[LETTERHEAD]
July 30, 1996
Mr. Nathan Schulhof
Audio Highway
20600 Mariani Drive, Ste. 200
Cupertino, CA 95014
RE: LEASE PROPOSAL FOR SUITE 200 (3,819 RSF)
20600 MARIANI DRIVE, CUPERTINO
Dear Nathan:
MacMillan, Moore and Buchanan, Inc. (Broker) has been authorized on behalf of
Eldon "Bud" Hoffman (Landlord) to submit this proposal for the continuation
of your organization's occupancy of Suite 200 at 20600 Mariani Drive,
Cupertino.
The following outlines the terms of this proposal:
BASE RENT
$2.20 per rentable square foot, full service.
COMMENCEMENT
September 1, 1996
TERM
Two (2) years
JANITORIAL SERVICE
Five (5) days per week.
PARKING
Tenant shall be permitted to park 11 cars on a non-exclusive basis in
the areas designated by Landlord for parking.
*Accepted with the modifications specified herein and attached hereto.
A) Landlord at landlords expense, shall make the following repairs by
September 1, 1996:
1) Fix all roof leaks and paint and repair interior damage caused by same.
2) Repair exhaust fans in bathrooms.
3) Repair ceiling lights as necessary.
4) Repair HVAC as needed.
B) Landlord, at landlord's expense shall make the following improvement no
later than September 1, 1997:
1) Replace all carpeting exclusive of the CEO's office with new carpet of
a grade and color mutually agreed to by both parties.
C) Tenant at tenant's sole cost shall be allowed to:
1) Place a small satellite antenna on the roof.
2) Add additional data lines in the basement.
PAGE 3 OF 3
All other Terms and Conditions, with the exception of any options or rights
to expand or extend, shall remain as stated in the Lease dated July 16, 1994
between Audio Highway (formerly Information Media Highway), Tenant, and Eldon
"Bud" Hoffman, Landlord.
The terms and conditions contained here shall expire at 5:00 p.m. on
Wednesday, July 31, 1996.
This letter shall not constitute a formal and binding agreement. This letter
reflects our present understanding of the discussions and negotiations we
have had regarding the terms and conditions of the proposed transaction, and
we expect that the definitive agreement which is negotiated will be generally
consistent with this letter. This letter shall not, however, create any
legal rights or obligations between us. It is intended that all legal rights
and obligations of each of us shall then only be those which are set forth in
the definitive agreement. Further, it is subject to prior lease or sale of
the building or premises.
Sincerely,
MacMillan, Moore & Buchanan, Inc.
Ann Adrian Philip H. Trautman
AGREED AND ACCEPTED
LANDLORD: TENANT:
Eldon "Bud" Hoffman Audio Highway
By: By: N.M. Schulhof
----------------------- -----------------------
Title: Title: President
-------------------- --------------------
Date: Date: 7/30/96
--------------------- ---------------------
Page 2 of 3
[LETTERHEAD]
This lease between Eldon (Bud) Hoffman
-------------------------------------------------------------
an individual
-----------------------------------------------------------------------------
("Landlord"), and Information Highway Media Corporation
-------------------------------------------------------------
a California Corporation . ("Tenant"), is
--------------------------------------------------------------
dated June 15, , 1994
-------------------------------------------------------------------- --
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions
of this Lease. Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 2l. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with
Landlord, other tenants, subtenants and invitees, to use of the Common Areas
(as defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. BASE RENT (INITIAL): $ 84,334.56 per year.
-------------
b. BASE YEAR: The calendar year of 1994
---------------------------------------------
c. BROKER(S)
Landlord's: CB Commercial
-----------------------------------------------------------
Tenant's: Ann Adrian - w/MacMillan Moore & Buchanan
-------------------------------------------------------------
In the event that CB Commercial Real Estate Group, Inc. represents both
Landlord and Tenant, Landlord and Tenant hereby confirm that they were timely
advised of the dual representation and that they consent to the same, and
that they do not expect said broker to disclose to either of them the
confidential information of the other party.
d. COMMENCEMENT DATE: July 15th, 1994
----------------------------------------------------------
e. COMMON AREAS: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have the right
to regulate or restrict the use of the Common Areas.
f. EXPENSE STOP: (fill in if applicable): $ 4.08 Annual (See Addendum - item#5.3
--------------------------------------
for detail)
-------------
g. EXPIRATION DATE: July 14, 1996 , unless otherwise sooner
-----------------------------------
terminated in accordance with the provisions of this Lease.
h. INDEX (SECTION 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, San Francisco/
--------------------
Oakland/San Jose Average, Subgroup "All
-------------------
Items" (1967=100).
i. LANDLORD'S MAILING ADDRESS: 10495 N. DeAnza, Cupertino, CA 95014
-------------------------------------------------
TENANT'S MAILING ADDRESS: 20600 Mariani Avenue, Cupertino, CA 95014
---------------------------------------------------
j. MONTHLY INSTALLMENTS OF BASE RENT (INITIAL): $ 7,027.88 per month.
------------------
k. PARKING: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park 14
-----------------
cars on a non-exclusive basis in the area(s) designated by Landlord for
parking. Tenant shall abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's parking operator.
l. PREMISES: that portion of the Building containing approximately 3,819
-------------
square feet of Rentable Area, shown by diagonal lines on Exhibit "A,"
located on the 2nd floor of the Building and known as Suite 200 .
------------ ----------
m. PROJECT: the building of which the Premises are a part (the "Building")
and any other buildings or improvements on the real property (the "Property")
located at 20600 Mariani Avenue, Cupertino, CA 95014 and further
--------------------------------------------------------
described at Exhibit "B." The Project is known as The Any Mountain Building
---------------------------
[LETTERHEAD]
TABLE OF CONTENTS
PAGE
Article 1 LEASE OF PREMISES.......................................... 1
Article 2 DEFINITIONS................................................ 1
Article 3 EXHIBITS AND ADDENDA....................................... 2
Article 4 DELIVERY OF POSSESSION..................................... 2
Article 5 RENT....................................................... 2
Article 6 INTEREST AND LATE CHARGES.................................. 4
Article 7 SECURITY DEPOSIT........................................... 4
Article 8 TENANTS USE OF THE PREMISES................................ 4
Article 9 SERVICES AND UTILITIES..................................... 5
Article 10 CONDITION OF THE PREMISES.................................. 5
Article 11 CONSTRUCTION, REPAIRS AND MAINTENANCE...................... 5
Article 12 ALTERATIONS AND ADDITIONS.................................. 6
Article 13 LEASEHOLD IMPROVEMENTS: TENANT'S PROPERTY.................. 6
Article 14 RULES AND REGULATIONS...................................... 7
Article 15 CERTAIN RIGHTS RESERVED BY LANDLORD........................ 7
Article 16 ASSIGNMENT AND SUBLETTING.................................. 7
Article 17 HOLDING OVER............................................... 8
Article 18 SURRENDER OF PREMISES...................................... 8
Article 19 DESTRUCTION OR DAMAGE...................................... 8
Article 20 EMINENT DOMAIN............................................. 8
Article 21 INDEMNIFICATION............................................ 9
Article 22 TENANTS INSURANCE.......................................... 9
Article 23 WAIVER OF SUBROGATION...................................... 10
Article 24 SUBORDINATION AND ATTORNMENT............................... 10
Article 25 TENANT ESTOPPEL CERTIFICATES............................... 10
Article 26 TRANSFER OF LANDLORD'S INTEREST............................ 10
Article 27 DEFAULT.................................................... 10
Article 28 BROKERAGE FEES............................................. 11
Article 29 NOTICES.................................................... 11
Article 30 GOVERNMENT ENERGY OR UTILITY CONTROLS...................... 11
Article 31 RELOCATION OF PREMISES..................................... 11
Article 32 QUIET ENJOYMENT............................................ 12
Article 33 OBSERVANCE OF LAW.......................................... 12
Article 34 FORCE MAJEURE.............................................. 12
Article 35 CURING TENANTS DEFAULTS.................................... 12
Article 36 SIGN CONTROL............................................... 12
Article 37 MISCELLANEOUS.............................................. 12
Commercial Building
This lease between Eldon (Bud) Hoffman
-------------------------------------------------------------
an individual
- -------------------------------------------------------------------------------
("Landlord"), and Information Highway Media Corporation
-------------------------------------------------------------
a California Corporation . ("Tenant"), is
--------------------------------------------------------------
dated June 15, . 1994
-------------------------------------------------------------------- --
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions
of this Lease. Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 2l. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with
Landlord, other tenants, subtenants and invitees, to use of the Common Areas
(as defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. BASE RENT (INITIAL): $ 84,334.56 per year.
--------------------------------------------
b. BASE YEAR: The calendar year of 1994
---------------------------------------------
c. BROKER(S)
Landlord's: CB Commercial
-----------------------------------------------------------
Tenant's: Ann Adrian - w/MacMillan Moore & Buchanan
-------------------------------------------------------------
In the event that CB Commercial Real Estate Group, Inc. represents both
Landlord and Tenant, Landlord and Tenant hereby confirm that they were timely
advised of the dual representation and that they consent to the same, and
that they do not expect said broker to disclose to either of them the
confidential information of the other party.
d. COMMENCEMENT DATE: July 15th, 1994
----------------------------------------------------------
e. COMMON AREAS: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have the right
to regulate or restrict the use of the Common Areas.
f. EXPENSE STOP: (fill in if applicable):
$ 4.08 Annual (See Addendum - item#5.3 for detail)
-------------------------------------------------
g. EXPIRATION DATE: July 14, 1996 , unless otherwise sooner
-----------------------------------
terminated in accordance with the provisions of this Lease.
h. INDEX (SECTION 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, San Francisco/
--------------------
Oakland/San Jose Average, Subgroup "All
------------------------------------------------
items" (1967=100).
i. LANDLORD'S MAILING ADDRESS: 10495 N. DeAnza, Cupertino, CA 95014
-------------------------------------------------
TENANT'S MAILING ADDRESS: 20600 Mariani Avenue, Cupertino, CA 95014
---------------------------------------------------
j. MONTHLY INSTALLMENTS OF BASE RENT (INITIAL): $ 7,027.88 per month.
------------------
k. PARKING: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park 14
-----------------
cars on a non-exclusive basis in the area(s) designated by Landlord for
parking. Tenant shall abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's parking operator.
l. PREMISES: that portion of the Building containing approximately 3,819
-------------
square feet of Rentable Area, shown by diagonal lines on Exhibit "A,"
located on the 2nd floor of the Building and known as Suite 200 .
------------ ----------
m. PROJECT: the building of which the Premises are a part (the "Building")
and any other buildings or improvements on the real property (the "Property")
located at 20600 Mariani Avenue, Cupertino, CA 95014 and further
--------------------------------------------------------
described at Exhibit "B." The Project is known as The Any Mountain Building
---------------------------
n. RENTABLE AREA: as to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
(1)
q. TENANT'S FIRST ADJUSTMENT DATE (SECTION 5.2): the first day of the
calendar month following the Commencement Date plus 12 months.
r. TENANT'S PROPORTIONATE SHARE: 44.2%. Such share is a fraction, the
numerator of which is the Rentable Area of the Premises, and the
denominator of which is the Rentable Area of the Project as determined
by Landlord from time to time. The Project consists of 1 building(s)
containing a total Rentable Area of 8,633 square feet.
s. TENANT'S USE CLAUSE (ARTICLE 8): General Office and all legally allowed
uses with Landlord approval.
t. TERM: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A"--Floor Plan showing the Premises.
b. Exhibit "B"--Site Plan of the Project.
f. Addenda:
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to
Tenant on the Commencement Date, Landlord shall not be subject to any
liability for such failure, the Expiration Date shall not change and the
validity of this Lease shall not be impaired, but Rent shall be abated until
delivery of possession. "Delivery of possession" shall be deemed to occur on
the date Landlord completes Landlord's Work as defined in Exhibit "C". If
Landlord permits Tenant to enter into possession of the Premises before the
Commencement Date, such possession shall be subject to the provisions of this
Lease, including, without limitation, the payment of Rent.
5. RENT.
5.1 PAYMENT OF BASE RENT. Tenant agrees to pay the Base Rent for the
Premises. Monthly Installments of Base Rent shall be payable in advance on
the first day of each calendar month of the Term. If the Term begins (or
ends) on other than the first (or last) day of a calendar month, the Base
Rent for the partial month shall be prorated on a per diem basis. Tenant shall
pay Landlord the first Monthly Installment of Base Rent when Tenant executes
the Lease.
5.2 ADJUSTED BASE RENT.
a. The Base Rent (and the corresponding Monthly Installments of Base
Rent) set forth at Section 2a shall be adjusted annually (the
"Adjustment Date"), commencing on Tenant's First Adjustment Date,
Adjustments, if any, shall be based upon increases (if any) in the
Index. The Index in publication three (3) months before the
Commencement Date shall be the "Base Index." The Index in publication
three (3) months before each Adjustment Date shall be the "Comparison
Index." As of each Adjustment Date, the Base Rent payable during the
ensuring twelve-month period shall be determined by increasing the
initial Base Rent by a percentage equal to the percentage increase, if
any, in the Comparison Index over the Base Index. If the Comparison
Index for any Adjustment Date is equal to or less than the Comparison
Index for the preceding Adjustment Date (or the Base Index, in the case
of First Adjustment Date), the Base Rent for the ensuing twelve-month
period shall remain the amount of Base Rent payable during the
preceding twelve-month period. When the Base Rent payable as of each
Adjustment Date is determined, Landlord shall promptly give Tenant
written notice of such adjusted Base Rent and the manner in which it
was computed. The Base Rent as so adjusted from time to time shall be
the "Base Rent" for all purposes under this Lease.
b. If at any Adjustment Date the Index no longer exists in the form
described in this Lease, Landlord may substitute any substantially
equivalent official index published by the Bureau of Labor Statistics
or its successor. Landlord shall use any appropriate conversion factors
to accomplish such substitution. The substitute index shall then become
the "Index" hereunder.
5.3 PROJECT OPERATING COSTS.
a. In order that the Rent payable during the Term reflect any increase
in Project Operating Costs, Tenant agrees to pay to Landlord as Rent,
Tenant's Proportionate Share of all increases in costs, expenses and
obligations attributable to the Project and its operation, all as
provided below.
b. If during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay
to Landlord, in addition to the Base Rent and all other payments due
under this Lease, an amount equal to Tenant's Proportionate Share of
such excess Project Operating Costs in accordance with the provisions
of this Section 5.3b.
(2)
(1) The term "Project Operating Costs" shall include all those items
described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or
Project or their operation, including without limitation, (i) real
property taxes or assessments levied or assessed against the Building
or Project, (ii) assessments or charges levied or assessed against the
Building or Project by any redevelopment agency, (iii) any tax measured
by gross rentals received from the leasing of the Premises, Building or
Project, excluding any net income, franchise, capital stock, estate or
inheritance taxes imposed by the State or federal government or their
agencies, branches or departments; provided that if at any time during
the Term any governmental entity levies, assesses or imposes on
Landlord any (1) general or special, ad valorem or specific, excise,
capital levy or other tax, assessment, levy or charge directly on the
Rent received under this Lease or on the rent received under any other
leases of space in the Building or Project, or (2) any license fee,
excise or franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rent, or (3) any transfer,
transaction, or similar tax, assessment, levy or charge based directly
or indirectly upon the transaction represented by this Lease or such
other leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the Building or
Project, then any such taxes, assessments, levies and charges shall be
deemed to be included in the term Project Operating Costs. If at any
time during the Term the assessed valuation of, or taxes on, the
Project are not based on a completed Project having at least eighty-five
percent (85%) of the Rentable Area occupied, then the "taxes" component
of Project Operating Costs shall be adjusted by Landlord to reasonably
approximate the taxes which would have been payable if the Project were
completed and at least eighty-five percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating the
Building and Project, including without limitation the following: costs
of (1) utilities; (2) supplies; (3) insurance (including public
liability, property damage, earthquake, and fire and extended coverage
insurance for the full replacement cost of the Building and Project as
required by Landlord or its lenders for the Project; (4) services of
independent contractors; (5) compensation (including employment taxes
and fringe benefits) of all persons who perform duties connected with
the operation, maintenance, repair or overhaul of the Building or
Project, and equipment, improvements and facilities located within the
Project, including without limitation engineers, janitors, painters,
floor waxers, window washers, security and parking personnel and
gardeners (but excluding persons performing services not uniformly
available to or performed for substantially all Building or Project
tenants); (6) operation and maintenance of a room for delivery and
distribution of mail to tenants of the Building or Project as required
by the U.S. Postal Service (including, without limitation, an amount
equal to the fair market rental value of the mail room premises); (7)
management of the Building or Project, whether managed by Landlord or
an independent contractor (including, without limitation, an amount
equal to the fair market value of any on-site manager's office); (8)
rental expenses for (or a reasonable depreciation allowance on)
personal property used in the maintenance, operation or repair of the
Building or Project; (9) costs, expenditures or charges (whether
capitalized or not) required by any governmental or quasi-governmental
authority; (10) amortization of capital expenses (including financing
costs) (i) required by a governmental entity for energy conservation or
life safety purposes, or (ii) made by Landlord to reduce Project
Operating Costs; and (11) any other costs or expenses incurred by
Landlord under this Lease and not otherwise reimbursed by tenants of
the Project. If at any time during the Term, less than eighty-five
percent (85%) of the Rentable Area of the Project is occupied, the
"operating costs" component of Project Operating Costs shall be
adjusted by Landlord to reasonably approximate the operating costs
which would have been incurred if the Project had been at least
eighty-five percent (85%) occupied.
(2) Tenant's Proportionate Share of Project Operating Costs shall be payable
by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for
each calendar year thereafter ("Comparison Year"), Tenant shall pay
Landlord an amount equal to Tenant's Proportionate Share of the Project
Operating Costs incurred by Landlord in the Comparison Year which
exceeds the total amount of Project Operating Costs payable by Landlord
for the Base Year. This excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall,
at Landlord's request, pay as additional rent during each Comparison
Year, an amount equal to Tenant's Proportionate Share of the Excess
Expenses payable during such Comparison Year, as estimated by Landlord
from time to time. Such payments shall be made in monthly installments,
commencing on the first day of the month following the month in which
Landlord notifies Tenant of the amount it is to pay hereunder and
continuing until the first day of the month following the month in
which Landlord gives Tenant a new notice of estimated Excess Expenses.
It is the intention hereunder to estimate from time to time the amount
of the Excess Expenses for each Comparison Year and Tenant's
Proportionate Share thereof, and then to make an adjustment in the
following year based on the actual Excess Expenses incurred for that
Comparison Year.
(c) On or before April 1 of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical), Landlord shall
deliver to Tenant a statement setting forth Tenant's Proportionate
Share of the Excess Expenses for the preceding Comparison Year. If
Tenant's Proportionate Share of the actual Excess Expenses for the
previous Comparison Year exceeds the total of the estimated monthly
payments made by Tenant for such year, Tenant shall pay Landlord the
amount of the deficiency within ten (10) days of the receipt of the
statement. If such total exceeds Tenant's Proportionate Share of the
actual Excess Expenses for such Comparison Year, then Landlord shall
credit against Tenant's next ensuing monthly installment(s) of
additional rent an amount equal to the difference until the credit is
exhausted. If a credit line is due from Landlord on the Expiration
Date, Landlord shall pay Tenant the amount of the credit. The
obligations of Tenant and Landlord to make payments required under this
Section 5.3 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison
Year having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes
the amount of additional rent owed, a certification as to the proper
amount shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. Tenant agrees to pay the
cost of such certification unless it is determined that Landlord's
original statement overstated Project Operating Costs by more than five
percent (5%).
(4) If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Tenant notice to do such
acts as are reasonably required to so maintain the Premises. If
Tenant fails to promptly commence such work and diligently prosecute
it to completion, then Landlord shall have the right to do such acts
and expand such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord
shall be paid by Tenant promptly after demand with interest at the
prime commercial rate then being charged by Bank of America NT & SA
plus two percent (2%) per annum, from the date of such work, but not
to exceed the maximum rate then allowed by law. Landlord shall have
no liability to Tenant for any damage, inconvenience or interference
with the use of the Premises by Tenant as a result of performing any
such work.
c. COMPLIANCE WITH LAW. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of
any public authority relating to their respective maintenance
obligations as set forth herein.
d. WAIVER BY TENANT. Tenant expressly waivers the benefits of any
statute now or hereafter in effect which would otherwise afford the
Tenant the right to make repairs at Landlord's expense or to terminate
this Lease because of Landlord's failure to keep the Premises in good
order, condition and repair.
e. LOAD AND EQUIPMENT LIMITS. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by
Landlord's structural engineer shall be paid for by Tenant upon demand.
Tenant shall not install business machines or mechanical equipment
which cause noise or vibration to such a degree as to be objectionable
to Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant nor shall Tenant's obligations under this
Lease be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising
from Landlord's making any repairs or changes which Landlord is
required or permitted by this Lease or by any other tenant's lease or
required by law to make in or to any portion of the Project, Building
or the Premises, Landlord shall nevertheless use reasonable efforts to
minimize any interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the Building's
mechanical, electrical, plumbing, HVAC or other systems serving,
located in, or passing through the Premises.
h. Upon the expiration or earlier termination of this Lease, Tenant
shall return the Premises to Landlord clean and in the same condition
as on the date Tenant took possession, except for normal wear and tear.
Any damage to the Premises, including any structural damage, resulting
from Tenant's use or from the removal of Tenant's fixtures, furnishings
and equipment pursuant to Section 13b shall be repaired by Tenant at
Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or improvements
except minor alterations not to exceed [illegible] to the Premises
without obtaining the prior written consent of Landlord. Landlord's
consent may be conditioned on Tenant's removing any such additions,
alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work
shall be diligently prosecuted to completion. Landlord may, at
Landlord's option, require that any such work be performed by
Landlord's contractor, in which case the cost of such work shall be
paid for before commencement of the work. Tenant shall pay to Landlord
upon completion of any such work by Landlord's contractor, an
administrative fee of fifteen percent (15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the Premises pursuant
to Section 12a, and shall keep the Premises, Building and Project free
and clear of liens of any kind. Tenant shall indemnify, defend against
and keep Landlord free and harmless from all liability, loss, damage
costs, attorneys' fees and any other expense incurred on account of
claims by any person performing work or furnishing materials or
supplies for Tenant or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this
Lease, free and clear of all attachment or judgment liens. Before the
actual commencement of any work for which a claim or lien may be filed,
Tenant shall give Landlord notice of the intended commencement date a
sufficient time before that date to enable Landlord to post notices of
non-responsibility or any other notices which Landlord deems necessary
for the proper protection of Landlord's interest in the Premises,
Building or the Project, and the Landlord shall have the right to enter
the Premises and post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide
to Landlord, at Tenant's expense, a lien and completion bond in an
amount equal to at least one and one-half (1 1/2) times the total
estimated cost of any additions, alterations or improvements to be made
in or to the Premises, to protect Landlord against any liability for
mechanic's and materialmen's liens and to insure timely completion of
the work. Nothing contained in this Section 12c shall relieve Tenant of
its obligation under Section 12b to keep the Premises, Building and
Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section
12a, all additions, alterations and improvements made to the Premises
shall become the property of Landlord and be surrendered with the
Premises upon the expiration of the Term; provided, however, Tenant's
equipment, machinery and trade fixtures which can be removed without
damage to the Premises shall remain the property of Tenant and may be
removed, subject to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to
or built into the Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant ("Leasehold
Improvements"), shall be and remain a part of the Premises, shall be
the property of Landlord and shall not be removed by Tenant, except as
expressly provided in Section 13b.
b. All removable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense
to Landlord, which can be removed without structural damage to the
Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Premises
(collectively "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the
Term: provided that if any of Tenant's Property is removed, Tenant
shall promptly repair any damage to the Premises or to the Building
resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees
and invitees to comply with) the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other tenants
or occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to
Tenant for (a) damage or injury to property, person or business, (b) causing
an actual or constructive eviction from the Premises, or (c) disturbing
Tenant's use or possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of
the Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior notice to
Tenant, to inspect the Premises, and to show the Premises to any
prospective purchaser or mortgagee of the Project, or to any assignee
of any mortgage on the Project, or to others having an interest in the
Project or Landlord, and during the last six months of the Term, to
show the Premises to prospective tenants thereof; and
e. To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the Premises or the
Building (including, without limitation, checking, calibrating,
adjusting or balancing controls and other parts of the HVAC system),
and to take all steps as may be necessary or desirable for the safety,
protection, maintenance or preservation of the Premises or the Building
or Landlord's interest therein, or as may be necessary or desirable for
the operation or improvement of the Building or in order to comply with
laws, orders or requirements of governmental or other authority
Landlord agrees to use its best efforts (except in an emergency) to
minimize interference with Tenant's business in the Premises in the
course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord,
assign or hypothecate this Lease or any interest herein or sublet the
Premises or any part thereof, or permit the use of the Premises by any
party other than Tenant. Any of the foregoing acts without such consent
shall be void and shall, at the option of Landlord, terminate this
Lease. This Lease shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires
to assign this Lease or sublet all or any part of the Premises, Tenant
shall give notice to Landlord setting forth the terms and provisions of
the proposed assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition
of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the option, exercisable by notice given to
Tenant within twenty (20) days after Tenant's notice is given, either
to sublet such space from Tenant at the rental and on the other terms
set forth in this Lease for the term set forth in Tenant's notice, or,
in the case of an assignment, to terminate this Lease. If Landlord does
not exercise such option, Tenant may assign the Lease or sublet such
space to such proposed assignee or subtenant on the following further
conditions:
(1) Landlord shall have the right to approve such proposed assignee
or subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth
in the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord.
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under
the assignment or sublease, which exceed, in the aggregate, (i) the
total sums which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to any portion of
the Premises subleased), plus (ii) any real estate brokerage
commissions or fees payable in connection with such assignment or
subletting, shall be paid to Landlord as additional rent under this
Lease without affecting or reducing any other obligations of Tenant
hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant
may assign this Lease or sublet the Premises or any portion thereof,
without Landlord's consent and without extending any recapture or
termination option to Landlord, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with Tenant, or to
any person or entity which acquires all the assets of Tenant's business
as a going concern, provided that (i) the assignee or sublessee
assumes, in full, the obligations of Tenant under this Lease, (ii)
Tenant remains fully liable under this Lease and (iii) the use of the
Premises under Article 8 remains unchanged.
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee or
subtenant of Tenant or any successor of Tenant in the performance of any
of the terms hereof, Landlord may proceed directly against Tenant
without the necessity of exhausting remedies against such assignee,
subtenant or successor. Landlord may consent to subsequent assignments
of the Lease or sublettings or amendments or modifications to the Lease
with assignees of Tenant, without notifying Tenant, or any successor of
Tenant, and without obtaining its or their consent thereto and any such
actions shall not relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant Proposes to do,
then Tenant shall, upon demand, pay Landlord an administrative fee of
One Hundred Fifty and No/100ths Dollars ($150.00) plus any attorneys'
fees reasonably incurred by Landlord in connection with such act or
request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the
Premises with Landlord's permission (express or implied), Tenant shall
become a tenant from month to month only, upon all the provisions of
this Lease (except as to term and Base Rent), but the "Monthly
Installments of Base Rent" payable by Tenant shall be increased to one
hundred twenty five percent (125%) of the Monthly Installments of Base
Rent payable by Tenant at the expiration of the Term. Such monthly rent
shall be payable in advance on or before the first day of each month. If
either party desires to terminate such month to month tenancy, it shall
give the other party not less than thirty (30) days advance written
notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as
when Tenant took possession, except for (i) reasonable wear and tear,
(ii) loss by fire or other casualty, and (iii) loss by condemnation.
Tenant shall, on Landlord's request, remove Tenant's Property on or
before the Expiration Date and promptly repair all damage to the
Premises or Building caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the
Premises shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a bill of sale. If
Landlord elects to remove all or any part of such Tenant's Property, the
cost of removal, including repairing any damage to the Premises or
Building caused by such removal, shall be paid by Tenant. On the
Expiration Date Tenant shall surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of
other casualty, Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs can, in Landlord's
opinion, be completed within (90) ninety days. If Landlord determines
that repairs can be completed within ninety (90) days, this Lease shall
remain in full force and effect, except that if such damage is not the
result of the negligence or willful misconduct of Tenant or Tenant's
agents, employees, contractors, licensees or invitees, the Base Rent
shall be abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety (90) days, Landlord may elect, upon notice to Tenant given within
thirty (30) days after the date of such fire or other casualty, to
repair such damage, in which event this Lease shall continue in full
force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not so elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
c. If any other portion of the Building or Project is totally destroyed
or damaged to the extent that in Landlord's opinion repair thereof
cannot be completed within ninety (90) days, Landlord may elect upon
notice to Tenant given within thirty (30) days after the date of such
fire or other casualty, to repair such damage, in which event this Lease
shall continue in full force and effect, but the Base Rent shall be
partially abated as provided in Section 19a. If Landlord does not
elect to make such repairs, this Lease shall terminate as of the date of
such fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord
shall repair at its cost any injury or damage to the Building and
Building Standard Work in the Premises. Tenant shall be responsible at
its sole cost and expense for the repair, restoration and replacement of
any other Leasehold Improvements and Tenant's Property. Landlord shall
not be liable for any loss of business, inconvenience or annoyance
arising from any repair or restoration, of any portion of the Premises,
Building or Project as a result of any damage from fire or other
casualty.
e. This Lease shall be considered an express agreement governing any
case of damage to or destruction of the Premises, Building or Project by
fire or other casualty, and any present or future law which purports to
govern the rights of Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public
purpose, this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
Building or Premises is so taken, this Lease shall be unaffected by
such taking, provided that (i) Tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90) days after the
date of such taking if twenty percent (20%) or more of the Premises is
taken and the remaining area of the Premises is not reasonably
sufficient for Tenant to continue operation of its business, and (ii)
Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such taking. If
either Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) day after either such notice.
The Rent shall be prorated to the date of termination. If this Lease
continues in force upon such partial taking, the Base Rent and Tenant's
Proportionate Share shall be equitably adjusted according to the
remaining Rentable Area of the Premises and Project.
b. In the event of any taxing, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord all of its right title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall have
the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but not from
Landlord) such compensation as may be recoverable by Tenant in its own
right for relocation expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does not
result in a termination of this Lease, Landlord shall restore the
remaining portion of the Premises as nearly as practicable to its
condition prior to the condemnation or taking, but only to the extent of
Building Standard Work. Tenant shall be responsible at its sole cost and
expense for the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of
Tenant or any other person, or for any injury to or death of any person,
arising out of (1) Tenant's use and occupancy of the Premises, or any
work, activity or other things allowed or suffered by Tenant to be done
in, on or about the Premises; (2) any breach or default by Tenant of any
of Tenant's obligations under this Lease; or (3) any negligent or
otherwise tortious act or omission of Tenant, its agents, employees,
invitees or contractors. Tenant shall at Tenant's expense, and by
counsel satisfactory to Landlord, defend Landlord in any action or
proceeding arising from any such claim and shall indemnify Landlord
against all costs, attorneys' fees, expert witness fees and any other
expenses incurred in such action or proceeding. As a material part of
the consideration for Landlord's execution of this Lease, Tenant hereby
assumes all risk of damage or injury to any person or property in, on or
about the Premises from any cause.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees
or customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may
leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wire, appliances, plumbing, air conditioning or lighting fixtures, where
such damage or injury results from conditions arising upon the Premises
or upon other portions of the Building or Project or from other sources.
Landlord shall not be liable for any damages arising from any act or
omission of any other tenant of the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name Landlord, and at Landlord's request any mortgagee of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (i) a cross-liability endorsement,
(ii) a provision that such policy and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies
carried by Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and representatives,
which arises or might arise by reason of any payment under such policy
or by reason of any act or omission of Landlord, its agents, employees
or representatives. A copy of each paid up policy (authenticated by the
insurer) or certificate of the insurer evidencing the existence and
amount of each insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of possession
of the Premises, and thereafter within thirty (30) days after any demand
by Landlord therefor. Landlord may, at any time and from time to time,
inspect and/or copy any insurance policies required to be maintained by
Tenant hereunder. No such policy shall be cancellable except after
twenty (20) days written notice to Landlord and Landlord's lender.
Tenant shall furnish Landlord with renewals or "binders" of any such
policy at least ten (10) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out and maintain such insurance.
Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together with a
twenty-five percent (25%) handling charge, payable upon demand. Tenant
shall have the right to provide such insurance coverage pursuant to
blanket policies obtained by the Tenant, provided such blanket policies
expressly afford coverage to the Premises, Landlord, Landlord's mortgagee
and Tenant as required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise
and other personal property from time to time in, on or about the
Premises, in an amount not less than one hundred percent (100%) of their
actual replacement cost from time to time, providing protection against
any peril included within the classification "Fire and Extended Coverage"
together with insurance against sprinkler damage, vandalism and
malicious mischief. The proceeds of such insurance shall be used for the
repair or replacement of the property so insured. Upon termination of
this Lease following a casualty as set forth herein, the proceeds under
(i) shall be paid to Landlord, and the proceeds under (ii) above shall
be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect workers' compensation insurance
as required by law and comprehensive public liability and property
damage insurance with respect to the construction of improvements on the
Premises, the use, operation or condition of the Premises and the
operations of Tenant in, on or about the Premises, providing personal
injury and broad form property damage coverage for not less than One
Million Dollars ($1,000,000.00) combined single limit for bodily injury,
death and property damage liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and Tenant cannot mutually agree
upon the amounts of said increases, then Tenant agrees that all
insurance policy limits as set forth in this Article shall be adjusted
for increases in the cost of living in the same manner as is set forth
in Section 5.2 hereof for the adjustment of the Base Rent.
and representatives of the other, on account of loss by or damage to the
waiving party of its property or the property of others under its control, to
the extent that such loss or damage is insured against under any fire and
extended coverage insurance policy which either may have in force at the time
of the loss or damage. Tenant shall, upon obtaining the policies of insurance
required under this Lease give notice to its insurance carrier or carriers
that the foregoing mutual waiver of subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or first deed of
trust beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in
writing, subordinate its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any lease in which
Landlord is lessee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement. Tenant shall
have the right to obtain from any lender or lessor or Landlord requesting
such subordination, an agreement in writing providing that, as long as Tenant
is not in default hereunder, this Lease shall remain in effect for the full
Term. The holder of any security interest may, upon written notice to Tenant
elect to have this Lease prior to its security interest regardless of the
time of the granting or recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee. Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and accepts
the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee, a written statement
certifying (a) that this Lease is unmodified and in full force and effect, or
is in full force and effect as modified and stating the modifications: (b)
the amount of Base Rent and the date to which Base Rent and additional rent
have been paid in advance: (c) the amount of any security deposited with
Landlord; and (d) that Landlord is not in default hereunder or, if Landlord
is claimed to be in default, stating the nature of any claimed default. Any
such statement may be relied upon by a purchaser, assignee or lender.
Tenant's failure to execute and deliver such statement within the time
required shall at Landlord's election be a default under this Lease and shall
also be conclusive upon Tenant that: (1) this Lease is in full force and
effect and has not been modified except as represented by Landlord: (2) there
are no uncured defaults in Landlord's performance and that Tenant has no
right of offset, counter-claim or deduction against Rent: and (3) not more
than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant,
Landlord may transfer the security deposit or prepaid Rent to the Landlord's
successor and upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
27. DEFAULT.
27.1. TENANT'S DEFAULT. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be
paid by Tenant under this Lease and such failure continues for five (5)
days after such payment is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues
for thirty (30) days after written notice thereof from Landlord to
Tenant; or
d. If a writ of attachment or execution is levied on this Lease or on
any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with
its creditors; or
f. if Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed within
forty-five (45) days thereafter, of if under the provisions of any law
providing for reorganization or winding up of corporations, any court of
competent jurisdiction assumes jurisdiction custody or control of Tenant
of any substantial part of its property and such jurisdiction, custody
or control remains in force unrelinquished, unstayed or unterminated for
a period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises
or Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1) person
or entity, if any partner of the partnership or other person or entity
is involved in any of the acts or events described in subparagraphs d
through g above.
27.2. REMEDIES. In the event of Tenant's default hereunder, then in addition
to any other rights or remedies Landlord may have under any law, Landlord
shall have the right, at Landlord's option, without further notice or demand
of any kind to do the following
a. Terminate this Lease and Tenant's right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall
have no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other charges
which have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and Tenant's right to
possession of the Premises
If Landlord reenters the Premises under the provisions of subparagraphs b or
c above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to
terminate this lease. In the event of any reentry or retaking of possession
by LANDLORD, Landlord shall have the right, but not the obligation, to remove
all or any part of Tenant's Property in the Premises and to place such
property in storage at a public warehouse at the expense and risk of Tenant. If
Landlord elects to relet the Premises for the account of Tenant, the rent
received by Landlord from such reletting shall be applied as follows: first,
to the payment of any indebtedness other than Rent due hereunder from Tenant
to Landlord; second, to the payment of any costs of such reletting: third,
to the payment of the cost of any alterations or repairs to the Premises,
fourth to the payment of Rent due and unpaid hereunder; and the balance, if any,
shall be held by Landlord and applied in payment of future Rent as it becomes
due. If that portion of rent received from the reletting which is applied
against the Rent due hereunder is less than the amount of the Rent due, Tenant
shall pay the deficiency to Landlord promptly upon demand by Landlord. Such
deficiency shall be calculated and paid monthly. Tenant shall also pay to
Landlord, as soon as determined, any costs and expenses incurred by Landlord in
connection with such reletting or in making alterations and repairs to the
Premises, which are not covered by the rent received from the reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. PAST RENT. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
2. RENT PRIOR TO AWARD. The worth at the time of the 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 reasonable avoided; plus
3. RENT AFTER AWARD. The worth at the time of the award of the amount by
which the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of the rental loss that Tenant proves could be
reasonably avoided; plus
4. PROXIMATELY CAUSED DAMAGES. Any other amount necessary to compensate
Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, including, but not
limited to, any costs or expenses (including attorneys' fees), incurred
by Landlord in (a) retaking possession of the Premises, (b) maintaining
the Premises after Tenant's default, (c) preparing the Premises for
reletting to a new tenant, including any repairs or alterations, and (d)
reletting the Premises, including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above
is to be computed by allowing interest at the rate of ten percent (10%) per
annum. "The worth at the time of the award" as used in subparagraph 3 above,
is to be computed by discounting the amount at the discount rate of the
Federal Reserve Bank situated nearest to the Premises at the time of the
award plus one percent (1%).
The waiver by Landlord of any breach of any term, covenant or condition of
this Lease shall not be deemed a waiver of such term, covenant or condition or
of any subsequent breach of the same or any other term, covenant or
condition. Acceptance of Rent by Landlord subsequent to any breach hereof
shall not be deemed a waiver of any preceding breach other than the failure
to pay the particular Rent so accepted, regardless of Landlord's knowledge of
any breach at the time of such acceptance of Rent. Landlord shall not be
deemed to have waived any term, covenant or condition unless Landlord gives
Tenant written notice of such waiver.
27.3. LANDLORD'S DEFAULT. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease within thirty (30) days after
receipt of written notice from Tenant specifying such default, or if such
default cannot reasonably by cured within thirty (30) days, if Landlord
fails to commence to cure within that thirty (30) day period, then Landlord
shall be liable to Tenant for any damages sustained by Tenant as a result of
Landlord's breach; provided, however, it is expressly understood and agreed
that if Tenant obtains a money judgment against Landlord resulting from any
default or other claim arising under this Lease, that judgment shall be
satisfied only out of the rents, issues, profits, and other income actually
received on account of Landlord's right, title and interest in the Premises,
Building or Project, and no other real, personal or mixed property of
Landlord (or of any of the partners which comprise Landlord, if any) wherever
situated, shall be subject to levy to satisfy such judgment. If, after notice
to Landlord of default, Landlord (or any first mortgagee or first deed of
trust beneficiary of Landlord) fails to cure the default as provided herein,
then Tenant shall have the right to cure that default at Landlord's expense.
Tenant shall not have the right to terminate this Lease or to withhold,
reduce or offset any amount against any payments of Rent or any other charges
due and payable under this Lease except as otherwise specifically provided
herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except
those noted in Section 2.c. Tenant shall indemnify and hold Landlord harmless
from any cost, expense or liability (including costs of suit and reasonable
attorneys' fees) for any compensation, commission or fees claimed by any
other real estate broker or agent in connection with this Lease or its
negotiation by reason of any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be given under
this Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and
to the Building manager, and (b) if to Tenant, to Tenant's Mailing Address:
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises Landlord and Tenant may from
time to time by notice to the other designate another place for receipt of
future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or
other utilities during the Term, both Landlord and Tenant shall be bound
thereby. In the event of a difference in interpretation by Landlord and
Tenant of any such controls, the interpretation of Landlord shall prevail,
and Landlord shall have the right to enforce compliance therewith, including
the right of entry into the Premises to effect compliance.
described in this Lease, and if the relocation occurs after the
Commencement Date, shall be placed in that condition by Landlord at its
cost.
b. Landlord shall give Tenant at least thirty (30) days written notice of
Landlord's intention to relocate the Premises.
c. As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the
following Monday. If the physical relocation has not been completed in
that time, Base Rent shall abate in full from the time the physical
relocation commences to the time it is completed. Upon completion of
such relocation, the new premises shall become the "Premises" under this
Lease.
d. All reasonable costs incurred by Tenant as a result of the relocation
shall be paid by Landlord.
e. If the new premises are smaller than the Premises as it existed
before the relocation, Base Rent shall be reduced proportionately.
f. The parties hereto shall immediately execute an amendment to this
Lease setting forth the relocation of the Premises and the reduction of
Base Rent, if any.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms
of this Lease and to any mortgage, lease, or other agreement to which this
Lease may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law, statute, ordinance
or governmental rule or regulation now in force or which may hereafter be
enacted or promulgated. Tenant shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances and governmental rules,
regulations or requirements now in force or which may hereafter be in force,
and with the requirements of any board of fire insurance underwriters or
other similar bodies now or hereafter constituted, relating to, or affecting
the condition, use or occupancy of the Premises, excluding structural changes
not related to or affected by Tenant's improvements or acts. The judgment of
any court of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord is a party thereto or not, that Tenant has
violated any law, ordinance or governmental rule, regulation or requirement,
shall be conclusive of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor disputes, inability to obtain labor,
materials, equipment or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls, judicial orders, enemy
or hostile government actions, civil commotion, fire or other casualty, or
other causes beyond the reasonable control of the party obligated to perform
hereunder, shall excuse performance of the work by that party for a period
equal to the duration of that prevention, delay or stoppage. Nothing in this
Article 34 shall excuse or delay Tenant's obligation to pay Rent or other
charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant
shall pay Landlord all costs of such performance promptly upon receipt of a
bill therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Premises,
Building or Project, including without limitation, the inside or outside of
windows or doors, without the written consent of Landlord. Landlord shall
have the right to remove any signs or other matter, installed without
Landlord's permission, without being liable to Tenant by reason of such
removal, and to charge the cost of removal to Tenant as additional rent
hereunder, payable within ten (10) days of written demand by Landlord.
37. MISCELLANEOUS.
a. ACCORD AND SATISFACTION: ALLOCATION OF PAYMENTS. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this
Lease shall be deemed to be other than on account of the earliest due Rent,
nor shall any endorsement or statement on any check or letter accompanying
any check or payment as Rent be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of the Rent or pursue any other remedy provided
for in this Lease. In connection with the foregoing. Landlord shall have the
absolute right in its sole discretion to apply any payment received from
Tenant to any account or other payment of Tenant then not current and due or
delinquent.
b. ADDENDA. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. ATTORNEYS' FEES. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses,
including reasonable attorneys' fees, incurred on account of such action or
proceeding.
d. CAPTIONS, ARTICLES AND SECTION NUMBERS. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning
of this Lease. All references to Article and Section numbers refer to
Articles and Sections in this Lease.
e. CHANGES REQUESTED BY LENDER. Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
lender on Landlord's interest, so long as these changes do not alter the
basic business terms of this Lease or otherwise materially diminish any
rights or materially increase any obligations of the party from whom consent
to such charge or amendment is requested.
f. CHOICE OF LAW. This Lease shall be construed and enforced in accordance
with the laws of the State.
g. CONSENT. Notwithstanding anything contained in this Lease to the contrary.
Tenant shall have no claim, and hereby waives the right to any claim against
Landlord for money damages by reason of any refusal, withholding or delaying
by Landlord of any consent, approval or statement of satisfaction, and in
such event. Tenant's only remedies therefor shall be an action for
h. CORPORATE AUTHORITY. If Tenant is a corporation, each individual signing
this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation,
and that this Lease is binding on Tenant in accordance with its terms. Tenant
shall, at Landlord's request, deliver a certified copy of a resolution of its
board of directors authorizing such execution.
i. COUNTERPARTS. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
j. EXECUTION OF LEASE, NO OPTION. The submission of this Lease to Tenant
shall be for examination purposes only, and does not and shall not constitute
a reservation of or option for Tenant to lease, or otherwise create any
interest of Tenant in the Premises or any other premises within the Building
or Project. Execution of this Lease by Tenant and its return to Landlord
shall not be binding on Landlord notwithstanding any time interval, until
Landlord has in fact signed and delivered this Lease to Tenant.
k. FURNISHING OF FINANCIAL STATEMENTS: TENANT'S REPRESENTATIONS. In order to
induce Landlord to enter into this Lease Tenant agrees that it shall promptly
furnish Landlord, from time to time, upon Landlord's written request,
with financial statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease are
true, correct and complete in all respects.
l. FURTHER ASSURNACES. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. MORTGAGEE PROTECTION. Tenant agrees to send by certified or registered
mail to any first mortgagee or first deed of trust beneficiary of Landlord
whose address has been furnished to Tenant, a copy of any notice of default
served by Tenant on Landlord. If Landlord fails to cure such default within
the time provided for in this Lease, such mortgagee or beneficiary shall have
an additional thirty (30) days to cure such default; provided that if such
default cannot reasonably be cured within that thirty (30) day period, then
such mortgagee or beneficiary shall have such additional time to cure the
default as is reasonably necessary under the circumstances.
n. PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all of the agreements of
the parties 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 or their
respective successors in interest.
0. RECORDING. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of Landlord, shall execute and
acknowledge a "short form" memorandum of this Lease for recording purposes.
p. SEVERABILITY. A final determination by a court of competent jurisdiction
that any provision of this Lease is invalid shall not affect the validity of
any other provision, and any provision so determined to be invalid shall, to
the extent possible, be construed to accomplish its intended effect.
q. SUCCESSORS AND ASSIGNS. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. TIME OF THE ESSENCE. Time is of the essence of this Lease.
s. WAIVER. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right to remedy or be
construed as a waiver of such default.
t. COMPLIANCE. The parties hereto agree to comply with all applicable
federal, state and local laws, regulations, codes ordinances and
administrative orders having jurisdiction over the parties, property or the
subject matter of this Agreement, including, but not limited to, the 1964
Civil Rights Act and all amendments thereto, the Foreign Investment in Real
Property Tax Act, the Comprehensive Environmental Response Compensation and
Liability Act, and The Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent shall not
constitute a waiver of any other default; it shall constitute only a waiver
of timely payment of the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance
of keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance of the surrender
of the Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Date: June 15, 1994 Date: 6/21/94
------------------------- ---------------------------------------
Landlord: Eldon (Bud) Hoffman Tenant: Information Highway Media Corporation
--------------------- -------------------------------------
By: /s/ Eldon Bud Hoffman By: N. M. Schulhof
--------------------------- -----------------------------------------
Eldon (Bud) Hoffman
Title: Owner Title: President
------------------------ --------------------------------------
By: By:
--------------------------- -----------------------------------------
Title: Title:
------------------------ --------------------------------------
- -------------------------------------------------------------------------------
CONSULT YOUR ADVISORS - THIS DOCUMENT HAS BEEN PREPARED FOR APPROVAL BY YOUR
ATTORNEY. NO REPRESENTATION OR RECOMMENDATION IS MADE BY CB COMMERCIAL AS TO
THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE TRANSACTION
TO WHICH IT RELATES. THESE ARE QUESTIONS FOR YOUR ATTORNEY.
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL [ILLEGIBLE]
ADDENDA TO REAL ESTATE LEASE
This is an Addenda to the Real Estate Lease dated June 15, 1994 between Eldon
(Bud) Hoffman, an individual as Landlord and Information Highway Corporation
(A California corporation), concerning the property known as 20600 Mariani
Avenue, California, as more specifically described in the Lease.
The following is made a part:
5.3 OPERATING EXPENSES:
(c) Operating Expenses - The base rent includes a $0.14 per square
foot/month expense stop for the first year. Said expense stop
covers taxes, property insurance, common area maintenance, and once
a week janitorial. During months 13-24 these shall be an expense
adjustment to reconcile actual expenses that exceed the $0.14 per
square foot/month expense stop. Said adjustment shall not exceed 5%
per year (Note: in the event Option to Expand/Extend is exercised
the adjustment cap shall be cumulative).
(d) Utilities - Current utilities are $0.20 per square foot month and
are included in the base rent. It is understood and agreed that
there shall be an adjustment (up & down) to reflect actual
utilities shared on a pro-rata basis, documented by actual utility
bills. Said adjustment shall be on a quarterly basis. In the event
Tenant other than Any Mountain occupies the downstairs during
this tenancy, the cost of said utilities shall not exceed those of
the typical office.
38. OPTION TO EXPAND/EXTEND:
(a) Premises - It is understood and agreed that Landlord does hereby
grant to Tenant a one time option to expand into the 4,814 sq. ft.
on the ground floor of the Premises upon the terms and conditions
herein set forth. (Note: Parking to increase by 19 spaces, 4/1000
Ratio.)
(b) Trigger Date - Tenant must exercise the option to expand, no later
than January 15, 1995 hereinafter referred to as the "Option
Trigger Date".
(c) Compliance - It is hereby understood and agreed that this option to
expand is conditioned upon Tenants compliance with terms and
conditions of the lease agreement. Any default must be cured in
advance of the exercise of subject option to expand.
(d) Commencement - If Tenant shall exercise the option to expand on or
before the "Option Trigger Date", commencement of a new 24 month
term shall begin on May 15, 1995 or later contingent only on Any
Mountain's ability to vacate, no to exceed June 30th 1995.
(e) Rental Adjustment - Upon execution in writing of the Option to
Expand, if Tenant exercises its option to expand there shall be a
one time rental adjustment equivalent to $7,200.00. Said adjustment
shall come in the form of rental abatement. Months 2-24 of option
term shall be @ $1.64 per sq. ft. per month as base rent.
(f) Extension - It is understood and agreed that a material part of
this option to expand is a Tenant commitment to extend the lease
term of 24 months from occupancy but in no event later. The new
termination date would be 24 months from occupancy date.
(g) Real Estate Fees - All real estate fees associated with the option
to expand shall be paid by Landlord. Subject fees are in accordance
with the listing schedule and shall be due upon exercising option
to expand.
(h) Remaining Term - All other terms and conditions contained in the
lease date June 15, 1994 shall remain in full force and effect.
39. BASE RENT:
Tenant agrees to pay to Landlord basic rent commencing Aug 1.
according to the following schedule:
ORIGINAL LEASE SCHEDULE: SCHEDULE IF EXPANSION/EXTENSION
OPTION IS EXERCISED:
Months Monthly Payments Months Months Payments
------ ---------------- ------ ---------------
1-24 $7,027.88 1-10 $7,027.88
Option Term (8,633 S.F.)
1 ($14,158.12 - $7,200.00) $6,958.12
2-24 $14,158.11
40. "AS IS" CONDITION:
Tenant hereby agrees to accept possession of the demised premises in its
existing condition, and, at Tenant's sole expense, to make all
improvements, and installations that Tenant may deem necessary for the
proper conduct of Tenant's business. Prior to the commencement of any
such work, Tenant shall submit to and obtain Landlords written approval
of plans and specifications which approval shall not be unreasonably
withheld by Landlord.
41. COMPLIANCE WITH LAW:
Both Landlord and Tenant shall comply with all state and federal laws,
rules, regulations, or statutes requiring the submission, reporting, or
filing of information regarding the storage, use, or discharge of
chemical or other substances a the Premises or in the Building. Each
shall provide the other a full copy of any such report or filing within
fifteen (15) days of submission. Tenant shall provide Landlord with a
copy of any such report or filing made by any sub-tenant in the Building
within thirty (30) days of the date Landlord files or receives a copy of
such submission.
42. HAZARDOUS SUBSTANCES:
The Tenant shall not use in any way, or permit or suffer the use of the
leased Premises or any part thereof, to either directly or indirectly
prepare, produce, generate, manufacture, refine, treat, transport,
store, maintain, handle, dispose of, transfer, or process any hazardous
Substances as defined herein, unless it has received the prior written
consent of the Landlord, which may be unreasonably withheld.
Any substance which the Landlord permits the tenant to treat, store,
transfer, or dispose of must be done in strict compliance with any and
all federal, state, county, or municipal statutes or laws now or at any
time hereafter in effect, including but not limited to, the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Paragraph 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Paragraph 1801 et. seq.) the Resource
Conservation and Recovery Act (42 U.S.C. Paragraph 6901 et seq.), The
Federal Walter Pollution Control Act (33 U.S.C. Paragraph 1251 et seq.),
the Clean Air Act (42 U.S.C. Paragraph 7401 et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Paragraph 2601 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. Paragraph 651 et
seq.), as these laws have been amended or supplemented.
As used herein hazardous substances shall mean any pollutant,
contaminant, toxic or hazardous waste, dangerous substance, potentially
dangerous substance, noxious substance, toxic substance, flammable,
explosive, radioactive Material, urea formaldehyde foam insulation,
asbestos, PCBs, or any other substances the removal of which is require,
or the manufacture, preparation, production, generation, use,
maintenance, treatment, storage, transfer, handling or ownership of
which is restricted, prohibited, regulated or penalized by any and all
federal, state, county, or municipal statutes or laws now or at any
time hereafter in effect, including but not limited to, the
comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Paragraph 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Paragraph 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Paragraph 6901 et seq.), the
Federal Water Pollutions Control Act (33 U.S.C. Paragraph 7401 et seq.),
the Toxic Substances Control Act, as amended (15 U.S.C. Paragraph 2601
et seq.), and the Occupational Safety and Health Act (29 U.S.C. Paragraph
651 et seq.), as these laws have been amended or supplemented.
Landlord and Tenant agree to protect, indemnify and hold harmless each
other and its respective directors, officers, contractors, employees,
agents, successors and assigns from any and all loss, damage (except for
consequential damages), cost, expense, or liability (including
reasonable attorneys' fees and costs) directly or indirectly arise out
of or attributable to the acts of the other
party or its respective agents, contractors, servants, or employees
relating to the use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal of a hazardous
substance on, under or about the Premises or the Building, any
environmental pollution, damage, condition or problem in or about the
Premises or the Building that are caused by the acts or negligence of
the other party, its respective agents, servants or contractors. In the
event of any governmental or court order concerning hazardous substances
on the Premises (not caused by Tenant) that precludes Tenant from
reasonable operation of its business on the Premises, Tenant may
terminate this Lease in its sole discretion.
In the event of any conflict between the terms of this Addendum and the
Lease, the terms of this Addendum shall prevail.
Lessee: Lessor: /s/ Eldon B. Hoffman
-------------------------- --------------------------
By: /s/ Nathan M. Schulhof By: Owner
------------------------------ ------------------------------
Title: President Title:
--------------------------- ---------------------------
Address: Address:
------------------------- -------------------------
Date: [illegible] Date:
---------------------------- ----------------------------
Broker has conducted no investigation regarding the subject matter hereof,
except as may be contained in separate written document signed by Broker.
Broker makes no representations concerning the existence or nonexistence of
hazardous wastes or substances, or underground storage tanks, in, on, or
about the Property. Purchaser/Lessee should contact a professional, such as
a civil engineer, industrial hygienist or other person with experience in
these matters, to advise on these matters.
The term "hazardous wastes or substances" is used herein in its very broadest
sense and includes, but is not limited to, petroleum based products, paints
and solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonium
compounds, asbestos, PCBs and other chemical products. Hazardous wastes or
substances in underground storage tanks may be present on all types of real
property. This Notice is intended to apply to any transaction involving any
type of real property, whether improved or unimproved.
BROKER REPRESENTATION
____ CHECK IF APPLICABLE. Seller/Lessor and Purchaser/Tenant hereby
acknowledge that Broker represents both parties hereto; and both parties
consent thereto.
BROKER DISCLOSURE
The parties hereby expressly acknowledge that Broker has made no independent
determination or investigation regarding the following: present or future use
or zoning of the Property; environmental matters affecting the Property; the
condition of the Property, including, but not limited to structural,
mechanical and soils conditions as well as issues surrounding hazardous
wastes or substances as set out above; violations of the Occupational Safety
and Health Act or any other federal, state, county or municipal laws,
ordinances, or statute measurements of land and/or buildings.
Purchaser/Lessee agrees to make its own investigation determination regarding
such items.
COMPLIANCE WITH LAWS
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of the
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Fore Investment in Realty Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
RECEIPT OF A COPY OF THIS NOTICE AND AGREEMENT IS HEREBY ACKNOWLEDGED.
Dated __________________, 199_ _________________________________________
Seller/Lessor
Dated __________________, 199_ _________________________________________
Purchaser/Lessee
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CONSULT YOUR ADVISORS NO REPRESENTATION OR RECOMMENDATION IS MADE BY
CB COMMERCIAL REAL ESTATE GROUP, INC. OR ITS AGENTS OR EMPLOYEES AS
TO THE LEGAL EFFECT, INTERPRETATION, OR ECONOMIC CONSEQUENCES OF THE
NATIONAL FLOOD INSURANCE PROGRAM AND RELATED LEGISLATION, NOR OF
OTHER LEGISLATION REFERRED TO HEREIN. THESE ARE QUESTIONS THAT YOU
SHOULD ADDRESS WITH YOUR CONSULTANTS AND ADVISORS.
--------------------------------------------------------------------
Date: June 15, 1994
Lessor/
Seller: Eldon (Bud) Hoffman
Lessee/
Purchaser: Information Highway Corporation
Property: 20600 Mariani Avenue, Cupertino, CA 95014
Brokers: CB Commercial Real Estate Group, Inc., representing
Eldon (Bud) Hoffman
ALQUIST-PRIOLO NOTIFICATION; ALQUIST-PRIOLO SPECIAL EARTHQUAKE STUDIES ZONE ACT
The Property described above is or may be situated in a Special Studies Zone
as designated under the Alquist-Priolo Special Studies Zone Act,
Sections 2621-2630, inclusive, of the California Public Resources Code; and,
as such, the construction or development on the Property of any structure for
human occupancy may be subject to the findings of a geologic report prepared
by a geologist registered in the State of California, unless such report is
waived by the city or county under the terms of that Act. No representations
on the subject are made by Seller/Lessor or by CB COMMERCIAL REAL ESTATE
GROUP, INC., or its agents or employees, and the Purchaser/Tenant should make
his/her/its own inquiry or investigation.
SPECIAL STUDIES ZONE ____ YES ____ NO SOURCE _______________________________
NOTIFICATION RE: NATIONAL FLOOD INSURANCE PROGRAM
The Property is or may be located in a Special Flood Hazard Area on United
States Department of Housing and Urban Development (HUD) "Special Flood Zone
Area Maps." Federal law requires that as a condition of obtaining federally
related financing on most properties located in "flood zones," banks, savings
and loan associations, and some insurance lenders require flood insurance to
be carried where the property, real or personal, is security for a loan.
This requirement is mandated by the National Flood Insurance Act of 1968 and
the Flood Disaster Protection Act of 1973. The purpose of the program is to
provide flood insurance to property owners at a reasonable cost. Cities or
counties participating in the National Flood Insurance Program may have
adopted building or zoning restrictions, or other measures, as part of their
participation in the program. You should contact the city or county in which
the property is located to determine any such restrictions. The extent of
coverage available in your area and the cost of this coverage may vary, and
for further information, you should consult your lender or insurance carrier.
FLOOD ZONE DESIGNATION: HUD ZONE A ____ SOURCE _____________________________
HAZARDOUS WASTES OR SUBSTANCES AND UNDERGROUND STORAGE TANKS
Comprehensive federal and state laws and regulations have been enacted in the
past several years in an effort to control the use, storage, handling,
clean-up, removal and disposal of hazardous wastes or substances. Some of
these laws and regulations (such as, for example, the Comprehensive
Environmental Response Compensation and Liability Act [CERCLA]) provide for
broad liability on the part of owners, Tenants, or other users of property
for clean-up costs and damages, regardless of fault. Other laws and
regulations set standards for the handling of asbestos, and establish
requirements for the use, modification, abandonment, and closure of
underground storage tanks.
It is not practical or possible to list all such laws and regulations in this
Notice. Therefore, Sellers/Lessors and Buyers/Lessees are urged to consult
legal counsel to determine their respective rights and liabilities with
respect to the issues described in this Notice, as well as all other aspects
of the proposed transaction. If hazardous wastes or substances have been, or
are going to be used, stored, handled or disposed of on the Property, or if
the Property has or may have underground storage tanks, it is essential that
legal and technical advice be obtained to determine, among other things, the
nature of permits and approvals which have been obtained or may be required;
the estimated costs and expenses associated with the use, storage, handling,
clean-up, disposal or removal of hazardous wastes or substances; and the
nature and extent of contractual provisions necessary or desirable in this
transaction. Broker recommends expert assistance and site investigation to
determine past uses of the property, which may provide valuable information
as to the likelihood of hazardous wastes or substances, or underground
storage tanks, being on the Property.
Seller/Lessor agrees to disclose to Broker and to Purchaser/Lessee any and
all information which he/she/it has regarding present and future zoning and
environmental matters affecting the Property and regarding the condition of
the Property, including, but not limited to structural, mechanical and soils
conditions, the presence and location of asbestos, PCB transformers, other
toxic, hazardous or contaminated substances, and underground storage tanks,
in, on, or about the Property.