinue
such use. Tenant agrees not to place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises
including from within any interior common areas.
3. Tenant will not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators, or stairways of the Project. The halls, passages, exits,
entrances, elevators and stairways are not open to the general public, but are
open, subject to reasonable regulations, to Tenant's business invitees. Landlord
will in all cases retain the right to control and prevent access thereto of all
persons whose presence in the reasonable judgment of Landlord would be
prejudicial to the safety, character, reputation and interest of the Project and
its tenants, provided that nothing herein contained will be construed to prevent
such access to persons with whom any tenant normally deals in the ordinary
course of its business, unless such persons are engaged in illegal or unlawful
activities. No tenant and no employee or invitee of any tenant will go upon the
roof of the Building.
4. Tenant will not obtain for use on the Premises ice, drinking water, food,
food vendors, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such reasonable hours and
under such reasonable regulations as may be fixed by Landlord. Landlord
expressly reserves the right to absolutely prohibit solicitation, canvassing,
distribution of handbills or any other written material, peddling, sales and
displays of products, goods and wares in all portions of the Project except as
may be expressly permitted under the Lease. Landlord reserves the right to
restrict and regulate the use of the common areas of the Project and Building by
invitees of tenants providing services to tenants on a periodic or daily basis
including food and beverage vendors. Such restrictions may include limitations
on time, place, manner and duration of access to a tenant's premises for such
purposes. Without limiting the foregoing, Landlord may require that such parties
use service elevators, halls, passageways and stairways for such purposes to
preserve access within the Building for tenants and the general public.
5. Landlord reserves the right to require tenants to periodically provide
Landlord with a written list of any and all business invitees which periodically
or regularly provide goods and services to such tenants at the premises.
Landlord reserves the right to preclude all vendors from entering or conducting
business within the Building and the Project if such vendors are not listed on a
tenant's list of requested vendors.
6. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. the following business day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the Building or has a pass or is properly identified. Tenant will be responsible
for all persons for whom it requests passes and will be liable to Landlord for
all acts of such persons. Landlord will not be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person.
Landlord reserves the right to prevent access to the Building in case of
invasion, mob, riot, public excitement or other commotion by closing the doors
or by other appropriate action.
7. The directory of the Building or the Project will be provided exclusively
for the display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom.
8. All cleaning and janitorial services for the Project and the Premises will
be provided exclusively through Landlord, and except with the written consent of
Landlord, no person or persons other than those approved by Landlord will be
employed by Tenant or permitted to enter the Project for the purpose of cleaning
the same. Tenant will not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the Premises.
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9. Landlord will furnish Tenant, free of charge, with two keys to each entry
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install any new additional lock or bolt on any door
of the Premises. Tenant, upon the termination of its tenancy, will deliver to
Landlord the keys to all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, will pay Landlord therefor.
10. If Tenant requires telegraphic, telephonic, burglar alarm, satellite
dishes, antennae or similar services, it will first obtain Landlord's approval,
and comply with, Landlord's reasonable rules and requirements applicable to such
services, which may include separate licensing by, and fees paid to, Landlord.
11. The elevator will be available for use by all tenants in the Building,
subject to such reasonable scheduling as Landlord, in its discretion, deems
appropriate. No equipment, materials, furniture, packages, supplies, merchandise
or other property will be received in the Building or carried in the elevators
except between such hours and in such elevators as may be designated by
Landlord. Tenant's initial move in and subsequent deliveries of bulky items,
such as furniture, safes and similar items will, unless otherwise agreed in
writing by Landlord, be made during the hours of 6:00 p.m. to 6:00 a.m. or on
Saturday or Sunday. Deliveries during normal office hours shall be limited to
normal office supplies and other small items. No deliveries will be made which
unreasonably impede or interfere with other tenants or the operation of the
Building.
12. Tenant will not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which is
allowed by law. Landlord will have the right to reasonably prescribe the weight,
size and position of all safes, heavy equipment, files, materials, furniture or
other property brought into the Building. Heavy objects will, if considered
necessary by Landlord, stand on such platforms as determined by Landlord to be
necessary to properly distribute the weight, which platforms will be provided at
Tenant's expense. Business machines and mechanical equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to the structure
of the Building or to any space therein to such a degree as to be objectionable
to any tenants in the Building or Landlord, are to be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devises
sufficient to eliminate noise or vibration. Tenant will be responsible for all
structural engineering required to determine structural load, as well as the
expense thereof. The persons employed to move such equipment in or out of the
Building must be reasonably acceptable to Landlord. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the Building by maintaining or moving such
equipment or other property will be repaired at the expense of Tenant.
13. Tenant will not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant will not
use or permit to be used in the Premises any foul or noxious gas or substance,
or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors or vibrations, nor will Tenant bring into or keep in or about the Premises
any birds or animals.
14. Tenant will not use any method of heating or air conditioning other than
that supplied by Landlord without Landlord's prior written consent.
15. Tenant will not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice, and
will refrain from attempting to adjust controls. Tenant will keep corridor doors
closed, and shall keep all window coverings pulled down.
16. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
Without the prior written consent of Landlord, which Landlord will not
unreasonably withhold or delay, Tenant will not use the name, photograph or
likeness of the Building or the Project except in connection with or in
promoting or advertising the business of Tenant.
17. Tenant will close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and lighting or gas before Tenant
and its employees leave the Premises. Tenant will be responsible for any damage
or injuries sustained by other tenants or occupants of the Building or by
Landlord for noncompliance with this rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus will not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from any violation of
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this rule will be borne by the tenant who, or whose employees or invitees, break
this rule. Cleaning of equipment of any type is prohibited. Shaving is
prohibited.
19. Tenant will not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant will not use the Premises for any
business or activity other than that specifically provided for in this Lease.
Tenant will not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auction upon the Premises without first having obtained
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion.
20. Tenant will not install any radio or television antenna, loudspeaker,
satellite dishes or other devices on the roof(s) or exterior walls of the
Building or the Project. Tenant will not interfere with satellite dish, radio or
television broadcasting or transmission or reception from or in the Project or
elsewhere.
21. Except for the ordinary hanging of pictures and wall decorations, Tenant
will not mark, drive nails, screw or drill into the partitions, woodwork or
plaster or in any way deface the Premises or any part thereof, except in
accordance with the provisions of the Lease pertaining to alterations. Landlord
reserves the right to direct electricians as to where and how telephone and
telegraph wires are to be introduced to the Premises. Tenant will not cut or
bore holes for wires. Tenant will not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
22. Tenant will not install, maintain or operate upon the Premises any vending
machines without the written consent of Landlord.
23. Landlord reserves the right to exclude or expel from the Project any person
who, in Landlord's judgment, is intoxicated or under the influence of liquor or
drugs or who is in violation of any of the Rules and Regulations of the
Building.
24. Tenant will store all its trash and garbage within its Premises or in other
facilities provided by Landlord. Tenant will not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
is to be made in accordance with directions issued from time to time by
Landlord.
25. The Premises will not be used for lodging or for the storage of merchandise
held for sale to the general public, or for lodging or for manufacturing of any
kind, nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking will be done or permitted on the Premises without Landlord's
consent, except the use by Tenant of Underwriters' Laboratory approved equipment
for brewing coffee, tea, hot chocolate and similar beverages shall be permitted,
and the use of a microwave oven for employees use will be permitted, provided
that such equipment and use is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations.
26. Neither Tenant nor any of its employees, agents, customers and invitees may
use in any space or in the public halls of the Building or the Project any hand
truck except those equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. Tenant will not bring any
other vehicles of any kind into the Building.
27. Tenant agrees to comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. To the extent Landlord reasonably deems it necessary to exercise exclusive
control over any portions of the Common Areas for the mutual benefit of the
tenants in the Building or the Project, Landlord may do so subject to
reasonable, non-discriminatory additional rules and regulations which do not
deprive Tenant of its quiet enjoyment of the Premises or parking.
30. Landlord may prohibit smoking in the Building and may require Tenant and
any of its employees, agents, clients, customers, invitees and guests who desire
to smoke, to smoke within designated smoking areas within the Project.
31. Tenant's requirements will be attended to only upon appropriate application
to Landlord's asset management office for the Project by an authorized
individual of Tenant. Employees of Landlord will not perform any work or do
anything outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
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32. These Rules and Regulations are in addition to, and will not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Lease. Landlord may waive any one or more of
these Rules and Regulations for the benefit of Tenant or any other tenant, but
no such waiver by Landlord will be construed as a waiver of such Rules and
Regulations in favor of Tenant or any other tenant, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all of the
tenants of the Project.
33. Landlord reserves the right to make such other and reasonable and
non-discriminatory Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and cleanliness of the Project
and for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations herein above stated and any additional reasonable and
non-discriminatory rules and regulations which are adopted. Tenant is
responsible for the observance of all of the foregoing rules by Tenant's
employees, agents, clients, customers, invitees and guests.
B. PARKING RULES AND REGULATIONS. The following rules and regulations govern
the use of the parking facilities which serve the Building. Tenant will be bound
by such rules and regulations and agrees to cause its employees, subtenants,
assignees, contractors, suppliers, customers and invitees to observe the same:
1. Tenant will not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, subtenants, customers or invitees to
be loaded, unloaded or parked in areas other than those designated by Landlord
for such activities. No vehicles are to be left in the parking areas overnight
and no vehicles are to be parked in the parking areas other than passenger
automobiles, vans, sport utility vehicles, motorcycles and pick-up trucks. No
extended term storage of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles
or on ramps; (c) where "no parking" signs are posted; (d) in cross-hatched
areas; and (e) in such other areas as may be designated from time to time by
Landlord.
6. Landlord reserves the right, without cost or liability to Landlord, to tow
any vehicle if such vehicle's audio theft alarm system remains engaged for an
unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking facilities
who violates these rules with unreasonable frequency, and any violation of these
rules shall subject the violator's car to removal, at such car owner's expense.
Tenant agrees to use its best efforts to acquaint its employees, subtenants,
assignees, contractors, suppliers, customers and invitees with these parking
provisions, rules and regulations.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Parking identification
devices, if utilized by Landlord, must be displayed as requested and may not be
mutilated in any manner. The serial number of the parking identification device
may not be obliterated. Parking identification devices, if any, are not
transferable and any device in the possession of an unauthorized holder will be
void. Landlord reserves the right to refuse the sale of monthly stickers or
other parking identification devices to Tenant or any of its agents, employees
or representatives who willfully refuse to comply with these rules and
regulations and all unposted city, state or federal ordinances, laws or
agreements.
10. Loss or theft of parking identification devices or access cards must be
reported to the management office in the Project immediately, and a lost or
stolen report must be filed by the Tenant or user of such parking identification
device or access card at the time. Landlord has the right to exclude any vehicle
from the parking facilities that does not have a parking identification device
or valid access card. Any parking identification device or access card which is
reported lost or stolen and which is subsequently found in the possession of an
unauthorized person will be confiscated and the illegal holder will be subject
to prosecution.
11. Landlord reserves the right, without cost or liability to Landlord, to tow
any vehicles which are used or parked in violation of these rules and
regulations.
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12. Landlord reserves the right from time to time to modify and/or adopt such
other reasonable and non-discriminatory rules and regulations for the parking
facilities as it deems reasonably necessary for the operation of the parking
facilities.
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