Exhibit A
THREE SISTERS RANCH
ENTERPRISES
THIRD LEASE ADDENDUM
This Third Lease Addendum is entered into effective September 17, 1998
by and between Three Sisters Ranch Enterprises, a California partnership
("Landlord") and Conceptus, Inc., a California corporation ("Tenant").
This Third Lease Addendum is attached to and forms a part of the Lease
identified below, together with any amendments, modifications and exhibits,
including a prior Lease Addendum and a prior Lease Addendum and Partial
Termination Agreement. This Third Lease Addendum constitutes additional
covenants and agreements which are intended to prevail in the event of any
conflict between the covenants and agreements contained in this Third Lease
Addendum and those contained in the Lease itself and/or the Lease Addenda.
Except for the additions, changes and removals listed herein, all other terms
and conditions of the Lease will remain in full force and effect throughout the
term of the Lease.
Recitals
A. On or about April 15, 1997, Landlord and Tenant entered into a lease
("Lease"), for the certain premises owned by Landlord, and thereafter executed a
Lease Addendum and a Lease Addendum and Partial Termination Agreement. Tenant
currently occupies 16,397 square feet of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇, ▇, ▇,
▇, ▇, P and R, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (together, the "Premises"), that
are all part of a building complex more commonly known as the San ▇▇▇▇▇▇
Business Center.
B. Tenant has notified Landlord that Tenant intends to sublease the
Premises, that Tenant intends to collect rent from the subtenant in an amount
("Excess Rent") in excess of the Rent due to Landlord under the Lease, and that
Tenant intends to enter into a separate agreement with the subtenant for the
leasing of furniture to be used in the Premises.
C. Tenant has also notified Landlord that Tenant has spent the sum of
$575,910 ("Tenant Costs") in tenant improvements for the Premises.
TERMS AND CONDITIONS
1. During the remaining Term of the Lease, for so long as Tenant is not
in material default under any of the provisions of the Lease (which default
remains uncured after the expiration of all applicable cure periods), Paragraph
21B shall be amended to read as follows:
B. Bonus Rent. The rent collected by Tenant from the subtenant
shall be paid to the parties:
1. The Rent due under the Lease shall be paid to
Landlord.
2. That portion of Excess Rent up to and including
$0.15 per square foot of the Premises shall be paid
to Landlord ("Landlord's Share").
3. That portion of the Excess Rent in excess of
Landlord's Share shall first be allocated and paid to
Tenant to reimburse Tenant for (a) the costs of
tenant improvements paid for by Tenant, not to exceed
$575,910.00 ("Tenant Costs") and (b) any reasonable
brokerage commission (`Commission") incurred by
Tenant in connection with obtaining a sublease. Such
Tenant Costs and Commission shall be amortized over
the remaining Term of the Lease, and Tenant shall be
paid a monthly amount of Excess Rent in excess of
Landlord's Share based on such amortization
("Tenant's Share").
1
4. Any amount of Excess Rent in excess of Landlord's
Share and Tenant's Share shall be divided and paid
ten percent (10%) to Tenant and ninety percent (90%)
to Landlord.
2. In the event that Tenant is in material default under any of the
terms of the Lease (which default remains uncured after the expiration of all
applicable cure periods), from and after written notice from Landlord, the
original Paragraph 21B, as set forth in the Lease, shall control the division of
Excess Rent and shall supercede and replace the revised Paragraph 21B as set
forth above in Paragraph 1 of this Third Lease Addendum.
3. The Option to Renew provided for in paragraph 43 of the Lease is
hereafter null and void and neither Tenant nor the subtenant shall have any
option to renew or extend the Term of this Lease.
IN WITNESS HEREOF, the Parties hereto have executed this Third Lease
Addendum as of the date set forth above.
Three Sisters Ranch Enterprises Conceptus, Inc.
Landlord Tenant
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------- ----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
General Manager Senior Vice President &
Chief Financial Officer
Date: September 21, 1998 Date: September 17, 1998
2
LEASE ADDENDUM
This Lease Addendum is entered into this 31st day of July, 1997 by and
between Conceptus, Inc. ("CONCEPTUS") as Tenant, and Three Sisters Ranch
Enterprises ("TSRE") as Landlord (successor to ▇▇▇▇▇▇▇ ▇▇▇▇ NW, Inc. and
Industrial Way I Limited Partnership).
CONCEPTUS and TSRE agree that the lease for the certain premises known
as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. That six (6) building project
totaling approximately, 123,280 square feet commonly known as San ▇▇▇▇▇▇
Business Park, San Carlos, California, is modified as follows:
1. Tenant, by this Addendum, includes 957 G, 957 H and ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ as part of the demised premises: Tenant shall pay rent
according to the existing rent schedule (starting at $1.05 per square
foot per month NNN) for 2,800 +/- square feet in Units G, & H
commencing September 1, 1997 and for 1,000 +/- square feet in Unit R
commencing November 1, 1997. The rent term shall be co-terminus with
the existing lease and, in addition to the lease term, all other terms
and conditions shall remain the same.
2. Landlord shall deliver 957 G, and 957 H Industrial Road, San ▇▇▇▇▇▇ to
Tenant on or before September 1, 1997 and ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, to Tenant on or before November 1, 1997.
3. Copies of all legal notices from Tenant shall also be copied to
Landlord's attorney:
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ & Regalia
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: 415/▇▇▇-▇▇▇▇
Except as modified, the Lease between Landlord and Tenant shall remain
in full force and effect.
CONCEPTUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Finance & CFO
Date: 7/31/97
----------------------------
THREE SISTERS RANCH ENTERPRISES
A California Partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Manager
Date: ?????????
----------------------------
CB COMMERCIAL [LOGO] CB/MADISON COMMERCIAL
REAL ESTATE GROUP, INC. COMMERCIAL Advisory Group
April 21, 1997 Delivering Solutions Through
Local Knowledge Worldwide
FOUNDED 19??
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
CB COMMERCIAL REAL ESTATE GROUP, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
RE: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇ & ▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Dear ▇▇▇:
On behalf of Conceptus Inc. (Hereinafter, "Tenant"), CBC/Madison Advisory Group
(Hereinafter, "CBC/Madison") is pleased to present this LETTER OF INTEREST to
lease an additional 2,800 rentable square feet located at the above referenced
Premises.
This additional space would be leased under the same terms and conditions as
that Lease dated 4/22/97 by and between Conceptus, Inc. and Three Sisters Ranch
Enterprises (Hereinafter "Landlord"). The commencement date would be August 1,
1997 or upon substantial completion of Tenant's improvements whichever is later
and shall expire May 31, 2002.
▇▇▇, if you should have any questions regarding this Letter of Interest, please
give me a call.
Sincerely,
CBC/MADISON ADVISORY GROUP
/s/ Rico ▇▇▇▇▇▇
-----------------
Rico ▇▇▇▇▇▇
Director
Biosciences Group
(▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGED:
Conceptus Inc.: Three Sisters Rnth Enterprises, Inc.:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------- ----------------------
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & CFO Title: General Manager
Date: 4/22/97 Date: 4/23/97
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THREE SISTERS RANCH
ENTERPRISES
LEASE ADDENDUM & PARTIAL TERMINATION AGREEMENT
TENANT Conceptus, Inc.
TENANT'S ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD: Three Sisters Ranch Enterprises
LANDLORD'S ADDRESS: P.0. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Project: San ▇▇▇▇▇▇ Business Park
Description That six (6) building project totaling
approximately 123,280 square feet commonly
known as San ▇▇▇▇▇▇ Business Park, San Carlos,
California.
LEASE TERMINATION: Tenant, by this Addendum, terminates its right
of use or occupancy as to 981 B and ▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (approximately
11,941 square feet +/-) as part of the demised
Premises as of December 1, 1997; Tenant shall
pay the sum of $89,557.50 as a termination fee
(an agreed upon sum based upon a calculation
of six months' rent composed of six times the
sum of $12,528.05 of monthly base rent and
$2,388.20 of monthly CAM costs); Tenant shall
leave the Premises in broom swept clean
condition free of debris and shall return all
keys to Landlord; all terms and conditions of
the other existing leases between Landlord and
Tenant shall remain the same except failure to
make payment hereunder at time of execution
shall constitute a default under all existing
leases with Landlord and shall be treated as
failure to pay Rent.
THREE SISTERS RANCH ENTERPRISES
"Landlord"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Manager
CONCEPTUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Pres. and CEO
1
THREE SISTERS RANCH
ENTERPRISES
TABLE OF CONTENTS
Page
----
BASIC LEASE INFORMATION .................................................... 1
PREMISES ................................................................... 1
POSSESSION AND LEASE COMMENCEMENT .......................................... 1
TERM ....................................................................... 1
USE ........................................................................ 1
RULES AND REGULATIONS ...................................................... 2
RENT ....................................................................... 2
BASIC OPERATING COST ....................................................... 3
INSURANCE AND INDEMNIFICATION .............................................. 5
WAIVER OF SUBROGATION ...................................................... 6
LANDLORD'S REPAIRS AND SERVICES ............................................ 6
TENANT'S REPAIRS ........................................................... 6
ALTERATIONS ................................................................ 7
SIGNS ...................................................................... 7
INSPECTION/ POSTING NOTICES ................................................ 7
UTILITIES .................................................................. 7
SUBORDINATION .............................................................. 8
FINANCIAL STATEMENTS ....................................................... 8
ESTOPPEL CERTIFICATE ....................................................... 8
SECURITY DEPOSIT ........................................................... 8
TENANT'S REMEDIES .......................................................... 8
ASSIGNMENT AND SUBLETTING .................................................. 8
AUTHORITY OF PARTIES ....................................................... 9
CONDEMNATION ............................................................... 9
CASUALTY DAMAGE ............................................................ 10
HOLDING OVER ............................................................... 10
DEFAULT .................................................................... 11
LIENS ...................................................................... 12
TRANSFERS BY LANDLORD ...................................................... 12
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS ............................ 12
WAIVER ..................................................................... 12
NOTICES .................................................................... 13
ATTORNEYS' FEES ............................................................ 13
SUCCESSORS AND ASSIGNS ..................................................... 13
FORCE MAJEURE .............................................................. 13
BROKERAGE COMMISSION ....................................................... 13
MISCELLANEOUS .............................................................. 13
ADDITIONAL PROVISIONS ...................................................... 14
i
PLEASE INITIAL: [??] Landlord [??]
Tenant
THREE SISTERS RANCH
ENTERPRISES
BASIC LEASE INFORMATION
LEASE DATE: 5/31/97
TENANT Conceptus, Inc.
TENANT'S ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD: Three Sisters Ranch Enterprises
LANDLORD'S ADDRESS: P.0. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Project: San ▇▇▇▇▇▇ Business Park
Description That six (6) building project totaling
approximately 123,280 square feet commonly
known as San ▇▇▇▇▇▇ Business Park, San Carlos,
California.
Building Description: Building 1:
That approximately 23,000 square foot, one
story tilt-up concrete building known as ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. The
building is outlined in blue on Exhibit A.
Building 2:
That approximately 21,680 square foot, one
story tilt-up concrete building known as ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. The
building is outlined in yellow on Exhibit A.
Premises: (a) That approximately 11,941 square feet of
rentable area known as Suites B and D of ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. The
demised premises are outlined in red on
Exhibit A. See Paragraph 1.
(b) That approximately 8,217 square feet of
rentable area known as Suite L, J, D and F of
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
The demised premises are outlined in green on
Exhibit A. See Paragraph 1.
(c) That approximately 4380 square feet of
rentable area known as Suite P of ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. The
demised premises are outlined in pink on
Exhibit A. See Paragraph 1.
Permitted Use: General office, storage and distribution,
light manufacturing not involving hazardous or
toxic materials other than those consistent
with normal office use and other directly
related and concurrent related legal uses. See
Paragraph 4.
Parking Density: Three (3) unreserved automobile parking spaces
per 1,000 square feet, free of charge
throughout the term of the Lease.
Estimated Term
Commencement Date: The Lease Term shall commence on:
▇▇▇▇▇▇ ▇ & ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇: 05/15/97
▇▇▇▇▇▇ ▇, ▇, ▇ & ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇:
06/01/97
Suite P, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇:
When vacated by existing tenant, Lessee shall
have 30 days of free rent pursuant to the
terms set forth herein.
Length of Term: (a) INITIAL TERM: All leases shall expire on
May 31, 2002.
Tenant may not terminate any portion of the
leases premises hereunder, except as specified
as to asbestos remediation as set forth in
this Lease. Failure to pay rent on any suite,
or other breach of this lease as to any suite,
shall be a default of the entire lease and
each suite shall be subject to such default.
The occupancy rights of the suites is
coterminous and the termination of lease
rights, by lapse of time or by breach shall
terminate all lease occupancy rights as to all
suites (except as to termination due to ACM
abatement as provided for below).
(b) TERM EXTENSIONS: One (1) extension for a
Sixty (60) Month period according to the terms
of Paragraph 43.
Rent:
Base Rent
Suite Numbers Sq. Ft. Period Base NN Rent per Sq. Ft.
------------- ------- ------ ------------------------
981 Ind. Ste. B & D 11,941 5/15/97 - 5/31/98 $1.05
6/01/98 - 5/31/98 $1.10
6/01/99 - 5/31/00 $1.15
6/01/00 - 5/31/01 $1.20
6/01/01 - 5/31/02 $1.25
957 Ind. Ste. D, F, J & L 8,217 6/01/97 - 5/31/98 $1.05
6/01/98 - 5/31/99 $1.10
6/01/99 - 5/31/00 $1.15
6/01/00 - 5/31/01 $1.20
6/01/02 - 5/31/02 $1.25
957 Ind. Ste. P 4,380 When vacated by existing tenant leasee
shall have 30 days of free rent thereafter
per rent amounts for 957 Ind. Ste. D, F, J
& L.
Estimated First Year Basic Operating Cost: $0.20 /sq.ft./mo. NNN (not to exceed
$0.20 /sq.ft./mo. NNN for 1997) See
Paragraph 7.
FIRST MO. RENT THRU 6/30/97 $27,434.92
Security Deposit: $25,764.90 Paragraph 19.
Tenant's Proportionate Share:
Of Building 1: 51.9%
Of Building 2: 58.1%
Of Project: 19.9%
Broker: Tenant: CB/Madison See Paragraph 35.
Landlord: CB Commercial
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control. All square footage is
approximate. Measurements are calculated uniformly throughout the project.
Tenant may have measurements verified by an architect at its sole cost and
expense.
THREE SISTERS RANCH
ENTERPRISES
LEASE
THIS LEASE is made as of this 15th day of April, 1997, by and
between Three Sisters Ranch Enterprises (hereinafter called
"Landlord") and Conceptus, Inc. (hereinafter called "Tenant").
PREMISES 1. Landlord leases to Tenant and Tenant leases from Landlord,
upon the terms and conditions hereinafter set forth, those
premises (the "Premises") outlined in red on Exhibit A and
described in the Basic Lease Information. The Premises may be
all or part of the building(s) (the "Building(s)") or of the
project (the "Project") which may consist of more than one
building. Tenant's right to use the Premises shall include the
right of reasonable ingress and egress to the Premises, the
right to use any other reasonably necessary easements or
rights of way, and the right to use common and joint use areas
throughout the Project. The Building(s) and Project are
outlined in blue and green respectively on Exhibit A.
POSSESSION 2. A. Existing Improvements. In the event this Lease pertains to
AND LEASE a Premises in which the interior improvements have already
COMMENCE- been constructed ("Existing Improvements"), the provisions of
MENT this Paragraph 2.A. shall apply and the term commencement date
("Term Commencement Date") shall be the earlier of the date on
which: (1) Tenant takes possession of some or all of the
Premises; or (2) Landlord delivers written notice to Tenant
that Tenant may occupy the Premises. If for any reason
Landlord cannot deliver possession of the Premises to Tenant
on the Estimated Term Commencement Date, Landlord shall not be
subject to any liability therefor, nor shall Landlord be in
default hereunder, and Tenant agrees to accept possession of
the Premises at such time as Landlord is able to deliver the
same, which date shall then be deemed the Term Commencement
Date. Tenant shall not be liable for any Rent for any period
prior to the Term Commencement Date. Tenant acknowledges that
Tenant has inspected and accepts the Premises in their present
condition, broom clean, "as is", as suitable for the purpose
for which the Premises are leased. Tenant agrees that said
Premises and other improvements are in good and satisfactory
condition as of when possession was taken. Tenant further
acknowledges that no representations as to the condition or
repair of the Premises nor promises to alter, remodel or
improve the Premises have been made by Landlord unless such
are expressly set forth in this Lease. Tenant shall, upon
demand, execute and deliver to Landlord a letter of acceptance
of delivery of the Premises.
B. Construction of Improvements. In the event this Lease
pertains to a Building to be constructed or improvements to be
construed within a Building, the provisions of this Paragraph
2.B shall apply in lieu of the provisions of Paragraph 2.A.
above and the term commencement date ("Term Commencement
Date") shall be the earlier of the date on which: (1) Tenant
takes possession of some or all of the Premises, or (2) the
improvements constructed or to be construed in the Premises
shall have been substantially completed in accordance with the
plans and specifications described on Exhibit B, whether or
not substantial completion of the Building itself shall have
occurred. If for any reason Landlord cannot deliver possession
of the Premises to Tenant on the Estimated Term Commencement
Date, Landlord shall not be subject to any liability therefor,
nor shall Landlord be in default hereunder. In the event of
any dispute as to substantial completion of work performed or
required to be performed by Landlord, the certificate of
Landlord's architect or general contractor shall be
conclusive. Substantial completion shall have occurred
notwithstanding Tenant's submission of a punchlist to
Landlord, which Tenant shall submit, if at all, within thirty
(30) days after the Term Commencement Date. Tenant shall, upon
demand, execute and deliver to Landlord a letter of acceptance
of delivery of the Premises.
TERM 3. The Term of this Lease shall commence on thc Term Commencement
Date and continue in full force and effect for the number of
months as the Length of Term in the Basic Lease Information or
until this Lease is terminated as otherwise provided herein
(Initial Term). If the Term Commencement Date is a date other
than the first day of the calendar month, the Term shall be
the number of months of the Length of Term in addition to the
remainder of the calendar month following the Term
Commencement Date.
USE 4. A. General. Tenant shall use the Premises for the Permitted
Use and for no other use or purpose. Tenant shall control
Tenant's employees, agents, customers, visitors, , invitees,
licensees, contractors, assignees and subtenants
(collectively, "Tenant's Parties") in such a manner that
Tenant and Tenant's Parties cumulatively do not exceed the
Parking Density at any time. Tenant and Tenant's parties shall
have nonexclusive right to use, in common with other parties
occupying the Building or Project, the parking areas and
driveways of the Project, subject to such rules and
regulations as Landlord may from time to time prescribe.
B. Limitations. Tenant shall not permit any odors, smoke,
dust, gas, substances, noise or vibrations to emanate from the
Premises, nor taken any action which could reasonably and
potentially constitute a nuisance or could disturb, obstruct
or endanger any other tenants of the Building or Project in
which the Premises are situated or interfere with their use of
their respective premises. Storage outside the Premises of
materials, vehicles or any other items is prohibited. Tenant
shall not use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on
or about the Premises. Tenant shall not commit or suffer the
commission of any waste in, on or about the Premises. Tenant
shall not allow any sale by auction upon the Premises, or
place any loads upon the floors, walls or ceilings which
endanger the structure, or place any harmful liquids in the
drainage system of the Building or Project. No waste,
materials or refuse shall be dumped upon or permitted to
remain outside the Premises except in trash containers placed
inside exterior enclosures designated for that purpose by
Landlord. Landlord shall not be responsible to Tenant for the
APPROVAL INITIALS: [??] Landlord [??]
Tenant
non-compliance by any other tenant or occupant of the Building
or Project with any of the above-referenced rules or any other
terms or provisions of such tenant's or occupant's lease or
other contract.
C. Compliance with Regulations. Except as otherwise provided in
this Agreement, by entering the Premises, Tenant accepts the
Premises in the condition existing as of the date of such
entry, subject to all existing or future applicable municipal,
state and federal and other governmental statutes,
regulations, laws and ordinances, including zoning ordinances
and regulations governing and relating to the use, occupancy
and possession of the Premises and the use, storage,
generation and disposal of Hazardous Materials (hereinafter
defined) in, on and under the Premises (collectively
"Regulations"). Subject to the terms and conditions of this
Agreement, Tenant, at is sole expense, shall use and occupy
the Premises in compliance with all laws, including, without
limitation, the Americans With Disabilities Act, orders,
judgments, ordinances, regulations, codes, directives,
permits, licenses, covenants and restrictions now or hereafter
applicable to the Premises (collectively, "Legal
Requirements"). The Premises shall not be used as a place of
public accommodation under the Americans With Disabilities Act
or similar state statutes or local ordinances or any
regulations promulgated thereunder, all as may be amended from
time to time. Tenant shall, at its expense, make any
alterations or modifications, within or without the Premises,
that are required by Legal Requirements related to Tenant's
use or occupation of the Premises. Except for pre-existing
obligations and those obligations placed on the Landlord by
this Lease Agreement, Tenant shall, at Tenant's sole expense,
strictly comply with all Regulations now in force or which may
hereafter be in force relating to the Premises and the use of
the Premises and/or the use, storage or generation of
Hazardous Materials in, on and under the Premises. Tenant
shall at its sole cost and expense obtain any and all licenses
or permits necessary for Tenant's use of the Premises. Tenant
shall comply with the requirements of any board of fire
underwriters or other similar body now or hereafter
constituted. Tenant shall be solely responsible for compliance
with any requirements for modification to the Premises to
provide for fire prevention or suppression improvements or
modifications, including sprinkler requirements, as public
officials or law may require. Tenant shall not do or permit
anything to be done in, on, or about the Premises or bring or
keep anything which will in any way increase the rate of any
insurance upon the Premises, Building or Project, or upon any
contents therein, or cause a cancellation of said insurance.
Tenant shall indemnify, defend, protect and hold Landlord
harmless from and against any loss, cost, expense, damage,
attorneys' fees or liability arising out of the failure to
Tenant to comply with any applicable law or regulation or
comply with the requirements as set forth herein. The taking
of possession of the Premises shall be conclusive evidence
that Tenant accepts the Premises and that the Premises were in
good condition at the time possession was taken. Despite any
provision herein to the contrary, if any asbestos containing
materials (ACM) is found to exist in the Premises, which ACM
is either (i) friable or otherwise dangerous in its existing
condition, or (ii) necessary to remove for the purpose of
completing the tenant improvement work, then Landlord will be
obligated to remove the ACM at its own cost, up to a
cumulative total of $50,000. If the ACM abatement costs exceed
$50,000 for the total of all property leased hereunder,
Landlord shall have the right to terminate this lease with
respect to any suite where the $50,000 cap would be exceeded;
Tenant shall have the right to any amount in excess of $50,000
at its written election within fifteen (15) days of notice; if
either Landlord or Tenant elect not to proceed with payment
for ACM abatement in excess of $50,000 they shall do so
without liability to the other for such election
D. Hazardous Wastes Materials. Excepting those chemicals
consistent with normal office use ( office cleaning solutions,
white out), Tenant shall not cause, or allow any of Tenant's
Parties to cause, any Hazardous Materials to be used,
generated, stored or disposed of on or about the Premises, the
Building or the Project. As used in this Lease, "Hazardous
Materials" shall include, but not be limited to, "hazardous
materials," "hazardous wastes," "toxic substances," or other
similar designations in any federal, state or local law,
regulation, or ordinance. Landlord shall have the right but
not the obligation at all reasonable times to inspect the
Premises and to conduct tests and investigations to determine
whether Tenant is in compliance with the foregoing provisions,
the costs of all such inspections, tests and investigations to
be borne by Tenant. Tenant shall indemnify, defend, protect
and hold Landlord harmless from and against all liabilities,
losses, costs and expenses, demands, causes of action, claims
or judgments directly or indirectly arising out of the use,
generation, storage or disposal of Hazardous Materials by
Tenant or any of Tenant's Parties, which indemnity shall
include, without limitation, the cost of any required or
necessary repair, cleanup or detoxification, and the
preparation of any closure or other required plans, whether
such action is required or necessary prior to or following the
termination of this Lease. Neither the written consent by
Landlord to the use, generation, storage or disposal of
Hazardous Materials nor the strict compliance by Tenant with
all laws pertaining to Hazardous Materials shall excuse Tenant
from Tenant's obligation of indemnification pursuant to this
Lease. Tenant's obligations pursuant to the foregoing
indemnity shall survive the termination of this Lease. Tenant
shall not be held liable in any manner for the presence of any
Hazardous Materials existing on or about the Premises,
Buildings or the Project prior to the first Commencement Date
of the Lease.
RULES AND 5. Tenant shall faithfully observe and comply with any rules and
REGULATIONS regulations Landlord may from time to time prescribe in
writing for the purpose of maintaining the proper care,
cleanliness, safety, traffic flow and general order of the
Premises or Project. Tenant shall cause Tenant's Parties to
comply with such rules and regulations. Landlord shall not be
responsible to Tenant for the non-compliance by any other
tenant or occupant of the Building or Project with any of the
rules and regulations.
RENT 6. A. Base Rent. Tenant shall pay to Landlord, without demand
throughout the Term, Base Rent as specified in the Basic Lease
Information, payable in monthly installments in advance on or
before the first day of each calendar month, in lawful money
of the United States, without deduction or offset whatsoever,
at the address specified in the Basic Lease Information or to
such other place as Landlord may from time to time designate
in writing. Base Rent and estimated monthly Basic Operating
Cost for the first full month of the Term shall be paid by
Tenant upon
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APPROVAL INITIALS: [??] Landlord [??]
Tenant
Tenant's execution of this Lease. If the obligation for payment
of Base Rent commences on other than the first day of a month,
then Base Rent and the estimated monthly Basic Operating Cost
payment shall be prorated and the prorated installment shall be
paid on the first day of the calendar month next succeeding the
Term Commencement Date.
B. Additional Rent. All monies other than Base Rent required to
be paid by Tenant hereunder, including, but not limited to, the
interest and late charge described in Paragraph 26.D., any
monies spent by Landlord pursuant to Paragraph 30, and Tenant's
Proportionate Share of Basic Operating Cost, as specified in
Paragraph 7 of this Lease, shall be considered additional rent
("Additional Rent"). "Rent" shall mean Base Rent and Additional
Rent.
BASIC 7. A. Basic Operating Cost. In addition to the Base Rent required
OPERATING to be paid hereunder, Tenant shall pay as Additional Rent,
COST Tenant's Proportionate Share, as defined in the Basic Lease
Information, of Basic Operating Cost in the manner set forth
below. Landlord shall account for each item of Basic Operating
Cost as either a cost attributable to the Building or to the
Project, as determined by Landlord in Landlord's sole
discretion, and unless provided to the contrary in this Lease,
Tenant shall pay the applicable Tenant's Proportionate Share of
each such Basic Operating Cost, as set forth in the Basic Lease
Information. Basic Operating Cost shall mean all expenses and
costs of every kind and nature which Landlord shall pay or
become obligated to pay, because of or in connection with the
management, maintenance, preservation and operation of the
Project and its supporting facilities (determined in accordance
with generally accepted accounting principles, consistently
applied) including but not limited to the following:
(1) Taxes. All real property taxes, possessory interest taxes,
business or license taxes or fees, service payments in lieu of
such taxes or fees, annual or periodic license or use fees,
excises, transit charges, housing fund assessments, open space
charges, assessments, levies, fees or charges general and
special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind (including fees "in-lieu" of any such tax
or assessment) which are assessed, levied, charged, confirmed,
or imposed by any public authority upon the Project, its
operations or the Rent (or any portion or component thereof)
(all of the foregoing being hereinafter collectively referred
to as "real property taxes"), or any tax imposed in
substitution, partially or totally, of any tax previously
includcd within the definition of real property taxes, or any
additional tax the nature of which was previously included
within the definition of real property taxes, except (a)
inheritance or estate taxes imposed upon or assessed against
the Project, or any part thereof or interest therein, and (b)
taxes computed upon the basis of net income of Landlord or the
owner of any interest therein, except as otherwise provided in
the following sentence. Basic Operating Cost shall also include
any taxes, assessments, or any other fees imposed by any public
authority upon or measured by the monthly rental or other
charges payable hereunder, including, without limitation, any
gross income tax or excise tax levied by the local governmental
body with respect to receipt of such rental, or upon, with
respect to or by reason of the development, possession,
leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any
portion thereof, or upon this transaction or any document to
which Tenant is a party creating or transferring an interest or
an estate in the Premises. In the event that it shall not be
lawful for Tenant to reimburse Landlord for all or any part of
such taxes, the monthly rental payable to Landlord under this
Lease shall be revised to net to Landlord the same total net
rental after imposition of any such taxes by Landlord as would
have been payable to Landlord prior to the payment of any such
taxes.
(2) Insurance. All insurance premiums and costs, including but
not limited to, any deductible amounts, premiums and cost of
insurance incurred by Landlord, as more fully set forth in
Paragraph 8.A. herein.
(3) Repairs and Improvements. Repairs, replacements and general
maintenance for the Premises, Building and Project (except for
those repairs or improvements expressly made the financial
responsibility of Landlord pursuant to the terms of this Lease,
repairs to the extent paid for by proceeds of insurance or by
Tenant or other third parties, and alterations attributable
solely to tenants of the Project other than Tenant). Such
repairs, replacements, and general maintenance shall include
the cost of any capital improvements made to or capital assets
acquired for the Project, Building, or Premises after the Term
Commencement Date that reduce any other Basic Operating Cost,
are reasonably necessary for the health and safety of the
occupants of the Project, or are made to the Building by
Landlord after the date of this Lease and are required under
any governmental law or regulation, such costs or allocable
portions thereof to be amortized over such reasonable period as
Landlord shall determine, together with interest on the
unamortized balance at the "prime rate" charged at the time
such improvements or capital assets are constructed or acquired
by Bank of America, N. T. S. A. (San Francisco), plus two (2)
percentage points, but in no event more than the maximum rate
permitted by law.
(4) Services. Except as otherwise provided in this Section 7,
all expenses relating to maintenance, and service agreements
and services, and costs of supplies and equipment used in
maintaining the Premises, Building and Project and the
equipment therein and the adjacent sidewalks, driveways,
parking and service areas, including, without limitation, alarm
service, window cleaning, elevator maintenance, Building
exterior maintenance and landscaping.
(5) Utilities. Utilities which benefit all or a portion of the
Premises, Building or Project.
(6) Management Fee. A management and accounting cost recovery
fee equal to five percent (5%) of the Basic Operating Cost.
(7) Legal and Accounting. Legal and accounting expenses
relating to the Project, including the cost of audits by
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APPROVAL INITIALS: ????? Landlord ???
Landlord
certified public accountants. Legal and accounting expenses
shall be reasonable and shall not include the cost of any
enforcement or eviction action against another tenant at the
Project.
In the event that the Building is not fully occupied during any
fiscal year of the as determined by Landlord, an adjustment
shall be made in computing the Basic Operating Cost for such
year so that Tenant pays an equitable portion of all variable
items of Basic Operating Cost, as reasonably determined by
Landlord.
In calculating the Basic Operating Cost, Landlord shall apply
the following provision:
Any category of costs allocated to the Buildings in
question, the other Buildings of the Project shall also bear
the burden for those categories of costs, so that such costs
will be uniformly treated as Building costs throughout the
Project, on a consistent and non-discriminatory basis. The same
shall apply for categories of costs allocated as Project costs.
Insurance deductibles in excess of $5,000 shall be
amortized over the useful life of the item repaired or
replaced. Tenant shall not be required to pay the insurance
deductible if the damage results from the gross negligence or
willful misconduct of Landlord or Landlord's agents, employees
or contractors.
Basic Operating Cost shall not include specific costs incurred
for the account of, separately billed to and paid by specific
tenants. Notwithstanding anything herein to the contrary, in
any instance wherein Landlord, in Landlord's sole discretion,
deems Tenant to be responsible for any amounts greater than
Tenant's Proportionate Share, Landlord shall have the right to
allocate costs in any manner Landlord deems appropriate.
The following items shall be excluded from Basic Operating
Costs: loan payments; brokers' and finders' fees or other
commissions; leasing expenses; depreciation on improvements or
equipment and machinery; expenses for items which are not
generally of use to all tenants; advertising or promotional
expenses; wages, salaries, employee benefits and payroll taxes
for Landlord's personnel (except to the extent such personnel
are employed to operate or repair the Project or the common
area); costs incurred by Landlord in connection with the
clean-up or removal of any Hazardous Materials existing prior
to the respective Commencement Dates of the Lease Term: or
costs or expenses incurred due to violation by Landlord of any
term or condition of the Lease. In addition, Basic Operating
Costs shall be reduced by insurance or other recoveries or user
fees.
B. Payment of Estimated Basic Operating Cost. "Estimated Basic
Operating Cost" for any particular year shall mean Landlord's
estimate of the Basic Operating Cost for such fiscal year made
prior to commencement of such fiscal year as hereinafter
provided. Landlord shall have the right from time to time to
revise its fiscal year and interim accounting periods so long
as the periods as so revised are reconciled with prior periods
in accordance with generally accepted accounting principles
applied in a consistent manner. During the last month of each
fiscal year during the Term, or as soon thereafter as
practicable, Landlord shall give Tenant written notice of the
Estimated Basic Operating Cost for the ensuing fiscal year.
Tenant shall pay Tenant's Proportionate Share of the Estimated
Operating Cost with installments of Base Rent for the fiscal
year to which the Estimated Basic Operating Cost applies in
monthly installments on the first day of each calendar month
during such year, in advance. If at any time during the course
of the fiscal year, Landlord determines that Basic Operating
Cost is projected to vary from the then Estimated Basic
Operating Cost by more than ten percent (10%), Landlord may,
by written notice to Tenant, revise the Estimated Basic
Operating Cost for the balance of such fiscal year, and
Tenant's monthly installments for the remainder of such year
shall be adjusted so that by the end of such fiscal year Tenant
has paid to Landlord Tenant's Proportionate Share of the
revised Estimated Basic Operating Cost for such year.
C. Computation of Basic Operating Cost Adjustment. "Basic
Operating Cost Adjustment" shall mean the difference between
Estimated Basic Operating Cost and Basic Operating Cost for any
fiscal year determined as hereinafter provided. Within one
hundred twenty (120) days after the end of each fiscal year, as
determined by Landlord, or as soon thereafter as practicable,
Landlord shall deliver to Tenant a statement of Basic Operating
Cost for the fiscal year just ended, accompanied by a
computation of Basic Operating Cost Adjustment. Landlord's
statement of Basic Operating Costs should include a reasonable
line-item breakdown and reasonable supporting data. If such
statement shows that Tenant's payment based upon Estimated
Basic Operating Cost is less than Tenant's Proportionate Share
of Basic Operating Cost, then Tenant shall pay to Landlord the
difference within twenty (20) days after receipt of such
statement. If such statement shows that Tenant's payments of
Estimated Basic Operating Cost exceed Tenant's Proportionate
Share of Basic Operating Cost, then (provided that Tenant is
not in default under this Lease) Landlord shall pay to Tenant
the difference within twenty (20) days after delivery of such
statement to Tenant. If this Lease has been terminated or the
Term hereof has expired prior to the date of such statement,
then the Basic Operating Cost Adjustment shall be paid by the
appropriate party within twenty (20) days after the date of
delivery of the statement. Should this Lease commence or
terminate at any time other than the first day of the fiscal
year, Tenant's Proportionate Share of the Basic Operating Cost
adjustment shall be prorated by reference to the exact number
of calendar days during such fiscal year that this Lease is in
effect.
D. Net Lease. This shall be a net Lease and Base Rent shall be
paid to Landlord absolutely net of all costs and expenses,
except as specifically provided to the contrary in this Lease.
The provisions for payment of Basic Operating Cost and the
Basic Operating Cost Adjustment are intended to pass on to
Tenant and reimburse Landlord
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APPROVAL INITIALS: ???? Landlord ???
Tenant
for all costs and expenses of the nature described in Paragraph
7.A. incurred in connection with the ownership, maintenance and
operation of the Building or Project and such additional
facilities now and in subsequent years as may be determined by
Landlord to the be necessary to the Building or Project.
E. Janitorial Service. Tenant shall be solely responsible for
all interior janitorial maintenance of the Premises.
F. Tenant Audit. In the event that Tenant shall dispute the
amount set forth in any statement provided by Landlord under
Paragraph 7.B or 7.C. above, Tenant shall have the right, not
later than thirty (30) days following the receipt of such
statement and upon the condition that Tenant shall first
deposit with Landlord the full amount in dispute, to cause
Landlord's books and records with respect to Basic Operating
Cost for such fiscal year to be audited by certified public
accountants selected by Tenant and subject to Landlord's
reasonable right of approval. The Basic Operating Cost
Adjustment shall be appropriately adjusted on the basis of such
audit. If such audit discloses a liability for a refund in
excess of seven and one half percent (7.5%) of Tenant's
Proportionate Share of the Basic Operating Cost Adjustment
previously reported, the cost of such audit shall be borne by
Landlord; otherwise the cost of such audit shall be paid by
Tenant. If Tenant shall not request an audit in accordance with
the provisions of this Paragraph 7.E. within twenty (20) days
after receipt of Landlord's statement provided pursuant to
Paragraph 7.8. or 7.C., such statement shall be final and
binding for all purposes hereof.
G. Three Day Notice. In the event Tenant fails to pay Basic
Operating Costs when due as Additional Rent, Tenant shall be
subject to a three (3) day notice to pay rent or quit.
INSURANCE 8. A. Landlord's Insurance. Landlord agrees to the extent
AND INDEMNI- reasonably available to maintain insurance insuring the
FICATION Building against fire, lightning, vandalism and malicious
mischief (including, if Landlord elects, "All Risk" coverage,
earthquake, and/or flood insurance), in an amount not less than
eight percent (80%) of the replacement cost thereof, with
deductibles and the form and endorsements of such coverage as
selected by Landlord. Any cost associated with Landlord's
procurement of "All Risk" coverage, earthquake, and/or flood
insurance shall be passed through to Tenant as a Basic
Operating Cost if such insurance is available at commercially
reasonable rates. In addition Landlord shall procure insurance
against loss of Base Rent and Additional Rent, in an amount
equal to the amount of Base Rent and Additional Rent payable by
Tenant for a period of at least twelve (12) months commencing
on the date of loss if such insurance is available at
commercially reasonable rates. Such insurance shall be for the
sole benefit of Landlord and under Landlord's sole control.
Landlord shall not be obligated to insure any furniture,
equipment, machinery, goods or supplies which Tenant may keep
or maintain in the Premises, or any leasehold improvements,
additions or alterations within the Premises. Landlord may also
carry such other insurance as Landlord may deem prudent or
advisable, including, without limitation, liability insurance
in such amounts and on such terms as Landlord shall determine.
B. Tenant's Insurance.
(1)Property Insurance. Tenant shall procure at Tenant's sole
cost and expense and keep in effect from the date of this Lease
and at all times until the end of the Term, insurance on all
personal property and fixtures of Tenant and all improvements
made by or for Tenant to the Premises, insuring such property
for the full replacement value of such property.
(2)Liability Insurance. Tenant shall procure at Tenant's sole
cost and expense and keep in effect from the date of this Lease
and at all times until the end of the Term either
Comprehensive General Liability Insurance or Commercial General
Liability insurance applying to the use and occupancy of the
Premises and the Building, and any part of either, and any
areas adjacent thereto, and the business operated by Tenant, or
by any other occupant on the Premises. Such insurance shall
include Broad Form Contractual Liability insurance coverage
insuring Tenant's indemnity obligations under this Lease. Such
coverage shall have a minimum combined single limit of
liability of at least One Million Dollars ($1,000,000.00), and
a general aggregate limit of One Million Dollars ($
1,000,000.00). All such policies shall be written to apply to
bodily injury, property damage or loss, personal injury and
other covered loss, however occasioned, occurring during the
policy term, shall be endorsed to add Landlord and any party
holding an interest to which this Lease may be subordinated as
an additional insured, and shall provide that such coverage
shall be primary and that any insurance maintained by Landlord
shall be excess insurance only. Such coverage shall also
contain endorsements: (i) including employees as additional
insureds; (ii) deleting any liquor liability exclusion; and
(iii) providing for coverage of employer's automobile
non-ownership liability. All such insurance shall provide for
severability of interests; and shall afford coverage for all
claims based on acts, omissions, injury and damage, which
claims occurred or arose (or the onset of which occurred or
arose) in whole or in part during the policy period. Said
coverage shall be written on an "occurrence" basis, if
available. If an "occurrence" basis form is not available,
Tenant must purchase "tail" coverage for the most number of
years available, and tenant must also purchase "tail" coverage
if the retroactive date of a policy form is changed so as to
leave a gap in coverage for occurrences that might have
occurred in prior years. If a "claims made" policy is ever
used, the policy must be endorsed so that Landlord is given the
right to purchase "tail" coverage should Tenant for any reason
not do so or if the policy is to be canceled for nonpayment of
premium, provided such endorsement is available at commercially
reasonable rates.
(3) General Insurance Requirements. All coverages described
in this Paragraph 8.B. shall be endorsed to provide Landlord
with thirty (30) days' notice of cancellation or change in
terms. If at any time during the Term the amount or coverage of
insurance which Tenant is required to carry under this
Paragraph 8.B. is, in Landlord's
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APPROVAL INITIALS: ???? Landlord ???
Tenant
reasonable judgment, materially less than the amount or type of
insurance coverage typically carried by owners or tenants of
properties located in the general area in which the Premises
are located which are similar to and operated for similar
purposes as the Premises, Landlord shall have to require Tenant
to increase the amount or change the types of insurance
coverage required under this Paragraph 8.B. All insurance
policies required to be carried under this Lease shall be
written by companies rated A-V or better in "Best's Insurance
Guide" and authorized to do business in California. Any
deductible amounts under any insurance policies required
hereunder shall be subject to Landlord's prior written
approval. In any event deductible amounts shall not exceed Ten
Thousand Dollars ($10,000.00). Tenant shall deliver to Landlord
on or before the Term Commencement Date, and thereafter at
least thirty (30) days before the expiration dates of the
expiring policies, certified copies of Tenant's insurance
policies, or a certificate evidencing the same issued by the
insurer thereunder, showing that all premiums have been paid
for the full policy period; and, in the event Tenant shall fail
to procure such insurance, or to deliver such policies or
certificates, Landlord may, as an additional insured, at
Landlord's option and in addition to Landlord's other remedies
in the event of a default by Tenant hereunder, procure the same
for the account of Tenant, and the cost thereof shall be paid
to Landlord as Additional Rent.
C. Indemnification. Landlord shall not be liable to Tenant for
any loss or damage to person or property caused by theft, fire,
acts of God, acts of a public enemy, riot, strike,
insurrection, war, court order, requisition or order of
governmental body or authority or for any damage or
inconvenience which may arise through repair or alteration of
any part of the Building or Project or failure to make any such
repair, except as expressly otherwise provided in Paragraph 10.
Tenant shall indemnify, defend by counsel acceptable to
Landlord, protect and hold Landlord harmless from and against
any and all liabilities, losses, costs, damages, injuries or
expenses, including reasonable attorneys' fees and court costs,
arising out of or related to: (1) claims of injury to or death
of persons or damage to property occurring or resulting
directly or indirectly from the use or occupancy of the
Premises, or from activities of Tenant, Tenant's Parties or
anyone in or about the Premises or Project, or (2) claims for
work or labor performed, or for materials or supplies furnished
to or at the request of Tenant in connection with performance
of any work done for the account of Tenant in the performance
of any covenant contained in this Lease. The foregoing
indemnity shall not be applicable to claims arising from the
active negligence or willful misconduct of Landlord. The
provisions of this Paragraph shall survive the expiration or
termination of this Lease with respect to any claims or
liability occurring prior to such expiration or termination.
WAIVER OF 9. To the extent permitted by law and without affecting the
SUBROGA- coverage provided by insurance to be maintained hereunder,
TION Landlord and Tenant each waive any right to recover against the
other for: (a) damages for injury to or death of persons; (b)
damages to property; (c) damages to the Premises or any part
thereof, and (d) claims arising by reason of the foregoing due
to hazards covered by insurance to the extent of proceeds
recovered therefrom. This provision is intended to waive fully,
and for the benefit of each party, any rights and/or claims
which might give rise to a right of subrogation in favor of any
insurance carrier. The coverage obtained by each party pursuant
to this Lease shall include, without limitation, a waiver of
subrogation by the carrier which conforms to the provisions of
this paragraph.
LANDLORD'S 10. Landlord shall at Landlord's expense maintain the
REPAIRS AND structural soundness of the structural portions of the roof,
SERVICES foundations and exterior walls of the Building in good repair,
reasonable wear and tear excepted. The term "exterior walls" as
used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Landlord shall
perform on behalf of Tenant and other tenants of the Project,
as an item or office entries. Landlord shall perform on behalf
of Tenant and other tenants of the Project, as an item of Basic
Operating Cost, the maintenance of the Building, Project, and
public and common areas of the Project, including but not
limited to the roof, pest extermination, the landscaped areas,
parking areas, driveways, the truck staging areas, fire
sprinkler systems, sanitary and storm sewer lines,
non-structural portions of the roof, roof membrane, utility
services, electric and telephone equipment servicing the
Building(s) exterior lighting, and anything which affects the
operation and exterior appearance of the Project, which
determination shall be at Landlord's sole discretion. Except
for the expenses directly involving the items specifically
described in the first sentence of this Paragraph 10, Tenant
shall reimburse Landlord for all costs in accordance with
Paragraph 7. Any damage caused by or repairs necessitated by
any act of Tenant may be repaired by Landlord at Landlord's
option and at Tenant's expense. Tenant shall immediately give
Landlord written notice of any defect or need of repairs after
which Landlord shall have a reasonable opportunity to repair
same. Landlord's liability with respect to any defects,
repairs, or maintenance for which Landlord is responsible under
any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance.
TENANT'S 11. Tenant shall at Tenant's expense maintain all parts of the
REPAIRS Premises in a good clean and secure condition and promptly make
all necessary repairs and replacements, including but not
limited to all windows, glass, doors, walls and wall finishes,
floor covering, heating, ventilating and air conditioning
systems, truck doors, dock bumpers, dock plates and levelers,
plumbing work and fixtures, downspouts, electrical and lighting
systems, and fire sprinklers. Tenant shall at Tenant's expense
also perform regular removal of trash and debris. Tenant shall,
at Tenant's own expense, enter into a regularly scheduled
preventative maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air
conditioning systems and equipment within or serving the
Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all
services suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective and a
copy thereof delivered to Landlord within thirty (30) days
after the Term Commencement Date. Tenant shall not damage any
demising wall or disturb the integrity and support provided by
any demising wall and shall, at its own expense, immediately
repair any damage to any demising wall caused by Tenant or
Tenant's Parties.
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APPROVAL INITIALS: ???? Landlord ???
Tenant
ALTERATIONS 12. Excepting non-structural alterations to the Premises
costing less than five thousand dollars ($5,000.00), Tenant
shall not make, or allow to be made, any alterations or
physical additions in, about or to the Premises without
obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld with respect to proposed
alterations and additions which: (a) comply with all applicable
laws, ordinances, rules and regulations; (b) are in Landlord's
opinion compatible with the Project and its mechanical,
plumbing, electrical, heating/ventilation/air conditioning
systems; and (c) will not interfere with the use and occupancy
of any other portion of the Building or Project by any other
tenant or its invitees. Specifically, but without limiting the
generality of the foregoing, Landlord shall have the right of
written consent for all plans and specifications for the
proposed alterations or additions, construction means and
methods, all appropriate permits and licenses, any contractor
or subcontractor to be employed on the work of alterations or
additions, and the time for performance of such work. Tenant
shall also supply to Landlord any documents and information
reasonably requested by Landlord in connection with Landlord's
consideration of a request for approval hereunder. Tenant shall
reimburse Landlord for all costs which Landlord may incur in
connection with the granting approval to Tenant for any such
alterations and additions, including any costs or expenses
which Landlord may incur in electing to have outside architects
and engineers review said plans and specifications. All such
alterations, physical additions or improvements shall remain
the property of Tenant until termination of this Lease, at
which time they shall be and become the property of Landlord if
Landlord so elects; provided, however, that Landlord may, at
Landlord's option, require that Tenant, at Tenant's expense,
remove any or all alterations, additions, improvements and
partitions made by Tenant and restore the Premises by the
termination of this Lease, whether by lapse of time, or
otherwise, to their condition existing prior to the
construction of any such alterations, additions, partitions or
leasehold improvements. All such removals and restoration shall
accomplished in a good and workmanlike manner so as not to
cause any damage to the Premises or Project whatsoever. If
Tenant fails to so remove such alterations, additions,
improvements and partitions or Tenant's trade fixtures or
furniture, Landlord may keep and use them or remove any of them
and cause them to be stored or sold in accordance with
applicable law, at Tenant's sole expense. In addition to and
wholly apart from Tenant's obligations to pay Tenant's
Proportionate Share of Basic Operating Cost, Tenant shall be
responsible for and shall pay prior to delinquency any taxes or
governmental service fees, possessory interest taxes, fees or
charges in lieu of any such taxes, capital levies, or other
charges imposed upon, levied with respect to or assessed
against its personal property, on the value of the alterations,
additions or improvements within the Premises, and on Tenant's
interest pursuant to this Lease. To the extent that any such
taxes are not separately assessed or billed to Tenant, Tenant
shall pay the amount thereof as invoiced to Tenant by Landlord.
Tenant, at its own cost and expense and without Landlord's
prior approval may erect such shelves, bins, machinery and
trade fixtures (collectively "Trade Fixtures") in the ordinary
course of its business provided that such do not alter the
basic character of the Premises, do not overload or damage the
Premises, and may be removed without injury to the Premises,
and the construction, erection, and installation thereof
complies with all Legal Requirements and with Landlord's
requirements set forth above. Tenant shall remove its Trade
Fixtures and shall repair any damage caused by such removal.
SIGNS 13. Landlord shall allow at Tenant's sole cost and expense the
installation of building signage subject to Landlord's and the
City of San Carlos's approval and consistent with the San
▇▇▇▇▇▇ Business Park's current signage program as outlined by
the Project's Sign Criteria, attached hereto as Exhibit D and
incorporated by this reference. Any installation of signs or
graphics on or about the Premises and Project shall be subject
to any applicable governmental laws, ordinances, regulations
and to any other requirements imposed by Landlord. Tenant shall
remove all such signs and graphics prior to the termination of
this Lease. Such installations and removals shall be made in
such manner as to avoid injury or defacement of the Premises,
Building or Project and any other limitation, discoloration
caused by such installation or removal.
INSPECTION/ 14. After reasonable notice, except in emergencies where no
POSTING such notice shall be required, Landlord, and Landlord's agents
NOTICES and representatives, shall have the right to enter the Premises
to inspect the same, to clean, to perform such work as may be
permitted or required hereunder, to make repairs or alterations
to the Premises or Project or to other tenant spaces therein,
to deal with emergencies, to post such notices as may be
required by law to prevent the perfection of liens against
Landlord's interest in the Project or to exhibit the Premises
to prospective tenants, purchasers, encumbrancers or others, or
for any other purpose as Landlord may deem necessary or
desirable; provided, however, that Landlord shall use
reasonable efforts not to unreasonably interfere with Tenant's
business operations. Tenant shall not be entitled to any
abatement of Rent by reason of the exercise of any such right
of entry. At any time within six (6) months prior to the end of
the Term, Landlord shall have the right to erect on the
Premises and/or Project a suitable sign indicating that the
Premises are available for lease. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating
the Premises and shall meet with Landlord for a joint
inspection of the Premises at the time of vacating. In the
event of Tenant's failure to give such notice or participate in
such joint inspection, Landlord's inspection at or after
Tenant's vacating the Premises shall conclusively be deemed
correct for purposes of determining Tenant's responsibility for
repairs and restoration.
UTILITIES 15. Tenant shall pay directly for all water, gas, heat, air
conditioning, light, power, telephone, sewer, sprinkler charges
and other utilities and services used on or from the Premises,
together with any taxes, penalties, surcharges or the like
pertaining thereto, and maintenance charges for utilities and
shall furnish all electric light bulbs, ballasts and tubes. If
any such services are not separately metered to Tenant, Tenant
shall pay a reasonable proportion, as determined by Landlord,
of all charges jointly serving other premises. Landlord shall
not be liable for any damages directly or indirectly resulting
from nor shall the Rent or any monies owed Landlord under this
Lease herein reserved be abated by reason of: (a) the
installation, use or interruption of use of any equipment used
in connection with the furnishing of any such utilities or
services; (b) the failure to furnish or delay in furnishing any
such utilities or
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Tenant
services when such failure or delay is caused by acts of God or
the elements, labor disturbances of any character, or any other
accidents or other conditions beyond the reasonable control of
Landlord; or (c) the limitation, curtailment, rationing or
restriction on use of water, electricity, gas or any other form
of energy or any other service or utility whatsoever serving
the Premises or Project. Landlord shall be entitled to
cooperate voluntarily and in a reasonable manner with efforts
of national, state or local governmental agencies or utility
suppliers in reducing energy or other resource consumption. The
obligation to make services available hereunder shall be
subject to the limitations of any such voluntary, reasonable
program. Notwithstanding the foregoing, in the event any
interruption of utilities or Building services specified in
this Paragraph 15 continues for more than seven (7) consecutive
days, and the Premises are rendered unusable for Tenant's
proposed use, then Rent shall be abated for the time period of
such interruption.
SUBORDI- 16. Without the necessity of any additional document being
NATION executed by Tenant for the purpose of effecting a
subordination, the Lease shall be subject and subordinate at
all times to: (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Premises
and/or the land upon which the Premises and Project are
situated, or both; and (b) any mortgage or deed of trust which
may now exist or be placed upon said Project, land, ground
leases or underlying leases, or Landlord's interest or estate
in any said items which is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such ground leases
or underlying leases or any such liens to this Lease. In the
event that any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason,
Tenant shall, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord at
the option of such successor in interest. Within ten (10) days
after request by Landlord, Tenant shall execute and deliver any
additional documents evidencing Tenant's attornment or the
subordination of this Lease with respect to any such ground
leases or underlying leases or any such mortgage or deed of
trust, in the form requested by Landlord or by any ground
landlord, mortgagee, or beneficiary under a deed of trust.
Landlord shall use its best efforts to obtain a non-disturbance
agreement for Tenant's benefit but shall have no liability if
its lender fails to do so. Landlord's equity in the property is
several million dollars.
FINANCIAL 17. At the request of Landlord, Tenant shall provide to
STATEMENTS Landlord Tenant's current financial statement or other
information discussing financial worth of Tenant, which
Landlord shall use solely for purposes of this Lease and in
connection with the ownership, management and disposition of
the Project.
ESTOPPEL 18. Tenant agrees from time to time, within ten (10) days after
CERTIFICATE request of Landlord, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating that this Lease is in
full force and effect, the date to which Rent has been paid,
the unexpired portion of this Lease, and such other matters
pertaining to this Lease as may be reasonably requested by
Landlord. Failure by Tenant to execute and deliver such
certificate shall constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included are true
and correct without exception. Landlord and Tenant intend that
any statement delivered pursuant to this Paragraph may be
relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Project or any interest therein.
The parties agree that Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of the Lease, and shall be
an event of default if Tenant fails to fully comply. Tenant
shall indemnify Lessor for any loss caused by Tenant's failure
to timely execute an estoppel certificate, including
consequential damages such as loss of financing or refinancing
or loss of a potential sale of the Property, all of which
events are deemed foreseeable by the parties to this Lease.
SECURITY 19. Tenant agrees to deposit with Landlord upon execution of
DEPOSIT this Lease, a Security Deposit as stated in the Basic Lease
Information, which sum shall be held by Landlord, without
obligation for interest, as security for the performance of
Tenant's covenants and obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure
of damages incurred by Landlord in case of Tenant's default.
Upon the occurrence of any event of default by Tenant, Landlord
may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such fund to the extent
necessary to make good any arrears of Rent or other payments
due to Landlord hereunder, and any other damage, injury,
expense or liability caused by such event of default, and
Tenant shall pay to Landlord, on demand, the amount so applied
in order to restore the Security Deposit to its original
amount. Although the Security Deposit shall be deemed the
property of Landlord, any remaining balance of such deposit
shall be returned by Landlord to Tenant at such time after
termination of this Lease that all of Tenant's obligations
under this Lease have been fulfilled. Landlord may use and
commingle the Security Deposit with other funds of Landlord.
TENANT'S 20. The liability of Landlord to Tenant for any default by
REMEDIES Landlord under the terms of this Lease are not personal
obligations of the individual or other partners, directors,
officers and shareholders of Landlord, and Tenant agrees to
look solely to Landlord's interest in the Project for the
recovery of any amount from Landlord, and shall not look to
other assets of Landlord nor seek recourse against the assets
of the individual or other partners, directors officers and
shareholders of Landlord. Any lien obtained to enforce any such
judgment and any levy of execution thereon shall be subject and
subordinate to any lien, mortgage or deed of trust on the
Project.
ASSIGN- 21. A. General. Tenant shall not assign or sublet the Premises or
MENT AND any part thereof without Landlord's prior written approval,
SUBLETTING such approval not to be unreasonably withheld, conditioned or
delayed except as provided herein. If Tenant desires to assign
this Lease or sublet any or all of the Premises, Tenant shall
give Landlord written notice forty-five (45) days prior to the
anticipated effective date of the assignment or sublease.
Landlord shall then have a period of fifteen (15) days
following receipt of such notice to notify Tenant in writing
that Landlord elects either:
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APPROVAL INITIALS: ???? Landlord ???
Tenant
(1) to terminate this Lease as to the space so affected as of
the date so requested by Tenant; or (2) to permit Tenant assign
this Lease or sublet such space, subject, however, to
Landlord's prior written approval of the proposed assignee or
subtenant and of any related documents or agreements associated
with the assignment or sublease. If Landlord should fail to
notify Tenant in writing of such election within said period,
Landlord shall be deemed to have waived option (1) above, but
written approval by Landlord of the proposed assignee or
subtenant shall be required. If Landlord does not exercise the
option provided in subitem (1) above, Landlord's consent to a
proposed assignment or sublet shall not be unreasonably
withheld. Without limiting the other instances in which it may
be reasonable for Landlord to withhold Landlord's consent to an
assignment or subletting, Landlord and Tenant acknowledge that
it shall be reasonable for Landlord to withhold Landlord's
consent in the following instances: The use of the Premises by
such proposed assignee or subtenant would not be a permitted
use or would increase the Parking Density of the Project; the
proposed assignee or subtenant is not of sound financial
condition; the proposed assignee or subtenant is a governmental
agency; the proposed assignee or subtenant does not have a good
reputation as a tenant of property; the proposed assignee or
subtenant is a person with whom Landlord is negotiating to
lease space in the Project; the assignment or subletting would
entail any alterations which would lessen the value of the
leasehold improvements in the Premises; or if Tenant is in
default of any obligation of Tenant under this Lease, or Tenant
has defaulted under this Lease on three (3) or more occasions
during any twelve months preceding the date that Tenant shall
request consent. Failure by Landlord to approve a proposed
assignee or subtenant shall not cause a termination of this
Lease. Upon a termination under this Paragraph 21.A., Landlord
may lease the Premises to any party, including parties with
whom Tenant has negotiated an assignment or sublease, without
incurring any liability to Tenant.
B. Bonus Rent. Any Rent or other consideration realized by
Tenant under any such sublease or assignment in excess of the
Rent payable hereunder, after amortization of a reasonable
brokerage commission shall be divided and paid, ten percent
(10%) to Tenant, ninety percent (90%) to Landlord. In any
subletting or assignment undertaken by Tenant, Tenant shall
diligently seek to obtain the maximum rental amount available
in the marketplace for such subletting or assignment.
C. Corporation. If Tenant is a corporation, a transfer of
corporate shares by sale, assignment, bequest, inheritance,
operation of law or other disposition (including such a
transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings), so as to result
in a change in the present control of such corporation or any
of its parent corporations by the person or persons owning a
majority of said corporate shares, shall constitute an
assignment for purposes of this Lease.
Landlord's prior consent shall not be required for any
assignment or sublease of Tenant's interest in the Premises or
the Lease to any corporation with which Tenant may merge or
consolidate or become affiliated as a parent, subsidiary,
holding company or otherwise, or to an entity in which Tenant
has a controlling interest provided such entity's net worth
exceeds Tenant's net worth.
D. Partnership. If Tenant is a partnership, joint venture or
other incorporated business form, a transfer of the interest of
persons, firms or entities responsible for managerial control
of Tenant by sale, assignment, bequest, inheritance, operation
of law or other disposition, so as to result in a change in the
present control of said entity and/or a change in the identity
of the persons responsible for the general credit obligations
of said entity shall constitute an assignment for all purposes
of this Lease.
E. Liability. Except as otherwise provided, no assignment or
subletting by Tenant shall relieve Tenant of any obligation
under this Lease. Any assignment or subletting which conflicts
with the provisions hereof shall be void.
AUTHORITY 22. Landlord represents and warrants that it has full
OF PARTIES right and authority to enter into this Lease and to perform
all of Landlord's obligations hereunder. Tenant represents and
warrants that it has full right and authority to enter into
this Lease and to perform all of Tenant's obligations
hereunder.
CONDEM- 23. A. Condemnation Resulting in Termination. If the whole or any
NATION substantial part of the Project of which the Premises are a
part should be taken or condemned for any public use under
governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and the
taking would prevent or materially interfere with the Permitted
Use of the Premises, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease,
effective when the physical taking of said Premises shall have
occurred.
B. Condemnation Not Resulting in Termination. If a portion of
the Project of which the Premises are a part should be taken
orcondemned for any public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, and this Lease is not
terminated as provided in Paragraph 23.A. above, this Lease
shall not terminate, but the Rent payable hereunder during the
unexpired portion of the Lease shall be reduced, beginning on
the date when the physical taking shall have occurred, to such
amount as may be fair and reasonable under all of the
circumstances.
C. Award. Landlord shall be entitled to any and all payment,
income, rent, award, or any interest therein whatsoever which
may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired portion of this Lease.
Notwithstanding the foregoing, any compensation specifically
awarded Tenant for loss of business, Tenant's personal
property, moving costs or loss of goodwill, shall be and remain
the property of Tenant. In addition, in the event of a taking
or
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APPROVAL INITIALS: ???? Landlord ????
Tenant
conveyance under this Section 23 Tenant shall be entitled to
compensation for the value of any of the unamortized tenant
improvements to the extent Tenant paid for any such
improvements.
CASUALTY 24. A. General. If the Premises or Building should be damaged or
DAMAGE destroyed by fire, tornado or other casualty, Tenant shall give
immediate written notice thereof to Landlord. Within thirty
(30) days after Landlord's receipt of such notice, Landlord
shall notify Tenant whether in Landlord's opinion such repairs
can reasonably be made either: (1) within one hundred and
eighty (180) days; or (2) in more than one hundred and eighty
(180) days from the date of such notice. Landlord's
determination shall be binding on Tenant.
B. Less Than 180 Days. If the Premises or Building should be
damaged by fire, tornado or other casualty but only to such
extent that rebuilding or repairs can in Landlord's estimation
be reasonably completed within one hundred and eighty (180)
days after the date of such damage, this Lease shall not
terminate, and Landlord shall proceed to rebuild and repair the
Premises in the manner determined by Landlord, except that
Landlord shall not be required to rebuild, repair or replace
any part of the partitions, fixtures additions and other
leasehold improvements which may have been placed in, on or
about the Premises. If the Premises are untenantable in whole
or in part following such damage, the Rent payable hereunder
during the period in which they are untenantable shall be
abated proportionately, but only to the extent of rental
abatement insurance proceeds received by Landlord during the
time and to the extent the Premises are unfit for occupancy. If
Landlord's insurer fails to make timely payment of an insured
loss, Landlord's obligation will be abated for such period of
delay, not to exceed thirty (30) days.
C. Greater than 180 Days. If the Premises or Building should be
damaged by fire, tornado or other casualty but only to such
extent that rebuilding or repairs can in Landlord's estimation
be reasonably completed in more than one hundred and eighty
(180) days, then Landlord shall have the option of either: (1)
terminating the Lease effective upon the date of the occurrence
of such damage, in which event the Rent shall be abated during
the unexpired portion of the Lease; or (2) electing to rebuild
or repair the Premises to substantially the condition in which
they existed prior to such damage, provided that insurance
proceeds are available, to fully repair the damage, except that
Landlord shall not be required to rebuild, repair or replace
any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the
Premises. If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the
period in which they are untenantable shall be abated
proportionately, but only to the extent of rental abatement
insurance proceeds received by Landlord during the time and to
the extent the Premises are unfit for occupancy. In the event
that Landlord should fail to complete such repairs and
rebuilding within one hundred eight (180) days after the date
upon which Landlord is notified by Tenant of such damage, such
period of time to be extended for delays caused by the fault or
neglect of Tenant or because of acts of God, acts of public
agencies, labor disputes, strikes, fires, freight embargoes,
rainy or story weather, inability to obtain materials, supplies
or fuels, or delays of the contractors or subcontractors or any
other causes or contingencies beyond the reasonable control of
Landlord, Tenant may at Tenant's option within ten (10) days
after the expiration of such one hundred eighty (180) day
period (as such may be extended), terminate this Lease by
delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights hereunder shall
cease and terminate thirty (30) days after Landlord's receipt
of such termination notice.
D. Tenant's Fault. If the Premises or any other portion of the
Building are damaged by fire or other casualty resulting from
the fault, negligence, or breach of this Lease by Tenant, or
Tenant's Parties, Base Rent and Additional Rent shall not be
diminished during the repair of such damage, except to an
amount recovered by Landlord through any rental abatement
insurance, and Tenant shall be liable to Landlord for the cost
and expense of the repair and restoration of the Building
caused thereby to the extent such cost and expense is not
covered by insurance proceeds.
F. Uninsured Casualty. Notwithstanding anything herein to the
contrary, in the event that the Premises or Building are
damaged or destroyed and are not fully covered by the insurance
proceeds received by Landlord or in the event that the holder
of any indebtedness secured by mortgage or deed of trust
covering the Premises requires that the insurance proceeds be
applied to such indebtedness, then in either ease Landlord
shall have the right to terminate this Lease by delivering
written notice of termination to Tenant within thirty (30) days
after the date of notice to Landlord that said damage or
destruction is not fully covered by insurance or such
requirement is made by any such holder, as the case may be,
whereupon all rights and obligations hereunder shall cease and
terminate.
G. Waiver. Except as otherwise provided in this Paragraph 24,
Tenant hereby waives the provisions of Sections 1932(a),
1933(4), 1941 and 1942 of the Civil Code of California.
HOLDING 25. If Tenant shall retain possession of the Premises or
OVER any portion thereof without Landlord's consent following the
expiration of the Lease or sooner termination for any reason,
then Tenant shall pay to Landlord for each day of such
retention triple the amount of the daily rental as of the last
month prior to the date of expiration or termination. Tenant
shall also indemnify, defend, protect and hold Landlord
harmless from any loss, liability or cost, including reasonable
attorneys' fees, resulting form delay by tenant in surrendering
the Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Acceptance of Rent
by Landlord following expiration or termination shall not
constitute a renewal of this Lease, and nothing contained in
this Paragraph 25 shall waive Landlord's right or reentry or
any other right. Unless Landlord consents in writing to
Tenant's holding over, Tenant shall be only a Tenant at
sufferance, whether or not Landlord accepts any Rent from
Tenant while Tenant is holding over without Landlord's written
consent. Additionally, in the event that upon termination of
the Lease, Tenant has not fulfilled its obligation with respect
to repairs and cleanup of the Premises or any other Tenant
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APPROVAL INITIALS: ???? Landlord ???
Tenant
obligations as set forth in this Lease, then Landlord shall
have the right to perform any such obligations as it deems
necessary at Tenant's sole cost and expense, and any time
required by Landlord to complete such obligations shall be
considered a period of holding over and the terms of this
Paragraph 25 shall apply.
DEFAULT 26. A. Events of Default. The occurrence of any of the following
shall constitute an event of default on the part of Tenant:
(1) Abandonment. Abandonment of the Premises for a continuous
period in excess of five (5) days "unless Tenant continues to
pay rent and perform all other obligations of Tenant required
under this Lease, in which case Tenant shall not be in
default." Tenant waives any right to notice Tenant may have
under Section 1951.3 of the Civil Code of the State of
California, the terms of this Paragraph 26.A. being deemed such
notice to Tenant as required by said Section 1951.3.
(2) Nonpayment of Rent. Failure to pay any instalment of Rent
or any other amount due and payable hereunder upon the date
when said payment is due, and such failure is not cured within
five (5) days notice from Landlord specifying such failure.
(3) Other Obligations. Failure to perform any obligation,
agreement or covenant under this Lease other than those matters
specified in subparagraphs (1) and (2) of this Paragraph 26.A,
such failure continuing for fifteen (15) days after written
notice of such failure, provided, however, that if the nature
of Tenant's default is such that more than fifteen (15) days
are reasonably required for its cure, then Tenant shall not be
deemed to be in default under this Lease if Tenant shall
commence the cure of such default within said fifteen (15) day
period and use his best efforts to prosecute the same to
completion.
(4) General Assignment. A general assignment by Tenant for the
benefit of credits.
(5) Bankruptcy. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary petition
by Tenant's creditors, which involuntary petition remains
undischarged for a period of thirty (30) days. In the event
that under applicable law the trustee in bankruptcy or Tenant
has the right to affirm this Lease and continue to perform the
obligations of Tenant hereunder, such trustee or Tenant shall,
in such time period as may be permitted by the bankruptcy court
having jurisdiction, cure all defaults of Tenant hereunder
outstanding as of the date of the affirmance of this Lease and
provide to Landlord such adequate assurances as may be
necessary to ensure Landlord of the continued performance of
Tenant's obligations under this Lease.
(6) Receivership. The employment of a receiver to take
possession of substantially all of Tenant's assets or the
Premises, if such appointment remains undismissed or
undischarged for a period often (10) days after the order
therefor.
(7) Attachment. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or the
Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10) days after
the levy thereof.
B. Remedies Upon Default.
(1) Termination. In the event of the occurrence of any event of
default (and such default remains uncured after the expiration
of any applicable cure period provided herein), Landlord shall
have the right to give a written termination notice to Tenant,
and on the date specified in such notice, Tenant's right to
possession shall terminate, and this Lease shall terminate
unless or before such date all arrears of rental and all other
sums payable by Tenant under this Lease and all costs and
expenses incurred by or on behalf of Landlord hereunder shall
have been paid by Tenant and all other events of default of
this Lease by Tenant at the time existing shall have been fully
remedied to the satisfaction of Landlord. At any time after
such termination, Landlord may recover possession of the
Premises or any part thereof and expel and remove therefrom
Tenant and any other person occupying the same, by any lawful
means, and again repossess and enjoy the Premises without
prejudice to any of the remedies that Landlord may have under
this Lease, or at law or equity by reason of Tenant's default
or of such termination.
(2) Continuation After Default. Even though an event of default
may have occurred, this Lease shall continue in effect for so
long as Landlord does not terminate Tenant's right to
possession under Paragraph 26.B. (1) hereof, and Landlord may
enforce all of Landlord's rights and remedies under this Lease,
including without limitation, the right to recover Rent as it
becomes due, and Landlord, without terminating this Lease may
exercise all of the rights and remedies of a Landlord under
Section 1951.4 of the Civil Code of the State of California or
any successor code section. Acts of maintenance, preservation
or efforts for lease the Premises or the appointment of a
receiver upon application of Landlord to protect Landlord's
interest under this Lease shall not constitute an election to
terminate Tenant's right to possession.
C. Damages After Default. Should Landlord terminate this Lease
pursuant to the provisions of Paragraph 26.B (1) hereof,
Landlord shall have the rights and remedies of a Landlord
provided by Section 1951.2 of the Civil Code of the State of
California, or successor code sections. Upon such termination,
in addition to any other rights and remedies to which Landlord
may be entitled under applicable law, Landlord shall be
entitled to recover from Tenant: (1) the worth at the time of
award of the unpaid Rent and other amounts which had been
earned at the time of
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APPROVAL INITIALS: ???? Landlord ???
Tenant
termination, (2) the worth at the time of award of the amount
by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such
Rent loss that Tenant proves could have been reasonably
avoided; (3) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term after the
time of award exceeds the amount of such Rent loss that Tenant
proves could be reasonably avoided; and (4) any other amount
necessary to compensate Landlord or all the detriment
proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which, in the ordinary course
of things, would be likely to result therefrom. The "worth at
the time of award" of the amounts referred to in (1) and (2)
above shall be computed by discounting such amount at the
Federal Discount Rate of the Federal Reserve Bank of San
Francisco at the time of the award. If this Lease provides for
any periods during the Term during which Tenant is not required
to pay Base Rent or if Tenant otherwise receives a Rent
concession, then upon the occurrence of an event of default
Tenant shall owe to Landlord the full amount of such Base Rent
or value of such Rent concession, plus interest at the
Applicable Interest Rate, calculated from the date that such
Base Rent or Rent concession would have been payable.
D. Late Charge. If any installment of Rent is not paid promptly
when due, and such failure is not cured prior to the expiration
of the applicable cure period provided herein, such amount
shall bear interest at the Applicable Interest Rate from the
date on which said payment shall be due until the date on which
Landlord shall receive said payment. In addition, Tenant shall
pay Landlord a late charge equal to five percent (5%) of the
delinquency, to compensate Landlord for the loss of the use of
the amount not paid and the administrative costs caused by the
delinquency, the parties agreeing that Landlord's damage by
virtue of such delinquencies would be difficult to compute and
the amount stated herein represents a reasonable estimate
thereof. This provision shall not relieve Tenant of Tenant's
obligation to pay Rent at the time and in the manner herein
specified.
E. Remedies Cumulative. All rights, privileges and elections or
remedies of the parties are cumulative and not alternative, to
the extent permitted by law and except as otherwise provided
herein.
LIENS 27. Tenant shall keep the Premises free from liens arising out
of or related to work performed, materials or supplies
furnished or obligations incurred by Tenant or in connection
with work made, suffered or done by or on behalf of Tenant in
or on the Premises or Project. In the event that Tenant shall
not, within ten (10) days following the imposition of any such
lien, cause the same to be released of record by payment or
posting of a proper bond, Landlord shall have, in addition to
all other remedies provided herein and by law, the right, but
not obligation, to cause the same to be released by such means
as Landlord shall deem proper, including payment of the claim
giving rise to such lien. All sums paid by Landlord on behalf
of Tenant and all expenses incurred by Landlord in connection
therefor shall be payable to Landlord by Tenant on demand with
interest at the Applicable Interest Rate. Landlord shall have
the right at all times to post and keep posted on the Premises
any notices permitting or required by law, or which Landlord
shall deem proper, for the protection of Landlord, the
Premises, the Project and any other party having an interest
therein, from mechanics' and materialmen's liens, and Tenant
shall give Landlord not less than ten (10) business days prior
written notice of the commencement of any work in the Premises
or Project which could lawfully give rise to a claim for
mechanics' or materialmen's liens.
TRANSFERS 28. In the event of a sale or conveyance by Landlord of the
BY Building or a foreclosure by any creditor of Landlord, the same
LANDLORD shall operate to release Landlord from any liability upon any
of the covenants or conditions, express or implied, herein
contained in favor of Tenant, to the extent required to be
performed after the passing of title to Landlord's
successor-in-interest. In such event, Tenant agrees to look
solely to the responsibility of the successor-in-interest of
Landlord under this Lease with respect to the performance of
the covenants and duties of "Landlord" to be performed after
the passing of title to Landlord's successor-in-interest. This
Lease shall not be affected by any such sale and Tenant agrees
to attorn to the purchaser or assignee. Landlord's
successor(s)-in-interest shall not have liability to Tenant
with respect to the failure to perform all of the obligations
of "Landlord", to the extent required to be performed prior to
the date such successor(s)-in-interest became the owner of the
Building.
RIGHT OF 29. All covenants and agreements to be performed by Tenant
LANDLORD TO under any of the terms of this Lease shall be performed by
PERFORM Tenant at Tenant's sole cost and expense and without any
TENANT'S abatement of Rent. If Tenant shall fail to pay any sum of
COVENANTS money, other than Base Rent and Basic Operating Cost, required
to be paid by Tenant hereunder or shall fail to perform any
other act on Tenant's part to be performed hereunder, and such
failure shall continue for five (5) days after notice thereof
by Landlord, Landlord may, but shall not be obligated to do so,
and without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such act on
Tenant's part to be made or performed. All sums, so paid by
Landlord and all necessary incidental costs together with
interest thereon at the Applicable Interest Rate from the date
of such payment by Landlord shall be payable to Landlord on
demand, and Tenant covenants to pay such sums, and Landlord
shall have, in addition to any other right or remedy of
Landlord, the same right and remedies in the event of the
non-payment thereof by Tenant as in the case of default by
Tenant in the payment of Base Rent and Basic Operating Cost.
WAIVER 30. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such
waiver shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition
contained herein. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any
term, ccvenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such Rent. Failure by Landlord to enforce any
of the terms, covenants or conditions of this Lease for any
length of time shall not be deemed to waive or to decrease the
right of Landlord to insist thereafter upon strict performance
by Tenant. Waiver by Landlord of any term, covenant or
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APPROVAL INITIALS: ???? Landlord ???
Tenant
condition contained in this Lease may only be made by a written
document signed by Landlord.
NOTICES 31. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other
requirements with reference to sending, mailing or delivery of
any notice or the making of any payment by Landlord or Tenant
to the other shall be deemed to be compiled with when and if
the following steps are taken:
A. Rent. All Rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at
the address set forth in the Basic Lease Information, or at
such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's
obligation to pay Rent and any other amounts to Landlord under
the terms of this Lease shall not be deemed satisfied until
such Rent and other amounts have been actually received by
Landlord.
B. Other. All notices, demands, consents and approvals which
may or are required to be given by either party to the other
hereunder shall be in writing and either personally delivered,
sent by commercial overnight courier, or mailed, certified or
registered, postage prepaid, and addressed to the other party
to be notified at the address for such party as specified in
the Basic Lease Information or to such other place as the party
to be notified may from time to time designate by at least
fifteen (15) days notice to the notifying party.
Notices shall be deemed served upon receipt or refusal to
accept delivery. Tenant appoints as its agent to receive the
service of all default notices and notice of commencement of
unlawful detainer proceedings the person in charge of or
apparently in charge of occupying the Premises at the time,
and, if there is no such person, then such service may be made
by attaching the same on the main entrance of the Premises and
a copy of such notice being sent via commercial overnight
carrier or mailed, certified or registered, postage prepaid to
the address listed for Tenant in the Basic Lease Information.
ATTORNEYS' 32. In the event that either Landlord or Tenant should bring
FEES suit for the possession of the Premises, for the recovery of
any sum due under this Lease, or because of the breach of any
provision of this Lease, or for any other relief against the
other party hereunder, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party
therein shall be paid by the other party, which obligation on
the part of the other party shall be deemed to have accrued on
the date of the commencement of such action and shall be
enforceable whether or not the action is prosecuted to
judgment.
SUCCESSORS 33. This Lease shall be binding upon and inure to the benefit
AND ASSIGNS of Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors, and to
the extent assignment is approved by Landlord hereunder,
Tenant's assigns. Landlord may transfer its obligations under
this Lease to its successors in title, in which event Lessor
shall be relieved of all obligations under this Lease and
Tenant shall look solely to Landlord's successor for
performance of this Lease.
FORCE 34. Whenever a period of time is herein prescribed for action
MAJEURE to be taken by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the
control of Landlord.
BROKERAGE 35. Landlord shall pay a full brokerage commission to Brokers
COMMISSION in accordance with CB Commercial's listing Agreement (Brokerage
Commission). Each Broker named in the Basic Lease Information
(Brokers) shall receive fifty percent of the Brokerage
Commission based on the terms and conditions provided in this
Lease, including expansion space. Tenant warrants to Landlord
that Tenant's sole contact with Landlord or with the Premises
in connection with this transaction has been directly with
Landlord and Brokers, and that no other broker or finder can
properly claim a right to a commission or a finder's fee based
upon contacts between the claimant and Tenant with respect to
Landlord or the Premises. Tenant shall indemnify, defend by
counsel acceptable to Landlord, protect and hold Landlord
harmless from and against any loss, cost or expense, including,
but not limited to attorneys' fees and costs, resulting from
any claim for a fee or commission by any broker or finder in
connection with the Premises and this Lease other than broker.
MISCELLA- 36. A. General. The term "Tenant" or any pronoun used in place
NEOUS thereof shall indicate and include the masculine or feminine,
the singular or plural number, individuals, firms or
corporations, and their respective successors, executors,
administrators and permitted assigns, according to the context
hereof.
B. Time. Time is of the essence regarding this Lease and all of
its provisions.
C. Choice of Law. This Lease shall in all respects be governed
by the laws of the State of California.
D. Entire Agreement. This Lease, together with its Exhibits,
contains all the agreements of the parties hereto and
supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease
and its exhibits.
E. Modification. This Lease may not be modified except by a
written instrument by the parties hereto.
F. Severability. If, for any reason whatsoever, any of the
provisions hereof shall be unenforceable or ineffective, all of
the other provisions shall be and remain in full force and
effect.
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APPROVAL INITIALS: ???? Landlord ???
Tenant
G. Recordation. Tenant shall not record this Lease or a short
form memorandum hereof.
H. Examination of Lease. Submission of this Lease to Tenant
does not constitute an option or offer to lease and this Lease
is not effective otherwise until execution and delivery by both
Landlord and Tenant.
I. Accord and Satisfaction. No payment by Tenant of a lesser
amount than the Rent nor any endorsement on any check or letter
accompanying any check or payment of Rent shall be deemed an
accord and satisfaction of full payment of Rent, and Landlord
may accept such payment without prejudice to Landlord's right
to recover the balance of such Rent or to pursue other
remedies.
J. Easements. Landlord may grant easements on the Project and
dedicate for public use portions of the Project without
Tenant's consent; provided that no such grant or dedication
shall substantially interfere with Tenant's use of the
Premises. Upon Landlord's demand, Tenant shall execute,
acknowledge and deliver to Landlord documents, instruments,
maps and plats necessary to effectuate Tenant's covenants
hereunder.
K. Drafting and Determination. The parties acknowledge that
this Lease has been agreed to by both parties, that both
Landlord and Tenant have consulted with attorneys with respect
to the terms of this Lease and that no presumption shall be
created against Landlord because Landlord drafted this Lease.
Except as otherwise specifically set forth in this Lease, with
respect to any consent, determination or estimation of Landlord
required in this Lease or requested of Landlord, Landlord's
consent, determination or estimation shall be made in
Landlord's good faith opinion, whether objectively reasonable
or unreasonable.
L. Exhibits. Exhibits A and B attached hereto are hereby
incorporated herein by this reference.
M. No Light, Air or View Easement. Any diminution or shutting
off of light, air or view by any structure which may be erected
on lands adjacent to or in the vicinity of the Building shall
in no way affect this Lease or impose any liability on
Landlord.
N. No Third Party Benefit. This Lease is a contract between
Landlord and Tenant and nothing herein is intended to create
any third party benefit.
O. Security, Release and Indemnity. Tenant acknowledges and
agrees that, while Landlord may elect to patrol the Project,
Landlord is not providing any security services with respect to
the Premises and that Landlord shall not be liable to Tenant
for, and Tenant waives any claim against Landlord with respect
to, any loss by theft or any other damage to person or property
suffered or incurred by Tenant, Tenant's employees and
invitees, including but not limited to, in connection with any
unauthorized entry into the Premises or any other breach of
security with respect to the Premises.
Tenant shall be responsible for provisions of security for its
premises. Tenant shall defend, indemnify and hold Landlord
harmless with respect to the Premises and any claims arising
from or related to a purported breach of security or failure to
provide security.
ADDITIONAL 38. Paragraphs 39 through 46, and Exhibits A and B are attached
PROVISIONS hereto and made apart thereof.
39. Base Rent: Rent for the Premises shall be as follows.
Suite Numbers Sq. Ft+/- Period Base NN Rent per Sq. Ft.
------------- --------- ------ ------------------------
981 Ind. Ste. B & D 11,941 5/15/97-5/31/98 $1.05
6/0l/98-5/31/95 $1.10
6/01/99-5/31/00 $1.15
6/0l/00-5/31/0l $1.20
6/01/01-5/31/02 $1.25
957 Ind. Ste. D, F, J & L 8,217 6/01/97-5/31/98 $1.05
6/01/98-5/31/99 $1.10
6/01/99-5/31/00 $1.15
6/01/00-5/31/01 $1.20
6/0l/02-5/31/02 $1.25
957 Ind. Ste. P 4,380 When vacated by existing tenant leasee shall
have 30 days of free rent thereafter per
rent amounts for 957 Ind. Ste. D, F, J & L.
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APPROVAL INITIALS: ???? Landlord ???
Tenant
40. A. Tenant Improvement Allowance. Tenant shall be entitled
to a one-time tenant improvement allowance (the "Tenant
Improvement Allowance") in the amount of five dollars ($5.00)
for each of the useable square feet of the Premises listed in
the Basic Lease Information for the direct and indirect costs
relating to the initial designing, procuring, constructing and
installing of Tenant's improvements which are permanently
affixed to the Premises (the "Tenant Improvements"). Subject to
Landlord's review and approval of Tenant's proposed space plan
for the Premises, Tenant will use its architect for design
services and Tenant's own general contractor to perform any
tenant improvement work. Landlord reserves the right to approve
Tenant's construction management company and general
contractor. In no event shall Landlord be obligated to make
disbursements in a total amount which exceeds the Tenant
Improvement Allowance.
B. Disbursement of the Tenant Improvement Allowance. Except
as otherwise set forth in any Tenant Work Letter, the Tenant
Improvement Allowance shall be disbursed by Landlord (each of
which disbursements shall be made pursuant to Landlord's
disbursement process) for costs related to the construction of
the Tenant Improvements and for the following items and costs
(collectively, the "Tenant Improvement Allowance Items"): (i)
payment of the fees of Tenant's architect and/or engineers;
(ii) the cost of construction of the Tenant Improvements (iii)
the cost of procuring and installing fixtures in or on the
Premises; and (iv) the cost of other items related to the
design and construction of the Tenant Improvements as
designated by Tenant.
41. Landlord's Obligations Prior to Occupancy. Landlord shall
be responsible, at its sole cost and expense, prior to Tenant's
occupancy, for providing the following: (i) men's and women's
restrooms are complete and operable, and include all exhaust
and supply HVAC, lighting, water heaters, partitions, doors,
fixtures, and finishes in compliance with the requirements of
the Americans With Disabilities Act of 1990; (ii) all building
systems, including existing electrical, mechanical, HVAC and
plumbing shall be in good working condition and are not subject
to deferred maintenance or in need of immediate replacement. In
addition Landlord, prior to Tenant's occupancy, shal supply
Tenant with any existing floor plans for the Premises known as
Suites B & D of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. The Premises will be
provided to Tenant in "broom clean" condition. The roof
membrane shall be free of known leaks and in good condition.
42. Early Occupancy: To the extent suites to be rented
hereunder are available and occupancy will not interfere with
tenant improvement construction, prior to the Estimated Term
Commencement Dates set forth in the Basic Lease Information
section above, Tenant shall be allowed to occupy the Premises
provided it pays Base Rent and Basic Operating Costs. Tenant
shall perform all duties and obligations imposed by this Lease,
including, but not limited to, those provisions relating to
insurance and indemnification.
43. Renewal Option: While this Lease is in full force and
effect, provided that Tenant is not in default, nor has Tenant
been in default more than three (3) times during the Term of
the Lease of any terms, covenants and conditions hereof, and
this Lease has not been assigned or the Premises (or a part
thereof), Tenant shall have one (1) option to renew this lease,
under the same terms and conditions prior to then expiration of
this Lease for one (1) sixty (60) month period. Such extension
of the original term shall be on the same terms, covenants and
conditions as provided for in the original term, except the
beginning monthly rental rate, for the option period, shall be
at rate equal to the then prevailing fair market rate of
comparable R&D buildings in the market. Tenant's desire to
exercise the option must be given to Landlord, in writing, not
less than one-hundred eighty (180) days prior to the expiration
of the term or this option shall terminate and be of no further
effect.
44. Expansion Space. Landlord will use its best efforts to
inform Tenant of any and all available contiguous space to the
Premises available in the Buildings known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
45. Asbestos/Hazardous Materials. To the best of Landlord's
knowledge, there is no asbestos or any hazardous materials on
about or within the Building(s), Project or Premises.
46. Indemnity. Despite any provision herein to the contrary,
Tenant agrees to fully and complete indemnify, protect, defend
and hold Landlord, its partners, members, managers, directors,
officers, employees, attorneys, agents, successors, assigns and
lenders harmless from and against all claims, actions, losses,
damages, costs expenses and liabilities relating to or arising
out of all Property uses by Tenant, including but not limited
to claims of Petroleum Products and Hazardous Material
contamination on site (except those claims caused solely by
willful acts or omissions of Landlord or environmental
conditions pre-existing Tenant's tenancy) or arising out of any
other actual or alleged injury to or death of any persons or
loss of or damages to property in or upon the Project,
including the person and property of Landlord, its partners,
members, managers, directors, officers, employees, agents or
others arising from or related to Tenant's use or occupancy of
the Premises.
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APPROVAL INITIALS: ???? Landlord ???
Tenant
IN WITNESS WHEREOF, the parties hereto have executed this Lease
the day and year first above written.
"Landlord"
Three Sisters Ranch Enterprises
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Manager
"Tenant"
Conceptus, Inc.
By: /s/ ?????????????
----------------------------------
Its: CFO
----------------------------------
16
APPROVAL INITIALS: ???? Landlord ???
Tenant
Exhibit A
[GRAPHIC OMITTED]
San ▇▇▇▇▇▇ Business Park
Initial
???/???
EXHIBIT A
[GRAPHIC OMMITTED]
SAN ▇▇▇▇▇▇ BUSINESS PARK
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇, ▇▇.
Initial
???/???
EXHIBIT A
[GRAPHIC OMMITTED]
SAN ▇▇▇▇▇▇ BUSINESS PARK
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇, ▇▇.
Initial
???/???
Exhibit D
Sign Criteria for San ▇▇▇▇▇▇ Business Park
Wall Signs
Tenant allowed one or two wall signs at discretion of landlord. Letters shall be
manufactured by Gemini Incorporated, 1-800-538-8377. Letters to be 10" high, 1"
deep injection molded plastic ("Minnesota Letters"), gloss black, Helvetica
typeface, all capital letters, mounted with #2 pads, glued flush to wall.
Company name only (no divisions, phone numbers, tag lines, etc.). Up to two
lines allowed, justified either left or right margin based on nearest corner of
building. If two lines, allow 5" space between lines. Conform to vertical
placements used on existing signs.
Window Signs
Tenant allowed one window or door sign at main entrance. Sign shall be
computer-cut white vinyl, placed on exterior of glass. Tenant may use door or
window, but not both. Message may contain company name, logo, division, tag
line, and up to three services provided, at discretion of tenant. No lettering
to exceed 3" in height, no logo or trademark to exceed 6" in height. Total sign
area not to exceed 16" high by 30" wide. Center all graphics 60" above ground
level. Landlord to provide 4" high white address number at top of door,
Helvetica Medium, 2" down from top of door.
Rear Door Signs
Tenant allowed one sign on rear man door. Sign shall be computer-cut black
vinyl, placed on exterior of door. Text only, no logos allowed. Message may
contain company name and shipping/receiving hours and information only, at
discretion of tenant. Lettering to be Helvetica Medium, upper and lower case, 2"
high, with 1" space between lines, centered. Up to four lines maximum allowed.
Top line to be placed 2" below small window in door. Landlord to provide 4" high
black address number at top of door, Helvetica Medium, 2" down from top of door.
Tenant Directory Monument Signs
Landlord shall provide lettering for tenant directory monument, at tenant's
expense. Tenant shall provide to landlord exact name that will be used on the
appropriate sign. Name shall appear on both sides of one sign, as determined by
landlord. Long company names may be edited or abbreviated as required to fit on
the sign, subject to approval of tenant. Lettering shall be 3 5/8" high Univers
Light Condensed, upper and lower case, white.
Initial
???/???