EXHIBIT 10.27
EXTENSION AGREEMENT
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EXTENSION AGREEMENT to be attached to and form a part of lease (which together
with any amendments, modifications and extensions there of is hereinafter called
the Lease), made the 23rd day of March, 1993 between ▇▇▇▇▇▇▇ FRENCH #130,
LIMITED PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP, as Landlord and TANDEM
COMPUTERS INCORPORATED, A DELAWARE CORPORATION, as Tenant covering the premises
known as ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Witnesseth that the Lease is hereby renewed and extended for a further term of
five (5) years to commence on the first day of May, 1993, and to end on the
thirtieth day of April, 1998, on condition that Landlord and Tenant comply with
all the provisions of the covenants and agreements contained in the Lease,
except:
1) Rental: Rental for the premises shall be:
Months 1 - 30: $41,151.00 per month plus
operating expenses per Paragraph 7
and Addendum 5 of this Lease
Agreement.
Months 31 - 60: $46,089.00 per month plus
operating expenses per Paragraph 7
and Addendum 5 of this Lease
Agreement.
2) Term and Possession: Landlord shall not be required to provide tenant
improvements.
3) Additional Paragraph 37 shall be amended to read as follows:
Provided Tenant is not, and has not been, in default of its obligations
under this Lease, Tenant shall have an option to re-lease the Premises in
"as-is" condition for a term of five (5) years at the then current market
rent (for comparable one-story office space in the Vallco Park, Cupertino
area). In no event will the monthly rental be less than the rental for the
last month of the previous term.
Tenant shall give Landlord written notice of its intent to exercise its
option at least one hundred eighty (180) days prior to the expiration of
the current lease term. Within fifteen (15) days after Tenant exercises
its option to re-lease, Landlord will provide Tenant with the current
market rental, as determined by landlord for the extended term. Tenant
shall have forty five (45) days from notification by Landlord of option
rent to accept Landlord's current market rent.
The parties are obligated to negotiate in good faith to agree on the market
rental for the five (5) year rental adjustment. If the parties have not
mutually agreed on the market rental adjustment for the five (5) year
period provided herein within forty five (45) days from notification by
Landlord to Tenant of Landlord's rental determination, each party hereon
shall appoint one representative who shall be a licensed real estate broker
experienced in the leasing of office space in the County of Santa ▇▇▇▇▇ to
act as an arbitrator. The two (2) arbitrators so appointed shall determine
the current rental value for the subsequent five (5) years for the use to
which Tenant is then utilizing the lease Premises pursuant to the terms and
conditions of this Lease. The determination of said current rental value
shall be made by said two (2) arbitrators within ninety (90) days from
notification by Landlord to Tenant of Landlord's rental determination and
they shall submit said determination in writing and signed by said
arbitrators in duplicate. One of the written notifications shall be
delivered to Landlord and the other to Tenant.
In the event the two (2) arbitrators of the parties hereto cannot agree on
the current rental value for the Premises herein, said two (2) arbitrators
shall appoint a third arbitrator who shall be a licensed real estate broker
experienced in the leasing of office space in the County of Santa ▇▇▇▇▇ to
act as an arbitrator. The current rental value for the subsequent five (5)
year period shall be independently determined by the third of said
arbitrators, which said determination shall be made within one hundred
twenty (120) days from notification by Landlord to Tenant of Landlord's
rental determination. The role of the third arbitrator shall ten be to
immediately select from the proposed resolution of arbitrators #1 and #2
the one that most closely approximates the third arbitrator's determination
of market rental value. The third arbitrator shall have no right to adopt
a compromise or middle ground or any modification of either of the two
final proposed resolutions.
The resolution the third arbitrator chooses as most closely approximating
his determination of the questions in issue shall constitute the decision
and award of the arbitrators and be final and binding upon the parties.
The parties hereto shall pay the charges of the arbitrator appointed by him
and any expenses incurred by such arbitrator. The charges and expenses of
the third arbitrator, as provided herein, shall be paid by the parties
herein equal shares.
In the event either arbitrator #1 or arbitrator #2 fails to present a
market rental figure within the thirty (30) day period, the rental
presented by the other arbitrator shall be considered final and binding on
both parties.
In the event the third arbitrator fails to present a current market rent
within the thirty (30) day period, then by mutual consent of Landlord and
Tenant:
(a) The time period shall be extended, or
(b) If Landlord or Tenant do not wish to extend the period, a fourth
arbitrator shall be selected by arbitrator #1 and arbitrator #2 and a
new thirty (30) day period shall begin.
Notwithstanding anything to the contrary herein contained, Tenant's right
to extend the term by exercise of the foregoing option shall be conditioned
upon the following: at the time of exercise of the option, and at the time
of the commencement of the extended term, Tenant shall be in possession of
and occupying the Premises for the conduct of its business therein and the
same shall not be occupied by any assignee, subtenant or licensee. In no
event will the monthly rental be less than the rental for the last month of
the previous term.
4) Addendum No. 3 to Paragraph 7A(1) Basic Operating Costs of the Lease
Agreement dated January 26, 1988 shall be amended to read as follows:
Notwithstanding anything to the contrary contained herein, Tenant shall
not, during the term of the Lease, be liable for increases in real property
taxes that result from a sale of the Project by Landlord. This cap on real
property taxes shall be applicable only to this sixty (60) month period and
shall not be applicable in the event of a sale of the Project to Tandem
Computers, Inc. during this period.
IT WITNESS WHEREOF, the parties hereto have signed and sealed this Extension
Agreement this 23rd day of March, 1993.
LANDLORD: TENANT:
▇▇▇▇▇▇▇ French #130, Limited Partnership, Tandem Computers Incorporated,
a Texas Limited Partnership a Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/
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Its: general partner Its:__________________________
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LEASE AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT DATED JANUARY 26, 1988,
BETWEEN ▇▇▇▇▇▇▇ FRENCH #130, LIMITED PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP,
AS LANDLORD, AND TANDEM COMPUTERS INCORPORATED, A DELAWARE CORPORATION, AS
TENANT, FOR PREMISES LOCATED AT ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Effective February 5, 1990, the above described Lease Agreement shall be
modified as follows.
1. Addendum 6. Paragraph 8C. Indemnification of the Lease Agreement shall be
deleted in its entirety and replaced with Addendum 6 below.
Addendum 6. Paragraph 8C. Indemnification for Toxic/Hazardous Materials
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Landlord shall indemnify Tenant, and hold harmless Tenant, its officers,
agents, employees, shareholders, parent, subsidiary and affiliate
organizations against all liability, claims, loss, cost damages, charges
and expenses (including reasonable attorneys' fees, clean-up costs, cost of
court and expenses necessary in the prosecution or defense of any
litigation) by reason of injury to person or property, including any
liability for injury to person or property of Landlord, its agents,
servants, employees or invitees, while in or on the leased Premises during
the term of this Lease resulting from the negligence of Landlord, its
agents, servants, employees, invitees or authorized representatives.
Tenant shall indemnify Landlord and hold harmless Landlord, its officers,
agents, employees, partners, subsidiary and affiliate organizations against
any claims, suits, loss, costs (including attorneys' fees and clean-up
costs), damage or liability by reason of property damage (including the
property of Landlord) or personal injury (including death) to the extent
the same results from pollution or toxic contamination (i)(A) originating
on property which is not leased, owned or otherwise used or controlled by
Tenant and (B) which migrated through the air, groundwater or otherwise to
the Premises, or (ii) which was present on the Premises on the date of
Tenant's first occupancy of the Premises and was not caused by Tenant or
its agents.
As used in this section, "Premises" means the real property which is the
subject matter of this Lease and the adjoining real property, commonly
known as ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 19020 Pruneridge Avenue, Cupertino,
which adjoining real property is also currently leased to Tenant.
2. The following sentence shall become the last sentence of Paragraph 7A(4):
Tenant shall be permitted, at its option, to perform landscape maintenance,
so long as such maintenance is performed to Landlord's complete
satisfaction.
Dated: February 5, 1990
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties hereto
as of the day and year first above written.
LANDLORD: ▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130 TENANT: TANDEM COMPUTERS, INC.
/s/ /s/
------------------------------------ ----------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director,
Corporate Real Estate and
Construction
BASIC LEASE INFORMATION
LEASE DATE: January 26, 1988
TENANT: Tandem Computers Incorporated, a Delaware
Corporation
ADDRESS OF TENANT: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
LANDLORD: ▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130, Limited Partnership, a Texas
Limited Partnership
ADDRESS OF LANDLORD: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Project Description: That two (2) building complex totaling 64,680
rentable square feet situated on 4.46 acres of
land commonly known as the Cupertino Technology
Center, Cupertino, California. The project is
shown outlined in green on Exhibit "A".
Building Description: That 41,151 square feet one story building known
as ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. The Building is shown
outlined in blue on Exhibit "A".
Premises: That entire 41,151 square foot one story building
known as ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. The Premises are
outlined in red on Exhibit "A".
Permitted Use: General Office, including computer sales, service
and other related legal purposes.
Occupancy Density: One person per 250 rentable square feet.
Scheduled Term
Commencement Date: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇ of Term: Sixty (60) months
Rent:
Base Rent: See Addendum 2 $_________________per month
Estimated First Year Basic Operating Cost: $ 9,835 per month
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Security Deposit: None
Tenant's Proportionate Share: 63.62%
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.
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TABLE OF CONTENTS
Page
Basic Lease Information............................................... 1
Table of Contents..................................................... 2
1. Premises.............................................................. 3
2. Possession and Lease Commencement..................................... 3
3. Term.................................................................. 3
4. Use................................................................... 3
5. Rules and Regulations................................................. 3
6. Rent.................................................................. 3
7. Basic Operating Cost.................................................. 4
8. Insurance and Indemnification......................................... 5
9. Waiver of Subrogation................................................. 5
10. Landlord's Repairs and Services....................................... 5
11. Tenant's Repairs...................................................... 5
12. Alterations........................................................... 5
13. Signs................................................................. 6
14. Inspection/Posting Notices............................................ 6
15. Utilities............................................................. 6
16. Subordination......................................................... 6
17. Financial Statements.................................................. 6
18. Estoppel Certificate.................................................. 6
19. Security Deposit...................................................... 6
20. Tenant's Remedies..................................................... 6
21. Assignment and Subletting............................................. 7
22. Quiet Enjoyment....................................................... 7
23. Condemnation.......................................................... 7
24. Casualty Damage....................................................... 7
25. Holding Over.......................................................... 8
26. Default............................................................... 8
27. Liens................................................................. 9
28. Substitution.......................................................... 9
29. Transfers by Landlord................................................. 9
30. Right of Landlord to Perform Tenant's Covenants....................... 9
31. Waiver................................................................ 9
32. Notices............................................................... 9
33. Attorneys' Fees....................................................... 9
34. Successors and Assigns................................................ 9
35. Force Majeure......................................................... 9
36. Miscellaneous......................................................... 9
37. Additional Provisions................................................. 10
EXHIBIT "A"........................................ Site Plan, Legal Description
EXHIBIT "B"...............................Tenant Improvements and Specifications
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LEASE
THIS LEASE is made as of this 26th day of January, 1988 between
▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130, Limited Partnership, a Texas Limited
Partnership (hereinafter called "Landlord") and Tandem Computers
Incorporated, a Delaware Corporation (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 (the "Building") or of the
project (the "Project") which may consist of more than one
building. The Building and Project are outlined in blue and
green respectively on Exhibit "A".
POSSESSION AND 2.
LEASE
COMMENCEMENT
See Addendum 1
TERM 3. The Term of this Lease shall commence on the Term
Commencement date and continue in full force and effect for
the number of months specified as the Length of Term in the
Basic Lease Information or until this Lease is terminated as
otherwise provided herein. 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. Tenant shall use the Premises for the Permitted Use and
for no other use or purpose without prior written consent of
Landlord. No increase in the Occupant Density of the
Premises shall be made without the prior written consent of
Landlord. Tenant and its employees, customers, visitors, and
licensees shall have the nonexclusive right to use, in
common with other parties occupying the Buildings or
Project, the parking areas and driveways of the project,
subject to such reasonable rules and regulations as Landlord
may from time to time prescribe.
B. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the
Premises, nor take any action which would constitute a
nuisance or would disturb, obstruct or endanger any other
tenants of the Building or Project in which the Premises are
situated or unreasonably interfere with their use of their
respective premises. Tenant shall not receive, store or
otherwise handle any product, material or merchandise which
is toxic, harmful, explosive, highly inflammable or
combustible. Storage outside the Premises of materials or
vehicles is prohibited without Landlord's prior written
consent. Tenant shall not use or allow the Premises to be
used for any improper or unlawful 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.
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C. Tenant shall not use the Premises or permit anything to
be done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation now in force or which may hereafter be
enacted or promulgated. Tenant shall at its sole cost and
expense obtain any and all licenses or permits necessary for
Tenant's use of the Premises. Tenant shall promptly comply
with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted relating to
or affecting the condition, use or occupancy of the
Premises. The judgment of any court of competent
jurisdiction or the admission of Tenant in any actions
against Tenant, whether Landlord be a party thereto or not,
that Tenant has so violated any such law, statute,
ordinance, rule, regulation or requirement, shall be
conclusive of such violation as between Landlord and Tenant.
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 or otherwise
affect said insurance in any manner. Tenant shall indemnify
Landlord and hold Landlord harmless against any loss,
expense, damage, attorneys' fees or liability arising out of
the failure of Tenant to comply with any applicable law or
comply with the requirements as set forth herein.
RULES AND 5. Tenant and Tenant's agents, employees, and invitees shall
REGULATIONS faithfully observe and comply with any reasonable rules and
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. Landlord shall make reasonable efforts
to enforce compliance by any other tenant or occupant of the
building or project with any of the rate and regulations.
RENT 6. Tenant shall pay to Landlord, without demand throughout the
Term, Rent as specified in the Basic Lease Information,
See Addendum 2 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 to
Landlord at the address specified in the Basic Lease
Information or to such other firm or to such other place as
Landlord may from time to time designate in writing. Rent
for the first full month of the Term shall be paid by Tenant
upon Tenant's execution of this Lease. If the obligation for
payment of Rent commences on other than the first day of a
month, then Rent shall be prorated and the prorated
installment shall be paid on the first day of the calendar
month next succeeding the Term Commencement Date.
BASIC 7. A. BASIC OPERATING COST. In addition to the Base Rent
OPERATING COST requirement to be paid hereunder, Tenant shall pay as
additional Rent, Tenant's Proportionate Share, as defined in
the Basic Lease Information of Basic Operating Cost in the
manner set forth below. Basic Operating Cost shall mean all
expenses and costs of every kind and nature which Landlord
shall pay or become obligated to pay, or would be required
to pay if the Project were fully occupied, because of or in
connection with the management, maintenance, preservation
and operation of the Project and its supporting facilities
servicing the Project (determined in accordance with
generally accepted accounting principles, consistently
applied) including but not limited to the following:
(1) All real estate taxes, possessory interest taxes,
business or license taxes or fees, service payment in lieu
of such taxes or fees, annual or periodic license or use
fees, excises, transit charges, housing fund assessments,
open space charge, 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) 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 the net income of Landlord or the owner of any
interest therein. See Addendum 3.
(2) All insurance premiums and costs, including but not
limited to, any deductible amounts, premiums and cost of
fire, casualty and liability coverage, rental abatement and
special hazard insurance applicable to the Project and
Landlord's personal property used in connection therewith,
provided, however, that Landlord may, but shall not be
obligated to, carry special hazard insurance covering losses
caused by casualty not insured under standard fire and
extended coverage insurance. See Addendum 4.
(3) Repairs, replacements and general maintenance for the
Premises, Building and Project (except for those repairs
expressly the responsibility of Landlord, those repairs 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).
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(4) All maintenance and service agreements 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 which benefit all or Tenant's portion of the
Premises (utilities are metered separately).
(6) A management and accounting cost recovery equal to ten
percent (10%) of Basic Operating Costs .
* See Addendum 5 *
In the event that the building is not fully occupied during
any fiscal year of the Term as determined by Landlord, an
adjustment shall be made in computing the Basic Operating
Cost for such year so that Basic Operating Cost shall be
computed as though the building had been one hundred percent
(100%) occupied; provided, however, that in no event shall
Landlord be entitled to collect in excess of one hundred
percent (100%) of the Total Basic Operating Cost from all of
the tenants in the Building including Tenant.
All costs and expenses shall be determined in accordance
with generally accepted accounting principles which shall be
consistently applied. 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, any instance wherein
Landlord, at Landlord's fair and reasonable discretion,
deems Tenant to be responsible for any amounts greater than
its Proportionate Share, Landlord shall have the right to
allocate costs in any manner Landlord deems appropriate.
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 Basic Operating Costs
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 will apparently 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 shall pay Tenant's Proportionate Share of the
Estimated Basic Operating Cost as so revised for the balance
of the then current fiscal year on the first of each
calendar month thereafter.
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. 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
costs, then (provided that Tenant is not in default under
this Lease), Landlord shall pay to Tenant the difference
within twenty (20) days of such statement. 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 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 for which
Tenant is obligated to pay Base Rent.
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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 herein provided. The provisions for payment of
Basic Operating Cost and the Basic Operating Cost Adjustment
are intended to pass on to Tenant and reimburse Landlord for
all costs and expenses of the nature described in paragraph
7A incurred in connection with ownership and operating of
the Building or Project.
E. TENANT AUDIT. Tenant shall have the right, at Tenant's
expense and upon not less than five (5) days prior written
notice to Landlord, to review at reasonable times, in
Landlord's office, Landlord's books and records applicable
to Tenant's Lease for purposes of verifying Landlord's
calculation of the Basic Operating Cost and Basic Operating
Cost Adjustment.
In the event that Tenant shall dispute the amount set forth
in any statement provided by Landlord under paragraph 7B or
7C above, Tenant shall have the right, not later than twenty
(20) days following the receipt of such statement and upon
condition that Tenant shall first deposit with Landlord the
full amount in dispute, to cause Landlord's books and
records with respect to such fiscal year to be audited by
certified public accountant selected by Tenant and subject
to Landlords' reasonable right of approval. The Basic
Operating Cost Adjustment shall be appropriately adjusted on
the basis of such audit. If such audit disclosed a liability
for a refund in excess of ten percent (10%) 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 7E within
twenty (20) days of receipt of Landlord's statement provided
pursuant to paragraph 7B, 7C, such statement shall be final
and binding for all purposes hereof.
INSURANCE AND 8. A. CASUALTY INSURANCE. Landlord agrees to maintain
INDEMNIFI- insurance insuring the Buildings of the Project, of which
CATION the Premises are a part, against fire, lightning, extended
coverage, vandalism and malicious mischief in an amount not
less than eighty percent (80%) of the replacement cost
thereof. Such insurance shall be for the sole benefit of
Landlord and under its sole control, Landlord shall not be
obligated to insure any furniture, equipment, machinery,
goods or supplies not covered by this Lease which Tenant may
keep or maintain in the Premises or any leasehold
improvements, additions or alterations which Tenant may make
upon the Premises.
B. LIABILITY INSURANCE. Tenant shall purchase at its own
expense and keep in force during this Lease a policy or
policies of comprehensive liability insurance, including,
bodily injury and property damage, in the amount of not less
that Five Hundred Thousand Dollars ($500,000.00) for
property damage and Two Million Dollars ($2,000,000.00) per
occurrence for bodily injuries or deaths of persons
occurring in or about the Premises and Project. Said
policies shall (1) name landlord and, if applicable, its
agents, and any party holding an interest to which this
lease may be subordinated as additional insureds, (2) have a
Best rating of and licensed to do business in the State of
California and (3) provide that said insurance shall not be
cancelled, unless thirty (30) days prior written notice
shall have been given to landlord. Said policy or policies
or certificates thereof shall be delivered to landlord by
Tenant upon commencement of the lease and upon each renewal
of said insurance.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant
for any loss or damage to person or property caused by
theft, fire, act 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
paragraphs 10 and 12. Tenant shall indemnify Landlord and
hold Landlord harmless from any and all loss, cost, damage,
injury or expense arising out of or related to (1) claims of
injury to or death of persons or damage to property
occurring or resulting from the negligence of Tenant, its
agents, employees, invitees, or authorized representatives,
(2) claims for work or labor performed, or for materials or
supplies furnished to or at the request of Tenant or in
connection with performance of any work done for the account
of Tenant within the Premises or Project, and (3) claims
arising from any breach or default on the part of Tenant in
the performance of any covenant contained in this Lease.
Such indemnity shall include without limitation the
obligation to provide all costs of defense against any such
claims including any action or proceeding brought against
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. See Addendum 6. See Addendum 8.
WAIVER OF 9.
SUBROGATION
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LANDLORD'S
REPAIRS AND
SERVICES 10. Landlord shall at Landlord's expense maintain the structural
soundness of the roof, foundations and exterior walls of the
Building in good repair, reasonable wear and tear and acts
of God excepted. The term walls as used herein shall not
include windows, glass or plate glass, doors, special store
fronts or office entries. The term roof as used herein shall
not include skylights, smoke hatches or roof vents. Landlord
shall perform on behalf of Tenant and other tenants of the
Project the maintenance of the public and common areas of
the Project including but not limited to the landscaped
areas, parking areas, driveways, the truck staging areas,
rail spur areas, fire sprinkler systems, sanitary and storm
sewer lines, utility services, electric and telephone
equipment servicing the Building(s), exterior lighting, and
items which affect the operation and exterior maintenance of
the Project, including painting and caulking, which
determination shall be at Landlord's reasonable discretion.
Tenant shall reimburse Landlord for all such 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
reasonable opportunity to repair same. See Addendum 8.
TENANT'S 11. Tenant shall at Tenant's expense maintain all parts of the
REPAIRS Premises in a good clean and secure condition promptly
making all necessary repairs and replacements including but
not limited to all windows, glass, doors and any special
office entries, walls and wall finishes, floor covering,
hearing, ventilating and air conditioning systems, truck
doors, dock bumpers, dock plates and levelers, roofing,
plumbing work and fixtures, downspouts, skylights, smoke
hatches and roof vents. Tenant shall at Tenant's expense
also perform necessary pest extermination and regular
removal of trash and debris. If required by the railroad
company, Tenant agrees to sigh a joint maintenance agreement
governing the use of the rail spur, if any. Tenant, shall,
at its own expense, enter into a regularly scheduled
preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, hearing 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 sixty (60)
days of 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 sole
expense, immediately repair any damage to any demising wall
caused by Tenant or its employees, agents or invitees.
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ALTERATIONS 12. Tenant shall not make, or allow to be made, any structural
or non-structural alterations which exceed Ten Thousand
Dollars ($10,000) in value per alteration, 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, (vb) are
compatible with the Project and its mechanical, plumbing,
electrical, and 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 consent for all plans and specifications
for the proposed alterations or additions, construction
means and methods, any contractor or subcontractor to be
employed on the work of alteration or additions, and the
time for performance of such work. Tenant shall also supply
See Addendum 9 to Landlord any documents and information reasonably
requested by Landlord in connection with its consideration
of a request for approval hereunder. Tenant must have
Landlord's written approval and all appropriate permits and
licenses prior to the commencement of said alterations and
additions. All alterations and additions permitted hereunder
shall be made and performed by Tenant without cost or
expense to Landlord. Landlord shall have the right to
require Tenant to remove any or all alterations, additions,
improvements and partitions made by Tenant and restore the
Premises to their original condition by the termination of
this Lease, by lapse of time or otherwise, all at Tenant's
expense. All such removals and restoration shall be
accomplished in a good workmanlike manner so as not to cause
any damage to the Premises or Project whatsoever. If
Landlord so elects, such alterations, physical additions or
improvements shall become the property of Landlord and
surrendered to Landlord upon the termination of this Lease
by lapse of time or otherwise; provided, however that this
clause shall not apply to trade fixtures or furniture owned
by Tenant. In addition to and wholly apart from its
obligation to pay Tenant's Proportionate Share of Basic
Operating Costs, 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 its alterations,
additions or improvements and on its 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.
SIGNS 13. All signs, notices and graphics of every kind or character,
visible in or from public view or corridors, the common
areas or the exterior of the Premises, shall be subject to
Landlord's prior written approval. Tenant shall not place or
See Addendum 10 maintain any banners whatsoever or any window decor in or on
any exterior window or window fronting upon any common areas
or service area or upon any truck doors or man doors without
Landlord's prior written approval. 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 pay any other requirements imposed by
Landlord. Tenant shall remove all such signs and graphics by
the termination of this Lease. Such installations and
removals shall be made in such manner as to avoid injury to
or defacement of the Premises, Building or Project and any
other improvements contained therein, and Tenant shall
repair any injury or defacement including without limitation
discoloration caused by such installation or removal.
INSPECTION/ 14. After reasonable notice, except in emergencies where no such
POSTING notice shall be required, Landlord, its agents and
NOTICES 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 permitted or 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, encumbrances or others, or for any other purpose
as Landlord may deem necessary or desirable; provided,
however, that Landlord shall not 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. Six months prior to the end of the
lease, 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. -----
ten (10) days prior written notice, except in emergencies
where no such approval shall be required. Tenant shall
accompany Landlord to any such coincidental areas.
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UTILITIES 15. Tenant shall pay 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 of the foregoing utilities and
services, (b) failure to furnish or delay in furnishing any
such utilities or services when such failure or delay is
caused by acts of God or the elements, labor disturbances of
any character, 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. LL shall be entitled to cooperate voluntarily and
in a reasonable manner with the 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.
SUBORDINATION 16. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and subordinate
at all times to (a) (b) any mortgage or deed of trust which
may now exist or be placed upon said Project, or Landlord's
interest or estate in any of 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 mortgage or deed
of trust is foreclosed or a conveyance in lieu of
foreclosure is made of 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, so long as Tenant's
rights are recognized by such successor in interest. Tenant
shall execute and deliver, upon demand by Landlord and in
the form requested by Landlord, any additional documents
evidencing the priority of subordination of this Lease with
respect to any such ground leases or underlying leases or
any such mortgage or deed of trust.
FINANCIAL 17. At the request of Landlord, Tenant shall provide to Landlord
STATEMENTS its current financial statement or other information
discussing financial worth which Landlord shall use solely
for purposes of this Lease and in connection with the
ownership, management and disposition of the property
subject hereto. If Tenant is a corporation whose stock is
publicly-traded, current publicly.
ESTOPPEL 18. Tenant agrees from time to time with fifteen (15) 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.
SECURITY 19.
DEPOSIT
TENANT'S 20. Tenant shall look solely to Landlord' interest in the
REMEDIES Project or to the proceeds of Landlord's liability insurance
for recovery of any judgment from Landlord. Landlord, or if
Landlord is a partnership, its partner whether general or
limited, or if it is a corporation, its directors, officers
or shareholders, shall never be personally liable for any
such judgment. 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. Landlord shall maintain Five Million Dollars
($5,000,000) of general liability insurance with an
insurance carrier with a Best rating of 10 or better.
Landlord shall provide Tenant with proof of such insurance.
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ASSIGNMENT 21. A. Tenant shall not assign or sublet the Premises or any
AND part thereof without Landlord's prior written approval
SUBLETTING 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 thirty (30) 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 (1) to terminate this Lease , or
(2) to permit Tenant to assign this Lease or sublet such
space, subject, however, to Landlord's prior written
approval of the proposed assignee of subtenant and of any
related documents or agreements associated with the
assignment of sublease, such consent not to be unreasonably
withheld so long as the use of the Premises by such proposed
assignee or subtenant would be a Permitted use and would not
increase Occupant Density of the Project, the proposed
assignee or subtenant is of sound financial condition. 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. Failure by Landlord to approve a proposed assignee
or subtenant shall not cause a termination of this Lease.
B. Any Rent or other consideration realized by Tenant under
any such sublease or assignment in excess of Rent payable
hereunder, after amortization (1) the reasonable cost of any
improvements which Tenant has made for the purpose of
assigning or subletting all or part of the Premises and (2)
reasonable subletting and assignment costs, shall be divided
and paid, fifty percent (50%) to Tenant and fifty percent
(50%) to Landlord.
C. In any subletting or assignment undertaken by Tenant,
Tenant shall diligently seek to obtain the maximum rental
amount available in the marketplace to such subletting or
assignment.
D.
E.
F. 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.
QUIET 22. Landlord represents that it has full right and authority to
ENJOYMENT enter into this Lease and that Tenant, upon paying the Rent
and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the
Premises for the Term hereof without hindrance or
molestation from Landlord, subject to the terms and
provisions of this Lease.
CONDEMNATION 23. A. If the whole or any substantial portion of the Project of
which the Premises are a part should be taken or condemned
for any public use or 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. If a portion of the Project of which the Premises are
part should be taken or condemned 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 terminate as provided in the
subparagraph 23A above, this Lease shall not terminate, but
the Rent payable hereunder during the unexpired portion of
the Lease shall be reduced.
C. 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 paragraph, any
compensation specifically awarded Tenant for loss of
business, Tenant's personal property, moving cost or loss of
goodwill, shall be and remain the property of Tenant.
CASUALTY 24. A. If the Premises should be damaged or destroyed by fire,
DAMAGE tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord. Within thirty (30) days
of such notice, Landlord shall notify Tenant whether in
Landlord's opinion such repairs can be made either (1)
within (90) days (2) i more than ninety (90) days but in
less than one hundred fifty (150) days, or (3) in more than
one hundred fifty days (150) from the date of such notice;
Landlord's determination shall be binding on Tenant.
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B. If the Premises should be damaged by fire, tornado or
other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed within
ninety (90) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall not
terminate, and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and
repair the Premises to substantially the condition in which
they existed prior to such 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 by Tenant. 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 reduced.
C. If the Premises should be damaged by fire, tornado or
other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed in more
than ninety (90) days but in less than one hundred fifty
(150) 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
except that Landlord shall not b required to rebuild, repair
or replace any part of the partitions, fixtures, additions
and other improvements which may have been placed in, or
about the Premises by Tenant. 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 reduced in direct proportion to the
area of the Premises reasonably determined to be unusable.
In the event that Landlord should fail to complete such
repairs and rebuilding within one hundred fifty (150) 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 as of public agencies, labor disputes, strikes,
fires, freight embargoes, rainy or stormy weather, inability
to obtain materials, supplies or fuels, or delay of the
contractors or subcontractors due to such causes or other
contingencies beyond the reasonable control of Landlord,
Tenant may at its option terminate this Lease by delivering
thirty (30) days prior written notice of termination to
Landlord as Tenants exclusive remedy, whereupon all rights
and obligations hereunder shall cease and terminate.
D. If the Premises should be so damaged by fire, tornado,
or other casualty that rebuilding or repairs cannot in
Landlord's estimation be completed within one hundred fifty
(150) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall terminate and the
Rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such
damage.
E. Notwithstanding anything herein to the contrary, in the
event that holder of any indebtedness secured by a mortgage
or deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such
holder, whereupon all rights and obligations hereunder shall
cease and terminate.
HOLDING OVER 25. Tenant shall also indemnify and hold Landlord harmless from
any loss or liability resulting from delay by Tenant shall
See Addendum 12 also indemnify and hold Landlord harmless from any loss or
liability resulting from delay by Tenant in surrendering the
Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Alternatively,
if Landlord gives notice of Landlord's consent to Tenant's
holding over, such holding over shall constitute renewal of
the Lease on whatever terms constitute a renewal of this
Lease, and nothing contained in this paragraph shall waive
Landlord's right of 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
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 shall apply.
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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. Vacation or abandonment of the Premises
without prior written notice to Landlord for a continuous
period in excess of five (5) days. 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
subparagraph 26A being deemed such notice to Tenant as
required by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment of
Rent or any other amount due and payable hereunder upon the
date when said payment is due, such failure continuing
without cure by payment of the delinquent Rent and late
charge or other obligations for a period of ten (10) days
after written notice and demand; provided, however, that
except as expressly otherwise provided herein, Landlord
shall not be required to provide such notice more than twice
during the Term, the third such non-payment constituting
default for all purposes hereof without requirements of
notice.
(3) OTHER OBLIGATIONS. Failure to perform any obligations,
agreement or covenant under this Lease other than those
matters specified in subparagraphs (1) and (2) of this
subparagraph 26A, such failure continuing for fifteen (15)
days after written notice of such failure or such longer
period as Landlord determines to be necessary to remedy such
default, provided that Tenant shall continuously and
diligently pursue such remedy at all times until such
default is cured.
(4) GENERAL ASSIGNMENT. A general assignment by Tenant for
the Benefit of creditors.
(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 obligation 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 Tenant's assets or the
premises, if such attachment or other seizure remains
undismissed or undischarged for a period of thirty (30) days
after the levy thereof.
(7) ATTACHMENT. The attachment, execution or other
judicial seizure of all or substantially all of Tenant's
assets of the Premises, if such attachment or other seizure
remains undismissed or undischarged for a period of thirty
(30) days after the levy thereof.
B. REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation to be
paid by Tenant under this Lease shall be construed as
obligations for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any event
of default, Landlord shall have the right, with fifteen (15)
days written notice, to immediately terminate this Lease,
and at anytime thereafter 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.
(3) CONTINUATION AFTER DEFAULT. Even though Tenant has
breached this Lease and/or abandoned the Premises, this
Lease shall continue in effect for so long as Landlord may
enforce all its rights and remedies under this Lease,
including but 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 to 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.
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C. DAMAGES UPON TERMINATION. Should Landlord terminate this
Lease pursuant to the provisions of paragraph 26B(2) hereof,
Landlord shall have all 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 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 the Tenant proves could have been reasonably avoided,
(3) the wroth 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 the
Tenant proves could be reasonably avoided, and (4) any other
amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which, in the ordinary
course of things, 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 with interest at the
maximum rate allowed by law. The "worth at the time of
award" of the amount referred to in (3) 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 plus one percent (1%).
D. LATE CHARGE. In addition to its other remedies, Landlord
shall have the right with three (3) business days to add to
the amount of any payment required to be made by Tenant
hereunder, and which is not paid on or before the date the
same is due, an amount equal to five percent (5%) of the
delinquency for each month or portion thereof that the
delinquency remains outstanding 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.
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 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 the obligation, to cause the same to be released by
such means as it shall deem proper, including payment of the
claim giving rise to such lien. All sums paid by Landlord on
behalf of Tenant and all expenses incurred by Landlord in
connection therefore shall be payable to Landlord on behalf
of Tenant and all expenses incurred by Landlord in
connection therefore shall be payable to Landlord by Tenant
on demand with interest at the maximum rate allowable by
law. Landlord shall have the right at all times to post and
keep posted on the Premises any notices permitted or
required by law, or which Landlord shall deem proper for the
protection of Landlord, the Premises, the Project and any
other party having an interest herein, 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 of a
value of Five Thousand (5,000) which could lawfully give
rise to a claim for mechanics' or materialmen's lien.
SUBSTITUTION 28.
TRANSFERS BY 29. In the event of a sale or conveyance by Landlord of the
LANDLORD Building, the same shall operate to release Landlord from
any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to
the responsibility of the successor in interests of Landlord
in and to this Lease. This Lease shall not be affected by
any such sale and Tenant agrees to attorn to the purchaser
or assignee, so long as Tenant's rights are recognized by
the successor interest.
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RIGHT OF 30. All covenants and agreements to be performed by Tenant under
LANDLORD TO any of the terms of this Lease shall be performed by Tenant
PERFORM at Tenant's sole cost and expense and without any abatement
TENANT'S of Rent. If Tenant shall fail to pay any sum of money, other
COVENANTS than Rent, required to be paid by it hereunder or shall fail
to perform any other act on its 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 fro many obligations of the Tenant, make any such
payment or perform any such act on the 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 maximum rate permitted by law from the date of such
payment by the 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
nonpayment thereof by Tenant as in the case of default by
Tenant in the payment of the Rent.
WAIVER 31. 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 waiver of any preceding
breach by Tenant of any term, covenant 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 condition contained in
this Lease may only be made by a written document signed by
Landlord.
NOTICES 32. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other
requirements with reference to the 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
complied with when and if the following steps are taken:
A. 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 accounts 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. 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 shall be deemed to have
been fully given when deposited in the United States mail,
certified or registered, postage prepaid, and addressed to
the party to be notified at the address for such party
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. 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 n charge of or 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.
ATTORNEYS' 33. In the event either party places the environment of this
FEES Lease, or any part thereof, or the collection of any Rent
due, or to become due hereunder, or recovery of the
possession of the Premises in the hands of an attorney or
files suit upon the same, the prevailing party shall recover
its reasonable attorneys' fees and court costs.
SUCCESSORS 34. This Lease shall be binding upon and inure to the benefit of
AND ASSIGNS Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors, and
to the extent assignment may be approved by Landlord
hereunder, Tenant's assigns.
FORCE 35. Whenever a period of time is herein prescribed for action to
MAJEURE be taken by Landlord or Tenant, Landlord or Tenant 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 or Tenant.
MISCELLANEOUS 36. A. The terms "Tenant" or "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or
feminine, the singular or plural number, individuals, firms
or corporations, and their and each of their respective
successors, executors, administrators and permitted assigns,
according to the context hereof.
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B. Time is of the essence regarding the Lease and all of
its provisions.
C. This Lease shall in all respects be governed by the laws
of the State of California.
D. This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous
negotiations.
E. There have been no representations made by the Landlord
or Tenant or understandings made between the parties other
than those set forth in this Lease and it s exhibits.
F. This Lease may not be modified except by a written
instrument by the parties hereto.
G. 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.
ADDITIONAL Additional Paragraphs 37 through 40 and Addenda 1 through 12.
PROVISIONS
IN WITNESS WHEREOF, the parties hereto have executed this Lease
this day and year first above written.
"LANDLORD"
▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130, Limited Partnership, A Texas
------------------------------------------------------------
Limited Partnership
By:_________________________________________________________
Its:________________________________________________________
"TENANT"
Tandem Computers Incorporated, A Delaware Corporation
------------------------------------------------------------
By:_________________________________________________________
Its:________________________________________________________
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-18-
ADDITIONAL PARAGRAPHS ATTACHED TO AND MADE A PART OF THAT CERTAIN LEASE DATED
JANUARY 26, 1988, BY AND BETWEEN ▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130, LIMITED PARTNERSHIP, A
TEXAS LIMITED PARTNERSHIP, AS LANDLORD, AND TANDEM COMPUTERS, INC., A DELAWARE
CORPORATION, AS TENANT, AND TAKES PRECEDENCE SHOULD THERE BE A CONFLICT WITH THE
LEASE.
Paragraph 37. Option to Re-Lease Premises. Provided Tenant is not, and has not
------------------------------------------
been, in default of its obligations under this Lease, Tenant shall have an
option to re-lease the Premises in "as-is" condition for a term of five (5)
years at ninety-five percent (95%) of the then current market rent (for
comparable one-story office space in the Vallco Park, Cupertino area). In no
event will the monthly rental be less than the rental for the last month of the
previous term.
Tenant shall give Landlord written notice of its intent to exercise its option
at least one hundred eighty (180) days prior to the expiration of the current
lease term. Within fifteen (15) days after Tenant exercises its option to re-
lease, Landlord will provide Tenant with the current market rental, as
determined by Landlord for the extended term. Tenant shall have a forty-five
(45) days from notification by Landlord of option rent to accept Landlord's
current market rent.
The parties are obligated to negotiate in good faith to agree on the market
rental for the five (5) year rental adjustment. If the parties have not
mutually agreed on the market rental adjustment for the five (5) year period
provided herein within forty-five (45) days from notification by Landlord to
Tenant of Landlord's rental determination, each party hereon shall appoint one
representative who shall be a licensed real estate broker experienced in the
leasing of the office space in the County of Santa ▇▇▇▇▇ to act as an
arbitrator. The two (2) arbitrators so appointed shall determine the current
rental value for the subsequent five (5) years for the use to which Tenant is
then utilizing the leased Premises pursuant to which Tenant is then utilizing
the leased Premises pursuant to the terms and conditions of this Lease. The
determination of said current rental value shall be made by said two (2)
arbitrators within ninety (90) days from notification by Landlord to Tenant of
Landlord's rental determination and they shall submit said determination in
writing and signed by said arbitrators in duplicate. One of the written
notifications shall be delivered to Landlord and the other to Tenant.
In the event the two (2) arbitrators of the parties hereto cannot agree on the
current rental value for the premises herein, said two (2) arbitrators shall
appoint a third arbitrator who shall be a licensed real estate broker
experienced in the leasing of office space in the County of Santa ▇▇▇▇▇ to act
as an arbitrator. The current rental value for the subsequent (5) year period
shall be independently determined by the third of said arbitrators, which said
determination shall be made within one hundred twenty (120) days from
notification by Landlord to Tenant of Landlord's rental determination. The role
of the third arbitrator shall then be immediately select from the proposed
resolution of arbitrators #1 and #2 the one that most closely approximates the
third arbitrator's determination of market rental value. The third arbitrator
shall have no right to adopt a compromise or middle ground or any modification
of either of the two final proposed resolutions. The resolution the third
arbitrator chooses as most closely approximating his determination of the
questions in issue shall constitute the decision and award of the arbitrators
and be final and binding upon the parties.
The parties hereto shall pay the charges of the arbitrator appointed by him and
any expenses incurred by such arbitrator. The charges and expenses of the
third arbitrator, as provided herein, shall be paid by the parties herein in
equal shares.
In the event either arbitrator #1 or arbitrator #2 fails to present a market
ental figure within the thirty (30) day period, the rental presented by the
other arbitrator shall be considered final and binding on both parties.
In the event the third arbitrator fails to present a current market rent within
the thirty (30) day period, then by mutual consent of Landlord and Tenant:
(a) The time period shall be extended, or
(b) If Landlord or Tenant do not wish to extend the period, a fourth
arbitrator shall be selected by arbitrator #1 and arbitrator #2 and a new thirty
(30) day period shall begin.
Notwithstanding anything to the contrary herein contained, Tenant's right to
extend the term by exercise of the foregoing option shall be conditioned upon
one of the following: (i) at the time of exercise of the option, and at the
time of the commencement of the extended term, Tenant shall be in possession of
and occupying the Premises for the conduct of its business therein and the same
shall not be occupied by any assignee, subtenant or licensee, the option to
extend being applicable hereunder only with respect to so
ADDITIONAL PARAGRAPHS TO LEASE - Page 1
much of the Premises as is actually occupied by Tenant; or (ii) if Tenant has
sublet or assigned any portion of the Premises under the provisions of Paragraph
21 above prior to Tenant's written notice of its intent to exercise its option,
Tenant may exercise the foregoing option at one hundred percent (100%) rather
than ninety-five percent (95%) of the then current market rent. In no event will
the monthly rental be less than the rental for the last month of the previous
term.
Paragraph 38. Satellite Dish. Tenant shall have the right to install, at
-----------------------------
Tenant's sole expense, a satellite antenna dish on the Premises, provided that
Tenant first obtains prior written approval of the satellite dish size and
location from Landlord. Tenant agrees to abide by all applicable government
rules, laws, and regulations governing the installation, use and operation of
said antenna. Tenant shall have the right to remove said satellite dish
provided that Tenant restores the Premises to their original condition prior to
the expiration or termination of this Lease.
Paragraph 39. Tenant Parking. Tenant shall have the non-exclusive use of on-
-----------------------------
site parking at a ratio of not more than four (4) cars per 1000 square feet of
rentable area.
Paragraph 40. Contingency. This Lease Agreement is contingent upon: 1) the
--------------------------
final execution of the Lease Termination Agreement dated March 16, 1988 between
Sysorex International, Inc., a Delaware Corporation and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130,
Limited Partnership, a Texas Limited Partnership for the Premises at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ and 2) the vacation of the Premises by Sysorex International, Inc.
provided that the aforementioned termination agreement between ▇▇▇▇▇▇▇-▇▇▇▇▇▇
#130 and Sysorex International, Inc. is fully executed and in full effect. This
Lease Agreement shall commence upon the day immediately following the vacation
of the Premises by Sysorex International, Inc.
ADDITIONAL PARAGRAPHS TO LEASE - Page 2
ADDENDA ATTACHED TO AND MADE A PART OF THAT CERTAIN LEASE DATED JANUARY 26,
1988, BY AND BETWEEN ▇▇▇▇▇▇▇-▇▇▇▇▇▇ #130, LIMITED PARTNERSHIP, A TEXAS LIMITED
PARTNERSHIP, AS LANDLORD, AND TANDEM COMPUTERS INCORPORATED, A DELAWARE
CORPORATION, AS TENANT, AND TAKES PRECEDENCE SHOULD THERE BE A CONFLICT WITH THE
LEASE.
Addendum No. 1. Paragraph 2.A. Possession and Lease Commencement
------------------------------------------------------------------
The scheduled term commencement date of this Lease is April 1, 1988 and the
scheduled termination date is March 31, 1993. Notwithstanding said commencement
date, if for any reason Landlord cannot deliver possession of the Premises to
Tenant on said date, Landlord shall not be subject to any liability therefore,
nor shall such failure affect the validity of this Lease or the obligations of
Tenant hereunder, but in such case Tenant shall not be obligated to pay rent
until possession of the Premises is tendered to Tenant; provided, however, that
if Landlord shall not have delivered possession of the Premises within one
hundred twenty (120) days from the said scheduled term commencement date, Tenant
may, at Tenant's option, by notice in writing to Landlord within thirty (30)
days thereafter, cancel this Lease, in which event the parties shall be
discharged from all obligations hereunder and neither party shall have any
further obligations to each other under this Lease Agreement.
If Tenant occupies the Premises prior to said scheduled term commencement
date, said occupancy shall be subject to all provisions hereof, such occupancy
shall not advance the scheduled term termination date, and Tenant shall pay rent
for such period at the initial monthly rates set forth under the Basic Lease
Information.
Possession of the Premises shall take place upon the day immediately
following the vacation of the Premises by Sysorex, Inc. The Premises shall be
delivered to Tenant in "as-is" physical condition. 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.
Addendum No. 2. Paragraph 6. Rent.
-----------------------------------
Rent for the Premises shall be as follows:
Months 1- 30: $52,673.00 per month plus Basic Operating Costs per
Paragraph 7 of the Lease Agreement.
Months 31-60: $55,554.00 per month plus Basic Operating Costs per
Paragraph 7 of the Lease Agreement.
Addendum No. 3. Paragraph 7.A.(1). Basic Operating Costs.
----------------------------------------------------------
Notwithstanding anything to the contrary contained herein, Tenant shall
not, during the first thirty (30) months of the original Lease Term only, be
liable for increases in real property taxes that result from a sale of the
Project by Landlord. This cap on real property taxes shall be applicable only
to this thirty (30) month period and shall not be applicable in the event of a
sale of the Project to Tandem Computers, Inc. during this period.
Addendum No. 4. Paragraph 7.A.(2). Basic Operating Costs.
----------------------------------------------------------
Operating Costs shall not include expenses incurred for business
interruption or rental value insurance.
Addendum No. 5. Paragraph 7.A. Basic Operating Costs.
------------------------------------------------------
Limitation on Basic Operating Cost. Notwithstanding anything to the
contrary contained above, Basic Operating Costs shall not include any of the
---
following:
(i) legal fees, brokerage commissions, advertising costs or
other related expenses incurred by Landlord in connection
with the leasing of other space to individual tenants in
the Project;
ADDENDA TO LEASE AGREEMENT - Page 1
(ii) repairs, alterations, or replacements made to rectify or
correct any original defect in the original design,
materials or workmanship of building or common areas.
However, all other repairs, alterations and replacements,
including those necessitated by wear and tear, are
included in Basic Operating Costs;
(iii) damage and repairs attributable to insured losses due to
fire or other casualty;
(iv) damage and repairs, necessitated by the active negligence
or willful misconduct of Landlord, Landlord's employees,
contractors or agents;
(v) executive salaries or salaries or service personnel to the
extent that such personnel perform services not solely in
connection with the management, operation, repair or
maintenance of the Building;
(vi) Landlord's general overhead expenses not related to the
Building;
(vii) legal fees, accountant's fees and other expenses incurred
in connection with disputes with tenants or occupants of
the Project other than Tenant or associated with the
enforcement of the terms of any leases with tenants or the
defense of Landlord's title to or interest in the Project
or any part thereof; any legal expenses incurred with
disputes with Tenant shall be recovered under the
provisions of Paragraph 33;
(viii) costs (including permit, license and inspection fees)
incurred in renovations or otherwise improving,
decorating, painting or altering interior space for
tenants or other occupants other than Tenant or of vacant
space (excluding common areas) in the Project;
(ix) costs incurred due to a violation by Landlord or any other
tenant of the Project and not caused by Tenant, its
agents, invitees, subleasees, or assignees of the terms
and conditions of a lease;
(x) cost of any service provided to Tenant or other occupants
of the Project for which Landlord is fully reimbursed
except for reimbursement pursuant to this section;
(xi) any other expense which, under generally accepted
accounting principles applicable to real estate
operations, would not be considered a reasonable
maintenance and operating expense except as expressly
specified in this Lease;
(xii) In no event shall the Basic Operating Costs be increased
at a rate which exceeds ten percent (10%) per year over
the previous fiscal year during the first thirty (30)
months of the original Lease Term only. This cap on Basic
Operating Costs increases shall be applicable only to this
thirty (30) month period and shall not be applicable in
the event of a sale of the Project to Tandem Computers,
Inc. during this period.
Addendum No. 6. Paragraph 8.C. Indemnification.
------------------------------------------------
Landlord shall indemnify Tenant and hold Tenant harmless against all
liabilities, charges and expenses (including reasonable attorneys fees, cost of
court and expenses necessary in the prosecution or defense of any litigation) by
reason of injury to person or property, including any liability for injury to
person or property of Landlord, its agents, servants, employees, or invitees,
while in or on the leased Premises during the term of this Lease resulting from
the negligence of Landlord, its agents, servants, employees, invitees or
authorized representatives. Landlord shall indemnify Tenant and hold harmless
Tenant, its officers, agents, employees, parent, subsidiary and affiliate
organizations against any claims, suits, loss, costs (including attorneys fees
and cleanup costs), damage or liability by reason of property damage or personal
injury (including death) to the extent the same results from pollution or toxic
contamination caused by Landlord's actions or inaction, including, but not
limited to, those related to ownership, tenancy, possession, construction,
operation, or use by Landlord or by any other party of the leased Premises other
than Tandem Computers. Tenant shall indemnify Landlord and hold harmless
Landlord, its partners, employees and affiliate organizations against any
claims, suits, loss, costs, (including attorneys fees and cleanup costs), damage
or liability by reason of property damage or personal injury (including death)
to the extent the same results from pollution or toxic contamination caused by
Tenant's actions or inaction, including, but not limited to, those related to
tenancy, possession, construction, operation, or use by Tenant, its agents,
servants, employees, invitees or authorized representatives. This provision
shall survive any termination or expiration of the Lease.
ADDENDA TO LEASE AGREEMENT - Page 2
Addendum No. 7. Paragraph 9. Waiver of Subrogation.
----------------------------------------------------
To the extent permitted by law, and without affecting the coverage provided
by insurance required to be maintained hereunder, Landlord and Tenant mutually
waive all rights of recovery against the other for any loss from perils insured
against in any policy or policies of liability insurance and property insurance
(including that identified in 8.A. and 8.B. above), business interruption
insurance or rental value insurance obtained by either party. The 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 on 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.
Addendum No. 8. Paragraph 10. Landlord's Repairs and Services.
---------------------------------------------------------------
Landlord shall provide Tenant with certification from a licensed mechanical
contractor (within the first thirty [30] days of Tenant's date of occupancy)
that all existing heating and air conditioning units are in good and operable
condition. Tenant shall be responsible for the regularly scheduled preventative
maintenance/service (at least one service call per quarter) by a third party
mechanical contractor as described in Paragraph 11. Tenant shall maintain
records of all service calls and any maintenance required as determined by the
maintenance contractor.
If any of the existing heating and air conditioning units require a major
replacement part(s) (a heat exchanger, motor, compressor, or entire unit) during
the Lease Term, Tenant shall notify Landlord of the possible need to replace
such parts. Landlord may, at its own expense, hire a mechanical contractor to
inspect the heating and air conditioning units to confirm the need to replace a
major replacement part(s).
If Landlord determines from the information supplied by the mechanical
contractor(s) that a major replacement part(s) is required, then Landlord shall
order any such replacement. Tenant shall be responsible for the first One
Thousand Five Hundred Dollars ($1,500) per quarter, or a maximum of Six Thousand
Dollars ($6,000) per year of expenditures for major replacement parts to the
existing heating and air conditioning units. Landlord shall be responsible for
the expenses incurred above One Thousand Five Hundred Dollars ($1,500) per
quarter or above Six Thousand Dollars ($6,000) per year for major replacement
parts.
If Tenant should fail to maintain regularly scheduled preventative
maintenance/service by a mechanical contractor at least once per quarter, then
Tenant shall be liable for all expenses incurred in replacement of major heating
and air conditioning parts.
Landlord shall provide to Tenant, within the first thirty (30) days of
Tenant's occupancy, correspondence from a licensed roofing contractor that the
roof is in good condition as of the date of occupancy. Tenant shall be
responsible for roof leaks on the Premises.
Addendum No. 9. Paragraph 12. Alterations.
-------------------------------------------
In the event that Tenant requires Landlord's approval under the terms of
this Paragraph in order to make an alteration or physical addition and Landlord
consents to said alteration, Landlord shall notify Tenant in writing along with
the consent whether Landlord will require Tenant to remove the alteration and
return the Premises to their original condition by the termination of this
Lease.
Tenant may remove any Tenant-installed raised computer floor tiles and any
Tenant-installed computer room air conditioning units which are not roof-
mounted, provided that the Premises are restored to their original condition by
the termination of this Lease. Any additions or alterations made by Tenant
shall conform to all applicable building codes and standards.
Addendum No. 10. Paragraph 13. Signs.
--------------------------------------
Tenant shall have the right to construct and install, at Tenant's sole
expense, a freestanding monument type identification sign in front of the
Building, provided that Tenant first obtains prior written approval of the sign
size, design, and location from Landlord. Tenant shall obtain all applicable
governmental approval for the sign at its sole expense. All of Tenant's signs
shall at all times remain the property of Tenant and Tenant must remove its
signs at the expiration or earlier termination of the Lease Agreement. Tenant
shall repair any damage caused in the removal of its sign.
ADDENDA TO LEASE AGREEMENT - Page 3
Addendum No. 11. Paragraph 21. Assignment and Subletting.
----------------------------------------------------------
Tenant may assign or sublet the entire Premises, or any portion thereof,
without Landlord's consent, to any corporation which controls ("control" shall
mean 50% ownership or more), is controlled by or is under common control with
the Tenant, or to any corporation resulting from the merger or consolidation
with Tenant, or to any person, legal entity which acquires all the assets of
Tenant as a going concern of the business that is being conducted on the
Premises provided that the net worth of the corporation, person or entity is
greater than or equal to the net worth of Tandem Computers, Inc., at the date of
execution of this Lease, and provided that said assignee assumes, in full, the
obligations of Tenant under this Lease. Any such assignment shall not, in any
way, affect or limit the liability of Tandem Computers, Inc. under the terms of
this Lease.
Addendum No. 12. Paragraph 25. Holding Over.
---------------------------------------------
If Tenant shall retain of the Premises or 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
according to the following schedule:
Days 1 - 30: 110% of the daily rental for the last month
prior to the date of expiration or
termination.
Days 31 - 60: 125% of the daily rental for the last month
prior to the date of expiration or
termination.
Days 61 and thereafter: 15% of the daily rental for the last month
prior to the date of expiration or
termination.
ADDENDA TO LEASE AGREEMENT - Page 4
[EXHIBIT A is a map or diagram of the property.]
LEGAL DESCRIPTION:
------------------
All that certain real property situate in the City of Cupertino, County of Santa
▇▇▇▇▇, State of California, described as follows:
COMMENCING at the intersection of the prolongation of the Easterly line of that
certain 19.27 acre tract conveyed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, et al to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, by Deed dated November 25, 1914, and recorded November 25, 1914, in
Book 423 of Deeds, at Page 424, Santa ▇▇▇▇▇ County Records, with the Southerly
line of Lot 5 as said Lot 5 is shown upon that certain Map entitled, "MAP OF
PARTITION OF THE ▇▇▇▇▇▇▇▇▇▇▇ ESTATES IN THE QUITO-RANCHO", which Map was filed
for record in the office of the County Recorder of Santa ▇▇▇▇▇ County on October
24, 1884 in Book "B" of Maps at Page 15; thence Easterly along the said
Southerly line of ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ degrees 24' 39" East 513.56 feet; thence South
0 degrees 26' 11" West 954.95 feet; thence North 67 degrees 29' 18" East 40.72
feet to the True Point of Beginning; thence from said True Point of Beginning
along the Westerly line of said 10.00 foot wide strip of land, North 0 degrees
26' 11" East 660.07 feet; thence along the arc of a curve to the right having a
radius of 50.00 feet through a central angle of 88 degrees 581 31" at an arc
length of 77.65 feet; thence North 89 degrees 24' 42" East 250.94 feet to a
point on the Easterly line of the tract of land conveyed to ▇▇▇ ▇▇▇▇▇▇▇▇, et ux,
by Deed recorded October 5, 1944 in Book 1227 of Official Records, Page 30;
thence along said Easterly line South 0 degrees 48' West 580 feet to the
Southeasterly corner of said Lot 4, as said Lot 4 is shown upon that certain Map
entitled, "MAP OF THE PARTITION OF THE ▇▇▇▇▇▇▇▇▇▇▇ ESTATES IN THE QUITO-RANCHO",
which Map was filed for record in the office of the County Recorder of Santa
▇▇▇▇▇ County on October 24, 1884 in Book "B" of Maps, at Page 15; thence along
the Southeasterly line of said ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ degrees 29' 18" West 320 feet
more or less to the True Point of Beginning.
EXHIBIT A
Tenant Improvements
-------------------
None. Tenant shall accept the premises in "as is" condition.
EXHIBIT "B"