Exhibit 10.6
OFFICE BUILDING LEASE
by and between
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
A Wisconsin Corporation
by its Agent
GIBSON SPENO MANAGEMENT COMPANY
A California Corporation
("Landlord")
and
BIO-VED, INC.,
A Delaware Corporation
("Tenant")
Date: September 8, 1995
TABLE OF CONTENTS
Article Page
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1. TERM 1
2. POSSESSION 1
3. BASIC RENT 1
4. RENTAL ADJUSTMENT 2
5. SECURITY DEPOSIT 3
6. USE 3
7. NOTICES 4
8. BROKERS 4
9. HOLDING OVER 4
10. TAXES ON TENANT'S PROPERTY 4
11. CONDITION OF PREMISES 5
12. ALTERATIONS 5
13. REPAIRS 5
14. LIENS 6
15. ENTRY BY LANDLORD 6
16. UTILITIES AND SERVICES 6
17. BANKRUPTCY 7
18. INDEMNIFICATION 7
19. DAMAGE TO TENANT'S PROPERTY 7
20. TENANT'S INSURANCE 7
21. DAMAGE OR DESTRUCTION 8
22. EMINENT DOMAIN 10
23. DEFAULTS AND REMEDIES 10
24. ASSIGNMENT AND SUBLETTING 11
25. SUBORDINATION 12
26. ESTOPPEL CERTIFICATE 12
Article Page
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27. BUILDING PLANNING 13
28. RULES AND REGULATIONS 13
29. CONFLICT OF LAW 13
30. SUCCESSORS AND ASSIGNS 13
31. SURRENDER OF PREMISES 13
32. ATTORNEYS' FEES 13
33. PERFORMANCE BY TENANT 13
34 MORTGAGEE PROTECTION 14
35. DEFINITION OF LANDLORD 14
36. WAIVER 14
37. IDENTIFICATION OF TENANT 14
38. PARKING 15
39. TERMS AND HEADINGS 15
40. EXAMINATION OF LEASE 15
41. TIME 15
42. PRIOR AGREEMENT; AMENDMENTS 15
43. SEPARABILITY 15
44. RECORDING 15
45. CONSENTS 15
46. LIMITATION OF LIABILITY 15
47. RIDERS 16
48 FORCE MAJEURE 16
49. MODIFICATION FOR LENDER 16
50. OPTION TO EXTEND 16
51. EARLY OCCUPANCY 17
TABLE OF EXHIBITS
Exhibit A The Premises
Exhibit B Work Letter Agreement
Exhibit C Standards for Utilities and Services
Exhibit D Rules and Regulations
Exhibit E Parking Rules and Regulations
SAN JOSE CORPORATE CENTER
OFFICE BUILDING LEASE
THIS LEASE is made as of September 8, 1995 by and between Northwestern
Mutual Life Insurance Company, a Wisconsin Corporation ("Landlord"), and
Bio-Ved, Inc., A Delaware Corporation, ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
Suite Number 290 (the "Premises") outlined on the floor plan attached hereto
and marked Exhibit A, the Premises being agreed, for the purposes of this
Lease, to have an area of approximately 2,006 rentable square feet (1,791
usable square feet) and being situated on the 2nd floor of that certain
office building located at 1737 North First Street, San Jose, California
95112 (the "Building"). The Building contains approximately 82,596 rentable
square feet of space.
The parties hereto agree that said letting and hiring is upon and subject
to the terms, covenants and conditions herein set forth. Tenant covenants, as
a material part of the consideration for this Lease to keep and perform each
and all of said terms, covenants and conditions for which Tenant is liable
and that this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease the Premises shall be
improved by the Tenant Improvements described in the Work Letter marked
Exhibit B attached hereto.
1. TERM
The term of this Lease shall be for thirty-six (36) months. commencing
October 15, 1995, and ending on the last day of the month immediately
preceding the month in which the anniversary of the commencement date occurs,
unless such term shall be sooner terminated as hereinafter provided.
Failure to enter into such an amendment, however, shall not affect Tenant's
liability hereunder for the term of the Lease. Reference in this Lease to a
"Lease Year" shall mean each successive twelve month period commencing with
the commencement date.
2. POSSESSION
Tenant agrees that, if Landlord is unable to deliver possession of the
Premises to Tenant on the scheduled commencement of the term of this Lease,
this Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom, but in such event the term
of this Lease shall not commence until Landlord tenders possession of the
Premises to Tenant with the Tenant Improvements substantially completed. If
Landlord is unable to deliver possession of the Premises by January 15,
1996, provided Tenant has not caused any delays in the construction of tenant
improvements, Tenant shall be relieve from its obligations hereunder and this
Lease shall be deemed void.
3. BASIC RENT
(a) Tenant agrees to pay Landlord Basic Rent for the Premises (subject to
adjustments as hereinafter provided) as follows:
Months of Term Monthly Basic Rent
-------------- ------------------
01 - 36 $3,189.54
The Basic Rent shall be paid monthly, in advance on the first (1st) day of
each calendar month during the term, except that the first month's rent shall
be paid on execution hereof. If Tenant's obligation to pay rent commences or
ends on a day other than the first day of a calendar month, then the rental
for such period shall be prorated in the proportion that the number of days
this Lease is in effect during such period bears to thirty. In addition to
the Basic Rent, Tenant agrees to pay as additional rental the amount of
rental adjustments and other charges required by this Lease. All rental shall
be paid to Landlord, without prior demand and without any deduction or
offset, in lawful money of the United States of America, at the address of
Landlord designated on the signature page of this Lease or to such other
person or at such other place as Landlord may from time to time designate in
writing.
(b) In the event Tenant fails to pay any installment of rent when due or
in the event Tenant fails to make any other payment of which Tenant is
obligated under this Lease when due, then Tenant shall pay to Landlord a late
charge equal to five percent (5%) monthly to compensate Landlord for the
extra costs incurred as a result of such late payment. Tenant shall incur
late charges for any payments that are received more than five (5) day after
the due date.
4. RENTAL ADJUSTMENT
(a) For the purpose of this Article 4, the following terms are defined as
follows:
(i) Tenant's Percentage. That portion of the Building occupied by
Tenant divided by the total square footage of the Building, which result is
the following 2.43%.
(ii) Direct Expenses Base. The amount of the annual Direct Expenses
which Landlord has included in Basic Rent, which amount is equal to the 1996
actual direct expenses.
(iii) Direct Expenses. The term "Direct Expenses" shall include:
(A) All real and personal property taxes and assessments
imposed by any governmental authority or agency on the Building and the land
on which the
Building is located (including a pro rata portion of any taxes levied on any
common areas); any assessments levied in lieu of taxes; any nonprogressive
tax on or measured by gross rentals received from the rental of space in the
Building; and any other costs levied or assessed by, or at the direction of,
any federal, state, or local government authority in connection with the use
or occupancy of the Premises or the parking facilities serving the Premises;
any tax on this transaction or any document to which Tenant is a party
creating or transferring an interest in the Premises, and any expenses,
including cost of attorneys or experts, reasonably incurred by Landlord in
seeking reduction by the taxing authority of the above referenced taxes, less
tax refunds obtained as a result of an application for review thereof; but
shall no include any net income, franchise, capital stock, estate or
inheritance taxes.
(B) Operating costs consisting of costs incurred by Landlord in
maintaining and operating the Building, exclusive of costs required to be
capitalized for federal income tax purposes, and including (without limiting
the generality of the foregoing) the following: costs of utilities, supplies
and insurance, costs of services of independent contractors, managers and
other suppliers, the fair rental value of the Building office, costs of
compensation (including employment taxes and fringe benefits) of all persons
who perform regular and recurring duties connected with the management,
operation, maintenance, and repair of the Building, its equipment, parking
facilities and the common areas, including, without limitation, engineers,
janitors, foremen, floor waxers, window washers, watchmen and gardeners, but
excluding person performing services not uniformly available to or performed
for substantially all Building tenants; a reasonable management fee; cost of
maintaining, repairing and replacing landscaping, sprinkler systems, concrete
walkways, paved parking areas, signs, and site lighting.
(C) Amortization of such capital improvements as Landlord may
have installed: (a) for the purpose of reducing operating costs, (b) to
comply with governmental rules and regulations promulgated after completion
of the Building, (c) for the purpose of replacing existing capital items and
improvements, and (d) any costs required by the CC&R's, as defined in Article
6, affecting the Premises or by any corporation, committee or association
formed in connection therewith, provided that such cost together with
interest at the maximum rate allowed by law shall be amortized over such
reasonable period as Landlord shall determine, and only the monthly amortized
cost shall be included in Direct Expenses.
(b) If Tenant's Percentage of the Direct Expenses paid or incurred by
Landlord for any calendar year exceeds the Direct Expenses Base included in
Tenant's rent, then Tenant shall pay such excess as additional rent. In
addition, for each year after the first calendar year, or portion thereof,
Tenant shall pay Tenant's Percentage of Landlord's estimate of the amount by
which Direct Expenses for that year shall exceed the Direct Expenses Base
("Landlord Estimate"). This estimated amount shall be divided into twelve
equal monthly installments. Tenant shall pay to Landlord, concurrently with
the regular monthly rent payment next due following the receipt of such
statement, an amount equal to one monthly installment multiplied by the
number of months from January in the calendar year
in which said statement is submitted to the month of such payment, both
months inclusive. Subsequent installments shall be payable concurrently with
the regular monthly rent payments for the balance of that calendar year and
shall continue until the next calendar year's statement is rendered. As soon
as possible after the end of each calendar year, Landlord shall provide
Tenant with a statement showing the amount of Tenant's Percentage of Direct
Expenses, the amount of Landlord's Estimate actually paid by Tenant and the
amount of the Direct Expenses Base. Thereafter, Landlord shall reconcile the
above amounts and shall either bill Tenant for the balance due (payable on
demand by Landlord) or credit any overpayment by Tenant towards the next
monthly installment of Landlord's Estimate falling due, as the case may be.
For purposes of making these calculations, in no event shall Tenant's
Percentage of the Direct Expenses be deemed to be less than the Direct
Expenses Base.
(c) Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Percentage of Direct
Expenses for the year in which this Lease terminates, Tenant shall
immediately pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease shall be
rebated by Landlord to Tenant.
5. SECURITY DEPOSIT
Tenant has deposited with Landlord the sum of Thirteen Thousand One
Hundred Eighty Nine Dollars and 54/l00ths ($13,189.54). Said sum shall be
held by Landlord as security for the faithful performance by Tenant of all of
Tenant's obligations hereunder. Ten Thousand Dollars ($10,000.00) of the
deposit set forth above shall be held in an interest bearing account. All
interest earned from said $10,000.00 shall be paid to Tenant by Landlord at
the end of the lease term. If Tenant defaults with respect to any provision
of this Lease, including but not limited to the provisions relating to the
payment of rent, Landlord may (but shall not be required to) use, apply or
retain all or any part of this 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
or to compensate Landlord for any other loss or damage which Landlord may
suffer by reason of Tenant's default. If any portion of the deposit is so
used or applied, Tenant shall, upon demand, deposit cash with Landlord in an
amount sufficient to restore the security deposit to its original amount.
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its general
f unds, and Tenant shall not be entitled to interest on such deposit, except
for as provided above. If Tenant shall fully and faithfully perform all of
its obligations under this Lease, the security deposit or any balance thereof
shall be returned to Tenant (or, at Landlord's option, to the last assignee
of Tenant's interest hereunder) at the expiration of the Lease term, provided
that Landlord may retain the security deposit until such time as any amount
due from Tenant in accordance with Article 4 hereof has been determined and
paid in full.
6. USE
(a) Tenant shall use the Premises for general office purposes and shall
not use or permit the Premises to be used for any other purpose without the
prior written consent of Landlord. Nothing contained herein shall be deemed
to give Tenant any exclusive right to such use in the Building. Tenant shall
not use or occupy the Premises in violation of law or the certificate of
occupancy issued for the Building, and shall, upon written notice from
Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation of law or of the
certificate of occupancy. Tenant shall comply with any direction of any
governmental authority having jurisdiction which shall, by reason of the
nature of Tenant's use or occupancy of the Premises, impose a duty upon
Tenant or Landlord with respect to the Premises or with respect to the use or
occupation thereof. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, extended coverage or any
other insurance policy covering the Building and/or property located therein
and shall comply with all rules, orders, regulations and requirements of the
Insurance Service Offices, formerly known as the Pacific Fire Rating Bureau
or any other organization performing a similar function. Tenant shall
promptly, upon demand, reimburse Landlord for any additional premium charged
for such policy by reason of Tenant's failure to comply with the provisions
of this article. Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere with the
rights of other tenants of the Building, or injure or annoy them, or use or
allow the Premises to be used for any improper, immoral, unlawful or
objectional purpose, nor shall Tenant cause, maintain or permit any nuisances
in, on or about the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
7. NOTICES
Any notice required or permitted hereunder must be in writing and may be
given by personal delivery, overnight courier service, or by mail, and if
given by mail shall be deemed sufficiently given if sent by registered or
certified mail addressed to Tenant at the Premises, or to Landlord at its
address set forth at the end of this Lease. 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.
8. BROKERS
Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of the Lease, except Duffy
D'Angelo of Colliers Parrish International whose commission shall be payable
by Landlord, and that it knows of no other real estate broker or agent who is
or might be entitled to a commission in connection with this Lease. If Tenant
has dealt with any other person or real estate broker with respect to leasing
or renting space in the Building, Tenant shall be solely responsible for the
payment of any fee due said person or firm and Tenant shall hold Landlord
free and harmless against any liability in respect thereto, including
attorneys' fees and costs.
9. HOLDING OVER
If Tenant holds over after the expiration or earlier termination of the
term hereof without the express written consent of Landlord, Tenant shall
become a Tenant at sufferance only, at a rental rate equal to one hundred
fifty percent (150%) of the rent in effect upon the date of such expiration
(subject to adjustment as provided in paragraph 4 hereof and prorated on a
daily basis), and otherwise subject to the terms, covenants and conditions
herein specified, so far as applicable. Acceptance by Landlord of rent after
such expiration or earlier termination shall not result in a renewal of this
Lease. The foregoing provisions of this Article 9 are in addition to and do
not affect Landlord's right of reentry or any rights of Landlord hereunder or
as otherwise provided by law. If Tenant fails to surrender the Premises upon
the expiration of this Lease despite demand to do so by Landlord, Tenant
shall indemnify and hold Landlord harmless from all loss or liability,
including without limitation, any claim made by any succeeding tenant founded
on or resulting from such failure to surrender, and any attorneys' fees and
costs.
10. TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and shall pay, at least ten days before
delinquency, all taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based upon such increased assessment, which Landlord shall have the
right to do regardless of the validity thereof, but only under proper protest
if requested by Tenant, Tenant shall, upon demand, repay to Landlord the
taxes so levied against Landlord, or the portion of such taxes resulting from
such increase in the assessment.
(b) If the Tenant Improvements in the Premises, whether installed, and/or
paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which Tenant
Improvements conforming to Landlord's "Building Standard" in other space in
the Building are assessed, then the real property taxes and assessments
levied against the Building by reason of such excess assessed valuation shall
be deemed to be taxes levied against personal property of Tenant and shall be
governed by the provisions of Paragraph 10(a), above. If the records of the
county assessor are available and sufficiently detailed to serve as a basis
for determining whether said Tenant Improvements are assess at a higher
valuation than Landlord's Building Standard, such records shall be binding on
both the Landlord and the Tenant. If the records of the county assessor are
not available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
11. CONDITION OF PREMISES
Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises or the
Building or with respect to the suitability of either for the conduct of
Tenant's business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the Building were in
satisfaction condition at such time.
12. ALTERATIONS
(a) Tenant shall make no alterations, additions or improvements in or to
the Premises without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord. Tenant agrees that there shall
be no construction of partitions or other obstruction which might interfere
with Landlord's free access to mechanical installations or service facilities
of the Building or interfere with the moving of Landlord's equipment to or
from the enclosures containing said installations or facilities. All such
work shall be done at such times and in such manner as Landlord may from time
to time designate. Tenant covenants and agrees that all work done by Tenant
shall be performed in full compliance with all laws, rules, orders,
ordinances, regulations and requirements of all governmental, agencies,
offices, and boards having jurisdiction, and in full compliance with the
rules, regulations and requirements of the Insurance Service Offices formerly
known as the Pacific Fire Rating Bureau, and of any similar body. Before
commencing any work, Tenant shall give Landlord at least ten (10) days
written notice of the proposed commencement of such work and shall, if
required by Landlord, secure at Tenant's own cost and expense, a completion
and lien indemnity bond, satisfaction to Landlord, for said work. Tenant
further covenants and agrees that any mechanic's lien filed against the
Premises or against the Building for work claimed to have been done for, or
materials claimed to have been furnished to Tenant will be discharged by
Tenant, by bond or otherwise, within ten (10) days after the filing thereof,
at the cost and expense of Tenant. All alterations, additions or improvements
upon the Premises made by either party, including (without limiting the
generality of the foregoing) all wallcovering, built-in cabinet work,
paneling and the like, shall, unless Landlord elects otherwise, become the
property of Landlord, and shall remain upon, and be surrendered with the
Premises, as a part thereof, at the end of the term hereof, except that
Landlord may, by written notice to Tenant, require Tenant to remove all
partitions, counters, railings and the like installed by Tenant, and Tenant
shall repair all damage resulting from such removal or, at Landlord's option,
shall pay to Landlord all costs arising from such removal.
(b) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and
remain the property of Tenant and may be removed by Tenant at any time during
the lease term when Tenant is not in default hereunder. If Tenant shall fail
to remove all of its effects from the Premises upon termination of this Lease
for any cause whatsoever, Landlord may, at its option, remove the same in any
manner that Landlord shall choose, and store said effects without liability
to Tenant for loss thereof. In such event, Tenant agrees to pay Landlord upon
demand any and all expenses incurred in such removal, including court costs
and attorneys' fees and storage charges at its option, without notice, sell
said effects, or any of the same, at private sale and without legal process,
for such price as Landlord may obtain and apply the proceeds of such sale
upon any amounts due under this Lease from Tenant to Landlord and upon the
expense incident to the removal and sale of said effects.
13. REPAIRS
(a) By entry hereunder, Tenant accepts the Premises as being in good and
sanitary order, condition and repair. Tenant shall keep, maintain and
preserve the Premises in first class condition and repair, and shall, when
and if needed, at Tenant's sole cost and expense, make all repairs to the
Premises and every part thereof. Tenant shall, upon the expiration or sooner
termination of the term hereof, surrender the Premises to Landlord in the
same condition as when received, usual and ordinary, wear and tear excepted.
Landlord shall have no obligation to alter, remodel, improve, repair decorate
or paint the Premises or any part thereof, except as provided in Exhibit "B".
The parties hereto affirm that Landlord has made no representations to
Tenant respecting the condition of the Premises or the Building except as
specifically herein set forth.
(b) Anything contained in Paragraph 13(a) above to the contrary,
notwithstanding, Landlord shall repair and maintain the structural portions
of the Building, including the foundation, building shell, and roof
structure, all at Landlord's expense, unless such maintenance and repairs are
caused in part or in whole by the act, neglect, or omission of any duty or
Tenant, its agents, employees, or invitees, in which event Tenant shall
reimburse Landlord, as additional rent, for the reasonable cost of such
maintenance and repairs. Landlord shall also repair and maintain the basic
plumbing, elevators, life safety systems and other building systems, heating
ventilating, air conditioning and electrical systems installed or furnished
by Landlord, the roof membrane, the parking areas, driveways, sidewalks,
landscaping, project signs and exterior site lighting. The cost of the
foregoing repairs and maintenance shall be billed to Tenant as operating
costs pursuant to Paragraph 4. Landlord shall not be liable for any failure
to make any such repairs or to perform any maintenance unless such failure
shall persist for an unreasonable time after written notice of the need of
such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Article 21 hereof, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or
to fixtures, appurtenances and equipment therein. Tenant waives the right to
make repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect.
14. LIENS
Tenant shall not permit any mechanics, materialmen's or other liens to be
filed against the Building nor against Tenant's leasehold interest in the
Premises. Landlord shall
have the right at all reasonable times to post and keep posted on the
Premises any notices which it deems necessary, for protection from such
liens. If any such liens are filed, Landlord may, without waiving its rights
and remedies based on such breach of Tenant and without releasing Tenant from
any of its obligations, cause such liens to be released by any means it shall
deem proper, including payments in satisfaction of the claim giving rise to
such lien. Tenant shall pay to Landlord at once, upon notice by Landlord, any
sum paid by Landlord to remove such liens, together with interest at the
maximum rate per annum permitted by law from the date of such payment by
Landlord.
15. ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the right to enter
the Premises to inspect the same, to supply janitor service and any service
to be provided by Landlord to Tenant hereunder, to show the Premises to
prospective purchasers or tenants, to post notices of nonresponsibility, to
alter, improve or repair the Premises or any other portion of the Building,
all without being deemed guilty of any eviction of Tenant and without
abatement of rent. Landlord may, on 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 the business of Tenant
shall be interfered with as little as is reasonably practicable. Tenant
hereby waives any claim for damages for any injury or inconvenient to or
interference with Tenant's business, any loss of occupancy or quite enjoyment
of the Premises, and only other loss in, upon and about the Premises.
Landlord shall at all times have and retain a key with which to unlock all
doors in the Premises. any entry to the Premises obtained by Landlord by any
of said means, or otherwise, shall not be construed or deemed to be a
forcible or unlawful entry into the Premises, or an eviction of Tenant from
the Premises or any portion thereof, and any damages caused on account
thereof shall be paid by Tenant. It is understood and agreed that no
provision of this Lease shall be construed as obligating Landlord to perform
any repairs, alterations or decorations except as otherwise expressly agreed
herein by Landlord.
16. UTILITIES AND SERVICES
Provided that Tenant is not default under this Lease, 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 C, subject to the conditions and in accordance with the standards set
forth therein. Landlord's failure to furnish any of the foregoing items when
such failure is caused by: (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; (iv)
inability despite the exercise of reasonable diligence to obtain electricity,
water or fuel; or (v) any other cause beyond Landlord's reasonable control,
shall not result in any liability to Landlord. In addition, Tenant shall not
be entitled to any abatement or reduction of rent by reason of such failure,
no eviction of Tenant shall result from such failure and Tenant shall 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 shall diligently attempt to resume
service promptly.
17. BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any provision of the
Bankruptcy code as then in effect, or if Tenant shall be adjudicated a
bankrupt in involuntary bankruptcy proceedings and such adjudication shall
not have been vacated within thirty (30) days from the date thereof, or if a
receiver or trustee shall be appointed of Tenant's property and the order
appoint such receiver or trustee shall not be set aside or vacated within
thirty (30) days after the entry, thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, or if this Lease shall, by
operation of law or otherwise, pass to any person or persons other than
Tenant, then in any such event Landlord may terminate this Lease, if Landlord
so elects, with or without notice of such election and with or without entry,
or action by Landlord. In such case, notwithstanding any other provisions of
this Lease, Landlord, in addition to any and all rights and remedies allowed
by law or equity, shall, upon such termination, be entitled to possession of
the Premises but shall surrender the Premises to Landlord. Nothing contained
herein shall limit or prejudice the right of Landlord to recover damages by
reason of any such termination equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in
which, such damages are to be proved; whether or not such amount is greater,
equal to, or less than the amount of damages recoverable under the provisions
of this Article 17.
18. INDEMNIFICATION
Tenant shall indemnify, defend and hold Landlord harmless from all claims
arising from Tenant's use of the Premises or the conduct of its business or
from any activity, work, or thing done, permitted or suffered by Tenant in or
about the Premises. Tenant shall further indemnify, defend and hold Landlord
harmless from all claims arising from any breach or default in the
performance of any obligation to be performed by Tenant under the terms of
this Lease, or arising from any act, neglect, fault or omission of Tenant or
of its agents or employees, and from and against all costs, attorneys' fees,
expenses and liabilities incurred in or about such claim or any action or
proceeding brought thereon. In case any action or proceeding shall be brought
against Landlord by reason of any such claim, Tenant upon notice from
Landlord shall defend the same at Tenant's expense by counsel approved in
writing by Landlord.
19. DAMAGE TO TENANT'S PROPERTY.
Notwithstanding the provisions of Article 18 to the contrary, Landlord or
its agents shall not be liable for (i) any damage to any property entrusted
to employees of the Building, (ii) loss or damage to any property by theft or
otherwise, (iii) any injury, or damage to persons or property resulting from
fire, explosion, falling plaster, steam gas, electricity, water or rain which
may leak from any part of the Building or from the pipes,
appliances or plumbing work therein or from the roof, street or subsurface or
from any other place or resulting from dampness or (iv) any other cause
whatsoever. Landlord or its agents shall not be liable for interference with
light or other incorporeal hereditaments nor shall Landlord be liable for any
latent defect in the Premises or Building. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or in the Building or
of defects therein or in the fixtures or equipment.
20. TENANT'S INSURANCE
(a) Tenant shall, during the term hereof and any other period of
occupancy, at it s sole costs and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against the perils of
fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All Risk") and sprinkler leakage. This insurance policy shall be
upon all property owned by Tenant, for which Tenant is legally liable or that
was installed at Tenant's expense, and which is located in the Building
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant Improvements installed by Landlord), and any other
personal property, in an amount not less than the full replacement cost
thereof. In the event that there shall be a dispute as to the amount which
comprises full replacement cost, the decision of Landlord or any mortgagees
of Landlord shall be conclusive. This insurance policy shall also be upon
direct or indirect loss of Tenant's earnings attributable to Tenant's
inability to use fully or obtain access to the Premises or Building in an
amount as will property reimburse Tenant. Such policy shall name Landlord and
any mortgagees of Landlord as insured parties, as their respective interests
may appear.
(ii) Comprehensive General Liability insurance insuring Tenant
against any liability arising out of the lease, use, occupancy or maintenance
of the Premises and all areas appurtenant thereto. Such insurance shall be in
the amount of $1,000,000.00 combined single limit for injury to, or death of
one or more persons in an occurrence, and for damage to tangible property
(including loss of use) in an occurrence, with such liability amount to be
adjusted from year to year to reflect increases in the Consumer Price Index.
The policy shall insure the hazards of premises and operations, independent
contractors, contractual liability (covering the indemnity contained in
Paragraph 18 hereof) and shall (1) name Landlord as an additional', insured,
and (2) contain a provision that "the insurance provided the Landlord
hereunder shall be primary, and noncontributing with any other insurance
available to the Landlord."
(iii) Workers' compensation and employer's liability insurance (as
required by state law).
(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.
(b) All policies shall be written in a form satisfaction, to Landlord and
shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the
most current issue of Bests Insurance Guide. Within ten (10) days after the
execution of this Lease, Tenant shall deliver to Landlord copies of policies
or certificates evidencing the existence of the amounts and forms of coverage
satisfactory to Landlord. No such policy shall be cancelable or reducible in
coverage except after thirty (30) days prior written notice to Landlord.
Tenant shall, within ten (10) days prior to the expiration of such policies,
furnish Landlord with renewals or "binders" thereof, or Landlord may order
such insurance and charge the cost thereof to Tenant as additional rent. If
Landlord obtains any insurance that is the responsibility of Tenant under
this section, Landlord shall 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.
21. DAMAGE OR DESTRUCTION
(a) If the Building and/or the Premises is damaged by fire or other
perils covered by Landlord's insurance, Landlord shall have the following
rights and obligations:
(i) In the event of total destruction, Landlord shall, as Landlord's
option, commence repair, reconstruction and restoration of the Building
and/or the Premises as soon as reasonably possible, and diligently prosecute
the same to completion, in which event this Lease shall remain in full force
and effect. If Landlord elects not to so repair, reconstruct or restore the
Building and/or the Premises, this Lease shall terminate as of the date of
such total destruction. In either event, Landlord shall give Tenant written
notice of its intention within sixty (60) days after the date of damage or
destruction.
(ii) In the event of a partial destruction of the Building and/ or
the Premises, Landlord shall promptly restore the Building and/or the
Premises unless Landlord elects to terminate this Lease as permitted herein.
Landlord shall have the right to terminate this Landlord if (1) the damage to
the Building and/or the Premises exceeds twenty-five percent (25%) of the
full insurable value thereof, (2) the damage to the Building and/or the
Premises is such that the Building and/or the Premises cannot be repaired,
reconstructed or restored within one hundred eighty (180) days from the date
of damage or destruction, or (3) insurance proceeds received by Landlord will
not be sufficient to cover the cost of such repairs, reconstruction and
restoration. Landlord shall give written notice to Tenant of its intention
within sixty (60) days after the date of damage or destruction. If Landlord
elects not to restore the Building and/or the Premises, this Lease shall be
deemed to have terminated as of the date of such partial destruction.
(b) Upon any termination of this Lease, Landlord under any of the
provisions of this Article 21, the parties shall be released without further
obligation to the other from the date possession of the Premises is
surrendered to Landlord except for items which have therefore accrued and are
then unpaid.
(c) In the event of repair, reconstruction and restoration by Landlord as
herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration.
Tenant shall not be entitled to any compensation or damages for loss in the
use of the whole or any part of the Premises and/or any inconvenience or
annoyance occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in this
Article 21. Notwithstanding anything to the contrary contained in this
Article 21, if Landlord is delayed or prevented from repairing or restoring
the damaged Premises within one year after the occurrence of such damage or
destruction by reason of acts of God, war, governmental restrictions,
inability to obtain the necessary labor or materials, or other cause beyond
the control of Landlord, Landlord shall be relieved of its obligation to make
such repairs of restoration and Tenant shall be released from its obligations
under this Lease as of the end of said one year period.
(e) If damage is due to any cause other than fire or other peril covered
by All-Risk insurance, Landlord may elect to terminate this Lease.
(f) If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repair or restoration only of
those portions of the Building and the Premises which were originally
provided at Landlord's expense, and the repair and restoration of items not
provided at Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this Article
21, Landlord shall not have any obligation whatsoever to repair, reconstruct
or restore the Premises when the damage resulting from any casualty covered
under this Article 21, occurs during the last twelve (12) months of the term
of this Lease or any extension hereof.
(h) The provisions of California Civil Code Section 1932, Subsection 2,
and Section 1933, Subsection 4, which permit termination of a lease upon
destruction of the leased premises, are hereby waived by Tenant; and the
provisions of this article shall govern in case of such destruction.
22. EMINENT DOMAIN
If all of the Premises, or such part thereof as shall substantially
interfere with Tenant's use and occupancy of the Premises, shall be 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 may terminate this Lease effective
as of the date possession is required to be surrendered to said authority.
Tenant shall not assert any claim against Landlord or the taking authority
for any compensation because of such taking, and Landlord shall be entitled
to receive the
entire amount of any award without deduction for any estate or interest of
Tenant. If neither party terminates this Lease as permitted herein, Landlord
shall be entitled to the entire amount of the award without deduction for any
estate or interest of Tenant, Landlord shall restore the Premises to
substantially their same condition prior to such partial taking, and rent
shall be abated for the time and to the extent Tenant is prevented from using
the Premises on account of such taking and restoration. Nothing contained in
this paragraph shall be deemed to give Landlord any interest in any award
made to Tenant for the taking of personal property and fixtures belonging to
Tenant or for Tenant's moving or relocation expenses.
23. DEFAULTS AND REMEDIES
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) The vacation or abandonment of the Premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any absence
by Tenant from the Premises for five (5) business days or longer while in
default of any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided however, that any such notice shall
be in lieu of, and not in addition to, any notice required under California
Code of Civil Procedure Section II6I regarding unlawful detainer actions.
(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 23(a)(i) or (ii) above,
where such failure shall continue for a period of ten (10) days after written
notice thereof from Landlord to Tenant. Any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section II6I regarding unlawful detainer actions. If the nature of
Tenant's default is such that more than ten (10) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant
shall commence such cure within said ten-day period and thereafter diligently
prosecute such cure to completion, which completion shall occur not later
than sixty (60) days from the date of such notice from Landlord.
(iv) (1) The making by Tenant of any general assignment for the
benefit of creditors' (2) 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 thirty (30)
days); (3) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days; or (4) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such
seizure is not discharged within thirty (30) days.
(b) In the event of any such default by Tenant, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder.
In the event that Landlord shall elect to so terminate this Lease then
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 rental loss that Tenant proves could have
been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided;
plus
(iv) any other amount necessary to compensate Landlord for all
detriment approximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom.
As used in Subparagraphs 23(b)(i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted by law.
As used in Subparagraph 23(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) In the event of any such default Landlord shall also have the right
to continue this Lease in full force and effect, and this Lease shall
continue in full force and effect as long as Landlord does not terminate this
Lease, and Landlord shall have the right to collect rent as it becomes due.
(d) Landlord shall also have the right, with or without terminating
this Lease, to reenter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant. No reentry or
taking possession of the Premises by Landlord pursuant to the Paragraph 23(c)
shall 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.
(e) All rights, options and remedies of Landlord contained in this Lease
shall be constructed and held to be cumulative, and no one of them shall be
exclusive of the other. 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, whether or not stated in the
Lease. No waiver or any default of Tenant hereunder shall be implied from
any acceptance by Landlord or any rent or other payments due hereunder or any
omission by Landlord to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect defaults
other than as specified in said waiver. The consent or approval of Landlord
to or of any act by Tenant requiring Landlord's consent or approval shall not
be deemed to waive or render unnecessary Landlord's consent or approval to or
of any subsequent similar acts by Tenant.
24. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not voluntarily assign or encumber its interest in this
Lease or in the Premises, or sublease all or any part of the Premises, or
allow any other person or entity to occupy or use all or any part of the
Premises, without first obtaining Landlord's prior written consent. Any
assignment, encumbrance or sublease without Landlord's prior written consent
shall be voidable, at Landlord's election, and shall constitute a default and
at the option of the Landlord shall result in a termination of this Lease.
No consent to assignment, encumbrance, or sublease shall constitute a further
waiver of the provisions of this paragraph. Tenant shall notify Landlord in
writing of Tenant's intent to sublease, encumber or assign this Lease and
Landlord shall, within fifteen (15) days of receipt of such written notice,
elect one of the following: (i) consent to such proposed assignment or
sublease; (ii) refuse such consent, which refusal shall be on reasonable
grounds, or (iii) elect to terminate this Lease.
(b) As a condition for granting its consent to any assignment,
encumbrance or sublease, fifteen (15) days prior to any anticipated
assignment or sublease Tenant shall give Landlord written notice (the
"Assignment Notice"), which shall set forth the name, address and business of
the proposed assignee or sublessee, information (including references)
concerning the character, ownership and financial condition of the proposed
assignee or sublessee, the Assignment Date, any ownership or commercial
relationship between Tenant and the proposed assignee or sublessee, all in
such detail as Landlord shall reasonably require. If Landlord requests
additional detail, the Assignment Notice shall not be deemed to have been
received until Landlord received such additional detail, and Landlord may
withhold consent to any assignment or sublease until such additional detail
is provided to it. Further, Landlord may require that the sublessee or
assignee remit directly to Landlord on a monthly basis, all monies due to
Tenant by said assignee or sublessee.
(c) The consent by Landlord to any assignee of this Lease or sublessee
of the Premises from obtaining the express written consent of Landlord to any
further assignment or subletting or as releasing Tenant or any assignee or
sublessee of Tenant from any liability or obligation hereunder whether or not
then accrued. In the event Landlord shall consent to an assignment or
sublease, Tenant shall pay Landlord as additional rent a reasonable
attorneys' and administration fee not to exceed $500 for costs incurred in
connection with evaluating the Assignment Notice. This section shall be
fully applicable
to all further sales, hypothecation, transfers, assignments and subleases of
any portion of the by any successor assignee of Tenant, or any sublessee of
the Premises.
(d) As used in this section, the subletting of substantially all of the
Premises for substantially all of the remaining term of this Lease shall be
deemed an assignment rather than a sublease. Notwithstanding the foregoing,
Landlord shall consent to the assignment, sale or transfer if the Assignment
Notice states that Tenant desires to assign the Lease to any entity into
which Tenant is merged, with which Tenant is consolidated or which acquires
all or substantially all of the assets of Tenant, provided that the assignee
first executes, acknowledges and delivers to Landlord an agreement whereby
the assignee agrees to be bound by all of the covenants and agreements in
this Lease which Tenant has agreed to keep, observe or perform, that the
assignee agrees that the provisions of this section shall be binding upon it
as if it were the original Tenant hereunder and that the assignee shall have
a net worth (determined in accordance with generally accepted accounting
principles consistently applied) immediately after such assignment which is
at least equal to the net worth (as so determined) of Tenant at the
commencement of this Lease.
(e) Except as provided above, Landlord's consent to any sublease shall
not be unreasonably withheld. A condition to such consent shall be delivery
by Tenant to Landlord of a true copy of any such sublease. If for any
proposed assignment or sublease Tenant receives rent or other consideration,
either initially or over the term of the assignment or sublease, in excess
of the rent called for hereunder, or, in case of the sublease of a portion of
the Premises, in excess of such rent fairly allocable to such portion, after
appropriate adjustments to assure that all other payments called for
hereunder are taken into account, Tenant shall pay to Landlord as additional
rent hereunder fifty percent (50%) of the excess of each such payment or
rent, less any documented expenses incurred by Tenant in direct relation to
the assignment or sublease, or other consideration received by Tenant
promptly after its receipt. Landlord's waiver or consent to any assignment or
subletting shall not relieve Tenant from any obligation under this lease. The
parties intend that the preceding sentence shall not apply to any sublease
rentals respecting a portion of the Premises that during the entire term of
this Lease was not occupied by Tenant for its own use, but was always
subleased by Tenant and/or kept vacant. For the purposes of this section, the
rent for each square foot of floor space in the Premises shall be deemed
equal.
(f) Tenant may assign the Lease or may sublet the Premises or any part
thereof without Landlord's prior consent, to any subsidiary, affiliate or
controlled corporation, or to any corporation into which Tenant may be
converted or with which it may merge, provided said entity has comparable
financial strength and agrees to accept the Lease Agreement in it's then
current condition, and provided that the assignee or sublessee's use is
compatible with the building.
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 with a lien on the building or any ground lessor with
respect to the building, this Lease shall be subject and subordinate at all
times to:
(i) All ground leases or underlying leases which may now exist or
hereafter be executed affecting the building or the land upon which the
building is situated or both;
(ii) The lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the building, land, ground
leases, or underlying leases, or Landlord's interest or estate in any of said
items is specified as security. Notwithstanding the foregoing, Landlord shall
have the right to subordinate or cause to be subordinated any such leases or
underlying leases or any such liens to this Lease. In the event that any
ground lease or underlying lease terminates for any reason or any mortgage or
deed of trust is foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any subordination, attorn to
and become the Tenant of the successor in interest to Landlord, at the option
of such successor in interest. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents evidencing the priority or subordination of this Lease
with respect to any such ground leases or underlying leases or in the lien of
any such mortgage or deed of trust.
26. ESTOPPEL CERTIFICATE
(a) Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord a
statement 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); (iii) the date to which the rental 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 requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this
Article 26 may be relied upon by any mortgage, beneficiary, purchaser, or
prospective purchaser of the building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant: (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that
there are no uncured defaults in Landlord's performance, and (iii) that not
more than one month's rental has been paid in advance.
27. BUILDING PLANNING
In the event Landlord requires the Premises for use in conjunction with
another suite or for other reasons connected with the Building planning
program, upon notifying Tenant in writing, Landlord shall have the right to
move to other space in the Building of
which the Premises forms a part, at Landlord's sole costs and expense, and
the terms and conditions of the original Lease shall remain in full force and
effect, save and expecting that a revised Exhibit "A" shall become part of
this Lease and shall reflect the location of the new space. However, if the
new space does not meet with Tenant's approval, Tenant shall have the right
to cancel this Lease upon giving Landlord thirty (30) days notice within ten
(10) days of receipt of Landlord's notification.
28. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked Exhibit D and
all reasonable and nondiscriminatory modifications thereof and additions
thereto from time to time put into effect by Landlord. Landlord shall not be
responsible to Tenant for the violation or nonperformance by any other tenant
or occupant of the building of any of said Rules and Regulations.
29. CONFLICT OF LAW
This Lease shall be governed by and construed pursuant to the laws of the
State of California.
30. 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.
31. SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies.
32. ATTORNEY'S FEES
(a) If Landlord should bring suit for possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder,
or in the event of any other litigation between the parties with respect to
this Lease, then all costs and expenses, including reasonable attorney's
fees, incurred by the prevailing party therein 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.
33. PERFORMANCE BY TENANT
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any
sum of money owed to any party other than Landlord, for which it is liable
hereunder, or if Tenant shall fail to perform any other act on its part to be
performed hereunder and such failure shall continue for ten (l0) days after
notice thereof by Landlord, Landlord may, without waiving or releasing Tenant
from obligations of Tenant, but shall not be obligated to, make any such
payment or perform any such other act to be made or performed by Tenant. All
sums so paid by Landlord and all necessary incidental costs together with
interest thereon at the maximum rate permissible by law, from the date of
such payment by Landlord, shall be payable to Landlord on demand. Tenant
covenants to pay any such sums and Landlord shall have (in addition to any
other right or remedy of Landlord) all rights and remedies in the event of
the nonpayment thereof by Tenant as are set forth in Article 23 hereof.
34. MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust
or mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure.
35. DEFINITION OF LANDLORD
The term "Landlord", as used in this Lease, so far as covenants or
obligations on the part of the Landlord are concerned, shall be limited to
mean and include only the 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 conveyances, the then grantor shall be
automatically freed and 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. Without further agreement, the transferee of such
title shall be deemed to have assumed and agreed to observe and perform any
and all obligations of Landlord hereunder, during its ownership of the
Premises. Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be
deemed a violation on Landlord's part of any of the terms and conditions of
this Lease.
36. WAIVER
The waiver by Landlord of any breach of any term, covenant, or condition
herein contained shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant, or condition herein contained, nor
shall any custom or practice which may grow up between the parties in the
administration of the terms hereof be
deemed a waiver of or in any way affect the right of Landlord to insist upon
the performance by Tenant in strict accordance with said terms. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to
be a waiver of any preceding breach by Tenant of any term, covenant, or
condition of this Lease, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
37. IDENTIFICATION OF TENANT
If more than one person executes this Lease as Tenant:
(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 shall mean and include 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 the Lease, including, but not limited to any renewal, extension,
expiration, termination, or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as 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.
38. PARKING
The use by Tenant, its employees and invitees, of the parking facilities
of the building shall be on the terms and conditions set forth in Exhibit E
attached hereto and by this reference incorporated herein and shall be
subject to such other agreement between Landlord and Tenant as may
hereinafter be established.
39. 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.
40. EXAMINATION OF LEASE
Submission of this instrument 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.
41. TIME
Time is of the essence with respect to the performance of every provision
of this Lease in which time or performance is a factor.
42. PRIOR AGREEMENT; AMENDMENTS
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement or understanding pertaining to any such matter shall be effective
for any purpose. No provisions of this Lease may be amended or added to
except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
43. SEPARABILITY
Any provision of this Lease which shall prove to be invalid, void, or
illegal in no way affects, impairs, or invalidates any other provision
hereof, and any such other provisions shall remain in full force and effect.
44. RECORDING
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
45. CONSENTS
Whenever the consent of either party is required hereunder such consent shall
not be unreasonably withheld.
46. LIMITATION OF LIABILITY
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach, or default hereunder by Landlord:
(a) The sole exclusive remedy shall be against the Landlord's interest
in the building;
(b) No partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) No service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(d) No partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(e) No judgement will be taken against any partner of Landlord;
(f) Any judgement taken against any partner of Landlord may be vacated
and set aside at any time nunc pro tunc;
(g) No writ of execution will ever be levied against the assets of any
partner of Landlord;
(h) These covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
47. RIDERS
Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
48. FORCE MAJEURE
Unless otherwise specifically provided herein if Landlord shall be
delayed or hindered in or prevented from the performance of any act required
of Landlord hereunder by reason of strikes, lockouts, labor disputes or
disturbances inability to procure materials failure of power restrictive
governmental laws or regulations riots insurrection ware or any other reason
of a like nature beyond Landlord's reasonable control then performance of
such act shall be excused for the period of the delay and the period for the
performance of such act shall be extended for a period equivalent to the
period of such delay.
49. MODIFICATION FOR LENDER
If in connection with obtaining construction interim or permanent
financing for the Building the lender shall request reasonable modifications
in this Lease as a condition to such financing Tenant will not unreasonably
withhold delay or defer its consent thereto provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's rights hereunder.
50. OPTION TO EXTEND
(a) Provided that Tenant is not in default hereunder either at the time
of exercise or at the time the extended term commences Tenant shall have the
option to extend the initial term of this Lease for one (1) additional period
of three (3) years ("Option Period") on the same terms covenants and
conditions provided herein except that upon such renewal the monthly
installments of Annual Basic Rent due hereunder shall be determined at the
time notice to extend is given. Tenant shall exercise its option by giving
Landlord written notice ("Option Notice") no later than ninety (90) days
prior to the expiration of the initial term.
(b) The monthly installments of Annual Basic Rent for the Option Period
shall be determined as follows:
(i) Within fifteen (15) business days after Landlord's receipt of
the Option Notice the parties shall attempt to agree on the monthly rent for
the Option Period in question based upon ninety-five percent (95%) of the
then fair market rental value of the Premises. If the parties agree on the
monthly rent for the Option Period within such fifteen (15) day period they
shall immediately execute an amendment to this Lease stating the monthly rent
for the Option Period. In no event shall ninety-five percent (95%) of the
then fair market monthly rental value of the Premises for the Option Period
be less than the monthly installments of Annual Basic Rent last payable under
the Lease.
(ii) The "then fair market rental value of the Premises" shall mean
the fair market monthly rental value of the premises as of the commencement
of the Option Period taking into consideration the uses permitted under this
Lease the quality size design and location of the Premises and comparable
buildings located within a one (1) mile radius of the Premises. In no event
shall ninety-five percent (95%) of the then fair market monthly rental value
of the Premises for the Option Period be less than the monthly installments
of Annual Basic Rent last payable under the Lease.
(iii) Within seven (7) days after the expiration of the fifteen (15)
day period each party at its cost and by giving notice to the other party
shall appoint a real estate appraiser or commercial leasing salesperson
("Appraiser") with at least five (5) years' full-time commercial appraisal or
leasing experience in the area in which the Premises are located to appraise
and set the then fair market monthly rent for the Premises for the Option
Period.
(c) If Tenant objects to the monthly rent that has been determined Tenant
shall have the right to rescind its exercise of the option to extend and have
this Lease expire at the end of the initial term provided that Tenant pays
for all reasonable costs incurred by Landlord in connection with the
appraisal procedure. Tenant's election to allow this Lease to expire at the
end of the initial term must be exercised by delivering written notice of
exercise to Landlord within ten (10) days after the rent determination
procedure has been completed and Tenant has received notice of the monthly
rent as determined by appraisal. If Tenant does not so exercise its election
to terminate this Lease within the ten (10) day period the initial term of
this Lease shall be extended as provided in this paragraph. Notwithstanding
the foregoing if Tenant elects to so rescind exercise of its option to extend
and at the time of such election there are less than ninety (90) days
remaining on the initial term of the Lease then the termination of this Lease
shall not be effective until ninety (90) days after Landlord's receipt of
Tenant's notice of rescission. During any period that the term of this Lease
is so extended beyond the original termination date Tenant shall be required
to pay the amount of monthly rent determined pursuant to the appraisal
procedure.
(d) This option to extend and any rights granted to Tenant hereunder
shall be
personal to Tenant and any of its affiliates and subsidiaries. No rights
granted to Tenant pursuant to this paragraph shall be in any way applicable
to subtenants or assignees of Tenant unless such subtenant or assignee is an
affiliate or subsidiary of Tenant.
(e) Provided that Tenant has not been in default under the terms of this
lease during the initial lease term, Landlord shall refund to Tenant the Ten
Thousand Dollar ($10,000.00) deposit, with interest set forth in section 5 of
this lease.
51. EARLY OCCUPANCY
Landlord to provide Tenant with access to the Premises five days before
Lease Commencement for installation of phones and equipment.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first written above.
LANDLORD ADDRESS:
- -------- --------
Northwestern Mutual Life Insurance Company 1731 Technology Drive
a Wisconsin Corporation Suite 340
San Jose, CA 95110
By: Gibson Speno Management Company, 408.436.7100
A California Corporation, As Managing Agent
By: /s/ Phyllis Y. Osaki
Phyllis Y. Osaki, Agent
Its: Executive Vice President
By: /s/ Steven G. Speno
Steven G. Speno, Agent
Its: President
TENANT
- ------
Bio-Ved, Inc., ADDRESS:
A Delaware Corporation 1737 N. First Street
Suite 290
By: /s/ Barry Wald San Jose, CA 95112
Its: President
EXHIBIT A
PREMISES
[Map of the Premises]
EXHIBIT B
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the day of September 8,
1995, by and between NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin
Corporation ("Landlord") and Bio-Ved, Inc., A Delaware Corporation ("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit A attached
to the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE
Within ten (10) days after the execution of the Lease, Landlord shall
deliver to Tenant, for Tenant's review and approval, a schedule (the "Work
Schedule") setting forth a timetable for the planning and completion of the
installation of the Tenant Improvements to be construction in the Premises.
The Work Schedule shall set forth each of the various items of work to be
done by or approval to be given by Landlord and Tenant in connection with the
completion of the Tenant Improvements. Such schedule shall be submitted to
Tenant for its approval and, upon approval by both Landlord and Tenant, such
schedule shall become the basis for completing the Tenant Improvement work.
If Tenant shall fail to approve the Work Schedule, as it may be modified
after discussions between Landlord and Tenant, within five (5) working days
after the date such schedule is first received by Tenant, Landlord may, at
its option, terminate the Lease and all of its obligations thereunder.
2. TENANT IMPROVEMENTS
Reference herein to "Tenant Improvements" shall be a built out per the
attached Exhibit "A" to the extent that such construction and/or build out
does not exceed the "Tenant Improvement Allowance" provided in Section 6 of
this Work Letter Agreement and shall be subject to all provisions in Section
6 of this Work Letter Agreement.
3. TENANT IMPROVEMENT PLANS
Tenant Improvements shall built out per the attached Exhibit "A".
4. FINAL PRICING AND DRAWING SCHEDULE
After final approval of Exhibit "A", no further changes to the Tenant
Improvement Plans may be made without the prior written approval from both
Landlord and Tenant, and then only after agreement by Tenant to pay any excess
costs resulting from such changes.
5. CONSTRUCTION OF TENANT IMPROVEMENTS
Landlord shall supervise the completion of such work and shall use its best
efforts to secure completion of the work in accordance with the Work Schedule.
The cost of such work shall be paid as provided in Paragraph Six (6) hereof.
6. PAYMENT OF COST OF THE TENANT IMPROVEMENTS
(a) Landlord hereby grants to Tenant a "Tenant Allowance" not to exceed
Ten Dollars ($10.00) per rentable square foot of the Premises for a total not
to exceed $20,060.00 dollars to improve the Premises per Exhibit "A".
Provided Tenant does not make any modifications whatsoever to the attached
Exhibit "A", Landlord shall construct the improvements as set forth in
Exhibit A, within the $20,060.00 tenant allowance. Such Tenant Allowance
shall be used only for:
(i) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical and
structural drawings and of all other aspects of the Tenant Improvement Plans.
The Tenant Allowance will not be used for the payment of extraordinary design
work not included within the scope of Landlord's building standard improvements
or for payments to any other consultants, designers, or architects other than
Landlord's architect and/or space planner;
(ii) The payment of permit and license fees relating to construction
of the Tenant Improvements;
(iii) Construction of the Tenant Improvements, including, without
limitation, the following:
(1) Installation within the Premises of all partitioning, doors,
floor coverings, finishes, ceilings, wall coverings and
painting, millwork, and similar items;
(2) All electrical wiring, lighting fixtures, outlets, and
switches, and other electrical work to be installed within
the Premises;
(3) The furnishing and installation of all duct work, terminal
boxes, fuses and accessories required for the completion of
the
heating, ventilation and air conditioning systems within the
Premises, including the cost of meter and key control for
after-hour air conditioning;
(4) Any additional Tenant requirements including, but not
limited to odor control, special heating, ventilation and
air conditioning, noise or vibration control, or other
special systems;
(5) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring,
and accessories installed within the Premises; and
(6) All plumbing, fixtures, pipes, and accessories to be
installed within the Premises.
(b) The cost of each item shall be charged against the Tenant Allowance. In
the event that the cost of installing the Tenant Improvements, as established by
Landlord's final pricing schedule, shall exceed the Tenant Allowance, or if any
of the Tenant Improvements are not to be paid out of the Tenant Allowance as
provided in Paragraph Six (6) above, the excess shall be paid by Tenant to
Landlord prior to the commencement of construction of the Tenant Improvements.
(c) In the event that, after the Tenant Improvement Plans have been
prepared and a price therefor established by Landlord, Tenant shall require any
changes or substitutions to the Tenant Improvement Plans, any additional costs
thereof shall be paid by Tenant to Landlord prior to the commencement of such
work.
7. COMPLETION AND RENTAL COMMENCEMENT DATE
The commencement of the term of this Lease and Tenant's obligation for the
payment of rental under the Lease shall not commence until substantial
completion of construction of the Tenant Improvements. However if there shall be
a delay in substantial completion of the Tenant Improvements as a result of:
(i) Tenant's failure to approve any item or perform any other obligation
in accordance with and by the specified in the Work Schedule;
(ii) Tenant's request for materials finishes or installations other than
those readily available; or
(iii) Tenant's changes in the Tenant Improvement Plans after their approval
by Tenant;
then commencement of the term of the Lease and the rental commencement date
shall be accelerated by the number of days of such delay.
IN WITNESS WHEREOF the parties have executed this Lease as of the date first
written above.
LANDLORD ADDRESS:
Northwestern Mutual Life Insurance Company 1731 Technology Drive
a Wisconsin Corporation Suite 340
San Jose, CA 95110
By: Gibson Speno Management Company, 408.436.7100
A California Corporation, As Managing Agent
By: /s/ Phyllis Y. Osaki
------------------------------
Phyllis Y. Osaki, Agent
Its: Executive Vice President
By: /s/ Steven G. Speno
------------------------------
Steven G. Speno, Agent
Its: President
TENANT
Bio-Ved, Inc., ADDRESS:
A Delaware Corporation 1737 N. First Street
Suite 290
By: /s/ Barry Wald San Jose, CA 95112
-----------------
Barry Wald
Its: President
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions, or agreements of this Lease, Landlord shall:
(a) Provide non-attended automatic elevator facilities Monday through
Friday, except holidays, from 8:00 a.m. to 6:00 p.m., and have one elevator
available at all other times.
(b) On Monday through Friday, except holidays, from 8:00 a.m. - 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 judgement of Landlord it may be required for the
comfortable occupancy of the Premises. The air conditioning system achieves
maximum cooling when the window coverings are closed. Landlord shall not be
responsible for room temperatures if Tenant does not keep all window
coverings in the Premises closed whenever the system is in operation. Tenant
agrees to cooperate fully at all times with Landlord, and to abide by all
regulations and requirements which Landlord may prescribe for the proper
function and protection of the air conditioning system. Tenant agrees not to
connect any apparatus, device, conduit, or pipe to the building chilled and
hot water air conditioning supply lines. Tenant further agrees that neither
Tenant nor its servants, employees, agents, visitors, licensees, or
contractors shall at any time enter mechanical installations or facilities of
the building or adjust, tamper with, touch or otherwise in any manner affect
said installations or facilities. The cost of maintenance and service calls
to adjust and regulate the air conditioning system shall be charged to Tenant
if the need for maintenance work results from either Tenant's adjustment of
room thermostats or Tenant's failure to comply with its results from either
Tenant's adjustment of room thermostats or Tenant's failure to comply with
its obligations under this section, including keeping window coverings closed
as needed. Such work shall be charged at hourly rates equal to then current
journeymen's wages for air conditioning mechanics.
(c) Landlord shall furnish to the Premises, during the usual business hours
on business days, electric current sufficient for normal office use. 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 costs will be established by an
estimate agreed upon by Landlord and Tenant, and if the parties fail to agree,
as established by an independent licensed engineer. Said estimates to be
reviewed and adjusted quarterly. Tenant agrees not to use any apparatus or
device in, or upon, or
about the Premises which may in any way increase the amount of such
services usually furnished or supplied to said Premises, and Tenant further
agrees not to connect any apparatus or device with wire, conduits, pipes, or
other means by which such services are supplied, for the purpose of using
additional or unusual amounts of such services without written consent of
Landlord. Should Tenant use the same to excess, the refusal on the part of
Tenant to pay upon demand of Landlord the amount established by Landlord for
such excess charge shall constitute a breach of the obligation to pay rent
under this Lease and shall entitle Landlord to the rights therein granted for
such breach. At all times Tenant's use of electric current shall never exceed
the capacity of the feeders to the building or the risers or wiring
installation and Tenant shall not install or use or permit the installation
or use of any computer or electronic data processing equipment in the
premises, without the prior written consent of Landlord.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses, or consumes water for any purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy, Tenant shall 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
replaced or repaired and collect the cost thereof from Tenant. Tenant agrees to
pay for water consumed, as shown on said 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 shall be deemed
to be additional rent payable by Tenant and collectible by Landlord as such.
(e) Provide janitorial service to the Premises five days a week, provided
the same are kept reasonably in order by Tenant, and if to be kept clean by
Tenant, no one other than persons approved by Landlord shall be permitted to
enter the Premises for such purposes. If the Premises are not used exclusively
as offices, they shall be kept clean and in order by Tenant, at Tenant's
expense, and to the satisfaction of Landlord, and by persons approved by
Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning, and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or improvements,
in the judgment of Landlord desirable or necessary to be made, until said
repairs, alterations or improvements shall have been completed, and shall
further have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning, or electric service,
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 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. It is expressly understood and
agreed that any covenants on Landlord's part to furnish any service 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, shall not be
deemed breached if Landlord is unable to furnish or perform the same by
virtue of a strike or labor trouble or any other cause whatsoever beyond
Landlord's control.
EXHIBIT D
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these rules and
regulations are attached, no sign, placard, picture, advertisement, name, or
notice shall be installed or displayed on any part of the outside or inside of
the building without the prior written consent of Landlord. Landlord shall have
the right to remove, at Tenant's expense and without notice, any sign installed
or displayed in violation of this rule. All approved signs or lettering on doors
and walls shall be printed, painted, affixed, or inscribed at the expense of
Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, 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 shall immediately discontinue
such use. Tenant shall not place anything against or near glass partitions,
doors, or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the building. The halls,
passages, exits, entrances, shopping malls, elevators, and stairways are not
open to the general public, but are open, subject to reasonable regulation,
to Tenant's business invitee. Landlord shall in all cases retain the right to
control and prevent access thereto of all persons whose presence in the
judgment of Landlord would be prejudicial to the safety, character,
reputation, and interest of the building and its tenants; provided that
nothing herein contained shall 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 shall go upon the roof of the
building.
4. The directory of the building 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.
5. All cleaning and janitorial services for the building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises.
6. Landlord will furnish Tenant, free of charge, with six keys to the
main door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have additional keys, and Tenant
shall not alter any lock or install a new
additional lock or bolt on any door of its Premises. Tenant, upon the
termination of its tenancy, shall deliver to Landlord the keys of all doors
which have been furnished to Tenant, and in the event of loss of any keys so
furnished, shall pay Landlord therefor. After hours security access cards may
be obtained from Landlord at a cost to Tenant of $5.00 for each access card.
Tenant may acquire such access cards by submitting to Landlord a list of
persons, to whom access cards should be issued along with a check in the
appropriate amount.
7. If Tenant requires telegraphic, telephonic, burglar alarm, or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
8. The building freight elevator(s) shall be available for use by all
tenants in the building, subject to such reasonable scheduling as Landlord, in
its discretion, shall deem 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 shall, unless otherwise agreed in writing by Landlord, be made during the
hours of 6:00 p.m. and 6:00 a.m. or on Saturday or Sunday. Deliveries during
normal office hours shall be limited to normal office supplies and other small
items. No deliveries shall be made which impede or interfere with other tenants
or the operation of the building.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size, and position of all equipment, materials, furniture, or other property
brought into the building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the building must be acceptable to Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the building by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline,
inflammable, or combustible fluid or material other than those limited
quantities necessary for the operation of maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or noxious
gas or substance, or permit or allow the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the building
by reason of noise, odors, or vibrations, nor shall Tenant bring into or keep in
or about the Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord.
12. Tenant shall not waste electricity, water, or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws, or regulations of which Tenant has
actual notice.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the building.
14. Landlord reserves the right to exclude from the building between the
hours of 6:00 p.m. and 7:00 a.m. the following day, or such other hours as may
be established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall be liable to
Landlord for all acts of such persons. Landlord shall not be liable for damages
for any error with regard to the admission to or exclusion from the building of
any person.
15. The toilet rooms, toilets, urinals, wash bowls, and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
16. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets, or any other goods or merchandise to
the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
17. Tenant shall not install any radio or television antenna,
loudspeaker, or other devices on the roof or exterior walls of the building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the building or elsewhere.
18. Tenant shall not mark, drive nails, screws, or drill into the
partitions, woodwork, or plaster or in any way deface the Premises or any
part thereof, except in accordance with the provisions of the Lease
pertaining to alterations. Landlord reserves the right to direct electricians
as to where and how telephone and telegraph wires are to be introduced to the
Premises. Tenant shall not cut or bore holes for wires. Tenant shall not
affix any floor covering to the floor of the Premises in any manner except as
approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
19. Tenant shall not install, maintain, or operate upon the Premises any
vending
machines without the written consent of Landlord.
20. Canvassing, soliciting, and distribution of handbills or any other
written material, and peddling in the building are prohibited and Tenant shall
cooperate to prevent such activities.
21. Landlord reserves the right to exclude or expel from the building any
person who, in Landlord's judgement, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules or Regulations of the
building.
22. Tenant shall store all its trash and garbage within its Premises or in
other facilities provided by Landlord. Tenant shall not place in any trash box
or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
23. The Premises shall not be used for the storage of merchandise held
for sale to the general public, or for lodging or for manufacturing of any
kind, not shall the Premises be used for any improper, immoral, or
objectionable purpose. No cooking shall be done or permitted on the Premises
without Landlord's consent, except that the use by Tenant of Underwriter'
Laboratory approved equipment for brewing coffee, tea, hot chocolate, and
similar beverages or use of microwave ovens for employee uses shall be
permitted, provided such equipment and use is in accordance with all
applicable federal, state, county, and city laws, codes, ordinances, rules,
and regulations.
24. Tenant shall not use in any space or in the public halls of the
building any hand truck except those equipped with rubber tires and side guards
or such other material-handling equipment as Landlord may approve. Tenant shall
not bring any other vehicles of any kind into the building.
25. Without the written consent of Landlord, Tenant shall not use the name
of the building in connections with or in promoting or advertising the business
of Tenant except as Tenant's address.
26. Tenant shall comply with all safety, fire protection, and evacuations
procedures and regulations established by Landlord or any governmental agency.
27. 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.
28. Tenant's requirements will be attended to only upon appropriate
application to the building management office by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord, and no employee
of Landlord will admit any person (Tenant
or otherwise) to any office without specific instructions from Landlord.
29. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements, and conditions of Tenant's lease of its Premises in the
building.
31. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the building and for the preservation of
good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
32. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees, and guests.
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking
facilities which are appurtenant to the building.
1. Tenant shall not park or permit the parking of any vehicle under its
control in any parking designated by Landlord as areas for parking by visitors
to the building. Tenant shall not leave vehicles in the parking areas overnight
nor park any vehicles in the parking areas other than automobiles, motorcycles,
motor driven or non-motor driven bicycles or four-wheeled trucks.
2. Parking stickers 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. Such parking identification device 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. Devices are not
transferable and any device in the possession of an unauthorized holder will be
void.
3. No overnight or extended term storage of vehicles shall be permitted.
4. Vehicles must be parked entirely within the painted stall lines of a
single parking stall.
5. All directional signs and arrows must be observed.
6. The speed limit within all parking areas shall be 5 miles per hour.
7. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord.
8. Every parker is required to park and lock his own vehicle. All
responsibility for damage to vehicle is assumed by the parker.
9. Loss or theft of parking identification devices from automobiles must be
reported immediately, and a lost or stolen report must be filed by the customer
at that time. Landlord has the right to exclude any car from the parking
facilities that does not have an identification device.
10. Any parking identification devices found by the purchaser must be
reported immediately to avoid confusion.
11. Lost or stolen devices found by the purchaser must be reported
immediately to avoid confusion.
12. Washing, waxing, cleaning, or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
13. Landlord reserves the right to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for the parking
facilities as it deems necessary for the operation of the parking facilities.
Landlord may refuse to permit any person who violates these rules to park in
the parking facilities, and any violation of the rules shall subject the car
to removal.
14. Landlord reserves the right to charge for parking on a
non-discriminatory basis.
15. Tenant shall have the use of four (4) unassigned parking spaces per
one thousand square feet of Tenant's leased Premises.