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EXHIBIT 10.8
WATERGATE OFFICE LEASE
1. PARTIES; BASIC LEASE PROVISIONS; DEFINED TERMS
1.1 Parties. This Watergate Office Lease ("Lease") is entered into
in the City of Emeryville, County of Alameda, State of California, between
▇▇▇▇▇▇▇ Properties, L.P., a California limited partnership ("Landlord"), and
Extensity, Inc., a Delaware corporation ("Tenant").
1.2 Basic Lease Provisions. The following Basic Lease Provisions
constitute an integral part of this Lease, and each reference in this Lease to
the Basic Lease Provisions shall mean the provisions set forth in this Paragraph
1.2. Section references in this Paragraph 1.2 are to the section in which the
particular Basic Lease Provision is first discussed. In the event of any
conflict between the Basic Lease Provisions and the remainder of the Lease, the
latter shall control.
Lease Date: ________________________
Address of Landlord: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Address of Tenant: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
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Section 2: Premises: Suite 455
Building: Tower II
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Premises Rentable Area: 3,403 square feet
Premises Useable Area: 2,934 square feet
Building Rentable Area: 215,550 square feet
Tenant Parking: 6 permits
Parking Charge: $44.00 per permit
Section 3: Term: 17 months
Commencement Date: January 15, 1998
Expiration Date: June 15, 1999
Section 4: Base Rent: Stepped as follows:
1/15/98-1/30/98 $4,338.91 per month
2/01/98-2/01/99 $7,656.75 per month
2/01/99-5/31/99 $7,963.02 per month
6/01/99-6/15/99 $3,981.45 per month
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Security Deposit: $7,963.02
Base Year: 1998
Tenant's Share: 1.58 percent
1.3 Defined Terms. Words and phrases which are capitalized in this
Lease (other than words which are capitalized solely to denote the beginning of
sentences) are defined terms. The definitions of such words and phrases are set
forth in Section 17 of this Lease.
2. PREMISES; COMMON AREAS; TENANT PARKING
2.1 Demise of Premises. On and subject to the terms, covenants and
conditions set forth in this Lease, Landlord demises the Premises to Tenant and
Tenant rents and hires the Premises from Landlord. The usable and rentable area
of the Premises, and the rentable area of the Building, for all purposes under
this Lease, are stipulated to be as specified in the Basic Lease Provisions.
Landlord shall not be liable to Tenant, nor shall Tenant have any claim against
Landlord or defense to the enforcement of this Lease, if it is determined that
the actual rentable or usable area of the Premises or the rentable area of the
Building differs from that specified in the Basic Lease Provisions.
2.2 Condition of Premises. Except as otherwise expressly provided in
a Scope of Work executed by Landlord and Tenant concurrently with their
execution of this Lease. Tenant shall accept the Premises in an "as is"
condition on the date the Term commences and Landlord shall have no obligation
to improve, alter, remodel or otherwise modify the Premises prior to Tenant's
occupancy. Landlord shall construct or install in the Premises only the
improvements specified in the Scope of Work. The Scope of Work, if any, will be
attached as Exhibit B to this Lease, and Landlord shall use reasonable diligence
to cause the Substantial Completion of Landlord's Work pursuant to the Scope of
Work in a timely manner.
2.3 Common Areas. During the Term, Tenant shall have the
nonexclusive right to use of the Common Areas for their intended and usual
purpose. However, the manner in which the Common Areas are maintained shall be
at the sole reasonable discretion of Landlord and use thereof shall be subject
to the Rules and Regulations. Landlord reserves the right to make alterations,
additions or deletions to, or to change the location of elements of the Common
Areas, Building or Office Complex, and to use the roof, exterior walls and the
area above and beneath the Premises, together with the right to install, use,
maintain and replace equipment, machinery, pipes, conduits and wiring through
the Premises, which serve other parts of the Building or Office Complex, in a
manner and in locations which do not unreasonably interfere with Tenant's use of
or access to the Premises.
2.4 Tenant Parking. Tenant shall have the right to obtain the number
of parking permits designated as Tenant Parking in the Basic Lease Provisions,
and each such permit shall authorize Tenant or its employees to park one
passenger automobile in the Parking Facilities. Issuance of such parking permits
shall be subject to Tenant's payment of the Parking Charge for each permit
specified in the Basic Lease Provisions, which Parking Charge shall be payable
on the first day of each calendar month during the Term and may be increased by
Landlord at any time, and from time to time during the Term upon not less than
thirty (30) days prior written notice to Tenant. Tenant and
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its employees shall at all times observe such terms and conditions and charges
as may be established by Landlord from time to time concerning the operation and
use of the Parking Facilities. Tenant's employees shall not be entitled to park
in areas located in the Parking Facilities designated by Landlord for reserved
parking or for use by visitors to the Office Complex.
3. TERM
3.1 Period. The Term shall be for the period specified in the Basic
Lease Provisions. The Term shall commence on the Commencement Date and shall end
on the Expiration Date, as such dates are determined under Paragraph 3.2 below,
unless sooner terminated pursuant to any provision of this Lease.
3.2 Term Commencement. The anticipated Commencement Date and the
corresponding Expiration Date are specified in the Basic Lease Provisions.
However, the actual Commencement Date shall be the earlier of (a) the date
Tenant first occupies any part of the Premises, or (b) the date of Substantial
Completion of the Landlord's Work or (c) the date established by Landlord in the
event of a delay by Tenant, as provided in Paragraph 3.3(ii) below; and the
Expiration Date shall be adjusted so that the period between the actual
Commencement Date and the Expiration Date is equal to the Term specified in the
Basic Lease Provisions. If the actual Commencement Date and the Expiration Date
differ from those inserted in the Base Lease Provisions as of the Lease Date,
then promptly after the Commencement Date Landlord and Tenant shall execute a
written acknowledgment of the Commencement Date and the Expiration Date, and
attach it as Exhibit C to this Lease.
3.3 Delayed Occupancy.
(i) Landlord shall use reasonable diligence to
substantially complete any Landlord's Work on or before the Commencement Date
specified in the Basic Lease Provisions. However, this Lease shall not be void
or voidable, nor shall Landlord or its agents or contractors have any liability
to Tenant, by reason of Landlord's failure to substantially complete Landlord's
Work by the Commencement Date specified in the Basic Lease Provisions, or by
reason of Landlord's failure to deliver possession of the Premises due to any
other cause beyond Landlord's reasonable control, and postponement of Tenant's
rental obligation prior to delivery of possession of the Premises shall be
Tenant's exclusive remedy and in sole satisfaction of all claims Tenant might
otherwise have been reason of Landlord's failure to deliver the Premises by the
Commencement Date specified in the Basic Lease Provisions.
(ii) Time is of the essence in connection with the
delivery to Landlord of each and every drawing, plan, specification, schedule or
other item required to be given by Tenant to Landlord or to be approved by
Tenant pursuant to the schedule in and provisions of the scope of Work.
Accordingly, notwithstanding any contrary provision of this Lease, if Landlord
is delayed in the Substantial Completion of Landlord's Work as a result of (a)
Tenant's failure to approve plans, specifications, changes, cost estimates and
other items within the time limits specified therefor in the Work Letter, or (b)
any change by Tenant in said plans, specifications, or other items after the
expiration of such time limits, or (c) any default by Tenant relating to its
obligations hereunder or under the Scope of Work, then, in any or all such
instances and without limitation as to
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any other right or remedy available to Landlord. Landlord may under clause (c)
of Paragraph 3.2 determine in its sole reasonable discretion that the actual
Commencement Date is the date that Substantial Completion of Landlord's Work
would have occurred but for such delay.
3.4 Holding Over. Tenant shall not be entitled to remain in
possession of the Premises after the Expiration Date or after earlier
termination of this Lease, except with Landlord's prior written consent. Any
such continuance of possession with Landlord's consent shall constitute a
month-to-month tenancy on all of the terms and conditions of this Lease, except
that the Base Rent shall be 150% of the Base Rent in effect as of the Expiration
Date or the earlier termination date. Any such continuance in possession without
Landlord's consent (or after such consent has been withdrawn upon thirty (30)
days' notice to Tenant) shall constitute an unlawful detention of the Premises;
and Tenant shall indemnify, defend and hold Landlord harmless from all claims,
losses or liability resulting from Landlord's inability to timely deliver
possession of the Premises to any succeeding tenant.
4. BASE RENT; SECURITY DEPOSIT; OPERATING COSTS; TAXES
4.1 Base Rent. Tenant shall pay to Landlord as monthly Base Rent for
the Premises, in advance, without deduction, setoff, prior notice or demand, the
sum specified in the Basic Lease Provisions. The first month's Base Rent shall
be paid upon Tenant's execution of this Lease, and the Base Rent for each
calendar month thereafter during the Term shall be paid on the first day of each
such calendar month. If the Commencement Date occurs on a day other than the
first day of a calendar month, the Base Rent payable for the first calendar
month of the Term shall be prorated on the basis which the number of days of the
Term in the first month bears to the total number of days in such month and, in
such case, Tenant shall pay such prorated Base Rent to Landlord on the
Commencement Date, and the first month's Base Rent paid upon execution of this
Lease shall be credited against the Base Rent for the second calendar month. If
the Term ends on a day other than the last day of a calendar month, the Base
Rent payable for the last calendar month of the Term shall be prorated on the
basis which the number of days of the Term in the last calendar month bears to
the total number of days in such month.
4.2 Security Deposit.
(i) Upon Tenant's execution of this Lease, Tenant
shall deposit with Landlord the sum specified as the Security Deposit in the
Basic Lease Provisions, which shall be held by Landlord as security for the
faithful performance by Tenant of all of the terms, covenants, and conditions of
this Lease, it being expressly understood and agreed that the Security Deposit
is not an advance deposit for rent or a measure of Landlord's damages in case of
Tenant's default. If at any time Tenant's Base Rent is increased, the Security
Deposit shall also be increased by the same percentage as the increase in Base
Rent and Tenant shall, within ten (10) days after receipt of notice of such
increase in Base Rent, deposit cash with Landlord in an amount sufficient to
effect such adjustment.
(ii) The Security Deposit may be retained, used or
applied by Landlord to remedy any default by Tenant, to repair damage caused by
Tenant to any part of the
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Premises of the Building, and to clean the Premises upon expiration or earlier
termination of this Lease, as well as to reimburse Landlord for any amount which
Landlord may spend by reason of Tenant's default or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of the Security Deposit is so used or applied. Tenant
shall, within ten (10) days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount required hereunder, and Tenant's failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep the Security
Deposit separate from its general funds, and Tenant shall not be entitled to
interest on, or any other compensation for, Landlord's retention of the Security
Deposit. Tenant may not elect to apply any portion of the Security Deposit
toward payment of Base Rent or any other amounts payable by Tenant under this
Lease, although Landlord may elect to do so in the event Tenant is in default or
is insolvent. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at Tenant's last known address (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) within thirty (30)
days after the Term has ended and Tenant has vacated the Premises.
4.3 Operating Costs. Tenant shall pay to Landlord Tenant's Share of
the Increased Operating Costs as follows:
(i) Landlord shall submit to Tenant, before January
1 of each Subsequent Year, or as soon thereafter as Landlord has sufficient
data, a reasonably detailed statement showing the estimated Increased Operating
Costs for such Subsequent Year, which determination shall be made by Landlord
based upon experience with actual costs and projections. At the first monthly
Base Rent Payment date following the submittal of such statement and at each
succeeding monthly rent payment date thereafter during the Subsequent Year,
Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of the
Increased Operating Costs. If Landlord does not submit said statement to Tenant
prior to January 1 of any Subsequent Year, Tenant shall continue to pay Tenant's
Share of the Increased Operating Costs at the then existing rate until such
statement is submitted and, thereafter, at the monthly Base Rent payment date
next following the submittal of such statement Tenant shall pay Tenant's Share
of the Increased Operating Costs based on the rate set forth in such statement
plus, if the new rate is greater than the old rate, the difference accrued from
January 1 of such Subsequent Year. Landlord may revise such estimated Increased
Operating Costs at the end of any calendar quarter.
(ii) On or before March 31 of the second and each
succeeding Subsequent Year or as soon thereafter as Landlord has sufficient
data, Landlord shall submit to Tenant a reasonably detailed statement showing
the actual Building Operating Costs paid or incurred by Landlord during the
previous calendar year. If Tenant's Share of the actual Increased Operating
Costs is less than the amount of Tenant's Share of the estimated Increased
Operating Costs for the previous Subsequent Year theretofore paid by Tenant,
Landlord shall credit such difference against the next Increased Operating Costs
payments coming due. If Tenant's Share of the actual Increased Operating Costs
is more than the amount of Tenant's Share of the estimated Increased Operating
Costs for such previous Subsequent Year theretofore paid by Tenant, Tenant shall
pay to Landlord
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the full amount of such difference at the monthly Base Rent payment date next
following the submittal of such statement to Tenants.
(iii) If the Expiration Date or the date of earlier
termination of this Lease is other than December 31, the Operating Costs for
both the Base Year and the last Subsequent Year shall be prorated based on what
the number of days in the Term in the last Subsequent Year bears to 365; and any
amounts owed or to be credited pursuant to Paragraph 4.3.2 shall be paid at the
time in the last Subsequent Year, or in the calendar year immediately following
the last Subsequent Year, that such amount is calculated pursuant to Paragraph
4.3(ii).
4.4 Taxes Payable By Tenant. Tenant shall pay before delinquency any
and all taxes levied or assessed and which become payable by Tenant or directly
or indirectly by Landlord during the term (excluding, however, state and federal
personal or corporate income taxes measured by the income of Landlord from all
sources, capital stock taxes, and estate and inheritance taxes), whether or not
now customary or within the contemplation of the parties hereto, which are based
upon, measured by or otherwise calculated with respect to: (a) the gross or net
rental income of Landlord under this Lease, including, without limitation, any
gross receipts tax levied by any taxing authority, or any other gross income tax
or excise tax levied by any taxing authority with respect to the receipt of the
rental payable hereunder; (b) the value of Tenant's equipment, furniture,
fixtures or other personal property located in the Premises: (c) the possession,
lease, operation, management, maintenance, alteration, repair, use or occupancy
by Tenant of the Premises or any portion thereof; (d) the value of any leasehold
improvements, alterations or additions made in or to the Premises, regardless of
whether title to such improvements, alterations or additions shall be in Tenant
or Landlord; (e) this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises.
4.5 Late Charges and Interest. All amounts payable under this Lease
shall be paid in lawful money of the United States of America. Any amount of
Base Rent, Tenant's Share of Increased Operating Costs, Parking Charges or any
other amount payable under this Lease which is not paid within ten (10) days
after it is due shall be subject to a late charge of 5% of the amount unpaid.
Any amount due to Landlord that is not paid when due shall bear interest at the
Overdue Rate, except that no interest shall accrue for the month in which a late
charge is assessed. Tenant's failure to perform any monetary obligations under
this Lease shall have the same consequences as Tenant's failure to pay Base
Rent.
5. USES
5.1 Authorized. Tenant shall use the Premises solely for general
office purposes and for no other purpose. Tenant shall not use or permit or
suffer the Premises or any part thereof to be used for any purpose other than
the purpose expressly authorized herein.
5.2 Suitability. Tenant acknowledges that neither Landlord nor any
agent of Landlord has made any representation or warranty with respect to the
Premises, the Building or the Office Complex, or with respect to the suitability
of same for the conduct of Tenant's business, except as
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expressly provided in this Lease. Tenant's acceptance of possession of the
Premises shall conclusively establish that the foregoing were at such time in
satisfactory condition.
5.3 Insurance. Tenant shall not do or suffer anything to be done in
or about the Premises, nor shall Tenant bring or allow anything to be brought
into the Premises, which will in any way increase the rate of any fire insurance
or other insurance upon the Building or its contents, cause a cancellation of
said insurance or otherwise affect said insurance in any manner.
5.4 Laws. Tenant shall not do or suffer anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or other governmental rule, regulation or requirement now in force or
which may be subsequently enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with each and all of said governmental measures and
also with the requirements of any board of fire underwriters or other similar
body now or hereafter constituted to deal with the condition, use or occupancy
of the Premises, excluding structural changes not related to or affected by
Tenant's alterations, additions or improvements. Without limiting the generality
of the foregoing, Tenant will maintain throughout the Term a copy of the most
current list of chemicals known to the State of California to cause cancer or
reproductive toxicity, as published by the State Health and Welfare Agency in
accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986
("Proposition 65"). Tenant will monitor the chemicals Tenant maintains on the
Premises and will comply with both the warning requirements and the discharge
prohibitions of Proposition 65 for all chemicals on the Premises that appear on
such list. The judgment of any court of competent jurisdiction or the admission
of Tenant in any judicial action, regardless of whether Landlord is a party
thereto, that Tenant has violated any of said governmental measures or
requirements shall be conclusive of that fact as between Landlord and Tenant.
5.5 Nuisance. Tenant shall not place or permit to be placed on any
floor a load exceeding the floor load which such floor was designed to carry.
Tenant also shall not do or suffer anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy said tenants or occupants, nor
shall Tenant use or suffer the Premises to be used for any unlawful purposes. In
no event shall Tenant cause or permit any nuisance in or about the Premises, and
no loudspeakers or similar devices shall be used without the prior written
approval of Landlord, which approval may be withheld in Landlord's sole
discretion. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. The provisions of this paragraph are for the benefit of
Landlord only and shall not be construed to be for the benefit of any tenant or
occupant of the Building.
5.6 Rules and Regulations. Tenant shall comply with the Rules and
Regulations for the Building, together with all modifications and additions
thereto adopted by Landlord from time to time. If there is any conflict between
the Rules and Regulations and the provisions of this Lease, the provisions of
this Lease shall prevail. Landlord shall not be responsible to Tenant for the
nonperformance of any of the Rules and Regulations by any other tenants or
occupants of the Building.
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6. SERVICES AND UTILITIES
6.1 Basic Services by Landlord. Provided Tenant is not in default
under this Lease, and subject to the provisions elsewhere in this Lease and to
the Rules and Regulations of the Building, Landlord shall furnish the Premises
with: (a) water, sewage and electricity suitable in Landlord's judgment for the
intended use of the Premises and for the operation of a reasonable number, based
on customary use for general office purposes, of desktop office machines and
ordinary copying machines; (b) heat and air conditioning between 8:00 a.m. and
5:00 p.m. on days other than Saturdays, Sundays and generally recognized
holidays, in an amount reasonably required in Landlord's judgment for the
comfortable occupation of the Premises; (c) elevator service, which shall mean
service by non-attended automatic elevators or elevators with attendants, either
or both, at the option of Landlord; and (d) daily janitorial service (five
nights per week) similar to that which is provided in comparable office
buildings in the Oakland/Emeryville area. Landlord shall maintain the Common
Areas in a clean and orderly manner and in a good state of repair.
6.2 Additional Heating and Air Conditioning. Landlord shall use
reasonable efforts to provide additional or after-hours heating or air
conditioning at Tenant's request, provided Tenant pays to Landlord the cost of
such services as determined solely by Landlord based upon Landlord's reasonable
estimates of the costs of such additional services, plus a reasonable charge
(not to exceed 10% of the cost of such services) for Landlord's overhead
expense. Tenant shall keep all draperies closed when necessary because of the
sun's position and at all times cooperate fully with Landlord and abide by all
the regulations and requirements which Landlord may prescribe from time to time
for the proper functioning and protection of the heating, ventilating and air
conditioning systems. Whenever heat-generating machines or equipment or lighting
used in the Premises by Tenant affect the temperature otherwise maintained by
the air conditioning system, Landlord shall have the right to install any
machinery and equipment Landlord deems necessary to restore the temperature
balance in any affected part of the Building, including but not limited to
modifications to the Building's air conditioning system or installation of
supplementary air conditioning units. Tenant shall pay the cost thereof,
including installation and any additional costs of operation and maintenance
occasioned thereby, to Landlord upon demand.
6.3 Special Apparatus. Tenant shall not, except with Landlord's
prior written consent, which consent may be withheld in Landlord's sole
discretion, either: (a) use any apparatus or device in the Premises which will
increase the amount of cooling, ventilation, electricity or water supplied to
the Premises beyond that usually supplied for general office use; or (b) connect
with electric current or water pipes any device or apparatus for the purpose of
using electrical current or water, except as such connections now exist or as
may be provided for the Scope of Work. If Landlord consents to the use and/or
connection of any apparatus or device described in clauses (a) and (b) above,
Landlord may install meters and similar monitoring devices to measure the amount
of utilities consumed by such apparatus or devices and Tenant shall pay for the
cost of all work and materials required for the installation, maintenance and
use of such meters and monitoring devices. If Landlord elects not to install a
special meter or monitoring device, Landlord shall determine the amount of
additional utilities and resources consumed by such apparatus or device based
upon Landlord's reasonable estimates and best judgment, and such determination,
made in good faith by
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Landlord, shall be conclusive on Tenant. Tenant shall pay to Landlord promptly
upon demand the cost of any excess use of utilities and resources based on the
rates charged by the local public utility company or other supplier furnishing
same, plus any additional expense incurred by Landlord in keeping account of the
foregoing and administering same.
6.4 Interruption In Service. Landlord shall use reasonable efforts
to remedy any interruption in the furnishing of services and utilities. However,
Landlord shall not be in default under this Lease or liable for any damages
directly or indirectly arising from, nor shall the rent be abated by reason of,
any failure to provide or any reduction in any of the above services or
utilities if such failure or reduction is caused by the making of repairs or
improvements to the Premises or the Building, the installation of equipment,
acts of God or the elements, labor disturbances of any character, or any other
events or conditions whatsoever beyond the reasonable control of Landlord, or
rationing or restrictions on the use of said services and utilities due to
energy shortages or other causes, whether or not any of the above result from
acts or omissions of Landlord. Furthermore, Landlord shall be entitled to
cooperate voluntarily in a reasonable manner with the efforts of national, state
or local governmental bodies or utilities suppliers in reducing energy or other
resources consumption. The failure of Landlord to provide the utilities and
services specified in this Section 6 shall not constitute a constructive or
other eviction of Tenant.
6.5 Tenant's Other Utilities. Tenant shall pay prior to delinquency
for all telephone and all other materials and services not expressly required to
be provided by Landlord, which may be furnished to or used in, on or about the
Premises during the Term.
7. TENANT'S ALTERATIONS: PROTECTION AGAINST LIENS
7.1 Landlord's Consent Required. Tenant shall not make or permit to
be made any alterations, additions or improvements to the Premises or any part
thereof, without first obtaining Landlord's written consent. When applying for
such consent, Tenant shall, if required by Landlord, furnish complete plans and
specifications for such alterations, additions or improvements. All alterations,
additions or improvements to the Premises shall be performed by contractors
selected and supervised by Landlord for Tenant's account and at Tenant's sole
cost and expense. Within ten (10) days after receipt of a written statement from
Landlord, Tenant shall reimburse Landlord for all costs arising in connection
with Landlord's review of plans and specifications and supervision of
contractors. Landlord shall have the right to require that any contractor
performing alterations, improvements or additions to the Premises shall, prior
to commencement of any work, provide Landlord with a performance bond and labor
and materials payment bond in the amount of the contract price for the work,
naming Landlord and Tenant (and any other persons designated by Landlord as
co-obligees). All alterations, additions, fixtures and improvements, including
without limitation all improvements made pursuant to a Scope of Work, whether
temporary or permanent in character, made in or upon the Premises either by
Landlord or Tenant, shall at once belong to Landlord and become part of the
Premises and shall remain on the Premises without compensation of any kind to
Tenant, unless Landlord requires their removal under Paragraph 7.2 below. Tenant
shall carry insurance as required by Section 10 covering any improvements,
alterations or additions to the Premises made or paid for by Tenant, it being
understood and agreed that none of such
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alterations, additions or improvements shall be insured by Landlord nor shall
Landlord be required under any provision of this Lease to repair, reconstruct or
reinstall any such alterations, additions or improvements. Movable furniture
equipment which are removable without material damage to the Building or the
Premises shall remain the property of Tenant.
7.2 Removal of Tenant's Alterations. Notwithstanding any contrary
provision in this Lease, Tenant shall, upon Landlord's written request made
prior to or within thirty (30) days following the Expiration Date or the earlier
termination of this Lease, promptly remove any alterations, additions, fixtures
or improvements designated by Landlord to be removed and repair any damage to
the Premises resulting from such removal. Landlord may, in connection with any
such removal which might in Landlord's judgment involve damage to the Premises,
require that such removal be performed by a bonded contractor or other person
for whom a bond satisfactory to Landlord has been furnished covering the cost of
repairing the anticipated damage.
7.3 Protection Against Liens. Tenant shall keep the Premises, the
Building and the Common Areas free from any liens arising out of work performed,
materials furnished, or obligations incurred by Tenant and shall indemnify, hold
harmless and defend Landlord from any liens and encumbrances arising out of any
work performed or materials furnished by or at the direction of Tenant. In the
event that Tenant shall not, within twenty (20) days following imposition of any
such lien, cause such lien to be released of record by payment or posting of a
proper bond, Landlord shall have, in addition to all other remedies provided in
this Lease and by law, the right, but no obligation, to cause the same to be
released by such means as Landlord shall deem proper, including payment of the
claim giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith, including attorneys' fees and costs,
shall be payable by Tenant upon demand with interest at the Overdue Rate from
the date such sums are paid or expenses incurred by Landlord. 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 and the Premises, and any other party having an interest
therein, from mechanics' and materialmen's liens, and Tenant shall give to
Landlord at least ten (10) business days' prior written notice of the date of
commencement of any work relating to alterations, additions or improvements in
or to the Premises.
8. MAINTENANCE AND REPAIRS
8.1 Landlord's Obligations. Subject to Sections 15 and 16, Landlord
shall maintain in good order, condition and repair the structural portions of
the Building including the exterior walls, underflooring and roof, the basic
heating, ventilating, air conditioning, plumbing, electrical, and fire detection
and security systems, and all other portions of the Premises not the obligation
of Tenant or any other tenant in the Building. However, if any such maintenance
or repair becomes necessary in whole or in part because of wrongful acts or
omissions by Tenant or Tenant's employees, agents, invitees or customers, or
because of a breaking and entering, Tenant shall pay the entire cost thereof
upon demand. Landlord shall not be liable to Tenant, and rent shall not be
abated, for any failure by Landlord to maintain and repair areas which are being
used in connection with construction of improvements, or for any failure to make
any repairs or perform any maintenance unless such failure
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shall continue for an unreasonable time after written notice of the need
therefor is given to Landlord by Tenant. Landlord shall also not be liable under
any circumstances for loss of profits or for injury to or interference with
Tenant's business arising from or in connection with the making of or the
failure of Landlord to make any repairs, maintenance, alterations or
improvements in or to any portion of the Building or the Common Areas or in or
to fixtures, appurtenances and equipment therein.
8.2 Tenant's Obligations
(i) Tenant shall maintain the Premises in good
order, condition and repair including the interior surfaces of the ceilings,
walls and floors, all doors, interior windows, and all plumbing pipes, valves
and fixtures, electrical wiring, panels, switches, and all other fixtures and
equipment installed for the use of the Premises by Tenant. Tenant expressly
waives the benefit of any statute, ordinance or judicial decision now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
(ii) Upon the Expiration Date or the earlier
termination of this Lease, Tenant shall surrender the Premises in the same
condition as received, except for ordinary wear and tear and damage by fire,
earthquake, acts of God or the elements, not caused by the wrongful omission of
Tenant or Tenant's agents, and shall promptly remove or cause to be removed, at
Tenant's expense, from the Premises and the Building any signs, notices and
displays placed by Tenant.
(iii) Tenant shall repair any damage to the Premises
or the Building caused by or in connection with the removal of any articles of
personal property, business or trade fixtures, machinery, equipment,
cabinetwork, furniture, movable partitions or permanent improvements or
additions, including without limitation, repairing the floor and patching and
painting the walls where required by Landlord to Landlord's reasonable
satisfaction, but excluding any damage caused by reasonable use. Tenant shall
indemnify Landlord against any loss or liability resulting from delay by Tenant
in so surrendering the Premises, including without limitation, any claims made
by any succeeding tenant founded on such delay.
(iv) Tenant shall do all acts required to comply with
all applicable laws, ordinances, regulations and rules of any public authority
relating to Tenant's use and occupancy of the premises.
(v) If Tenant fails to maintain the Premises in good
order, condition and repair, or to comply with applicable laws, ordinances,
regulations or rules, Landlord shall give Tenant notice to do such acts as are
reasonably required to satisfy its obligations under this paragraph. If Tenant
fails to promptly commence such work and diligently prosecute it to completion,
Landlord shall have the right, but no obligation, to do such acts and expend
such funds as are reasonably required to perform such work. Any amount so
expended by Landlord shall be paid by Tenant promptly after demand with interest
at the Overdue Rate from the date of such work.
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Landlord shall have no liability to Tenant for any damage, inconvenience or
interference with the use of the Premises by Tenant as a result of performing
any such work.
9. INDEMNITY AND EXEMPTIONS OF LANDLORD
9.1 Indemnity. Tenant shall indemnify, hold harmless, and defend
Landlord against any and all claims of liability for any death or injury to any
person or damage to any property whatsoever occurring in, on or about the
Premises or any part thereof, or occurring in, on or about any of the Common
Areas, when such injury or damage is caused in whole or in part by the act,
negligence, fault or omission of any duty with respect to the same by Tenant,
its agents, contractors, employees, invitees or customers. Tenant shall further
indemnify, hold harmless and defend Landlord from and against any and all
claims, actions and liabilities arising from (a) any breach or default in the
performance of any obligation on Tenant's part to be performed under this Lease,
or (b) arising from any act or negligence of Tenant, or any of its agents,
contractors, invitees or employees, or (c) any Environmental Damages arising
from the presence of Hazardous Materials upon, within or about the Premises due
to any act or omission of Tenant or any of its agents, contractors, invitees or
employees, or (d) violation of any Environmental Requirements pertaining to the
Premises or the activities therein, and (e) from and against all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim, action or liability, and any proceeding brought thereon. In case any
action or proceeding be brought against Landlord by reason of any such claim,
Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by
counsel reasonably satisfactory to Landlord; provided, however, that Tenant
shall not be liable for damage to property or death or injury to person(s)
occasioned by the active negligence or intentional misconduct of Landlord or its
agents or employees unless covered by insurance Tenant is required to provide.
9.2 Exemption of Landlord From Liability. Tenant hereby assumes all
risk of damage to property or injury to persons in, upon or about the Premises
from any cause other than the active negligence or intentional misconduct of
Landlord and its agents or employees. Without limiting the generality of the
foregoing, Landlord shall not be liable for injury or damage which may be
sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers, or any other person in or about the Premises
caused by or resulting from fire, steam, electricity, gas, water or rain, which
may leak or flow from or into any party of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, heating, air conditioning or lighting fixtures of the
same, whether the damage or injury results from conditions arising upon the
Premises or upon other portions of the Building or from other sources. Landlord
shall not be liable for any damages arising from any act or omission of any
other tenant or occupant of the Building.
10. INSURANCE
10.1 Tenant's Insurance.
(i) At all times during the Term Tenant shall
maintain in effect policies of casualty insurance covering (a) all alterations,
additions or improvements in, on or to the Premises as may be made or paid for
by Tenant (other than building standard improvements), and
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(b) all trade fixtures, merchandise and other personal property from time to
time in, on or upon the Premises, in an amount not less than their actual
replacement cost, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief, including cost of debris
removal and demolition. Replacement cost for purposes hereof shall be determined
by mutual agreement, or failing such agreement by an accredited appraiser
selected by Landlord, with the cost of such appraisal to be borne by Tenant. The
proceeds of such insurance shall be used for the repair or replacement of the
property so insured. Upon termination of this Lease following a casualty as set
forth in Section 16, the proceeds under clause (a) above shall be paid to
Landlord, and the proceeds under clause (b) above shall be paid to Tenant.
(ii) At all times during the Term Tenant shall
maintain in effect workers' compensation insurance and comprehensive public
liability and property damage insurance adequate to protect Landlord against
liability for injury to or death of any person or loss or injury to any property
in connection with the activities of Tenant in, on or about the Premises or with
the use, operation or condition of the Premises. Such insurance at all times
shall afford combined single limit coverage in an amount of not less than Two
Million Dollars ($2,000,000). The limits of such insurance shall not limit the
liability of Tenant under this Lease. All public liability and property damage
policies shall contain a provision that Landlord, although named as insured,
shall nevertheless be entitled to recovery under said policies for any loss
occasioned to it, its servants, agents or employees by reason of Tenant's
negligence.
(iii) All insurance required to be carried by Tenant
hereunder shall be issued by responsible insurance companies acceptable to
Landlord and any Mortgagee. All policies of insurance provided for in this Lease
shall be issued by insurance companies licensed to do business in the State of
California, with general policy holder's rating of not less than "A" and a
financial rating of not less than "Class X" as rated in the most current
available "Best's Insurance Reports." Each policy shall name Landlord and at
Landlord's request any Mortgagee as an additional insured, as their respective
interests may appear, and a duplicate original of all policies or certificates
evidencing the existence and amounts of such insurance shall be delivered to
Landlord by Tenant at least ten (10) days prior to Tenant's occupancy of the
Premises. All policies of insurance delivered to Landlord must contain a
provision that the company writing said policy will give Landlord thirty (30)
days' written notice in advance of any cancellation or lapse of or any change in
such insurance. All public liability, property damage and other casualty
insurance policies shall be written as primary policies, not contributing with,
and not in excess of coverage which Landlord may carry. Tenant shall furnish
Landlord with renewals or "binders" of any such policy at least thirty (30) days
prior to the expiration thereof. If Tenant does not procure and maintain such
insurance, Landlord may (but shall not be required to) obtain such insurance on
Tenant's behalf and charge Tenant the premiums therefor which shall be payable
upon demand, and no such action by Landlord shall constitute a waiver of
Tenant's default hereunder. Tenant may carry such insurance under a blanket
policy, provided such blanket policy expressly affords the coverage required by
this Lease by a Landlord's protective liability endorsement or otherwise.
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(iv) Every three (3) years during the Term or
whenever Tenant materially improves or alters the Premises. Tenant shall
increase the policy limits for the insurance to be carried by Tenant under this
Section 10 to such amounts as Landlord reasonably determines are appropriate.
10.2 Landlord's Insurance. At all times during the Term Landlord
shall maintain in effect a policy or policies of insurance covering the Building
in an amount not less than ninety percent (90%) of full replacement cost
(exclusive of the cost of excavations, foundations, footings and all tenant
improvements constructed at the request or cost of Tenant, but inclusive of the
cost of building standard tenant improvements) from time to time during the
Term, providing protection against any peril generally included in the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. Landlord's obligation to
carry the insurance provided for herein may be brought within the coverage of
any blanket policy or policies of insurance carried and maintained by Landlord.
In addition to the coverage required by this paragraph. Landlord shall be
entitled to procure (and include the premiums therefor in Operating Costs) such
other types of insurance and in such amounts as Landlord may deem to be
necessary or appropriate.
10.3 Subrogation Waiver. Landlord and Tenant each hereby waive any
and all rights of recovery against the other or against the officers, partners,
employees, agents and representatives of the other, on account of loss or damage
of such waiving party or its property, or the property of others under its
control, to the extent that such loss or damage is insured against under any
fire and extended coverage insurance policy which either may have in force at
the time of such loss or damage. Tenant shall upon obtaining the policies of
insurance required under this Lease, give notice to its insurance carrier(s)
that the foregoing mutual waiver of subrogation is contained in this Lease. The
waivers set forth herein shall be required and effective only to the extent such
waivers are available from each party's insurer without additional premium; if
an extra charge is incurred to obtain such waiver, it shall be paid by the party
in whose favor the waiver runs within fifteen (15) days after written notice
from the other party, and, if not so paid, such other party's waiver under this
paragraph shall be neither required nor effective.
11. ASSIGNMENT AND SUBLETTING
11.1 Landlord's Consent Required. Tenant shall not sell, assign,
mortgage, pledge, hypothecate, encumber or otherwise transfer this Lease or any
interest therein, and shall not sublet the Premises or any part thereof, or
suffer or permit the Premises or any part thereof to be occupied by any other
person (the agents, employees, and invitees of Tenant excepted), without the
prior written consent of Landlord in each instance; and any attempt to do so
without such consent shall be voidable and, at Landlord's election, shall
constitute a noncurable default under this Lease. No interest of Tenant in this
Lease or the Premises shall be assignable by operation of law. Subject to the
terms and conditions contained in this section, Landlord shall not unreasonably
withhold its consent to a voluntary assignment of this Lease or a subletting of
the Premises.
11.2 Tenant's Application. If Tenant desires at any time to assign
this Lease or to sublet the Premises or any portion thereof, Tenant shall submit
to Landlord at least thirty (30) days prior to
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the proposed effective date of the assignment or sublease, in writing: (a) a
notice of intent to assign or sublease, setting forth the proposed effective
date thereof; (b) the name of the proposed assignee or subtenant; (c) the nature
of the proposed assignee's or subtenant's business to be carried on in the
Premises; (d) the terms and provisions of the proposed assignment or sublease;
and (e) such financial information as Landlord may request concerning the
proposed assignee or subtenant, including recent financial statements and bank
references.
11.3 Required Provisions. All assignment or sublease agreements shall
(a) contain such terms as are described in Tenant's notice under Paragraph 11.2
above or as otherwise agreed by Landlord, (b) prohibit further assignments or
subleases except with Landlord's written consent, (c) impose the same
obligations and condition on the assignee or sublessee as are imposed on Tenant
by this Lease (except as to rent and term or as otherwise agreed by Landlord),
(d) be expressly subject and subordinate to each and every provision of this
Lease, (e) have a term that expires on or before the Expiration Date, and (f)
provide that Tenant and/or the assignee or sublessee shall pay Landlord the
amount of any additional costs or expenses incurred by Landlord for repairs,
maintenance or otherwise as a result of any change in the nature of occupancy
caused by the assignment or sublease.
11.4 Bonus Rent. Landlord shall be entitled to receive all Bonus Rent
payable in connection with any assignment or sublease. Within fifteen (15) days
after written request by Landlord, Tenant shall provide and certify to Landlord
all financial information required for the calculation of Bonus Rent.
11.5 Fees for Review. If Landlord retains the services of an attorney
to review any aspect of the proposed assignment or sublease transaction, Tenant
shall pay to Landlord all attorneys' fees reasonably incurred by Landlord in
connection therewith. Tenant shall pay such attorneys' fees to Landlord within
thirty (30) days after written request therefor.
11.6 No Release of Tenant. No consent of Landlord to any assignment
or subletting by Tenant shall relieve Tenant of the obligations to be performed
by Tenant under this Lease, whether accruing before or after such assignment, or
subletting, and notwithstanding any subsequent modification, extension or
renewal of this Lease made with or without Tenant's consent. The consent by
Landlord to any transfer or subletting shall not relieve Tenant from the
obligation to obtain Landlord's express prior written consent to any other
transfer or subletting. The acceptance by Landlord of payment from any other
person shall not be deemed to be a waiver by Landlord of any provision of this
Lease or to be a consent to any transfer or sublease, or to be a release of
Tenant from any obligation under this Lease. If this Lease is assigned, or if
the Premises or any part thereof are sublet or occupied by any person other than
Tenant, Landlord may, after default by Tenant, collect the rent from any such
assignee, transferee, subtenant or occupant and apply the net amount collected
to the rent reserved herein, and no such action by Landlord shall be deemed a
consent to such assignment, transfer, sublease or occupancy.
11.7 Assumption of Obligations. Each assignee of Tenant shall assume
all obligations of Tenant under this Lease and shall be and remain liable
jointly and severally with Tenant for the payment of the rent and the
performance of all the terms, covenants, conditions and agreements
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herein contained on Tenant's part to be performed for the Term. No assignment
shall be binding on Landlord unless the assignee or Tenant delivers to Landlord
a counterpart of the assignment instrument in recordable form which contains a
covenant of assumption by the transferee satisfactory in substance and form to
Landlord, consistent with the requirements of this section. The failure or
refusal of any assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability to Landlord hereunder.
Landlord shall have no obligation whatsoever to perform any duty to or respond
to any request from any sublessee, it being the obligation of Tenant to
administer the terms of its subleases.
11.8 Deemed Transfers. If Tenant is a privately held corporation, or
is an unincorporated association or partnership, the transfer, assignment or
hypothecation of any stock or interest in such corporation, association or
partnership in the aggregate from the Lease Date in excess of fifty percent
(50%) shall be deemed an assignment or transfer within the meaning of this
section. However, nothing in this section shall prohibit Tenant from assigning
this Lease or subletting the Premises or any part thereof to any corporation
which controls Tenant, is controlled by Tenant, or is under common control with
Tenant, provided Tenant gives Landlord at least thirty (30) days prior written
notice of such subletting or assignment and such subletting or assignment shall
not release or discharge Tenant from any liability under this Lease.
11.9 Landlord's Option to Recapture. Landlord reserves the option, to
be exercised by giving notice to Tenant within fifteen (15) days after receipt
of Tenant's notice of intent to assign or sublease (it being agreed that no
revocation or withdrawal by Tenant of such notice of intent to assign or
sublease shall affect Landlord's option) to recapture the portion of the
Premises described in Tenant's notice for the remainder of the Term, and to
terminate this Lease with respect to such recaptured Premises. The effective
date of such recapture and termination shall be as specified in Landlord's
notice of exercise of its recapture option, but shall not be less than thirty
(30) days nor more than sixty (60) days after the delivery of such notice. The
option to recapture reserved to Landlord hereunder shall also arise in the event
Tenant shall, voluntarily or involuntarily, sell, assign, mortgage, pledge,
encumber or otherwise transfer this Lease or any interest herein, or sublet the
Premises or any portion thereof, or suffer or permit the Premises to be occupied
by any third person (the agents, employees, invitees and customers of Tenant
excepted), without first obtaining the written consent of Landlord; and in such
event the recapture option shall apply to the entire Premises and be exercisable
by Landlord at any time after the occurrence of the event for which Landlord's
consent was required but not obtained by Tenant. If this Lease is terminated
pursuant to Landlord's recapture option with respect to only a portion of the
Premises, the Base Rent required under this Lease and Tenant's Share shall be
adjusted proportionately based on the rentable square footage retained by Tenant
and the rentable square footage of the Premises leased by Tenant immediately
prior to such recapture and cancellation, and Landlord and Tenant shall
thereupon execute an amendment of this Lease in accordance therewith. If
Landlord so recaptures a portion of the Premises, it shall construct and erect
at its sole cost such partitions as may be required to sever the space retained
by Tenant from the space recaptured by Landlord; provided, however, that Tenant
shall bear the cost of painting, covering or otherwise decorating the surfaces
of such partitions which face the remaining Premises. Landlord may, without
limitation, lease the recaptured portion of the
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Premises to the proposed subtenant or assignee, on the same or different terms
as were proposed by Tenant, without liability to Tenant.
12. SUBORDINATION AND ATTORNMENT
12.1 Subordination. Upon the written request of Landlord or any
Mortgagee, Tenant will in writing subordinate its rights under this Lease to the
lien of any mortgage or deed of trust now or hereafter in force against the
Premises, the Building or the underlying land and to all advances made or
hereafter to be made upon the security thereof, and to all extensions,
modifications and renewals thereunder. Tenant shall also, upon Landlord's
request, subordinate its rights hereunder to any ground or underlying lease
which may not exist or hereafter be executed affecting the Building and/or the
underlying land. Tenant shall have the right to condition its subordination upon
the execution and delivery of an attornment and nondisturbance agreement, as
described in Paragraph 12.2, between the Mortgagee or the lessor under such
ground or underlying lease and Tenant. Tenant shall not subordinate its rights
hereunder to any lien other than that of a first mortgage or first deed of
trust, except with the prior written consent of the Mortgagee holding such first
mortgage or deed of trust.
12.2 Attornment. Upon the written request of the Landlord or any
Mortgagee or any lessor under a ground or underlying lease, Tenant shall attorn
to any such Mortgagee or lessor, provided such Mortgagee or lessor agrees that
if Tenant is not in default under this Lease, Tenant's possession of the
Premises in accordance with the terms of this Lease shall not be disturbed. Such
agreement shall provide, among other things, (a) that this Lease shall remain in
full force and effect, (b) that Tenant pay rent to said Mortgagee or lessor from
the date of said attornment, (c) that said Mortgagee or lessor shall not be
responsible to Tenant under this Lease except for obligations accruing
subsequent to the date of such attornment, and (d) that Tenant, in the event of
foreclosure or a deed in lieu thereof or a termination of the ground or
underlying lease, will enter into a new lease with the Mortgagee, lessor or
other person having or acquiring title on the same terms and conditions as this
Lease and for the balance of the Term.
12.3 Nonmaterial Amendments. If any lender should require any
modification of this Lease as a condition of loans secured by a lien on the
Premises, the Building or the land underlying the Building, or if any such
modification is required as a condition to a ground or underlying lease, Tenant
will approve and execute any such modifications, promptly after request by
Landlord provided no such modification shall relate to the rent payable
hereunder, the length of the Term or otherwise materially change the rights or
obligations of Landlord or Tenant.
13. DEFAULT BY TENANT
13.1 Acts Constituting Default. In addition to the events specified
as a default elsewhere in this Lease, the failure of Tenant to perform each
covenant made under this Lease, or any abandonment of the Premises by Tenant,
shall constitute a default hereunder. However, Landlord shall not commence any
action to terminate Tenant's right of possession as a consequence of a default
until any period of grace with respect thereto has elapsed; provided, that any
such period of
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grace shall be in lieu of and not in addition to the period during which Tenant
may cure such default following the delivery of notice pursuant to California
Code of Civil Procedure Section 1161.
(i) Subject to the limitation expressed in Paragraph
13.1.3. Tenant shall have a period of three (3) days from the date of written
notice from Landlord within which to cure any default in the payment of any
monetary obligations of Tenant under this Lease.
(ii) Tenant shall have a period of fifteen (15) days
from the date of written notice from Landlord within which to cure any other
default under this Lease which is capable of being cured; provided, however,
that with respect to any default which cannot reasonably be cured within fifteen
(15) days, the default shall not be deemed to be uncured if Tenant commences to
cure within five (5) days from Landlord's notice and thereafter prosecutes
diligently and continuously to completion all acts required to cure the default.
(iii) There shall be no period of grace with respect
to any default by Tenant which is not capable of being cured. Landlord and
Tenant stipulate that the following defaults are not capable of being cured by
Tenant: (a) any default which is specified in this Lease as being incurable; (b)
any unauthorized sale, assignment, mortgage, pledge, hypothecation, encumbrance
or other transfer of this Lease or any interest herein, or any unauthorized
subletting of all or any portion of the Premises; (c) the commission of waste by
Tenant; (d) the failure of Tenant to pay rent or any other monetary obligation
of Tenant hereunder on the due date thereof where such failure occurs on more
than three (3) consecutive occasions or more than six (6) occasions during any
twelve (12) month period; and (e) any other default which is recognized under
California law as being incurable.
13.2 Landlord's Remedies. If Tenant fails to cure a default, or in
the event of a default which is not capable of being cured by Tenant, Landlord
shall have the following rights and remedies in addition to any other rights and
remedies available to Landlord at law or in equity:
(i) Landlord shall have all rights and remedies
provided by California Civil Code Section 1951.2 (or any successor statute),
including but not limited to, recovery of the worth at the time of award of the
amount by which the unpaid rent for the balance of the Term after the time of
award exceeds the amount of rental loss for the same period that Tenant proves
could be reasonably avoided, as computed pursuant to subsection (b) of said
Section 1951.2;
(ii) Landlord shall have rights and remedies provided
by California Civil Code Section 1951.4 (or any successor statute), which allows
Landlord to continue this Lease in effect and to enforce all of its rights and
remedies under this Lease, including the right to recover rent as it becomes
due, for so long as Landlord does not terminate Tenant's right to possession.
Acts of maintenance or preservation, efforts to relet the Premises, or the
appointment of a receiver upon the Landlord's initiative to protect its interest
under this Lease shall not constitute a termination of Tenant's right to
possession; and
(iii) Landlord shall have the right, but not the
obligation, to make any payment or perform any act on Tenant's part as may be
required to cure Tenant's default,
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without waiving its rights based upon such default by Tenant and without
releasing Tenant from any of its obligations. All sums so paid and all costs
incurred by Landlord, together with interest thereon at the Overdue Rate from
the date of such payment or the incurrence of such cost by Landlord, whichever
occurs first, shall be paid to Landlord on demand.
14. DEFAULT BY LANDLORD
14.1 Existence of Default. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform such obligation within thirty (30) days after receipt
of written notice by Tenant to Landlord specifying such failure; provided,
however, that if the nature of Landlord's default is such that more than thirty
(30) days are required for its cure, then Landlord shall not be deemed to be in
default if it commences such cure within the thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
14.2 Mortgagee's Right To Cure. Tenant shall give any Mortgagee a
copy, by registered mail, of any notice of default served upon Landlord,
provided that Tenant previously has been notified in writing (by way of Notice
of Assignment of Rents and Leases, or otherwise), of the address of such
Mortgagee. If Landlord fails to cure such default within the time provided in
this Lease, any such Mortgagee shall have an additional forty-five (45) days
within which to cure such default by Landlord, or if such default cannot be
cured within that time, then such additional time as may be necessary if within
that forty-five (45) day period the Mortgagee has commenced and is pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
pursued.
14.3 Judgment Against Landlord. If Tenant recovers any judgment
against Landlord for a default by Landlord under this Lease, the judgment shall
be satisfied only out of the interest of Landlord in the Building and neither
Landlord nor any of its partners, officers, employees or agents shall be
personally liable for any such default or for any deficiency.
15. CONDEMNATION
15.1 Termination Due To Taking. If all or any part of the Premises
are the subject of a Taking, either Landlord or Tenant may, by written notice
given to the other within thirty (30) days of receipt of notice of such Taking,
elect to terminate this Lease as of the date possession is transferred pursuant
to the Taking; provided, however, that before Tenant may terminate this Lease
for a Taking, such Taking must be of such an extent and nature as to
substantially impede Tenant's use of the Premises. If any part of the Building
other than the Premises shall be the subject of a Taking, Landlord may elect to
terminate this Lease. If there is a Taking of all or a part of the Parking
Facilities and the parking rights granted to Tenant under Paragraph 2.4 are
substantially reduced thereby, Landlord shall have the right to provide
replacement parking to compensate for such reduction within other parking areas
serving the Office Complex. If such replacement parking is not provided, then
for a period of thirty (30) days after Landlord notifies Tenant that such
replacement parking cannot be provided. Tenant shall have the right to terminate
this Lease, effective at a time specified by Tenant not to exceed thirty (30)
days from the date of the notice.
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15.2 No Termination Due To Taking. If a partial Taking of the
Premises does not result in a termination of this Lease, Base Rent, Tenant's
Share of Increased Operating Costs and Tenant's parking rights shall be reduced
in proportion to what the area of the Premises taken bears to the area of the
Premises immediately prior to the Taking. No temporary taking of the Premises or
any part of the Building shall terminate this Lease, except at Landlord's
election, or give Tenant any right to any abatement of Base Rent or Increased
Operating Costs, except that Base Rent and Operating Costs shall be reduced in
accordance with the preceding sentence during that portion of any temporary
Taking of the Premises lasting more than thirty (30) days. Each party hereto
waives the provisions of California Code of Civil Procedure Section 1265.130 (or
any successor statute) allowing either party to file a petition to terminate
this Lease for a partial Taking.
15.3 Award For Taking. No award for any partial or entire Taking
shall be apportioned, and Tenant hereby assigns to Landlord any and all rights
of Tenant to any portion of the award for a Taking. However, nothing contained
herein shall be deemed to give Landlord any interest in or to require Tenant to
assign to Landlord any award made to Tenant for taking of personal property
belonging to Tenant.
16. DAMAGE AND DESTRUCTION
16.1 Partial Damage - Insured. If the Premises or the Building are
damaged by a risk covered under fire and extended coverage insurance insuring
Landlord, then Landlord shall restore such damage provided insurance proceeds
are available to Landlord to pay ninety percent (90%) or more of the cost of
restoration, and provided such restoration by Landlord can be completed within
eight (8) months after the commencement of work in the opinion of a licensed
architect or engineer appointed by Landlord. In such event this Lease shall
continue in full force and effect, except that Tenant shall, so long as the
damage is not due to the act or omission of Tenant, be entitled to an equitable
reduction of Base Rent and Tenant's Share of Excess Building Operating Costs
while such restoration takes place, such reduction to be based upon the extent
to which the damage or restoration efforts materially interfere with Tenant's
use of the Premises.
16.2 Partial Damage - Uninsured. If the Premises or the Building are
damaged by a risk not covered by such insurance or if the insurance proceeds
available to Landlord are less than eighty percent (80%) of the cost of
restoration, or if the restoration cannot be completed within eight (8) months
after the commencement of work in the opinion of the licensed architect or
engineer appointed by Landlord, then Landlord shall have the option either to
(a) repair or restore such damage, this Lease continuing in full force and
effect, with the Base Rent and Tenant's Share of Excess Building Operating Costs
to be equitably reduced as provided in Paragraph 16.1, or (b) give notice to
Tenant at any time within ninety (90) days after such damage terminating this
Lease as of a date to be specified in such notice, which date shall be not less
than thirty (30) nor more than sixty (60) days after the giving of such notice.
If such notice is given, this Lease shall expire and any interest of Tenant in
the Premises shall terminate on the date specified in such notice. The Base Rent
and Tenant's Share of Excess Building Operating Costs during the period prior to
the termination shall be reduced as provided in Paragraph 16.1 and paid up
through the date of termination.
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16.3 Total Destruction. If the Premises are totally destroyed or in
Landlord's judgment the Premises cannot be restored as required herein under
applicable laws and regulations, notwithstanding the availability of insurance
proceeds, this Lease shall be terminated effective as of the date of the damage.
16.4 Landlord's Obligations. Any restoration by Landlord pursuant to
Paragraphs 16.1 or 16.2 shall be commenced as soon as reasonably possible after
the date of damage and prosecuted diligently to completion at the earliest
possible date. Landlord shall not be required to carry insurance of any kind on
Tenant's property and shall not be required to repair any injury or damage
thereto by fire or other causes, or to make any restoration or replacement of
any paneling, decorations, partitions, ceilings, floor covering, office fixtures
or any other improvements or property installed in the Premises by or at the
direct or indirect expense of Tenant (other than building standard tenant
improvements), and Tenant shall be required to restore or replace same in the
event of damage. Tenant shall have no claim against Landlord for any loss
suffered by reason of any such damage, destruction, repair or restoration.
Notwithstanding anything to the contrary contained in this section, Landlord
shall have no obligation to repair, reconstruct or restore the Premises with
respect to damage or destruction as described in this section occurring during
the last twelve (12) months of the Term.
16.5 Waiver by Tenant. Tenant shall have no right to terminate this
Lease as a result of any statutory provisions now or hereafter in effect
pertaining to the damage and destruction of the Premises or the Building, except
as expressly provided herein, and Tenant expressly waives the provisions of
California Civil Code Sections 1932(2) and 1933(4) with respect to any damage or
destruction of the Premises.
17. DEFINITIONS
17.1 "Base Rent" means the monthly rent payable pursuant to Paragraph
4.1, and as specified in the Basic Lease Provisions.
17.2 "Base Year" means the calendar year specified in the Basic Lease
Provisions.
17.3 "Basic Lease Provisions" means the provisions contained in
Paragraph 1.2 of this Lease.
17.4 "Bonus Rent" means the excess of (a) all consideration received
by Tenant from an assignment of this Lease or a sublease of all or any portion
of the Premises over (b) the Base Rent, Increased Operating Costs and other
charges payable by Tenant to Landlord under this Lease (prorated, in the case of
a sublease of less than all of the Premises, to reflect obligations allocable to
only the portion of the Premises so sublet). In determining the total
consideration under the foregoing clause (a), Tenant shall be entitled to
exclude therefrom reasonable leasing commissions paid by Tenant to any
unaffiliated third party, payments attributable to the amortization of the cost
of improvements Tenant must make to the Premises at its cost to ready same for
the assignee or sublessee, and other reasonable, out-of-pocket costs paid by
Tenant which are directly related to Tenant's obtaining the assignment or
sublease.
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17.5 "Building" means the highrise office building described in the
Basic Lease Provisions, the parcels of land on which such office building is
situated, all other improvements situated on the land, and all rights end
easements appurtenant thereto. Except where the context requires otherwise,
references to the "Building" shall include the Common Areas and the Parking
Facilities serving the Building and other buildings in the Office Complex.
17.6 "Commencement Date" means the date determined pursuant to
Paragraph 3.2 of this Lease for the commencement of the Term.
17.7 "Common Areas" means areas within the Building (including common
corridors and hallways, stairwells, elevators, restrooms, lobbies and other
public areas) and within the Office Complex which are available for nonexclusive
use by Tenant and other tenants of the Building or the Office Complex.
17.8 "Environmental Damages" means all claims, judgments, damages,
losses, penalties, fines, liabilities, strict costs and expenses of defense of
any claim and of any settlement or judgment, including without limitation
reasonable attorneys' fees and consultants' fees, any of which are incurred at
any time as a result of the existence of "Hazardous Material" upon, about,
beneath the Premises or migrating or threatening to migrate to or from the
Premises, or the existence of a violation of "Environmental Requirements"
pertaining to the Premises including, without limitation: (a) damages for
personal injury, or injury to property or natural resources occurring upon or
off of the Premises, foreseeable or unforeseeable, including, without
limitation, lost profits, consequential damages, interest and penalties
including but not limited to claims brought by or on behalf of employees of
Tenant, with respect to which Tenant waives any immunity to which it may be
entitled under any industrial or worker's compensation laws; (b) diminution in
the value of the Premises, and damages for the loss of or restriction on the use
of or adverse impact on the marketing of rentable or usable space or of any
amenity of the Premises; (c) fees incurred for the services of attorneys,
consultants, contractors, experts, laboratories and all other costs incurred in
connection with the investigation or remediation of such "Hazardous Materials"
or violation of "Environmental Requirements" including, but not limited to, the
preparation of any feasibility studies or reports or the performance of any
cleanup, remedial, removal, containment, restoration or monitoring work required
by any federal, state or local governmental agency or political subdivision, or
reasonably necessary to make full economic use of the Premises or any other
property or otherwise expended in connection with such conditions, and including
without limitation any attorneys' fees, costs and expenses incurred in enforcing
this agreement or collecting any sums due hereunder; and (d) liability to any
third person or governmental agency to indemnify such person or agency for costs
expended in connection with the items referenced in subparagraph (c) herein.
17.9 "Environmental Requirements" means all applicable present and
future statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals, plans, authorizations, concessions, franchises and similar
items, of all governmental agencies, departments, commissions, boards, bureaus
or instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without limitation: (a) all requirements,
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including but not limited to, those pertaining to reporting, licensing,
permitting, investigation and remediation of emissions, discharges, releases or
threatened releases of "Hazardous Materials," chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes whether
solid, liquid or gaseous in nature, into the air, surface water, groundwater or
land, or relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials, or wastes, whether
solid, liquid or gaseous in nature; and (b) all requirements pertaining to the
protection of the health and safety of employees or the public.
17.10 "Expiration Date" means the scheduled date on which the Term
will expire as determined pursuant to Paragraph 3.2 of this Lease.
17.11 "Hazardous Materials" means any chemical substance (a) the
presence of which requires investigation or remediation under any federal, state
or local statute, regulation, ordinance, order, action or policy; or (b) which
is or becomes defined as a "hazardous waste" or "hazardous substance" under any
federal, state or local statute, regulation or ordinance or amendments thereto;
or (c) which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by
any governmental authority, agency, department, commission, board, agency or
instrumentality of the United States, the State of California or any political
subdivision thereof; or (d) the presence of which on the Premises causes or
threatens to cause a nuisance upon the Premises or to adjacent properties or
poses or threatens to pose a hazard to the Premises or the health or safety of
persons on or about the Premises; or (e) without limitation, which contains
gasoline, diesel fuel or other petroleum hydrocarbons; or (f) which contains
polychlorinated bipheynols (PCBs), asbestos or urea formaldehyde foam
insulation.
17.12 "Increased Operating Costs" means the amount by which the
Operating Costs during any Subsequent Year exceed the Operating Costs for the
Base Year.
17.13 "Landlord's Work" means the work, if any, to be performed by
Landlord to ready the Premises for Tenant's occupancy, as specified in the Scope
of Work.
17.14 "Lease Date" means the date specified in the Basic Lease
Provisions, which shall be the effective date of execution of this Lease by
Landlord and Tenant unless otherwise provided in this Lease.
17.15 "Mortgagee" means the holder of any mortgage or deed of trust
secured by the Building or the Premises or any portion thereof.
17.16 "Office Complex" means the development comprised of the three
office buildings commonly known as Watergate Towers I, II and III, addressed,
respectively, as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
respectively, Emeryville, California.
17.17 "Operating Costs" means all actual costs of ownership,
operation, maintenance, repair and management of the Building, including the
Building's share of all such costs of the Parking
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Facilities and the Common Areas which are shared with other buildings in the
Office Complex to be based on Landlord's reasonable allocation among the
buildings. If during the Base Year or any Subsequent Year the Building is less
than ninety-five percent (95%) occupied, those Operating Costs which vary based
on the level of occupancy shall be adjusted upward to reflect, in Landlord's
reasonable judgment, the Operating Costs that would apply during such year if
the Building were at least ninety-five percent (95%) occupied.
17.17.1 Operating Costs shall include:
(a) salaries, and other compensation, including
payroll taxes, vacation, holiday and other paid absences, and welfare,
retirement and other fringe benefits, paid to employees, independent contractors
or agents of Landlord engaged in the operation, repair, management or
maintenance of the Building, including (i) elevator operators, (ii) window
cleaners, miscellaneous repair personnel, janitors, cleaning personnel and
porters, (iii) security personnel and caretakers, and (iv) engineers, mechanics,
electricians and plumbers;
(b) repairs and maintenance of the Building and the
costs of supplies, tools, materials and equipment for such repairs and
maintenance that are under generally accepted accounting principles not
capitalized;
(c) premiums and other charges incurred by Landlord
for insurance on the Building and for Landlord's employees, including (i) fire
and extended coverage insurance, and earthquake, windstorm, flood and explosion
insurance, (ii) public liability and property damage insurance, (iii) workers'
compensation insurance, (iv) boiler and machinery insurance, sprinkler leakage,
water damage and related liability insurance, and burglary, fidelity and
pilferage insurance on equipment and materials, (v) health, accident and group
life insurance, (vi) all such insurance as Landlord is required to carry under
Section 10 of this Lease, and (vii) such other insurance as is customarily
carried by operators of comparable first-class office buildings in the San
Francisco Bay Area;
(d) costs incurred for inspection and servicing,
including all outside maintenance contracts necessary for the maintenance of the
Building, such as janitorial and window cleaning, rubbish removal,
exterminating, water treatment, elevator, electrical, plumbing and mechanical
equipment, and the costs of materials, tools, supplies and equipment used for
inspection and servicing of the Building;
(e) costs incurred for electricity, water, gas, fuel
and other utilities;
(f) payroll taxes, federal taxes, state and local
unemployment taxes, and social security taxes paid for the employees of Landlord
engaged in the operation, maintenance and repair of the Building;
(g) sales, use and excise taxes on goods and
services purchased by Landlord for use in the Building;
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(h) license, permit and inspection fees;
(i) accounting and legal fees;
(j) customary management fees not to exceed five
percent (5%) of the gross revenues of the Building;
(k) the annual amortization over its useful life,
with a reasonable salvage value on a straightline basis, of the costs of any
capital improvements made by Landlord and required by any changes in applicable
laws, rules or regulations of any governmental authority enacted after the
Building was completed;
(l) the annual amortization over its useful life,
with a reasonable salvage value on a straightline basis, of the costs of any
equipment or capital improvements made by Landlord after the Building was
completed as a labor-saving measure or to accomplish other savings in operating,
repairing, managing or maintaining the Building, but only to the extent of the
savings;
(m) the annual amortization, over its useful life on
a straight line basis, of the cost of any exterior window draperies provided by
Landlord and the carpeting in the Common Areas;
(n) any costs for substituting work, labor,
materials or services in place of any of the above items, or for any additional
work, labor, materials, services or improvements to comply with any governmental
laws, rules regulations or other requirements applicable to the Building enacted
after the Building was completed which are considered operating expenses under
Generally Accepted Accounting Principles;
(o) other costs reasonably necessary to maintain,
operate, repair and manage the Building in a first-class manner and condition;
(p) all real property taxes on the Building, the
land on which the Building is situated, and the various estates in the Building
and a proportion of the real property taxes on the land and improvements
comprising the Parking Facilities and the Common Areas shared with other
buildings in the Office Complex, based on Landlord's reasonable allocation among
the buildings using such facilities and areas;
(q) all personal property taxes levied on property
used in the operation of the Building;
(r) all taxes of every kind and nature whatsoever
levied or assessed in lieu of or in substitution for existing or additional real
or personal property taxes on the Building, land or personal property other than
taxes covered by paragraph 4.5, including, but not limited to, any charge, levy,
excise or assessment upon Landlord's business of leasing the Premises or other
portions of the Building or the Parking Facilities; and
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(s) the cost to Landlord of contesting the amount,
validity or applicability of any of the foregoing items.
17.17.2 Operating Costs shall exclude:
(a) leasing commissions, costs, disbursements and
other expenses incurred for leasing, renovating or improving space for tenants;
(b) the cost of electricity or other services sold
to tenants for which Landlord is to be reimbursed as a charge over the rent
payable under the leases with such tenants;
(c) costs incurred because Landlord or another
tenant violated the terms of any lease of the Building;
(d) interest on debt or amortization payments on
mortgages or deeds of trust or any other debt for borrowed money, except as
herein expressly permitted;
(e) items and services for which Tenant reimburses
Landlord or pays third parties or that Landlord provides selectively to one or
more tenants of the Building other than Tenant without reimbursement;
(f) advertising and promotional expenses;
(g) repairs or other work needed because of fire or
other casualty insured against by Landlord;
(h) costs incurred in operating the Parking
Facilities except to the extent the cost of operating the Parking Facilities
exceeds the revenues generated from operation thereof;
(i) nonrecurring costs incurred to remedy structural
defects in the original construction materials or insulation; and
(j) costs incurred by Landlord for alterations that
are considered capital improvements under generally accepted accounting
principles except to the extent the same are expressly permitted under Paragraph
17.17.1.
17.18 "Overdue Rate" means the lesser of: (a) eighteen percent (18%)
per annum; or (b) the maximum rate permitted under applicable usury law.
17.19 "Parking Charge" means the monthly amount to be paid by Tenant
for each parking permit issued to Tenant pursuant to paragraph 2.4, which amount
is specified in the Basic Lease Provisions and subject to increase.
17.20 "Parking Facilities" means the parking lot(s) and parking
structure(s) located within or adjacent to the Office Complex and designated by
Landlord as serving the Building.
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17.21 "Premises" means the portion of the Building demised by this
Lease, as designated by suite number in the Basic Lease Provisions and shown on
Exhibit A to this Lease.
17.22 "Rules and Regulations" means the rules and regulations
regulating the use of the Premises, the Common Areas, Parking Facilities and
other portions of the Building promulgated by Landlord from time to time as
provided in paragraph 5.6 of this Lease.
17.23 "Security Deposit" means the amount specified in the Basic Lease
Provisions, which is to be held by Landlord to secure Tenant's performance of
its obligations under this Lease as provided in paragraph 4.2.
17.24 "Scope of Work" means the Scope of Work Agreement if any,
executed by Landlord and Tenant concurrently with their execution of the Lease,
which will be attached as Exhibit B to this Lease and will establish the full
extent of Landlord's Work in readying the Premises for Tenant's occupancy
hereunder.
17.25 "Subsequent Year" means any calendar year during the Term after
the Base Year.
17.26 "Substantial Completion" means (a) completion, as determined in
the event of a dispute by Landlord's architect in accordance with AA standards,
of Landlord's Work except for such items as constitute a minor defect or
deficiency which can be completed or corrected after occupancy without causing
any material interference with Tenant's use of the Premises, and (b) the
issuance of a certificate of occupancy by the City of Emeryville or such other
governmental authorization as may be required for occupancy of the Premises.
17.27 "Taking" means the taking of property or any interest therein
for public or quasi public use by exercise of the power of eminent domain or
otherwise, or a taking in the nature of inverse condemnation, with or without
litigation, or a transfer of property or any interest therein pursuant to an
agreement entered into under threat of exercise of the power of eminent domain.
17.28 "Tenant Parking" means the number of permits to park passenger
automobiles in the Parking Facilities which are to be issued to Tenant pursuant
to paragraph 2.4, and as specified in the Basic Lease Provisions.
17.29 "Tenant's Share" means the ratio that the rentable square
footage of the Premises bears to the total rentable square footage of the
Building. If the rentable square footage of the Premises and/or the total
rentable square footage of the Building changes, Tenant's Share shall be
appropriately adjusted so that it at all times reflects the proportion which the
rentable square footage of the Premises bears to the total rentable square
footage of the Building.
17.30 "Term" means the term of this Lease, including any permitted
extensions or renewals thereof.
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18. MISCELLANEOUS PROVISIONS
18.1 Estoppel Certificates. Within ten (10) days following any
written request Landlord may make from time to time, Tenant without any charge
therefor, shall execute, acknowledge and deliver a statement certifying: (a) the
Commencement Date of this Lease; (b) the fact that this Lease is unmodified and
in full force and effect (or, if there have been modifications hereto, that this
Lease is in full force and effect, as modified, and stating the date and nature
of such modifications); (c) the date to which the rent and other sums payable
under this Lease have been paid; (d) the fact that there are no current defaults
under this Lease by either Landlord or Tenant except as specified in the
statement; and (e) such other matters as may be reasonably requested by
Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this paragraph may be relied upon by a mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein. Tenant's failure
to deliver any such statement within said ten (10) day period shall constitute a
material default, and Tenant shall indemnify and hold Landlord harmless from and
against any and all liability, loss, cost, damage and expense which Landlord may
sustain or incur as a result of or in connection with Tenant's failure or delay
in delivering such statement. If Landlord elects to sell the Building or to
obtain loans secured by a lien on the Building, Tenant, promptly after demand,
shall provide to any such purchaser or lender financial statements of Tenant
reasonably required by the purchaser or lender. The financial statements so
provided shall be kept confidential as to any parties other than the purchaser
or lender.
18.2 Surrender of Premises. A voluntary or other surrender of this
Lease by Tenant or the mutual cancellation of this Lease shall not work a merger
and shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
18.3 Light and Air. No diminution of light, air or view by any
structure which may hereafter be erected (whether or not by Landlord) shall
entitle Tenant to any reduction of rent under this Lease, result in any
liability of Landlord to Tenant, or in any other way affect this Lease.
18.4 Waiver. If either Landlord or Tenant waives the performance of
any term, covenant or condition continued in this Lease, such waiver shall not
be deemed to be a waiver of the term, covenant or condition itself or a waiver
of any subsequent breach of the same or any other term, covenant or condition
contained herein. Furthermore, the acceptance of rent by Landlord shall not
constitute a 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 accepts 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.
18.5 Attorneys' Fees. In the event that any action or proceeding
(including arbitration) is brought to enforce or interpret any term, covenant or
condition of this Lease on the part of Landlord or Tenant, the prevailing party
in such action or proceeding (whether after trial or appeal) shall be entitled
to recover from the party not prevailing its expenses therein, including
reasonable attorneys'
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fees and all allowable costs. If Landlord is made a party to any action or
proceeding commenced by a third party due to any actual or alleged act or
omission of Tenant or Tenant's agents, employees, contractors, invitees or
subtenants, Tenant shall indemnify and hold Landlord harmless from all costs
incurred in such action or proceeding, including reasonable attorneys' fees. If
Tenant requests Landlord's consent to, approval of or signature on any
instrument or agreement which would alter or affect Landlord's legal rights and
duties, Tenant shall reimburse Landlord upon demand for Landlord's reasonable
attorneys' fees incurred in connection with the review and evaluation of the
requested action.
18.6 Notices. Any notice required or permitted under this Lease shall
be in writing and shall be delivered either personally or by depositing same in
the United States Mail, postage prepaid, registered or certified, return receipt
requested, addressed to the intended recipient at such party's address set forth
in the Basic Lease Provisions or at such other address as such party has
theretofore specified by written notice delivered in accordance with this
paragraph. Any notice delivered by mail in the manner specified in this
paragraph shall be deemed delivered on the earlier of the third day following
deposit thereof in the United States Mail or on the delivery date shown on the
return receipt prepared in connection therewith; and any such notice specifying
a default by Tenant shall be deemed sufficient for all purposes under California
Code of Civil Procedure Sections 1161 and 1162, notwithstanding the fact that
such notice is not personally served on Tenant or that such notice does not
demand possession of the Premises as an alternative to Tenant's curing of such
default.
18.7 Merger. Notwithstanding the acquisition (if same should occur)
by the same party of the title and interests of both Landlord and Tenant under
this Lease, there shall never be a merger of the estates of Landlord and Tenant
under this Lease, but instead the separate estates, rights, duties and
obligations of Landlord and Tenant, as existing hereunder, shall remain
unextinguished and continue, separately, in full force and effect until this
Lease expires or otherwise terminates in accordance with the express provisions
herein contained.
18.8 Headings. Words used in neuter gender include the feminine and
masculine, where applicable. If there is more than one Tenant, the obligations
imposed under this Lease upon Tenant shall be joint and several. The headings
and titles to the sections and paragraphs of this Lease are used for convenience
only and shall have no effect upon the construction or interpretation of this
Lease.
18.9 Time And Applicable Law. Time is of the essence of this Lease
and all of its provisions. This Lease shall in all respects be governed by and
interpreted in accordance with the laws of the State of California.
18.10 Successors And Assigns. Each conveyance by Landlord or its
successors in interest of Landlord's interest in the Building or the Premises
prior to the expiration or termination of this Lease shall be subject to this
Lease and shall relieve the grantor of all further liability or obligations as
Landlord, except for such liability or obligations accruing prior to the date of
such conveyance. If any Security Deposit has been given to Landlord, Landlord
shall deliver such Security Deposit to Landlord's successor in interest and
thereupon be released of all further liability with regard thereto, without the
requirement of any notice thereof to Tenant. Tenant agrees to attorn to
Landlord's
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successors in interest, whether such interest is acquired by sale, transfer,
foreclosure, deed in lieu of foreclosure or otherwise. Subject to the foregoing
and to the provisions of Section 16, the terms, covenants and conditions
contained herein shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the parties hereto.
18.11 Entry by Landlord. Landlord and its authorized representatives
shall have the right to enter the Premises: (a) to inspect the Premises; (b) to
supply any service provided to Tenant hereunder; (c) to show the Premises to
prospective brokers, agents, purchasers, lenders or tenants; (d) to post notices
of non-responsibility; (e) to alter, improve or repair the Premises and any
other portion of the Building; and (f) to erect scaffolding and other necessary
structures, where required by the work to be performed, all without reduction or
abatement of rent. Tenant hereby waives any claim for damages for any injury to
or interference with Tenant's business or quiet enjoyment of the Premises or any
other loss occasioned by such entry. Landlord shall at all times have a key to
unlock all doors in and about the Premises, excluding Tenant's vaults and safes,
and Landlord shall have the right to use any means which Landlord deems proper
to open said doors in an emergency, and any such entry to the Premises shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into the Premises or a detainer of the Premises or an eviction of Tenant
from any portion of the Premises.
18.12 Entire Agreement. This Lease, together with its exhibits,
contains all the agreements of the parties hereto and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this Lease
and its exhibits. This Lease may not be modified except by a written instruction
duly executed by the parties hereto.
18.13 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provision to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
18.14 Signs. Tenant shall not place or permit to be placed in or upon
the Premises where visible from outside the Premises or any part of the
Building, any signs, notices, drapes, shutters, blinds or window coatings, or
displays of any type without the prior written consent of Landlord. Landlord
shall consent to the location at the cost of Tenant of a building standard sign
on or near the entrance of the Premises and shall include Tenant in the Building
directories located in the Building. Landlord reserves the right in Landlord's
sole discretion to place and locate on the roof and exterior of the Building and
in any area of the Building not leased to Tenant, such signs, notices, displays
and similar items as Landlord deems appropriate in the proper operation of the
Building.
18.15 Execution By Landlord. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises. This document becomes effective and
binding only upon execution and delivery hereof by Tenant and by Landlord. No
act or omission of any employee or agent of Landlord or of Landlord's broker
shall alter, change or modify any of the provisions hereof.
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18.16 Brokers. Tenant shall hold Landlord harmless from all damages
(including attorneys' fees and costs) resulting from any claims that may be
asserted against Landlord by any broker, finder, or other person with whom
Tenant has or purportedly has dealt, except the leasing agent for the Building
duly appointed by Landlord.
18.17 Name Of Building. Tenant shall not use the name of the Building
for any purpose other than the address of the business to be conducted by Tenant
in the Premises. Tenant shall not use any picture of the Building in its
advertising, stationery or in any other manner so as to imply that the entire
Building is leased by Tenant. Landlord expressly reserves the right at any time
to change the name or street address of the Building without in any manner being
liable to Tenant therefor.
18.18 Nonrecordability Of Lease. Tenant agrees that in no event shall
this Lease or a memorandum hereof be recorded without Landlord's express prior
written consent, which consent Landlord may withhold in its sole discretion.
18.19 Construction. All provisions hereof, whether covenants or
conditions, shall be deemed to be both covenants and conditions. The definitions
contained in this Lease shall be used to interpret the Lease. All rights and
remedies of Landlord and Tenant shall, except as otherwise expressly provided,
be cumulative and non-exclusive of any other remedy at law or in equity.
18.20 Inability To Perform. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of force majeure, strike, labor troubles,
acts of God, acts of government, unavailability of materials or labor, or any
other cause beyond the control of Landlord.
18.21 Authority. If Tenant is a corporation, each individual executing
this Lease on behalf of Tenant represents and warrants that Tenant is qualified
to do business in California and that he is duly authorized to execute and
deliver this Lease on behalf of Tenant and shall deliver appropriate
certification to that effect if requested. If Tenant is a partnership, joint
venture, or other unincorporated association, each individual executing this
Lease on behalf of Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of Tenant and that this Lease is
binding on Tenant. Furthermore, Tenant agrees that the execution of any written
consent hereunder, or any written modification or termination of this Lease, by
any general partner of Tenant or any other authorized agent of Tenant, shall be
binding on Tenant.
18.22 Quiet Enjoyment. So long as Tenant is not in default under this
Lease, Tenant shall have quiet enjoyment of the Premises for the Term, subject
to all the terms and conditions of this Lease and all liens and encumbrances
prior to this Lease.
19. CONTINGENCY: The effectiveness of this Lease is specifically
conditioned on the full execution of the Termination Agreement between Sybase as
Tenant and ▇▇▇▇▇▇▇ Properties, L.P. as Landlord for reduced premises equaling
3,403 rentable square feet and 2,934 useable square feet. If
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said Termination Agreement is not fully executed and commenced, this Lease shall
be of no further force or effect and without recourse to either party.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and the year first above written.
LANDLORD
▇▇▇▇▇▇▇ PROPERTIES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ Properties, Inc.,
a Maryland corporation,
its general partner
By:
---------------------------------
Its:
--------------------------------
Date:
-------------------------------
TENANT
EXTENSITY, INC.
A DELAWARE CORPORATION
By:
-------------------------------------
Its:
------------------------------------
Date:
-----------------------------------
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Exhibit B
Scope of Work
1. Scope of Work to that certain Lease between ▇▇▇▇▇▇▇ Properties, L.P., a
California limited partnership ("Landlord"), and Extensity, Inc., a Delaware
corporation ("Tenant"), dated January 12, 1997.
2. The Premises will be delivered "as is" in their current condition,
however Landlord at Landlord's sole cost and expense shall cause to have the
following work completed utilizing Building Standard materials:
1. Provide new carpet and paint in the area as depicted in Exhibit
B-1.
2. Construct one office and wing wall near reception area.
3. Construct demising wall as depicted and construct encased
opening to Suite 400.
3. Tenant, at Tenant's sole cost and expense, shall be responsible for the
cost of telephone and computer installation, including wiring.
"LANDLORD"
▇▇▇▇▇▇▇ PROPERTIES, L.P.
A CALIFORNIA LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ Properties, Inc.
a Maryland Corporation
Its: General Partner
BY Date:
-------------------------------- ----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
"TENANT"
EXTENSITY, INC.
A DELAWARE CORPORATION
BY Date:
-------------------------------- ----------------------------
Its:
-------------------------------
Print Name:
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