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EXHIBIT 10.16
OFFICE BUILDING LEASE
TABLE OF CONTENTS
SECTION .............................................. Page
1. Basic Lease Terms ............................. 1
2. Premises and Common Areas Leased .............. 2
3. Term .......................................... 2
4. Possession .................................... 2
5. Rent .......................................... 3
6. Rental Adjustment ............................. 3
7. Security Deposit .............................. 4
8. Use ........................................... 4
9. Notices ....................................... 5
10. Brokers ....................................... 5
11. Holding Over .................................. 5
12. Taxes on Tenant's Property .................... 5
13. Condition of Premises ......................... 5
14. Alterations ................................... 5
15. Repairs ....................................... 6
16. Liens ......................................... 6
17. Entry By Landlord ............................. 6
18. Utilities and Services ........................ 6
19. Bankruptcy .................................... 7
20. Indemnification and Exculpation of Landlord.... 7
21. Damage to Tenants Property .................... 7
22. Tenants Insurance ............................. 7
23. Damage or Destruction ......................... 8
24. Eminent Domain ................................ 9
25. Defaults and Remedies ......................... 9
26. Assignment and Subletting ..................... 10
27. Subordination ................................. 10
28. Estoppel Certificate .......................... 11
29. Building Planning ............................. 11
30. Rules and Regulations ......................... 11
31. Conflict of Laws............................... 11
32. Successors and Assigns......................... 11
33. Surrender of Premises.......................... 11
34. Professional Fees.............................. 11
35. Performance by Tenant.......................... 11
36. Mortgagee Protection .......................... 12
37. Definition of Landlord ........................ 12
38. Waiver ........................................ 12
39. Identification of Tenant ...................... 12
40. Parking ....................................... 12
41. Force Majeure ................................. 12
42. Terms and Headings ............................ 12
43. Examination of Lease .......................... 12
44. Time .......................................... 12
45. Prior Agreement or Amendments ................. 13
46. Separability .................................. 13
47. Recording ..................................... 13
48. Limitation on Liability ....................... 13
49. Modification For Lender ....................... 13
50. Financial Statements .......................... 13
51. Quiet Enjoyment ............................... 13
52. Tenant as Corporation ......................... 13
53. WORK Letter Agreement ......................... 14
Exhibits
A Outline of Floor Plan or Premises
B The Project
C Notice of Lease Term Dates and Tenant's Percentage
D Standards for Utilities and Services
E Tenant Estoppel Certificate
F Rules and Regulations
G Parking Rules and Regulations
H Hazardous Materials
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OFFICE LEASE
1. BASIC LEASE TERMS
a. DATE OF LEASE EXECUTION: July 12, 1994
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b. TENANT: STAC Electronics, a California corporation
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Trade Name:
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Address (leased Premises): ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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San Diego, CA 92130
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Floor(s) upon which the Premises are Located: Third (3rd)
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Suite Number(s): 370
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Address (For Notices): ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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San Diego, CA 92130
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c. LANDLORD: Weyerhaeuser Mortgage Company, a California corporation, and
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Fort ▇▇▇▇▇, Inc., a Michigan Corporation
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Address (For Notices) c/o Weyerhaeuser Mortgage Company, 6320 Canoga
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Avenue, Woodland Hills, CA 91367
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with a copy to ▇▇▇▇ Management, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or to such other place as Landlord may from time to time
designate by notice to Tenant.
d. PREMISES AREA: Approximately Four Thousand Seven Hundred Twenty-Nine
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(4,729) Rentable Square Feet
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e. PROJECT AREA: Fifty-Seven Thousand Eight Hundred Ninety-Five (57,895)
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Rentable Square Feet
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f. TENANT'S PERCENTAGE: 8.2%
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g. TERM OF LEASE: The term of this Lease shall be for the approximately
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sixty-six (66) months commencing upon the earlier of:
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(2) The date that Tenant opened for business in the Premises, or
(3) September 6, 1994, except as such September 6, 1994, date shall be
extended for Landlord caused delays and delays due to the Premises
being physically inaccessible through no fault of Tenant, and
expiring 3/
Reference in this lease to a "Lease Year" shall mean each successive twelve
month period commencing with the first day of the month in which the term
of this Lease commences.
h. BASE MONTHLY RENT: $ Five Thousand Nine Hundred Eleven and 25/100 Dollars
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($5,911.25)
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j. ANNUAL OPERATING EXPENSE ALLOWANCE: See Addendum "2."
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k. PREPAID RENT: $ 5,911.25 (See Addendum "5")
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l. TOTAL SECURITY DEPOSIT: $ 5,911.25, including a $ -0- non-refundable
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cleaning fee. (See Addendum "5")
m. TENANT IMPROVEMENT ALLOWANCE: $ See Addendum "5" ----------------------
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n. TENANT'S USE OF PREMISES: General office use.
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o. PARKING: Nineteen (19) spaces, including two (2) covered and reserved,
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free of charge.
p. BROKER(S): CB Commercial Real Estate Group, Inc. and Business Real Estate
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Brokerage Company, Inc.
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q. BROKERAGE COMMISSION PAYABLE BY: Landlord
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r. GUARANTOR(S): None
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s. ADDITIONAL SECTIONS
Additional sections of this lease numbered Addenda "1" through "5" -----
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t. ADDITIONAL EXHIBITS
Additional exhibits letters H ----- are attached hereto and made a part
hereof. -------------------------------------------------------------------
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Section 1 represents a summary of the basic terms of this Lease. In
the event of any inconsistency between the terms contained in Section 1 and any
specific clause of this Lease, the terms of the more specific clause shall
prevail.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth. Tenant
covenants, as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions for which tenant
is liable and that this Lease is made upon the condition of such performance.
2. PREMISES AND COMMON AREAS LEASED.
a. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those certain premises described in Section 1 and in Exhibit A
attached hereto (the "Premises"). ---------------------------------------------
Landlord and Tenant stipulate that for purposes of this Lease, the Premises
contains 4,729 rentable square feet and the Project contains 57,895 rentable
square feet.
b. The Premises are contained within the building at the address
designated in Section 1 located in the Project described on Exhibit B attached
hereto (the "Project").
c. Tenant's Percentage of the Project is stipulated to be 8.2%. ----------
d. Tenant shall have the nonexclusive right to use in common with other
tenants in the Building and the Project and subject to the Rules and
Regulations referred to in Paragraph 30 below the following areas ("Common
Areas") appurtenant to the Premises:
(1) The Building's common entrances, lobbies, restrooms, elevators,
stairways and accessways, loading docks, ramps, drives and platforms and any
passageways and serviceways thereto, and the common pipes, conduits, wires and
appurtenant equipment serving the Premises:
(2) Loading and unloading areas, trash areas, parking areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped areas and
similar areas and facilities appurtenant to the Building.
e. Landlord reserves the right from time to time without unreasonable
interference with ▇▇▇▇▇▇'s use:
(1) To install, use, maintain, repair and replace pipes,ducts,
conduits, wires and appurtenant meters and equipment for service to other parts
of the Building above the ceiling surfaces, below the floor surfaces, within
the walls and in the central core areas, and to relocate any pipes, ducts,
conduits, wires and appurtenant meters and equipment included in the Premises
which are located in the Premises or located elsewhere outside the Premises,
and to expand the Building or Project;
(2) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas and walkways.
(3) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available:
(4) To designate other land outside the boundaries of the Building
or Project to be a part of the Common Areas;
(5) To add additional buildings and improvements to the Common
Areas;
(6) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building or the Project, or any
portion thereof;
(7) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas, the Building or the Project as
Landlord may, in the exercise of sound business judgment, deem to be
appropriate.
3. TERM
The term of this Lease shall be for the period designated in Section 1,
commencing on the Commencement Date, and ending on the expiration of such
period, unless the term hereby demised shall be sooner terminated as
hereinafter provided. If not specifically designated in Section 1, the
Commencement Date, the date upon which the term of this Lease shall end, the
rentable square feet within the Premises and Tenant's Percentage shall be
determined in accordance with the provisions of Paragraph 2 and will be
specified in Landlord's Notice of Lease Term Dates and Tenant's Percentage
("Notice"), in the form of Exhibit "C" which is attached hereto and is
incorporated herein by this reference, and shall be served upon Tenant as
provided in Paragraph 9. The Notice shall be binding upon Tenant unless Tenant
objects to the Notice in writing, served upon Landlord as provided for in
Paragraph 9 hereof, within five (5) days of Tenant's receipt of the Notice.
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5. RENT.
a. Tenant shall pay Landlord monthly base rent in the initial amount set
forth in Section 1 which shall be payable monthly in advance on the first day of
each and every calendar month ("Base Monthly Rent") provided, however, the first
month's rent shall be due and payable upon execution of this lease.
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d. All rent shall be paid by Tenant to Landlord monthly in advance on the
first day of every calendar month, at the address shown in Section 1, or such
other place as Landlord may designate in writing from time to time. All rent
shall be paid without prior demand or notice and without any deduction or
offset whatsoever. All rent shall be paid in lawful currency of the United
States of America. All rent due for any partial month shall be prorated at the
rate of 1/30th of the total monthly rent per day. Tenant acknowledges that late
payment by Tenant to Landlord of any rent or other sums due under this Lease
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of such costs being extremely difficult and impracticable to ascertain.
Such costs include, without limitation, processing and accounting charges and
late charges that may be imposed on Landlord by the terms of any encumbrance or
note secured by the Premises. Therefore, if any rent or other sum due from
Tenant is not received when due. Tenant shall pay to landlord an additional sum
equal to 10% of such overdue payment. Landlord and Tenant hereby agree that such
late charge represents a fair and reasonable estimate of the costs that
Landlord will incur by reason of any such late payment. Additionally, all such
delinquent rent or other sums, plus this late charge, shall bear interest at
the then maximum lawful rate permitted to be charged by Landlord. Any payments
of any kind returned for insufficient funds will be subject to an additional
handling charge of $25.00, and thereafter, Landlord may require Tenant to pay
all future payments of rent or other sums due by money order or cashier's
check.
e. Upon the execution of the Lease. Tenant shall pay to Landlord the
prepaid rent set forth in Section 1 and if Tenant is not in default of any
provisions of the Lease, such prepaid rent shall be applied toward the rent due
for the first month of the term. Landlord's obligations with respect to the
prepaid rent are those of a debtor and not of a trustee, and Landlord can
commingle the prepaid rent with Landlord's general funds. Landlord shall not be
required to pay Tenant interest on the prepaid rent. Landlord shall be entitled
to immediately endorse and cash ▇▇▇▇▇▇'s prepaid rent; however, such
endorsement and cashing shall not constitute Landlord's acceptance of this
Lease in the event Landlord does not accept this Lease. ▇▇▇▇▇▇▇▇ shall return
said prepaid rent.
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g. "For purposes of Section 467 of the Internal Revenue Code, the parties
to this lease agreement hereby agree to allocate the stated rents, provided
herein, to the periods which correspond to the actual rent payments as provided
under the terms and conditions of this agreement."
6. RENTAL ADJUSTMENT.
A. For the purposes of this Paragraph 6, the following terms are defined
as follows:
(1) Tenant's Percentage shall mean that portion of the total
rentable area of the Project occupied by Tenant as set forth as a percentage in
Section 1.
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(3) Operating Expenses shall consist of all direct costs of
operation and maintenance of the Project and the Common Areas, including any
expansions to the Common Areas by Landlord ("Operating Expenses"), as determined
by standard accounting practices, calculated assuming the Project is fully
occupied, including the following costs by way of illustration, but not
limitation; any and all assessments Landlord must pay for the Project pursuant
to any covenants, conditions or restrictions reciprocal easement agreements,
tenancy-in-common agreements or similar restrictions and agreements affecting
the Building or the Project; real property taxes and assessments and any taxes
or assessments hereafter imposed in lieu thereof, rent taxes, gross receipt
taxes (whether assessed against Landlord or assessed against Tenant and paid by
Landlord, or both); water and sewer charges; accounting; legal and other
consulting fees; the net cost and expense of insurance for which Landlord is
responsible hereunder or which Landlord or any first mortgagee with a lien
affecting the Premises reasonably deems necessary in connection with the
operation of the Project; utilities; janitorial services; security; ???? parking
charges, utilities surcharges, or any other costs levied, assessed or imposed
by, or at the direction of or resulting from statutes or regulations or
interpretations thereof, promulgated by any federal, state, regional, municipal
or local government authority in connection with the use or occupancy of the
Project or the Premises or the parking facilities serving the Project or the
Premises; the cost (amortized over such reasonable period as Landlord shall
determine together with interest at the maximum rate allowed by law on the
unamortized balance) of any capital improvements made to the Project or the
Common Areas by the Landlord* or replacement of any building equipment needed to
operate the Building or the Common Areas at the same quality levels as prior to
the replacement; costs incurred in the management of the Project, if any
(including supplies, wages and salaries of employees used in the management,
operation and maintenance of the Project, and payroll taxes and similar
governmental charges with respect thereto, Project management office rental, a
management fee and, in the event Landlord is directly participating in the
administration of the Project, an administrative fee in the amount of Landlord's
actual expenses, such administrative fee not to exceed fifteen percent (15%) of
the annual Operating Expenses excluding therefrom such fee); air conditioning;
waste disposal; heating; ventilating; elevator maintenance; supplies; materials;
equipment; tools; repair and maintenance of the structural portions of the
Project, including the plumbing, heating, ventilating, air conditioning and
electrical systems installed or furnished by Landlord; maintenance costs,
including utilities and payroll expenses, rental of personal property used in
maintenance, and all other upkeep of all parking and Common areas; costs and
expenses of
* in order to comply with any governmental requirements not in existence as of
the date of this Lease or designed to reduce Operating Expenses
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gardening and landscaping; maintenance of signs(other than Tenant's signs);
personal property taxes levied on or attributable to personal property used in
connection with the entire Project, including the Common Areas; reasonable
audit or verification fees; and costs and expenses of repairs, resurfacing,
repairing, maintenance, painting, lighting, cleaning, refuse removal, security
and similar items, including appropriate reserves. Operating Expenses shall not
include depreciation on buildings or equipment therein, Landlord's executive
salaries or real estate brokers' commissions.
(4) As used herein, the term "real property taxes" shall include any
form of assessment, license fee, license tax, business license fee, commercial
rental tax, levy, charge, penalty, tax or similar imposition, imposed by any
authority having the direct power to tax, including any city, county, state or
federal government, or any school, agricultural, lighting, drainage or other
improvement or special assessment district thereof, as against any legal or
equitable interest of Landlord in the Premises, including, but not limited to,
the following:
(a) any tax on Landlord's "right" to other income from the
Premises or as against Landlord's business of leasing the Premises;
(b) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real estate tax, including but not limited
to, any assessments, taxes, fees, levies and charges that may be imposed by
governmental agencies for such services as fire protection, street, sidewalk
and road maintenance, refuse removal and for other governmental services
formerly provided without charge to property owners or occupants. It is the
intention of Tenant and Landlord that all such new and increased assessments,
taxes, fees, levies and charges be included within the definition of "real
property taxes" for the purposes of this Lease;
(c) any assessment, tax, fee, levy or charge allocable to or
measured by the area of the Premises or the rent payable hereunder, including,
without limitation, any gross income tax or excise tax levied by the State,
city or federal government, or any political subdivision thereof, with respect
to the receipt of such rent, or upon or with respect to the possession,
leasing, operating, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises, or any portion thereof;
(d) any assessment, tax, fee, levy or charge upon this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises.
Notwithstanding any provision of this paragraph 6 expressed or implied to
the contrary, "real property taxes" shall not include Landlord's federal or
state income, franchise, inheritance or estate taxes.
------------------------------------------------------------- See Addendum "2."
c Even though the term has expired and ▇▇▇▇▇▇ has vacated the Premises,
when final determination is made of Tenant's Percentage of Operating Expenses
for the year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated expenses paid and, conversely, any overpayment
made in the event said expenses decrease shall be rebated by Landlord to
Tenant.
7. SECURITY DEPOSIT.
Upon execution of this Lease, Tenant shall deposit with Landlord the amount
of the security deposit set forth in Section 1 in part as security for the
performance by Tenant of the provisions of this Lease ------------------. If
Tenant is in default, Landlord can use the security deposit or any portion of it
to cure the default or to compensate Landlord for all damage sustained by
Landlord resulting from ▇▇▇▇▇▇'s default. Upon demand, ▇▇▇▇▇▇ shall immediately
pay to Landlord a sum equal to the portion of the security deposit expended or
applied by Landlord to maintain the security deposit in the amount initially
deposited with Landlord. In no event will Tenant have the right to apply any
part of the security deposit to any rent or other sums due under this Lease. If
Tenant is not in default at the expiration or termination of this Lease,
Landlord shall return the entire security deposit to Tenant. ------------------
------------------------ Landlord's obligations with respect to the deposit are
those of a debtor and not of a trustee, and Landlord can commingle the security
deposit with ▇▇▇▇▇▇▇▇'s general funds. Landlord shall not be required to pay
Tenant interest on the deposit. Landlord shall be entitled to immediately
endorse and cash ▇▇▇▇▇▇'s prepaid deposit; however, such endorsement and cashing
shall not constitute Landlord's acceptance of this Lease. In the event Landlord
does not accept this Lease, Landlord shall return said prepaid deposit. Should
Landlord sell its interest in the Premises during the term hereof and if
Landlord deposits with the purchaser thereof the then unappropriated funds
deposited by Tenant as aforesaid, thereupon Landlord shall be discharged from
any further liability with respect to the Security Deposit.
8. USE.
Tenant shall use the Premises for the uses set forth in Section 1 above,
and shall not use or permit the Premises to be used for any other purpose
without the prior written consent of Landlord. Nothing contained herein shall
be deemed to give Tenant any exclusive right to such use in the Building.
Tenant shall not use or occupy the Premises in violation of law or of the
Certificate of Occupancy issued for the Building, and shall, upon written
notice from Landlord, discontinue any use of the Premises which is declared by
any governmental authority having jurisdiction to be a violation of law or of
said Certificate of Occupancy. Tenant shall comply with any direction of any
governmental authority having jurisdiction which shall, by reason of the nature
of Tenant's use or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or with respect to the use or occupation
thereof. Tenant shall comply with all rules, orders, regulations and
requirements of the Insurance Service Office or any other organization
performing a similar function. Tenant shall promptly, upon demand, reimburse
Landlord for any additional premium charged for such policy by reason of
Tenant's failure to comply with the provisions of this Paragraph. Tenant shall
not do or permit anything to be done in or about the Premises which will in any
way obstruct or interfere with the rights of other tenants or occupants of the
Project, or injure or annoy them, or use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about
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the Premises. Tenant shall comply with all restrictive covenants and obligations
created by private contracts which affect the use and operation of the Premises,
the Building, the Common Area or the Project. Subject to Paragraph 23 hereof,
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises and shall keep the Premises in first class repair and appearance normal
wear and tear excepted. Landlord reserves the right to prescribe the weight and
position of all files, safes and heavy equipment which Tenant desires to place
in the Premises so as to properly distribute the weight thereof. Further,
Tenant's business machines and mechanical equipment which cause vibration or
noise that may be transmitted to the building structure or to any other space in
the building shall be so installed, maintained and used by Tenant as to
eliminate such vibration or noise. Tenant shall be responsible for all
structural engineering required to determine structural load.
9. NOTICES.
Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery or by mail and if given by mail
shall be deemed sufficiently given if sent by registered or certified mail
addressed to Tenant at the address(es) designated in Section 1 or to Landlord
at both of the addresses designated in Section 1. Either party may specify a
different address for notice purposes by written notice to the other. -------
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10. BROKERS.
Tenants warrants that it has no dealings with any real estate
broker or agent in connection with the negotiation of this Lease except for
those certain brokers whose names are set forth in Section 1 and that it knows
of no other real estate broker or agent who is or might be entitled to a
commission in connection with this Lease. If ▇▇▇▇▇▇ has dealt with any other
person or real estate broker with respect to leasing or renting space in the
Project. Tenant shall be solely responsible for the payment of any fee due said
person or firm and Tenant shall hold Landlord free and harmless against any
liability in respect thereto, including attorneys' fees and costs.
11. HOLDING OVER.
If Tenant holds over after the expiration or earlier termination of
the term hereof without the express written consent of Landlord, Tenant shall
become a Tenant at sufferance only, at a rental rate equal to the greater of
Landlord's scheduled rent for the space or one hundred twenty-five percent
(125%) of the rent in effect upon the date of such expiration (subject to
adjustment as provided in Paragraph 6 hereof and prorated on a daily basis),
and otherwise subject to the terms, covenants and conditions herein specified,
so far as applicable. Acceptance by Landlord of rent after such expiration or
earlier termination shall not result in a renewal of this Lease. The foregoing
provisions of this Paragraph 11 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise provided
by law. If ▇▇▇▇▇▇ fails to surrender the Premises upon the expiration of this
Lease despite demand to do so by Landlord. Tenant shall indemnify and hold
Landlord harmless from all loss or liability, including without limitation, any
claim made by any succeeding tenant founded on or resulting from such failure
to surrender and any attorneys fees and costs.
12. TAXES ON TENANT'S PROPERTY.
a Tenant shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on ▇▇▇▇▇▇'s
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessment, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant. Tenant shall, upon demand, repay to Landlord the taxes so levied
against Landlord, or the portion of such taxes resulting from such increase in
the assessment.
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13. CONDITION OF PREMISES.
Tenant acknowledges that neither ▇▇▇▇▇▇▇▇ nor any agent of Landlord has
made any representation or warranty with respect to the Premises, the building
or the Project or with respect to the suitability of either for the conduct of
▇▇▇▇▇▇'s business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the building were in satisfactory
condition at such time. Without limiting the foregoing, ▇▇▇▇▇▇'s execution of
the Notice attached hereto as EXHIBIT "C" shall constitute a specific
acknowledgement and acceptance of the various start-up inconveniences that may
be associated with the use of the Common Areas such as certain construction
obstacles including scaffolding, delays in use of freight elevator service,
certain elevators not being available to Tenant, the passage of work crews
using elevators, uneven air conditioning services and other typical
conditions incident to recently constructed office buildings.
14. ALTERATIONS.
a Tenant shall make no alterations, additions or improvements in or to the
Premises without Landlord's prior written consent,* and then only by
contractors or mechanics approved by Landlord such consents and approvals by
Landlord shall not be unreasonably withheld or delayed. Tenant shall submit to
Landlord plans and specifications for any proposed alterations, additions or
improvements to the Premises, and may not make such alterations, additions or
improvements until Landlord has approved of such plans and specifications.
Tenant shall construct such alterations, additions or improvements in
accordance with the plans and specifications approved by Landlord, and shall
not amend or modify such plans and specifications without Landlord's prior
written consent. If the proposed change requires the consent or approval of any
lessor of a superior lease, or the holder of a mortgage encumbering the
Premises, such consent or approval must be secured prior to the construction of
such alteration, addition or improvement.** Tenant agrees that there shall be
no construction of partitions or other obstructions which might interfere with
Landlord's free access to mechanical installations or service facilities of the
building or interfere with the moving of Landlord's equipment to or from the
enclosures containing said installations or facilities. All such work shall be
done at such times and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
regulations and requirements of all governmental agencies, offices and boards
having jurisdiction, and in full compliance with the rules, regulations and
requirements of the Insurance Service Office, and of any similar body. Before
commencing any work, Tenant shall give Landlord at least ten (10) days written
notice of the proposed commencement of such work and shall, if required by
Landlord and other than for the work described in the Work Letter Agreement of
even date herewith secure at Tenant's own
*unless such alterations, additions, or improvements are less than a cost of
Five Thousand and No/100 Dollars ($5,000.00).
**and Landlord agrees to cooperate in obtaining any such consent or approval.
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cost and expense, a completion and lien indemnity bond satisfactory to Landlord
for said work if said work costs more than $100,000. Tenant further covenants
and agrees that any mechanic's lien filed against the Premises or against the
Building for work claimed to have been done for, or materials claimed to have
been furnished to Tenant, will be discharged by ▇▇▇▇▇▇, by bond or otherwise,
within (10) ten days after the filing thereof, at the cost and expense of
▇▇▇▇▇▇. All alterations, additions or improvements upon the Premises made by
either party, including (without limiting the generality of the foregoing) all
wallcovering, built-in cabinet work, paneling and the like, shall, ----------
--------------, become the property of Landlord, and shall remain upon, and be
surrendered with the Premises as a part thereof, at the end of the term hereof.
-------------------------------------------------------------------------------
b. All articles of personal property and all business and trade fixtures,
machinery and equipment, furniture and movable partitions owned by Tenant or
installed by Tenant at its expense in the Premises shall be and remain the
property of Tenant and may be removed by Tenant at any time during the lease
term.-------------------- If Tenant shall fail to remove all of its effects
from the Premises upon termination of this Lease for any cause whatsoever,
Landlord may, at its option, remove the same in any manner that Landlord shall
choose, and store said effects without liability to Tenant for loss thereof. In
such event, ▇▇▇▇▇▇ agrees to pay Landlord upon demand any and all expenses
incurred in such removal, including court costs and attorneys fees and storage
charges on such effects, for any length of time that the same shall be in
Landlord's possession. Landlord may, at its option, without notice, sell said
effects, or any of the same, at private sale and without legal process, for
such price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
15. REPAIRS.
a. By entry hereunder, ▇▇▇▇▇▇ accepts the Premises as being in good and
sanitary order, condition and repair. Subject to Paragraph 23 hereof. Tenant
shall keep, maintain and preserve the Premises in first class condition and
repair, normal wear and tear excepted, and shall, when and if needed, at
Tenant's sole cost and expense, make all repairs to the Premises and every part
thereof. Tenant shall, upon the expiration or sooner termination of the term
hereof, surrender the Premises to Landlord in the same condition as when
received, usual and ordinary wear and tear excepted. Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the Premises or
any party thereof. The parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises, the
building, the Project or the Common Area except as specifically herein set
forth.
b. Anything contained in Paragraph 15a above to the contrary notwithstanding,
Landlord shall repair and maintain the structural portions of the building and
the plumbing, heating, ventilating, air conditioning, elevator and electrical
systems installed or furnished by Landlord, unless such maintenance and repairs
are caused in part or in whole by the act, neglect or omission of any duty by
Tenant, its agents, servants, employees or invitees, in which case Tenant shall
pay to Landlord, as additional rent, the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any such repairs
or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. Except as provided in Paragraph 23
hereof, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with ▇▇▇▇▇▇'s business arising from the
making of any repairs, alterations or improvements in or to any portion of the
building or the Premises or in or to fixtures, appurtenances and equipment
therein. Tenant waives the right to make repairs at Landlord's expense under any
law, statute or ordinance now or hereafter in effect.
16. LIENS.
Tenant shall not permit any mechanics', materialmens' or other liens to
be filed against the building or the Project nor against ▇▇▇▇▇▇'s leasehold
interest in the Premises. Landlord shall have the right at all reasonable times
to post and keep posted on the Premises any notices which it deems necessary
for protection from such liens. If any such liens are filed, Landlord may,
without waiving its rights and remedies based on such breach of Tenant and
without releasing Tenant from any of its obligations, cause such liens to be
released by any means it shall deem proper, including payments in satisfaction
of the claim giving rise to such lien. Tenant shall pay to Landlord at once,
upon notice by Landlord, any sum paid by Landlord to remove such liens,
together with interest at the maximum rate per annum permitted by law from the
date of such payment by Landlord.
17. ENTRY BY LANDLORD.
Landlord reserves and shall at any and all times (except as provided
below) have the right to enter the Premises to inspect the same, upon reasonable
prior notice to Tenant, to supply janitor service and any other service to be
provided by Landlord to Tenant hereunder, to show the Premises to prospective
purchasers or tenants, upon reasonable prior notice to Tenant, to post notices
of nonresponsibility, to alter, improve or repair the Premises or any other
portion of the Building,* all without being deemed guilty of any eviction of
Tenant and without abatement of rent. Landlord may, in order to carry out such
purposes, erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, provided that the
business of Tenant shall be interfered with as little as reasonably practicable.
Tenant hereby waives any claim for damages for any injury or inconvenience to or
interference with ▇▇▇▇▇▇'s business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss in, upon and about the Premises. Landlord shall
at all times have and retain a key with which to unlock all doors in the
Premises, excluding ▇▇▇▇▇▇'s vaults and safes. Landlord shall have the right to
use any and all means which Landlord may deem proper to open said doors in an
emergency in order to obtain entry to the Premises. Any entry to the Premises
obtained by Landlord by any of said means, or otherwise, shall not be construed
or deemed to be a forcible or unlawful entry into the Premises, or an eviction
of Tenant from the Premises or any portion thereof, and any damages caused on
account thereof shall be paid by ▇▇▇▇▇▇. It is understood and agreed that no
provision of this Lease shall be construed as obligating Landlord to perform any
repairs, alterations or decorations except as otherwise expressly agreed herein
by Landlord.
*(with reasonable prior notice to Tenant for non-routine repairs and
maintenance)
18. UTILITIES AND SERVICES.
Provided that Tenant is not in default under this Lease, ▇▇▇▇▇▇▇▇ agrees
to furnish or cause to be furnished to the Premises the utilities and services
described in the Standards for Utilities and Services, attached hereto as
EXHIBIT "D", subject to the conditions and in accordance with the standards set
forth therein. Landlord's failure to furnish any of the foregoing items when
such failure is caused by (i) accident, breakage or repairs; (ii) strikes,
lockouts or other labor disturbance or labor dispute of any character; (iii)
governmental regulation, moratorium or other governmental action; (iv) inability
despite the exercise of reasonable diligence to obtain electricity, water or
fuel; or by (v) any other cause beyond Landlord's reasonable control, shall not
result in any liability to Landlord. In addition, tenant shall not be entitled
to any abatement or reduction of rent by reason of such failure, no eviction of
Tenant shall result from such failure and Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of such failure.
In the event of any failure, stoppage or interruption thereof, Landlord shall
diligently attempt to resume service promptly. If Tenant requires or utilizes
more water or electrical power than is considered reasonable or normal by
Landlord. Landlord may at its option require Tenant to pay, as additional rent,
the cost, as fairly determined by Landlord, incurred by such extraordinary
usage. In addition, Landlord may install separate meter(s) for the Premises, at
Landlord's -------- sole expense, and Tenant thereafter shall pay all charges of
the utility providing service and Landlord shall make an appropriate adjustment
to account for the fact Tenant is directly paying such metered charges.
KOL 3/88 6
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19. BANKRUPTCY.
If Tenant shall file a petition in bankruptcy under any provision of
the Bankruptcy Code as then in effect, or if Tenant shall be adjudicated a
bankrupt in involuntary bankruptcy proceedings and such adjudication shall not
have been vacated within thirty (30) days from the date thereof, or if a
receiver or trustee shall be appointed of Tenant's property and the order
appointing such receiver of trustee shall not be set aside or vacated within
thirty (30) days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, -------------------------------
then in any such event Landlord may terminate this Lease, if Landlord so
elects, with or without notice of such election and with or without entry or
action by Landlord. In such case, notwithstanding any other provisions of this
Lease, Landlord, in addition to any and all rights and remedies allowed by law
or equity, shall, upon such termination, be entitled to recover damages in the
amount provided in Paragraph 25b hereof. Neither Tenant nor any person claiming
through or under Tenant or by virtue of any statute or order of any court shall
be entitled to possession of the Premises but shall surrender the Premises to
Landlord. Nothing contained herein shall limit or prejudice the right of
Landlord to recover damages by reason of any such termination equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved; whether or
not such amount is greater, equal to or less than the amount of damages
recoverable under the provisions of this Paragraph 19.
20. INDEMNIFICATION AND EXCULPATION OF LANDLORD.
a. Tenant shall indemnify, defend and hold Landlord harmless from all
claims arising from Tenant's use of the Premises or the conduct of its business
or from any activity, work or thing done, permitted or suffered by Tenant in or
about the Premises, the Building, the Project or the Common Area.** Tenant shall
further indemnify, defend and hold Landlord harmless from all claims arising
from any breach or default in the performance of any obligation to be performed
by Tenant under the terms of this Lease, or arising from any act, neglect, fault
or omission of Tenant or of its agents or employees, and from and against all
costs, attorneys' fees, expenses and liabilities incurred in or about such claim
or any action or proceeding brought thereon. In case any action or proceeding
shall be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by counsel
approved in writing by Landlord. Tenant, as a material part of the consideration
to Landlord, hereby assumes all risk of damage to property or injury to person
in, upon or about the Premises from any cause whatsoever except that which is
caused by the failure of Landlord to observe any of the terms and conditions of
this Lease where such failure has persisted for an unreasonable period of time
after written notice of such failures. Tenant hereby waives all its claims in
respect thereof against Landlord.
b. Neither Landlord nor any partner, director, officer, agent or employee
of Landlord shall be liable to tenant or its partners, directors, officers,
contractors, agents, employees, invitees, sublessees or licensees, for any
loss, injury or damage to Tenant or to any other person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
solely caused by or solely resulting from the gross negligence or willful
misconduct of Landlord or its employees or agents in the operation or
maintenance of the Premises, the building, or the Project without contributory
negligence on the part of Tenant or any of its sublessees or licensees or its
or their employees, agents or contractors, or any other lessees or occupants of
the building or Project. Further, neither Landlord nor any partner, director,
officer, agent or employee of Landlord shall be liable (i) for any such damage
caused by other lessees or persons in or about the building or Project, or
caused by quasi-public work; or (ii) for consequential damages arising out of
any loss of the use of the Premises of any equipment or facilities therein by
Tenant or any person claiming through or under Tenant.
21. DAMAGE TO TENANT'S PROPERTY.
*Notwithstanding the provisions of Paragraph 20 to the contrary,
Landlord or its agents shall not be liable for (i) any damage to any property
entrusted to employees of the building or Project, (ii) loss or damage to any
property by theft or otherwise, (iii) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the building or from
the pipes, appliances or plumbing work therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
cause whatsoever. Landlord or its agents shall not be liable for interference
with light or other incorporeal hereditaments, nor shall Landlord be liable for
any latent defect in the Premises or in the building. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or in the
building or of defects therein or in the fixtures or equipment.
22. TENANT'S INSURANCE.
a. Tenant shall, during the term hereof and any other period of occupancy,
at its sole cost and expense, keep in full force and effect the following
insurance:
(1) Standard form property insurance insuring against the perils of
fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be
upon all property owned by Tenant for which Tenant is legally liable or that
was installed at Tenant's expense, and which is located in the Project
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant improvements installed by Landlord), and any other personal
property in an amount not less than ninety percent (90%) of the full
replacement cost thereof. In the event that there shall be a dispute as to the
amount which comprises full replacement cost, the decision of Landlord or any
mortgagees of Landlord shall be conclusive. This insurance policy shall also be
upon direct or indirect loss of ▇▇▇▇▇▇'s earnings attributable to Tenant's
inability to use fully or obtain access to the Premises, Building or Project in
an amount as will properly reimburse Tenant. Such policy shall name ▇▇▇▇▇▇▇▇
and any mortgagees of Landlord as insured parties, as their respective
interests may appear.
(2) Comprehensive General Liability insurance insuring Tenant against
any liability arising out of the lease, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $1,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of the Premises and ▇▇▇▇▇▇'s Operations thereon, independent
contractors, contractual liability (covering the indemnity contained in
Paragraph 20 hereof) and shall (a) name Landlord as an additional insured, (b)
contain a cross liability provision and (c) contain a provision that the
insurance provided the Landlord hereunder shall be primary and non-contributing
with any other insurance available to the Landlord.
(3) Workers' Compensation and Employer's Liability insurance (as
required by state law).
(4) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself.
b. All policies shall be written in a form satisfactory to Landlord and
shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Best's Insurance Reports. Within ten (10) days after the
execution of this Lease, Tenant shall deliver to Landlord copies of policies or
certificates evidencing the existence of the amounts and forms of coverage
satisfactory to Landlord. No such policy shall be cancellable or reducible in
coverage except after thirty (30) days prior written notice to Landlord. Tenant
shall, within ten (10) days prior to the expiration of such policies, furnish
Landlord with renewals or "binders" thereof, or Landlord may order such
insurance and charge the cost thereof to Tenant as additional rent. If Landlord
obtains any insurance that is the responsibility of Tenant under this Paragraph,
Landlord shall deliver to Tenant a written statement setting forth the cost of
any such insurance and showing in reasonable detail the manner in which it has
been computed.
*Except to the extent of Landlord's or its employees' or agents' gross
negligence or willful misconduct,
**Except to the extent of Landlord's or its employees' or agents' negligence or
willful misconduct,
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c. During the term of this Lease, Landlord shall insure the Building
(excluding any property which Tenant is obligated to insure under Subparagraphs
22a and b hereof) against damage with All-Risk insurance and public liability
insurance, all in such amounts and with such deductions as Landlord considers
appropriate.* Landlord may, but shall not be obligated to, obtain and carry any
other form or forms of insurance as it or Landlord's mortgagees may determine
advisable. Notwithstanding any contribution by Tenant to the cost of insurance
premiums, as provided herein, Tenant acknowledges that it has no right to
receive any proceeds from any insurance policies carried by Landlord. *upon
written request of Tenant with reference to this Subparagraph 22c, Landlord
shall provide Tenant with a copy of a certificate of Landlord's insurance.
d. Tenant will not keep, use, sell or offer for sale in or upon the
Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building. If ▇▇▇▇▇▇'s occupancy or business
in, or on, the Premises, whether or not Landlord has consented to the same,
results in any increase in premiums for the insurance periodically carried by
Landlord with respect to the Building, Tenant shall pay any such increase in
premiums as additional rent within ten (10) days after being billed therefore
by Landlord. In determining whether increased premiums are a result of Tenant's
use of the Premises, a schedule issued by the organization computing the
insurance rate on the Building or the Tenant Improvements showing the various
components of such rate, shall be conclusive evidence of the several items and
charges which make up such rate. Tenant shall promptly comply with all
reasonable requirements of the insurance authority or any present or future
insurer relating to the Premises.
e. If any of Landlord's insurance policies shall be cancelled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or subtenant of Tenant or by anyone
Tenant permits on the Premises and, if Tenant fails to remedy the condition
giving rise to such cancellation, threatened cancellation, reduction of
coverage, threatened reduction of coverage, increase in premiums, or threatened
increase in premiums, within forty-eight (48) hours after notice thereof,
Landlord may, at its option, either terminate this Lease or enter upon the
Premises and attempt to remedy such condition, and Tenant shall promptly pay
the cost thereof to Landlord as additional rent. Landlord shall not be liable
for any damage or injury caused to any property of Tenant or of others located
on the Premises resulting from such entry. If Landlord is unable, or elects not
to remedy such condition, then Landlord shall have all of the remedies provided
for in this Lease in the event of a default by Tenant. Notwithstanding the
foregoing provisions of this Subparagraph 22e, if Tenant fails to remedy as
aforesaid, Tenant shall be in default of its obligation hereunder and Landlord
shall have no obligation to remedy such default.
f. All policies of insurance required hereunder shall include a clause or
endorsement denying the insurer any rights of subrogation against the other
party to the extent rights have been waived by the insured before the
occurrence of injury or loss. Landlord and Tenant waive any rights of recovery
against the other for injury or loss due to hazards covered by policies of
insurance containing such a waiver of subrogation clause or endorsement to the
extent of the injury or loss covered thereby.
23. DAMAGE OR DESTRUCTION.
See Addendum "1" Item 8.
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24. EMINENT DOMAIN.
a. In case all of the Premises, or such part thereof as shall substantially
interfere with ▇▇▇▇▇▇'s use and occupancy thereof, shall be taken for any
public or quasi-public purpose by any lawful power or authority by exercise of
the right of appropriation, condemnation or eminent domain, or sold to prevent
such taking, either party shall have the right to terminate this Lease effective
as of the date possession is required to be surrendered to said authority.
Tenant shall not assert any claim against Landlord or the taking authority for
any compensation of such taking, and Landlord shall be entitled to receive the
entire amount of an award without deduction for any estate or interest of
Tenant. In the event the amount of property or the type of estate taken shall
not substantially interfere with the conduct of Tenant's business, Landlord
shall be entitled to the entire amount of the award without deduction for any
estate or interest of Tenant, Landlord shall restore the Premises to
substantially their same condition prior to such partial taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which and to the part of the Premises of which, Tenant shall be
so deprived on account of such taking and restoration. Nothing contained in
this paragraph shall be deemed to give Landlord any interest in any award made
to Tenant for the taking of personal property and fixtures belonging to Tenant,
or for moving expenses or for the unamortized portion of tenant improvements
paid by ▇▇▇▇▇▇.
b. In the event of taking of the Premises or any part thereof for temporary
use, (1) this Lease shall be and remain unaffected thereby and rent shall not
▇▇▇▇▇, and (2) Tenant shall be entitled to receive for itself such portion or
portions of any award made for such use with respect to the period of the
taking which is within the term, provided that if such taking shall remain in
force at the expiration or earlier termination of this Lease, Tenant shall then
pay to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations. For purpose of this Subparagraph 24b, a temporary taking shall be
defined as a taking for a period of 270 days or less.
25. DEFAULTS AND REMEDIES.
a. The occurrence of any one or more of the following events shall constitute
a default hereunder by ▇▇▇▇▇▇:
(1) The ----------- abandonment of the Premises by ▇▇▇▇▇▇. Abandonment
is herein defined to include, but is not limited to, any absence by Tenant
from the Premises for ten (10) business days or longer while in default of any
provision of this Lease.
(2) The failure by Tenant to make any payment of rent or additional
rent or any other payment required to be made by Tenant hereunder,
--------------- within five (5) days after notice to Tenant that such payment
is due.
(3) The failure by ▇▇▇▇▇▇ to observe or perform any of the express or
implied covenants or provisions of this lease to be observed or performed by
Tenant, other than as specified in Subparagraph 25a.(1) or (2) above, where
such failure shall continue for a period of ten (10) days after written notice
thereof from Landlord to Tenant. If the nature of Tenant's default is such that
more than ten (10) days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant shall commence such cure with said
ten (10) day period and thereafter diligently prosecute such cure to
completion.
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(4) The making by Tenant of any general assignment for the benefit of
creditors; the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty (30) days; the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease where such seizure is not
discharged within thirty (30) days.
*
b. In the event of any such default by ▇▇▇▇▇▇, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder. In
the event that Landlord shall elect to so terminate this lease then Landlord
may recover from Tenant:
(1) The worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(2) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(3) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord for all the
detriment proximately caused by ▇▇▇▇▇▇'s failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom.
As used in Subparagraphs 25b(1) and (2) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted by law.
As used in Subparagraph 25b(3) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
c. In the event of any such default by Tenant, Landlord shall also have the
right, with or without terminating this lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant. No re-entry or taking possession of the Premises by Landlord
pursuant to this paragraph 25c shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
d. In the event of the abandonment of the Premises by Tenant or in
-----------
the event that Landlord shall elect to re-enter as provided above or shall take
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this lease
as provided above, Landlord may from time to time, without terminating this
Lease, either recover all rent as it becomes due or relet the Premises or any
part thereof for the term for this lease on terms and conditions as Landlord in
its sold discretion may deem advisable with the right to make alterations and
repairs to the Premises.
In the event that Landlord shall elect to so relet, then rentals received
by Landlord from such reletting shall be applied: first, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord; second, the
payment of any cost of such reletting; third, to the payment of the cost of
any alterations and repairs to the Premises; fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, shall be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rentals received from such reletting
during any month, which is applied to the payment of rent hereunder, be less
than the rent payable during that month by Tenant hereunder, then ▇▇▇▇▇▇
* (5) A default by Tenant under the lease with Landlord for Suites 200
and 400 at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.
9
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shall pay such deficiency to Landlord immediately upon demand therefor by
Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall
also pay to Landlord, as soon as ascertained, any costs and expenses incurred,
including but not limited to brokers' commissions, by Landlord in such
reletting or in making such alterations and repairs not covered by the rentals
received from such reletting.
e. All rights, options and remedies of Landlord contained in this Lease shall
be construed and held to cumulative, and no one of them shall be exclusive of
the other, and Landlord shall have the right to pursue any one of all of such
remedies or any other remedy or relief which may be provided by law, whether or
not stated in this Lease. No waiver of any default of Tenant hereunder shall be
implied from any acceptance by Landlord of any rent or other payments due
hereunder or any omission by Landlord to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect defaults other than as specified in said waiver. The consent or approval
of Landlord to or of any act by Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render unnecessary Landlord's consent to or
approval of any subsequent similar acts by ▇▇▇▇▇▇.
26. ASSIGNMENT AND SUBLETTING
a. Tenant shall not voluntarily assign or encumber its interest in this Lease
or in the Premises or sublease all or any part of the Premises, or allow any
other person or entity to occupy or use all or any part of the Premises,
without first obtaining Landlord's prior written consent which shall not be
unreasonably withheld or delayed. Any assignment, encumbrance or sublease
without Landlord's prior written consent shall be voidable at Landlord's
election and shall constitute a default. -------------------------------------
No consent to an assignment, encumbrance or sublease shall constitute a further
waiver of the provisions of this Paragraph. Tenant shall only notify Landlord
in writing of ▇▇▇▇▇▇'s intent to assign, encumber or sublease this Lease, the
name of the proposed assignee or sublessee, information concerning the
financial responsibility of the proposed assignee or sublessee and the terms of
the proposed assignment or subletting, and Landlord shall, within thirty (30)
days of receipt of such written notice and additional information requested by
landlord concerning the proposed assignee's or sublessee's financial
responsibility elect one of the following: (1) consent to such proposed
assignment, encumbrance or sublease; or (2) refuse such content, which refusal
shall be on reasonable grounds. ---------------------------------------------
In addition, a condition to Landlord's consent to any assignment, transfer or
hypothecation of this Lease shall be the delivery to Landlord of a true copy of
the fully executed instrument of assignment, transfer of hypothecation, and the
delivery to Landlord of an agreement executed by the assignee in form and
substance satisfactory to Landlord and expressly enforceable by ▇▇▇▇▇▇▇▇,
whereby the assignee assumes and agrees to be bound by all of the terms and
provisions of this Lease and to perform all of the obligations of Tenant
hereunder.
b. As a condition to Landlord's consent to any sublease, such sublease shall
provide that it is subject and subordinate to this Lease and to all mortgages:
that Landlord may enforce the provisions of the sublease, including collection
of rent; that in the event of termination of this Lease for any reason,
including without limitation a voluntary surrender by ▇▇▇▇▇▇, or in the event of
any reentry or repossession of the Premises by Landlord, Landlord may, at its
option, either (1) terminate the sublease or (2) take over all of the right,
title and interest of Tenant, as sublessor, under such sublease, in which case
such sublessee shall attorn to Landlord, but that nevertheless Landlord shall
not (1) be liable for any previous act or omission of Tenant under such
sublease. (2) be subject to any defense or offset previously accrued in favor of
the sublessee against Tenant, or (3) be bound by any previous modification of
any sublease made without ▇▇▇▇▇▇▇▇'s written consent, or by any previous
prepayment by sublessee of more than one month's rent.
c. In the event that Landlord shall consent to an assignment or sublease under
the provisions of this Paragraph 26, Tenant shall pay Landlord's processing
costs and attorney's fees incurred in giving such consent. If Landlord shall
consent to any assignment of this Lease, Tenant shall pay to Landlord, as
additional rent ------ of all sums and other considerations payable to and for
the benefit of Tenant by the assignee on account of the assignment, as and when
such sums and other consideration** are due and payable by the assignee to or
for the benefit of Tenant (or, if Landlord so requires, and without any release
of Tenant's liability for the same. Tenant shall instruct the assignee to pay
such sums and other consideration directly to Landlord). If for any proposed
sublease Tenant receives rent or other consideration, either initially or over
the term of the sublease, in excess of the rent called for hereunder or, in
case of the sublease of a portion of the Premises, in excess of such rent
fairly allocable to such portion, after appropriate adjustments to assure that
all other payments called for hereunder are taken into account. Tenant shall
pay to Landlord as additional rent hereunder* ------ of the excess of each such
payment of rent or other consideration received by Tenant** promptly after its
receipt. Landlord's waiver or consent to any assignment or subletting shall not
relieve Tenant or any assignee or sublessee from any obligation under this
Lease whether or not accrued. Occupancy of all or part of the Premises by
parent or subsidiary companies of Tenant shall not be deemed an assignment or
subletting. -----------------------------------------------------------------
* one-half (1/2)
** after ▇▇▇▇▇▇'s recovery of reasonable, actual, out-of-pocket expenses in
connection with such assignment or sublease (including, without limitation, a
subtenant improvement allowance) and other monetary concessions.
27. SUBORDINATION
a. Subject to Addendum 1. Item 2. Without the necessity of any additional
document being executed by tenant for the purpose of effecting a subordination
and at the election of Landlord or any mortgage with a lien on the building or
any ground lessor with respect to the building, this Lease shall be subject and
subordinate at all times to:
(1) all ground leases or underlying leases which may not exist or hereafter
be executed affecting the building or the land upon which the building is
situated or both; and
(2) the lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the building, land, ground leases
or underlying leases, or Landlord's interest or estate in any of said items is
specified as security.
b. Subject to Addendum 1, Item 2, Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated any such ground
leases or underlying leases or any such liens to this Lease. In the event that
any ground lease or underlying lease terminates
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for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason. Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by ▇▇▇▇▇▇▇▇ and in the form requested
by Landlord, any additional documents evidencing the priority of subordination
of this Lease with respect to any such ground leases or underlying leases or the
lien of any such mortgage or deed of trust. Should Tenant fail to sign and
return any such documents within ten (10) business days of request Tenant shall
be in default, and Landlord may, at Landlord's option, terminate the Lease
provided written notice of such termination is received by Tenant prior to
Landlord's receipt of such documents. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record any such
document in the name and on behalf of ▇▇▇▇▇▇.
28. ESTOPPEL CERTIFICATE.
a. Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord a statement, in
a form substantially similar to the form of Exhibit "E", certifying: (1) the
date of commencement of this Lease; (2) 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, and stating the date and nature of such
modifications); (3) the date to which the rental and other sums payable under
this Lease have been paid; (4) that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and (5) such other matters requested by Landlord. Landlord and ▇▇▇▇▇▇ intend
that any statement delivered pursuant to this Paragraph 28 may be relied upon by
any mortgagee, beneficiary, purchaser or prospective purchaser of the Building
or any interest therein.
b. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (1) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (2) that there are no
uncured defaults in Landlord's performance, and (3) that not more than one (1)
month's rental has been paid in advance. ▇▇▇▇▇▇'s failure to deliver said
statement to Landlord within ten (10) working days of receipt shall constitute a
default under this Lease and Landlord may, at Landlord's option, terminate the
Lease, provided written notice of such termination is received by Tenant prior
to ▇▇▇▇▇▇▇▇'s receipt of said statement.
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30. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations", a copy of which is attached hereto and marked Exhibit "F" and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the building or Project of any of said Rules and Regulations.
31. CONFLICT OF LAWS.
This Lease shall be governed by and construed pursuant to the laws of
the state in which the premises are located.
32. SUCCESSORS AND ASSIGNS.
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
33. SURRENDER OF PREMISES.
The voluntary or other surrender of this Lease by ▇▇▇▇▇▇, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies. Upon the expiration or termination of this Lease. Tenant shall
peaceably surrender the Premises and all alternations and additions thereto,
broom clean the Premises, leave the Premises in good order, repair and
condition, reasonable wear and tear excepted, and comply with the provisions of
Paragraph 15. The delivery of keys to any employee of Landlord or to Landlord's
agent or any employee thereof shall not be sufficient to constitute a
termination of this Lease or a surrender of the Premises.
34. PROFESSIONAL FEES.
a. If Landlord should bring suit for possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation or appeal between the parties with respect
to this lease, then all costs and expenses, including without limitation, its
actual professional fees such as appraisers', accountants' and attorneys' fees,
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment. If Landlord employs a collection agency to
recover delinquent charges, ▇▇▇▇▇▇ agrees to pay all collection agency fees
charged to Landlord in addition to rent, late charges, interest and other sums
payable under this Lease. Tenant shall pay a charge of $75 to Landlord for
preparation of a demand for delinquent rent.
b. If Landlord is named as a defendant in any suit or appeal brought against
Tenant in connection with or arising out of ▇▇▇▇▇▇'s occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
without limitation, its actual professional fees such as appraisers',
accountants' and attorneys' fees.
35. PERFORMANCE BY TENANT.
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum
of money owned to any party other than Landlord, for which it is liable
hereunder, or if Tenant shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, without waiving or releasing Tenant
from obligations of Tenant, but shall not be obligated to, making any such
payment or perform any such other act to be made or performed by Tenant. All
sums so paid by ▇▇▇▇▇▇▇▇ and all necessary incidental costs together with
interest thereon at the maximum rate permissible by law, from the date of such
payment by Landlord, shall be payable to Landlord on demand. Tenant covenants to
pay any such sums, and Landlord shall have (in addition to any other right or
remedy of Landlord) all rights and remedies in the event of the non-payment
thereof by ▇▇▇▇▇▇ as are set forth in Paragraph 25.
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36. MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default, including time to obtain possession of the Premises by
power of sale or a judicial foreclosure, if such should prove necessary to
effect a cure.
37. DEFINITION OF LANDLORD
The term "Landlord," as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title,
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor) shall be automatically freed and relieved from and after the
date of such transfer, assignment or conveyance of all liability as respects
the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed. Without further agreement,
the transferee of such title shall be deemed to have assumed and agreed to
observe and perform any and all obligations of Landlord hereunder, during its
ownership of the Premises. Landlord may transfer its interest in the Premises
without the consent of Tenant and such transfer or subsequent transfer shall
not be deemed a violation on Landlord's part of any of the terms and conditions
of this Lease.
38. WAIVER
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained, nor shall
any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent. No
acceptance by Landlord of a lesser sum than the basic rental and additional
rent or other sum then due shall be deemed to be other than on account of the
earliest installment of such rent or other amount due, nor shall any
endorsement or statement on any check or any letter accompanying any check be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
installment or other amount or pursue any other remedy in this Lease provided.
39. IDENTIFICATION OF TENANT.
If more than one person executes this lease as Tenant, (1) each of them
is jointly and severally liable for the keeping, observing and performing of
all of the terms, covenants, conditions, provisions and agreements of this
Lease to be kept, observed and performed by ▇▇▇▇▇▇, and (2) the term "Tenant"
as used in this Lease shall mean and include each of them jointly and
severally. The act of or notice from, or notice or refund to, or the signature
of any one or more of them, with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, expiration, termination
or modification of this Lease, shall be binding upon each and all of the
persons executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or refund
or so signed.
40. PARKING.
a. Tenant shall have the right to use the type and number of spaces
indicated in Section 1. All such spaces shall be provided to Tenant at no cost.
b. The use by Tenant, its employees and invitees, of the parking
facilities of the Project shall be on the terms and conditions set forth in
Exhibit G attached hereto and by this reference incorporated herein, and shall
be subject to such other agreement between Landlord and Tenant as may
hereinafter be established. Tenant shall not permit or allow any vehicles that
belong to or are controlled by Tenant or Tenant's employees, suppliers,
customers or invitees to be loaded, unloaded or parked in areas other than
those designated by Landlord for such activities. If Tenant permits or allows
any of the prohibited activities described in Exhibit G, then Landlord shall
have the right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and charge the
cost to Tenant, which cost shall be immediately payable upon demand by
Landlord.
41. FORCE MAJEURE.
Except as applied to Paragraph 23, Landlord shall have no liability
whatsoever to Tenant on account of (1) the inability of Landlord to fulfill, or
delay in fulfilling, any of Landlord's obligations under this Lease by reason
of strike, other labor trouble, governmental preemption of priorities or other
controls in connection with a national or other public emergency, or shortages
of fuel, supplies or labor resulting therefrom or any other cause, whether
similar or dissimilar to the above, beyond Landlord's reasonable control; or
(2) any failure or defect in the supply, quantity or character of electricity
or water furnished to the Premises, by reason of any requirement, act or
omission of the public utility or others furnishing the Project with
electricity or water, or for any other reason, whether similar or dissimilar to
the above, beyond Landlord's reasonable control. If this Lease specifies a time
period for performance of an obligation of Landlord, that time period shall be
extended by the period of any delay in Landlord's performance caused by any of
the events of force majeure described above.
42. TERMS AND HEADINGS.
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in any gender include other genders.
The paragraph headings of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any part hereof.
43. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and is not effective
as a lease or otherwise until execution by and delivery to both Landlord and
Tenant.
44. TIME.
Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
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45. PRIOR AGREEMENT OR AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in the Lease and no prior agreement
or understanding pertaining to any such matter shall be effective for any
purpose. No provisions of the Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective
successors-in-interest.
46. SEPARABILITY.
Any provision of this Lease which shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provision hereof,
and such other provisions shall remain in full force and effect.
47. RECORDING.
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
48. LIMITATION ON LIABILITY.
In consideration of the benefits accruing hereunder, ▇▇▇▇▇▇ and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by ▇▇▇▇▇▇▇▇:
(1) The sole and exclusive remedy shall be against the Landlord's
interest in the Project;
(2) No partner of Landlord shall be sued or named as a party in any
suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(3) No service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(4) No partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(5) No judgment will be taken against any partner of Landlord;
(6) Any judgment taken against any partner of Landlord may be vacated
and set aside at any time nunc pro tunc;
(7) No writ of execution will ever be levied against the assets of any
partner of Landlord;
(8) The obligations of Landlord under this Lease do not constitute
personal obligations of the individual partners, directors, officers or
shareholders of landlord, and Tenant shall not seek recourse against the
individual partners, directors, officers or shareholders of Landlord or any of
their personal assets for satisfaction of any liability in respect to this
Lease;
(9) These covenants and agreements are enforceable both by landlord and
also by any partner of Landlord.
49. MODIFICATION FOR LENDER.
If in connection with obtaining construction, interim or permanent
financing for the Project the lender shall request reasonable modifications in
this lease as a condition to such financing. Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or ▇▇▇▇▇▇'s rights hereunder.
50. FINANCIAL STATEMENTS.
At any time during the term of this Lease, Tenant shall upon ten (10)
days prior written notice from Landlord, provide Landlord with a current
financial statement and financial statements of the two (2) years prior to the
current financial statement year. Such statement shall be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, shall be audited by an independent certified public
accountant.
51. QUIET ENJOYMENT.
Landlord covenants and agrees with Tenant that upon ▇▇▇▇▇▇ paying the
rent required under this lease and paying all other charges and performing all
of the covenants and provisions aforesaid on Tenant's part to be observed and
performed under this Lease. Tenant shall and may peaceably and quietly have,
hold and enjoy the Premises in accordance with this Lease.
52. TENANT AS CORPORATION.
If Tenant executes this Lease as a corporation, then Tenant and the
persons executing this Lease on behalf of Tenant represent and warrant that the
individuals executing this lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf in accordance with a duly adopted
resolution of the board of directors of Tenant, a copy of which is to be
delivered to landlord on execution hereof, and in accordance with the bylaws of
Tenant and that this Lease is binding upon Tenant in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD: Weyerhaeuser Mortgage Company, ADDRESS: Weyerhaeuser Mortgage Company
a California corporation, and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, Inc., a Michigan Woodland Hills, CA 91367
corporation,
tenants in common
By: ▇▇▇▇▇▇▇▇▇▇▇▇ Mortgage Company ADDRESS: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
TENANT: STAC ELECTRONICS,
a California corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇, CFO
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WORK LETTER AGREEMENT
This Work Letter Agreement, is entered into as of the 12th day of July,
1994, by and between Weyerhaeuser Mortgage Company, * ("Landlord") and STAC
Electronics, a California corporation ("Tenant")
* a california corporation, and Fort ▇▇▇▇▇, Inc., a Michigan corporation,
tenants in c
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit "A" attached
to the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
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2. TENANT IMPROVEMENTS
Reference herein to "Tenant Improvements" shall include all work to be
done in the Premises pursuant to the Tenant Improvement Plans described in
Paragraph 3 below, including, but not limited to, partitioning, doors,
ceilings, floor coverings, wall finishes (including paint and wallcovering),
electrical (including lighting, switching, telephones, outlets, etc.),
plumbing, heating, ventilating and air conditioning, fire protection, cabinets
and other millwork. Whenever Landlord's consent is required in this Work Letter
Agreement it shall not be unreasonably withheld or delayed.
3. TENANT IMPROVEMENT PLANS.
Immediately after the execution of the Lease, ▇▇▇▇▇▇ agrees to meet
with its architect and/or space planner for the purpose of preparing a space
plan for the layout of the Premises. Based upon such space plan, ▇▇▇▇▇▇'s
architect shall prepare final working drawings and specifications for the
Tenant Improvements. Such final working drawings and specifications may be
referred to herein as the "Tenant Improvement Plans." The Tenant Improvement
Plans must be consistent with Landlord's standard specifications (the
"Standards") for tenant improvements for the Building, as the same may be
changed from time to time by Landlord.
4. NON-STANDARD TENANT IMPROVEMENTS.
Landlord shall permit Tenant to deviate from the Standards for the
Tenant Improvements; provided that (a) the deviations shall not be of a lesser
quality than the Standards; (b) the total lighting for the Premises shall not
exceed 1.65 ▇▇▇▇▇ per rentable square foot; (c) the deviations conform to
applicable governmental regulations and necessary governmental permits and
approvals have been secured; (d) the deviations do not require building service
beyond the level normally provided to other tenants in the Building and do not
overload the floors; and (e) Landlord has determined in its sole discretion
that the deviations are of a nature and quality that are consistent with the
overall objectives of the Landlord for the Building.
5. FINAL PRICING AND DRAWING SCHEDULE.
After the preparation of the space plan and after ▇▇▇▇▇▇▇▇'s written
approval thereof, Tenant ------------------------------------------------------
shall cause its architect to prepare and submit to Landlord the final working
drawings and specifications referred to in Paragraph 3 hereof. Such working
drawings shall be approved by Landlord and Tenant -----------------------------
and shall thereafter be submitted to the appropriate governmental body by
▇▇▇▇▇▇'s architect for plan checking and the issuance of a building permit.
--------- Tenant -------- shall cause to be made any changes in the plans and
specifications necessary to obtain the building permit. Concurrent with the
plan checking, Tenant shall have prepared a final pricing for Tenant's
approval, -------------------------------- taking into account any
modifications which may be required to reflect changes in the plans and
specifications required by the City or County in which the Premises are
located. After final approval of the working drawings, no further changes to
the Tenant Improvement Plans may be made without the prior written approval
from both Landlord and Tenant, such approval by Landlord not to be unreasonably
withheld, and then only after agreement by Tenant to pay any excess costs
resulting from the design and/or construction of such changes. Tenant hereby
acknowledges that any such changes shall be subject to the terms of Paragraph 8
hereof.
6. CONSTRUCTION OF TENANT IMPROVEMENTS.
After the Tenant Improvement Plans have been prepared and approved, the
final pricing has been approved and a building permit for the Tenant
Improvements has been issued, Tenant shall enter into a construction contract
with its contractor for the installation of the Tenant Improvements in
accordance with the Tenant Improvement Plans. Landlord shall supervise the
completion of such work at no cost to Tenant. ---------------------------------
The cost of such work shall be paid as provided in Paragraph 7 hereof. Landlord
shall not be liable for any direct or indirect damages as a result of delays in
construction beyond Landlord's reasonable control, including, but not limited
to, acts of God. Inability to secure governmental approvals or permits,
governmental restrictions, strikes, availability of materials or labor or
delays by Tenant (or its architect or anyone performing services on behalf of
Tenant).
7. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
a. Landlord hereby grants to Tenant a "Tenant Allowance" of Zero and
No/100------Dollars ($ -0- ) per square foot of Usable Area (as defined below)
of the Premises for a total of Zero and No/100------Dollars ($ -0- ). Such
Tenant Allowance shall be used only for:
(1) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical, plumbing
and structural drawings and of all other aspects of the Tenant Improvement
plans. The Tenant Allowance will not be used for the payment of extraordinary
design work not included within the scope of Landlord's building standard
improvements or for payments to any other consultants, designers or architects
other than ▇▇▇▇▇▇▇▇'s architect and/or space planner.
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(2) The payment of plan check, permit and license fees relating to
construction of the Tenant Improvements.
(3) Construction of the Tenant improvements, including without
limitation, the following:
(a) Installation within the Premises of all partitioning
doors, floor coverings, ceilings, wall coverings and painting millwork and
similar items.
(b) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the Premises.
(c) The furnishing and installation of all duct work, terminal
boxes, diffusers and accessories required for the completion of the heating,
ventilation and air conditioning systems within the Premises, including the
cost of meter and key control for after-hour air conditioning.
(d) Any additional Tenant requirements including, but not
limited to, odor control, special heating, ventilation and air conditioning,
noise or vibration control or other special systems.
(e) All fire and life safety control systems such as fire
walls, sprinklers, halon, fire alarms, including piping, wiring and accessories
installed within the Premises.
(f) All plumbing, fixtures, pipes and accessories to be
installed within the Premises.
(g) Testing and inspection costs.
(h) Contractor's fees, including but not limited to any fees
based on general conditions.
(4) All other costs to be expended by Landlord in the construction
of the Tenant Improvements, including those costs incurred by Landlord for
construction of elements of the Tenant improvements in the Premises, which
construction was performed by Landlord prior to the execution of this Lease by
Landlord and Tenant (i.e., during or after the construction of the base
Building and which construction is for the benefit of tenants and is
customarily performed by Landlord prior to the execution of leases for such
space in the Building for reasons of economics (examples of such construction
would include the extension of mechanical [including heating, ventilating and
air conditioning systems] and electrical distribution systems outside of the
core of the Building wall construction, column enclosures and painting outside
of the core of the Building, ceiling hanger wires and window treatment).
b. The cost of each item shall be charged against the Tenant Allowance. In
the event that the cost of installing the Tenant Improvements, as established
by ▇▇▇▇▇▇▇▇'s final pricing schedule, shall exceed the Tenant Allowance, or if
any of the Tenant Improvements are not to be paid out of the Tenant Allowance
as provided in Paragraph 7a above, the excess shall be paid by Tenant to
Landlord prior to the commencement of construction of the Tenant improvements.
c. In the event that, after the Tenant Improvement Plans have been prepared
and a price therefore established by Landlord, Tenant shall require any changes
or substitutions to the Tenant Improvement Plans, any additional costs thereof
shall be paid by Tenant to Landlord prior to the commencement of such work.
Landlord shall have the right to decline ▇▇▇▇▇▇'s request for a change to the
Tenant Improvement Plans if such changes are inconsistent with Paragraphs 3 and
4 above, or if the change would, in Landlord's opinion, unreasonably delay
construction of the Tenant Improvements.
d. In the event that the cost of the Tenant Improvements increases as set
forth in Landlord's final pricing due to the requirements of any governmental
agency, Tenant shall pay Landlord the amount of such increase within five (5)
days of Landlord's written notice, provided, however, that Landlord shall first
apply toward such increase any remaining balance in the Tenant Allowance.
e. Any unused portion of the Tenant Allowance upon completion of the
Tenant Improvements shall not be refunded to Tenant or available to Tenant as a
credit against any obligations of Tenant under the Lease.
f. As used in this Work Letter Agreement, the term "Usable Area" means the
area of the Premises, as determined by measuring the area within the bounds of
the inside surface of the glass in the outer wall of the Building and the
surface facing the Premises of all partitions separating the Premises from the
Building core, adjoining tenant space and public corridors or other common
areas. No deductions shall be made for space occupied by structural or
functional columns or other projections. The Usable Area of the Premises is
4,166 usable square feet.
8. COMPLETION AND RENTAL COMMENCEMENT DATE.
The commencement of the term of the Lease and Tenant's obligation for
the payment of rental under the Lease shall ----------------------------------
---------------------------------------- commence at the time provided in
Section 1.g of the Lease.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the
date first above written.
LANDLORD: Weyerhaeuser Mortgage Company, a California corporation, and
Fort ▇▇▇▇▇, Inc., a Michigan corporation, tenants in common
Weyerhaeuser Mortgage Company,
managing tenant in common
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
TENANT: STAC Electronics, a California corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇, CFO
By:
-------------------------------
15
17
ADDENDUM "1"
1. RENT ABATEMENT. Notwithstanding the provisions of Section 5 of
this Lease, no Base Monthly Rent shall be due or payable for the second (2nd)
through seventh (7th) full calendar months, inclusive, following the
Commencement Date.
2. NON-DISTURBANCE. Notwithstanding the provisions of Section 27,
in the event of a foreclosure of any mortgage or deed of trust or termination
of any ground lease, so long as Tenant attorns to the successor fee owner or
ground tenant, ▇▇▇▇▇▇'s quiet possession of the Premises will not be disturbed
and its rights and obligations under this Lease will not be altered.
3. EARLY TERMINATION. Tenant shall have the right to terminate
the Lease, effective on March 31, 1998, by providing Landlord at least six (6)
months' prior written notice.
4. BUILDING SIGNAGE. Tenant, at Tenant's expense, shall have the
right to place its name and/or logo on one (1) side of the exterior of the
Building in a location to be selected by Tenant, subject to approval by
Landlord (not to be unreasonably withheld or delayed provided such signage
complies with the signage criteria contained in the CC&R's affecting the
Project) and all governmental agencies. This sign is in addition to the
signage provided in the lease for ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇.
5. HAZARDOUS MATERIALS. The following provisions are added to
Exhibit H (Hazardous Materials): (i) Landlord's consent under clause (b) of
Exhibit H shall not be required for (1) Hazardous Materials, in reasonable
quantities, customarily used in business offices, and (2) Hazardous Materials
used in reasonable quantities in connection with the construction of repair of
Improvements in the Premises, provided such Hazardous Materials are used and
handled in accordance with all applicable laws. In addition, Landlord will not
unreasonably withhold or delay its consent required under said clause (b) of
Exhibit H for any other Hazardous Materials reasonably needed by Tenant in the
ordinary course of Tenant's business, provided such Hazardous Materials are
used and handled in accordance with all applicable laws.
(ii) Landlord warrants to its actual knowledge Tenant that neither
the Premises nor any other part of the Building in which the Premises are
located contain any asbestos. ▇▇▇▇▇▇▇▇ also agrees that Tenant shall have no
responsibility for any Hazardous Materials on or under the Premises, the
Building, or the Project existing at the time of commencement of the Lease, or
any such
18
Hazardous Materials thereafter released on or under the Project by anyone other
than Tenant, its employees or agents.
6. Building Codes: ADA. Any work that is required by applicable law
now or hereafter in effect to be done within the Premises (excluding structural
components (except to the extent caused by Tenant) and restrooms, elevators, and
other common areas) shall be the sole responsibility of Tenant. Except as
provided in the preceding sentence, and notwithstanding any other provision of
this Lease, Tenant shall have no responsibility to make or pay for improvements
or other alterations to the Building to correct deficiencies under existing
building codes or other applicable laws, restrictions or requirements, or to
comply with future changes in building codes or other applicable laws,
restrictions or requirements. Without limiting the foregoing, in the event that
any improvements or alterations to the Building are required during the term of
the Lease to comply with requirements of the Americans With Disabilities Act or
applicable building codes relating to access to or within the Building (except
for the Premises) by disabled persons, Landlord will be solely responsible for
any such improvements or alterations.
7. Security. With Landlord's prior written approval, not to be
unreasonably withheld or delayed, Tenant at its cost and expense and not as part
of the costs described in Addendum "5" may install additional reasonable
security devices for the Premises.
8. Damage or Destruction. The following is inserted into the Lease as
Paragraph 23:
23. DAMAGE OR DESTRUCTION
If the Premises or any Common Areas providing access thereto shall be
damaged by fire or other casualty, Landlord shall restore the same subject to
the terms and conditions set forth in this Paragraph 23. Such restoration shall
be to substantially the condition prior to the casualty, except for
modifications required by zoning and building codes and other laws or by any
mortgagee, any other modifications to the Common Areas deemed desirable by
Landlord (provided access to the Premises is not materially impaired), and
except that Landlord shall not be required to repair or replace any of Tenant's
furniture, furnishings, fixtures or equipment, or any alterations or
improvements in excess of Tenant's improvements installed at a cost of up to $30
per usable square foot. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or its visitors, or injury to Tenant's business resulting in
any way from such damage or the repair thereof. However, as Tenant's sole
compensation for such damage or destruction Landlord shall allow Tenant a
proportionate abatement
19
of rent, during the time and to the extent the Premises are unfit for occupancy
for the purposes permitted under this lease and not occupied by Tenant as
a result thereof (unless Tenant or its employees or agents caused the
damage). Notwithstanding the foregoing to the contrary, Landlord may elect
to terminate this Lease by notifying Tenant in writing of such termination
within sixty (60) days after the date of damage (such termination notice to
include a termination date providing at least ninety (90) days for Tenant to
vacate the Premises), if the Property shall be damaged by fire or other
casualty or cause such that: (a) repairs to the Premises and Building and
access thereto cannot reasonably be substantially completed within three
hundred (300) days after the date of casualty without the payment of
overtime or other premiums; (b) more than twenty-five percent (25%) of the
Premises is substantially destroyed by the damage and fewer than twenty-four
(24) months remain in the Term, subject to Tenant's right to avoid or limit such
termination as set forth below; (c) the cost of the repairs, alterations,
restoration or improvement work would exceed twenty-five percent (25%) of the
replacement value of the Building and Landlord determines in good faith not to
repair or rebuild the Building in substantially the same configuration as
before the casualty; (d) the aggregate proceeds available from insurance fall
short of the reasonable cost of the restoration required under this Paragraph
23 by an amount greater than $100,000 and Landlord determines in good faith not
to repair or rebuild the Building in substantially the same configuration as
before the casualty; or (e) as a result of the lawful application of insurance
proceeds by any mortgagee to retire the mortgage debt, the insurance proceeds
available for restoration fall short of the reasonable cost of the restoration
required under this Paragraph 23 by an amount greater than $100,000 and
Landlord determines in good faith not to repair or rebuild the Building in
substantially the same configuration as before the casualty. If Landlord elects
to terminate this lease under the circumstances described in Clause (b) of the
preceding sentence, provided that the damage to the Property was not caused by
the willful misconduct or reckless disregard for life or property of ▇▇▇▇▇▇,
Tenant may, by written notice to Landlord, given within thirty (30) days after
receipt of Landlord's termination notice, avoid such termination by exercising
a then available option to extend the term of this Lease upon the terms and
conditions set forth in Addendum "3".
Further, notwithstanding the foregoing, Tenant may terminate this lease
if Tenant is unable to use all or any portion of the Premises as a result of
fire or other casualty not caused by the willful misconduct or reckless
disregard for life or property of Tenant, and: (a) Landlord fails to commence
restoration work to the Building and access thereto within sixty (60) days
after the damage occurs (▇▇▇▇▇▇▇▇'s negotiation with insurance companies and
20
consultation with architects, engineers and contractors shall be deemed to be
restoration work); or (b) Landlord fails to substantially complete such work
within three hundred sixty five (365) days after the date of the casualty, or
such additional time as may be necessary due to strikes, lockouts or other
labor troubles, shortages of equipment or materials, governmental requirements,
power shortages or outages or other causes beyond Landlord's reasonable
control; or (c) such work is reasonably estimated (which estimate Landlord shall
provide within sixty (60) days following the casualty), to take more than three
hundred sixty five (365) days to substantially complete after the date of the
casualty. In addition, Tenant may terminate this Lease if Tenant is unable to
use more than twenty-five percent (25%) of the Premises as a result of fire or
other casualty not caused by the willful misconduct or gross negligence of
Tenant or its employees or agents, and fewer than twenty-four (24) months
remain in the Term. In order to exercise any of the foregoing termination
rights, Tenant must send Landlord at least sixty (60) but not more than one
hundred twenty (120) days advance notice specifying the basis for termination,
and such notice must be given no later than thirty (30) days following the
occurrence of the condition serving as the basis for the termination right
invoked by ▇▇▇▇▇▇. Such termination right shall not be available to Tenant if
Landlord substantially completes the repairs to the Premises and access thereto
within sixty (60) days after ▇▇▇▇▇▇'s notice. Notwithstanding anything to the
contrary contained herein, if Tenant, or its officers, employees, contractors,
invitees, partners, or agents delay Landlord in performing the repairs,
Landlord shall have additional time to complete the work equal to such delay,
and Tenant shall pay Landlord all Rent for the period of such delay. If this
Lease is terminated pursuant to this Paragraph 23, Tenant shall have the right,
to be exercised within 10 days of such termination, to terminate any other
lease it has for space within the Project.
Tenant agrees that ▇▇▇▇▇▇▇▇'s obligation to restore, and the abatement
of rent and the termination right provided herein, shall be Tenant's sole
recourse in the event of such damage, and waives any other rights Tenant may
have under any applicable Law to terminate the Lease by reason of damage to the
Premises, Project or Building, including all rights under California Civil
Code, Sections 1932(2), 1933(4), and 1942, as the same may be modified or
replaced hereafter. Tenant acknowledges that this Paragraph 23 represents the
entire agreement between the parties respecting damage to the Premises, Project
or Building.
21
ADDENDUM "2"
OPERATING EXPENSES. For the purposes of this Section, the following
terms are defined as follows:
Base Year -- The calendar year in which this Lease Term commences. For
the purposes of this Lease, the Base Year is defined as 1994.
Comparison Year -- Each calendar year of the term after the Base Year.
Tenant's -------------* Share of Operating Expenses shall be payable by Tenant
to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for
each calendar year thereafter ("Comparison Year"), tenant shall pay Landlord an
amount equal to Tenant's ------------* Share of the Operating Expenses incurred
by Landlord in the Comparison Year which exceeds the total amount of Operating
Expenses payable by Landlord for the Base Year. This excess is referred to as
the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant
shall, at Landlord's request, pay as additional rent during each Comparison
Year, an amount equal to Tenant's ------------* Share of the Excess Expenses
payable during such Comparison Year, as estimated by Landlord from time to time.
Such payments shall be made in monthly installments, commencing on the first day
of the month following the month in which Landlord notifies Tenant of the amount
it is to pay hereunder and continuing until the first day of the month following
the month in which Landlord gives Tenant a new notice of estimated Excess
Expenses. It is the intention hereunder to estimate from time to time the amount
of the Excess Expenses for each Comparison Year and Tenant's ------------* Share
thereof, and then to make an adjustment in the following year based on the
actual Excess Expenses incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical), Landlord shall deliver
to Tenant a statement setting forth Tenant's ------------* Share of the Excess
Expenses for the preceding Comparison Year. If Tenant's ------------* Share of
the actual Excess Expenses for the previous Comparison Year exceeds the total of
the estimated monthly payments made by Tenant for such year, Tenant shall pay
Landlord the amount of the deficiency within thirty (30) days of the receipt of
the statement. If such total exceeds Tenant's ------------* Share of the actual
Excess Expenses for such Comparison Year, then Landlord shall credit against
▇▇▇▇▇▇'s next ensuing monthly installment(s) of additional rent an amount equal
to the difference until the credit is exhausted. If a credit is due from
Landlord on the Expiration Date, Landlord shall pay Tenant the amount of the
credit. The obligations of Tenant and Landlord to make payments required under
this Section shall survive the Expiration Date.
(d) Tenant's ------------* Share of Excess Expenses in any
Comparison Year having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent
due hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the amount
of additional rent owed, a certification as to the proper amount shall be made
by Landlord's certified public accountant, which certification shall be final
and conclusive. ▇▇▇▇▇▇ agrees to pay the cost of such certification unless it is
determined that ▇▇▇▇▇▇▇▇'s original statement overstated Operating Expenses by
more than five percent (5%).
(f) Operating Expenses including any additional real estate taxes
will be based on a ninety-five percent (95%) lease project for the entire base
year and other years regardless of the current occupancy.
(g) In no event shall Tenant be responsible for increases in
Operating Expenses in excess of six percent (6%) per year on a cumulative
basis.
* Percentage
22
ADDENDUM "3"
OPTION TO RENEW: Tenant shall have the right to extend the term of this
Lease for one (1) consecutive five (5) year period (the "Option Term"), on the
following terms and conditions:
(a) Each Option Term shall commence when the prior term expires. Tenant
must give written notice of its exercise of the option, and Landlord must
actually receive such notice, no earlier than twelve (12) months and no later
than six (6) months prior to the time that the Option Term would commence.
(b) The option(s) to extend this Lease for any Option Term must be
exercised consecutively.
(c) All terms and conditions of this Lease shall apply during the
Option Terms except as expressly provided in this Addendum.
(d) Tenant shall have no right to exercise an option, notwithstanding
any other provision of this Lease to the contrary, during the time commencing
from the date of any *-------------------------- and continuing until the
default is cured.
(e) The period of time within which Tenant may exercise an option to
extend the term of this Lease shall not be extended or enlarged by reason of
Tenant's inability to exercise an option because of the provisions of Section
(d) above.
-----------------------------------------------------------------------------
(g) The options granted to Tenant may not be voluntarily or
involuntarily exercised by or assigned to any person or entity other than
Tenant, without the prior written consent of Landlord.
(h) The Base Monthly Rent during each option term shall be adjusted as
of the commencement of each option term to ninety-five percent (95%) of the fair
rental value of the Premises on the terms and conditions contained in this
Lease as mutually agreed by Landlord and Tenant or, if they cannot agree on or
before such commencement date, then as determined by an appraiser mutually
selected by Landlord and Tenant. If Landlord and Tenant cannot agree on a
single appraiser within five (5) days, then each shall select an appraiser. if
the two appraisers cannot agree on said fair rental value within thirty (30)
days, then the two appraisers shall appoint a third appraiser, and said fair
rental value of the Premises shall be deemed to be the average of the two
closest appraisals. Each appraiser shall be a disinterested member of the
American Institute of Real Estate Appraisers, or a body of comparable
standing, with at least five years' experience in commercial real estate
appraisal. Landlord and Tenant shall each bear the cost of the appraiser
appointed by them, and shall share equally the cost of the appraiser mutually
selected by them or of the third appraiser appointed, if any.
(i) Landlord will provide Tenant with a Ten Dollars ($10.00) per usable
square foot refurbishment allowance.
*in the payment of Base Monthly Rent or Operating Expenses
23
ADDENDUM "4"
RIGHT OF REFUSALS.
(a) At any time that Landlord determines to lease any space at ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, subject to any other existing
tenants' rights of refusal or extension options, Landlord shall notify Tenant
in writing. Within five (5) business days after receipt of Landlord's notice,
Tenant shall have the option, to be exercised by delivery of written notice to
Landlord, to lease the respective space. In the event Landlord notifies Tenant
for multiple contiguous suites, then Tenant shall either lease none of the
suites or all of the suites being offered. In the event Tenant timely exercises
such option, the suites shall be added to the Premises, effective as of the date
specified in Landlord's notice. In the event Tenant does not timely exercise
such option, ▇▇▇▇▇▇'s rights shall terminate and shall not apply to any
subsequent leasing of the space unless Landlord does not execute a lease for
the space by a third party, in which case ▇▇▇▇▇▇'s rights shall be reinstated.
(b) In the event Tenant timely exercises such option, such space shall
be tendered to Tenant in "as is" condition.
(c) In the event Tenant timely exercises such option, such space shall
be subject to all of the terms and conditions of this Lease, provided that the
Base Monthly Rent shall be One and 25/100 Dollar ($1.25) per square foot per
month, plus electricity, and the Tenant's Share shall be proportionately
increased to reflect the inclusion of such space in the Premises, and provided
further that no free rent, abatement, discount, or other concession shall apply
with respect to the space except if Tenant is currently in the free rent
period, at which time the remaining free rent will apply.
(d) Tenant shall have no right to exercise its right of refusal,
notwithstanding any other provision of this Lease to the contrary, during the
time commencing from the date of any default* under section 25 of this Lease
and continuing until the default is cured.
(e) The period of time within which Tenant may exercise its right of
refusal shall not be extended or enlarged by reason of Tenant's inability to
exercise such right of refusal because of the provisions in Section (d) above.
-----------------------------------------------------------------------------
(g) The right of refusal granted to Tenant may not be voluntarily or
involuntarily exercised by or assigned to any person or entity other than
Tenant without the prior written consent of Landlord.
* in the payment of Base Monthly Rent or Operating Expenses
24
ADDENDUM "5"
TENANT IMPROVEMENTS/BASE MONTHLY RENTAL REDUCTION. Tenant, at ▇▇▇▇▇▇'s
expense, will pay for all the costs associated with the following:
(a) Space planning.
(b) Construction documents.
(c) Building permits.
(d) Construction of tenant improvements.
(e) Moving expenses.
(f) Tenant signage costs.
(g) All other costs relating to the build-out of the Premises.
As a concession for Tenant paying for these above mentioned costs,
Landlord will reduce Tenant's* Base Monthly Rent in Section 1(h) of the Lease in
accordance with an amortization formula as follows:
Present Value: Total costs as outlined above, up to a maximum of One
Hundred Twenty-Three Thousand Four Hundred Eighty and
No/100 Dollars ($123,480.00; $30.00 per usable square
foot).
Amortization Term: Sixty (60) months. (Lease term is 66 months - 6 months'
rent abatement = 60 months.)
Interest Rate
of Amortization: Six percent (6%).
As an example, should Tenant expend the maximum amount of $123,480, this
amount shall be amortized at six percent (6%), which would reduce Tenant's Base
Monthly Rent by two Thousand Three Hundred Eighty Seven and 21/100 Dollars
($2,387.21) per month.
BID PROCESS. Tenant will cause at least two and not more than five
---------------------------- contractors to bid for the construction of tenant
improvements including the following contractors:
(a) ▇▇▇▇ Construction
(b) Consolidated Contracting
The contractor selected shall be one of the two lowest bidders, provided
that all bids are adjusted for inconsistent assumptions to reflect an
"apples-to-apples" comparison. Tenant, at its sole discretion, shall select the
contractor in accordance with these terms.
Landlord will not impose any charge for profit, overhead, or supervision
in connection with the construction of tenant improvements. Landlord, at
▇▇▇▇▇▇▇▇'s expense, shall have the right to supervise the construction of tenant
improvements from a landlord's perspective. In no event shall ▇▇▇▇▇▇▇▇'s
election to supervise the tenant improvements relieve Tenant from its obligation
to perform the tenant improvements in accordance with this Lease.
Reduction in Prepaid Rent and Security Deposit. If the Base Monthly
Rent is reduced pursuant to the above provision entitled Tenant
Improvements/Base Monthly Rental Reduction, the required Prepaid Rent as set
forth in Section 1(k) and the required Total Security Deposit as set forth in
Section 1(1) shall be reduced by the same amount and Landlord shall refund to
Tenant any excess Prepaid Rent and Total Security Deposit paid to Landlord
within 10 days after the reduction is determined.
* Landlord reserves the right to reimburse Tenant prior to the Commencement Date
of the Lease, the full amount expended by Tenant for the above-mentioned costs
but not to exceed $123,480 or 30.00 per usable square foot.
Should Landlord exercise this reimbursement right and make said reimbursement
to Tenant, there shall be no reduction in Tenants Base Monthly Rent, Prepaid
Rent, or Total Security Deposit as outlined below.
25
EXHIBIT A
OUTLINE OF FLOOR
PLAN OR PREMISES
[FLOOR PLAN]
A-1
26
EXHIBIT B
THE PROJECT
[MAP SHOWING INTERSTATE ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
WITH ADDRESSES OF 12626 AND 12636]
B-1
27
EXHIBIT C
NOTICE OF LEASE TERM DATES AND
TENANT'S PERCENTAGE
To: _________________________________________ Date:_________________
_________________________________________
_________________________________________
Re: Lease dated _____________________________, 19___, between __________________
_________________________, Landlord, and _______________________________________
Tenant, concerning Suite ____________ located at _______________________________
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises have been accepted herewith by the Tenant as
being substantially complete in accordance with the subject Lease and that
there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease the term of said
Lease shall commence as of _______________________ for a term of _______________
ending on ____________________________.
3. That in accordance with the subject Lease, rental commenced to
accrue on _______________________________.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata adjustment.
Each billing thereafter shall be for the full amount of the monthly installment
as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should be made
payable to ____________________________________________________________________
at ____________________________________________________________________________.
6. The exact number of rentable square feet within the Premises is
_________________ square feet.
7. Tenant's Percentage, as adjusted based upon the exact number of
rentable square feet within the Premises, is ____________%.
AGREED AND ACCEPTED
LANDLORD: TENANT:
___________________________________ ____________________________________
By: _______________________________ ____________________________________
By: ________________________________
C-1
28
EXHIBIT D
STANDARD FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect.
Landlord reserves the right to adapt nondiscriminatory modifications and
additions thereto.
As long as Tenant is not in default under any of the terms, conditions,
provisions or agreements of this Lease, Landlord shall:
1. Provide non-attended automatic elevator facilities Monday through
Friday, except holidays from 8 A.M. to 6 P.M., and have one elevator
available at all other times.
2. On Monday through Friday, except holidays, from 7 A.M. to 6 P.M., and on
Saturday mornings from 7 A.M. to 4 P.M. (and other times for an agreed
upon rate of $15.00 per hour), ventilate the Premises and furnish air
conditioning or heating on such days and hours, when in the reasonable
judgment of Landlord it may be required for the comfortable occupancy of
the Premises. The air conditioning system achieves maximum cooling when
the window coverings are closed. Landlord shall not be responsible for
room temperatures if Tenant does not keep all window coverings in the
Premises closed whenever the system is in operation. ▇▇▇▇▇▇ agrees to
cooperate fully at all times with Landlord, and to abide by all
reasonable regulations and requirements which Landlord may prescribe for
the proper function and protection of said air conditioning system.
Tenant agrees not to connect any apparatus, device, conduit or pipe to
the building chilled and hot water air conditioning supply lines. Tenant
further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the building or adjust, tamper with,
touch or otherwise in any manner affect said installations or
facilities. The cost of maintenance and service calls to adjust and
regulate the air conditioning system shall be charged to Tenant if the
need for maintenance work results from either Tenant's adjustment of
room thermostats or Tenant's failure to comply with its obligations
under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then-current
journeymen's wages for air conditioning mechanics.
3. Landlord shall furnish to the Premises, during the usual business hours
on business days, electric current as required by the building standard
office lighting and fractional horsepower office business machines in an
amount not to exceed .025 KWH per square foot per normal business day.
Tenant agrees, should its electrical installation or electrical
consumption be in excess of the aforesaid quantity or extend beyond
normal business hours, to reimburse Landlord monthly for the measured
consumption at the average cost per kilowatt hour charged to the
building during the period. If a separate meter is not installed at
Tenant's cost, such excess cost will be established by an estimate
agreed upon by Landlord and Tenant, and if the parties fail to agree, as
established by an independent licensed engineer. Tenant agrees not to
use any apparatus or device in, or upon, or about the Premises which may
in any way increase the amount of such services usually furnished or
supplied to said Premises, and tenant further agrees not to connect any
apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or
unusual amount of such services without written consent of Landlord.
Should Tenant use the same to excess, the refusal on the part of Tenant
to pay upon demand of Landlord the amount established by Landlord for
such excess charge shall constitute a breach of the obligation to pay
rent under this Lease and shall entitled Landlord to the rights therein
granted for such breach. At all times Tenant's use of electric current
shall never exceed the capacity of the feeders to the building or the
risers or wiring installation and Tenants shall not install or use or
permit the installation or use of any computer or electronic data
processing equipment in the Premises without the prior written consent
of Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any
purposes in addition to ordinary drinking and lavatory purposes, of
which fact Tenant constitutes Landlord to be the sole judge, Landlord
may install a water meter and thereby measure Tenant's water consumption
for all purposes. Tenant shall pay Landlord for the cost of the meter
and the cost of the installation thereof and throughout the duration of
▇▇▇▇▇▇'s occupancy. Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and
expense, in default of which Landlord may cause such meter and equipment
to be replaced or repaired and collect the cost thereof from Tenant.
Tenant agrees to pay for water consumed, as shown on said meter, as and
when bills are rendered, and on default in making such payment, Landlord
may pay such charges and collect the same from Tenant. Any such costs or
expenses incurred, or payments made by Landlord for any of the reasons
or purposes hereinabove stated shall be deemed to be additional rent
payable by Tenant and collectible by Landlord as such.
5. Provide janitor service to the premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant, and
if to be kept clean by Tenant, non one other than persons approved by
Landlord shall be permitted to enter the Premises for such purposes. If
the Premises are not used exclusively as offices, they shall be kept
clean and in order by Tenant, at Tenant's expense, and to the
satisfaction of Landlord, and by persons approved by Landlord. Tenant
shall pay to Landlord the cost or removal of any of Tenant's refuse and
rubbish to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason
of accident or emergency or for repairs, alterations or improvements, in the
judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements, shall have been completed, and shall further have
no responsibility or liability for failure to supply elevator facilities,
plumbing, ventilating, air conditioning or electric service, when prevented
from so doing by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules, orders, ordinances, directions,
regulations or requirements of any federal, state, county or municipal
authority or failure of gas, oil or other suitable fuel supply or inability by
exercise of reasonable diligence to obtain gas, oil or other suitable fuel. It
is expressly understood and agreed that any convenants on Landlord's part to
furnish any service pursuant to any of the terms, covenants, conditions,
provisions or agreements of this Lease, or to perform any act or thing for the
benefit of Tenant, shall not be deemed breached if Landlord id unable to
furnish or perform the same by virtue of a strike or labor trouble or any other
cause whatsoever beyond Landlord's control.
6. This Lease is a "plus electricity" lease in which Tenant shall pay for
their use of electricity throughout the term of the Lease. Each floor of
the project is separately metered, and Tenant shall pay to Landlord each
month their pro rata share of electrical consumption.
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EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
The undersigned, _________________________________ ("Landlord"), with a
mailing address c/o ___________________________ and ___________________________
_______________________ ("Tenant"), hereby certify to _________________________
a _________________________________________________________________, as follows
1. Attached hereto is a true, correct and complete copy of that certain
lease dated ______________________ 19 ___, between Landlord and Tenant
(the "Lease"), which demises premises located at ______________________
__________________________. The Lease is now in full force and effect
and has not been amended, modified or supplemented, except at set forth
in Paragraph 4 below.
2. The term of the Lease commenced on ____________________________ 19 ___
3. The term of the Lease shall expire on _________________________, 19 ___.
4. The Lease has (initial one):
(_____) not been amended, modified, supplemented, extended, renewed or
assigned.
(_____) been amended, modified, supplemented, extended, renewed or
assigned by the following described agreements copies of which
are attached hereto:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
5. ▇▇▇▇▇▇ has accepted and is now in possession of said premises.
6. Tenant and Landlord acknowledge that the Lease will be assigned to
_____________________________ and that no modification, adjustment,
revision or cancellation of the Lease or amendments thereto shall be
effective unless written consent of _________________________________
is obtained, and that until further notice, payments under the Lease
may continue as heretofore.
7. The amount of fixed monthly rent is $________________.
8. The amount of security deposits (if any) is $_______________. No other
security deposits have been made.
9. Tenant is paying the full lease rental which has been paid in full as
of the date hereof. No rent under the Lease has been paid for more than
thirty (30) days in advance of its due date.
10. All work required to be performed by Landlord under the Lease has been
completed.
11. There are not defaults on the part of the Landlord or Tenant under the
Lease.
12. Tenant has no defense as to its obligations under the Lease and claims
no set-off or counterclaim against Landlord.
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies except as
provided in the lease.
All provisions of the Lease and the amendments thereto (if any) referred
to above are hereby ratified.
The foregoing certification is made with the knowledge that __________
________________________ is about to fund a loan to Landlord and that
__________________________________ is relying upon the representations
herein made in funding such loan.
IN WITNESS WHEREOF, this certificate has been duly executed
and delivered by the authorized officers of the undersigned as of
_______________________, 19 _____.
LANDLORD:
By:
_______________________________
TENANT:
By:
_______________________________
By:
_______________________________
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EXHIBIT F
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside
of the building or Project without the prior written consent of Landlord.
Landlord shall have the right to remove, at Tenant's expense and without
notice, any sign installed or displayed in violation of this rule. All
approved signs or lettering on doors and walls shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved by
Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which
is visible from the exterior of the Premises. Tenant shall immediately
discontinue such use. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators or stairways of the Project. The halls, passages,
exits, entrances, shopping malls, elevators, escalators and stairways are
not open to the general public but are open, subject to reasonable
regulations, to Tenant's business invitees. Landlord shall in all cases
retain the right to control and prevent access thereto of all persons whose
presence in the judgment of Landlord would be prejudicial to the safety,
character, reputation and interest of the Project and its tenants; provided
that nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal or unlawful activities.
No tenant and no employee or invitee of any tenant shall go upon the roof(s)
of the Project.
4. The directory of the building or Project will be provided exclusively for
the display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Project and the Premises shall
be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Project for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy, shall
deliver to Landlord the keys of all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
8. Freight elevator(s) shall be available for use by all tenants in the
building, subject to such reasonable scheduling as Landlord, in its
discretion, shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar
items shall, unless otherwise agreed in writing by Landlord, be made during
the hours of 6:00 p.m. and 6:00 a.m. or on Saturday or Sunday. Deliveries
during normal office hours shall be limited to normal office supplies and
other small items. No deliveries shall be made which impede or interfere
with other tenants or the operation of the building.
9. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which is
allowed by law. Landlord shall have the right to prescribe the weight, size
and position of all equipment, materials, furniture or other property
brought into the building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight, which platforms shall be provided at
Tenant's expense. Business machines and mechanical equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to the
structure of the building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the building, shall be placed
and maintained by Tenant, at Tenant's expense, on vibration eliminators or
other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the building must be acceptable
to Landlord. Landlord will not be responsible for loss of, or damage to, any
such equipment or other property from any cause, and all damage done to the
building by maintaining or moving such equipment or other property shall be
repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the building by reason of noise, odors, or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
building's heating and air conditioning and to comply with any government
energy-saving rules, laws or regulations of which ▇▇▇▇▇▇ has actual notice,
and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the building.
14. Landlord reserves the right to exclude from the building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the building and has a pass or is properly identified. Tenant
shall be responsible for all persons for whom it requests passes and shall
be liable to Landlord for all acts of such persons. Landlord shall not be
liable for damages for any error with regard to the admission to or
exclusion from the building of any person. Landlord reserves the right to
prevent access to the building in case of invasion, mob, riot, public
excitement or other commotion by closing the doors or by other appropriate
action.
15. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and electricity, gas or air
outlets before tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or
occupants of the building or by Landlord for noncompliance with this rule.
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16. Tenant shall not obtain for use on the Premises ice, drinking water, food,
beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Project.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
19. Tenant shall not install any radio or television antenna, loudspeaker or
other devices on the roof(s) or exterior walls of the building or Project.
Tenant shall not interfere with radio or television broadcasting or
reception from or in the Project or elsewhere.
20. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any
floor covering to the floor of the Premises in any manner except as
approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
21. Tenant shall not install, maintain or operate upon the premises any vending
machines without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Project are prohibited, and Tenant shall
cooperate to prevent such activities.
23. Landlord reserves the right to exclude or expel from the Project any person
who, in Landlord's judgement, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations
of the Building.
24. Tenant shall store all its trash and garbage within its premises or in
other facilities provided by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary
and customary manner of trash and garbage disposal. All garbage and refuse
disposal shall be made in accordance with directions issued from time to
time by Landlord.
25. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectional
purpose. No cooking shall be done or permitted on the Premises without
Landlord's consent, except that use by Tenant of Underwriter's Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar
beverages or use of microwave ovens for employee use shall be permitted,
provided that such equipment and use is in accordance with all applicable,
federal, state, county and city laws, codes, ordinances, rules and
regulations.
26. Tenant shall not use in any space or in the public halls of the Project any
hand truck except those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles of any kind into the building or Project.
27. Without the written consent of Landlord, Tenant shall not use the name of
the building or Project in connection with or in promoting or advertising
the business of Tenant except as ▇▇▇▇▇▇'s address.
28. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
29. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
30. Tenant's requirements will be attended to only upon appropriate application
to the Project management office by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Project.
32. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Lease.
33. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Project and for the
preservation of good order therein. ▇▇▇▇▇▇ agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
34. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
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EXHIBIT G
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Project.
1. All claimed damage or loss must be reported and itemized in writing
delivered to the Management Office within ten (10) business days after any
claimed damage or loss occurs. Any claim not so made is waived. Landlord
has the option to make repairs at its expense of any claimed damage within
two business days after filing of any claim. In all court actions the
burden of proof to establish a claim remains with ▇▇▇▇▇▇. Court actions by
Tenant for any claim must be filed within ninety days from date of parking
in court of jurisdiction where a claimed loss occurred. Landlord is not
responsible for damage by water, fire, or defective brakes, or parts, or
for the act or omissions of others, or for articles left in the car. The
total liability of Landlord is limited to $250.00 for all damages or loss
to any car. ▇▇▇▇▇▇▇▇ is not responsible for loss of use.
2. Tenant shall not park or permit the parking of any vehicle under its
company in any parking areas designated by Landlord as areas for parking by
visitors to the Project. Tenant shall not leave vehicles in the parking
areas overnight nor park any vehicles in the parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
fourwheeled trucks.
3. Parking stickers or any other device or form of identification supplied by
landlord as a condition of use of the Parking Facilities shall remain the
property of Landlord. Such parking identification device must be displayed
as requested and may not be mutilated in any manner. The serial number of
the parking identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized holder
will be void.
4. No overnight or extended term storage of vehicles shall be permitted.
5. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross-hatched areas; and
(f) in such other areas as may be designated by Landlord or Landlord's
Parking Operator.
9. Every ▇▇▇▇▇▇ is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the ▇▇▇▇▇▇.
10. Loss or theft of parking identification devices from automobiles must be
reported to the Management Office immediately, and a lost or stolen report
must be filed by the customer at that time. Landlord has the right to
exclude any car from the parking facilities that does not have an
identification device.
11. Any parking identification devices reported lost or stolen found on any
unauthorized car will be confiscated and the illegal holder will be
subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported to the
Management Office immediately to avoid confusion.
13. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
14. Parking Facility managers or attendants are not authorized to make or
allow any exceptions to these Rules and Regulations.
15. ▇▇▇▇▇▇▇▇ reserves the right to refuse the sale of monthly stickers or
other parking identification devices to any tenant or person and/or his
agents or representatives who willfully refuse to comply with these Rules
and Regulations and all unposted City, State or Federal ordinances, laws or
agreements.
16. Landlord reserves the right to establish and change parking fees and to
modify and/or adopt such other reasonable and non-discriminatory rules and
regulations for the parking facilities as it deems necessary for the
operation of the parking facilities. Landlord may refuse to permit any
person who violates these rules to park in the parking facilities, and any
violation of the rules shall subject the car to removal.
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EXHIBIT H
HAZARDOUS MATERIALS
THE FOLLOWING PROVISIONS DEALING WITH HAZARDOUS MATERIALS ARE MEANT TO BE IN
ADDITION TO, AND NOT SUPERSEDE OR LIMIT, ANY OTHER PROVISIONS OF THIS LEASE
WHICH MAY DEAL WITH THE SAME SUBJECT MATTER.
(a) DEFINITION. "Hazardous Materials" shall mean any hazardous or
toxic substance, material, or waste which is or becomes regulated by any local
governmental authority, the State of California, or the United States
Government, including, but not limited to, substances defined as "hazardous
substances," "hazardous materials," "toxic substances," or "hazardous wastes"
in the Comprehensive Environmental Responses, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq; the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq; the Resource Conversation
and Recovery Act, 42 U.S.C. Section 6901, et seq; the California Health &
Safety Code; and any law, ordinance, or regulation dealing with underground
storage tanks; and in the regulations adopted, published, and/or promulgated
pursuant to said laws, and in any other environmental law, regulation, or
ordinance now existing or hereinafter enacted (hereinafter "Hazardous
Materials Laws").
(b) USE AND REMOVAL.
(1) Tenant hereby agrees that Tenant shall not use, generate,
manufacture, refine, process, store, or dispose of on, under, or about the
Premises or transport to or from the Premises any Hazardous Materials, except
with the written consent of Landlord in Landlord's sole discretion and in full
compliance with applicable Hazardous Materials Laws. Tenant further
acknowledges that ▇▇▇▇▇▇ does not intend to use the Premises in the future for
the purpose of generating, manufacturing, refining, producing, storing,
handling, transferring, processing, or transporting of Hazardous Materials.
(2) If at any time during the term of this Lease, Hazardous
Materials are used, or placed by Tenant on the Premises or Hazardous Materials
are discovered by Tenant on the Premises where no prior consent of Landlord was
obtained or otherwise in violation of any Hazardous Materials Laws, or if any
contamination of the Premises shall occur, Tenant, at Tenant's sole cost and
expense, shall immediately remove such Hazardous Materials from the Premises or
from the ground or groundwater underlying the Premises in accordance with
requirements of the appropriate governmental entity. Furthermore, Tenant shall,
at its own expense, procure, maintain in effect, and comply with all conditions
of any and all permits, licenses, and other governmental and regulatory
approvals required for Tenant's use of the Premises, including, without
limitation, discharge of (appropriately treated) materials or wastes into and
through any sanitary sewer serving the Premises.
(3) Except for discharges into the sanitary sewer in strict
accordance and conformity with all applicable Hazardous Materials Laws, Tenant
shall cause any and all permitted Hazardous Materials removed from the Premises
to be removed and transported solely by duly licensed haulers to duly licensed
facilities for final disposal of such materials and wastes. Tenant shall in all
respects handle, treat, deal with, and manage any and all Hazardous Materials
in, on, under, or about the Premises in total conformity with all applicable
Hazardous Materials Laws and prudent industry practices regarding management of
such Hazardous Materials. Tenant shall not take any remedial action in response
to the presence of any Hazardous Materials in or about the Premises nor enter
into any settlement agreement, consent, decree, or other compromise in respect
to any claims relating to any Hazardous Materials in any way connected with the
Premises without first notifying Landlord of Tenant's intention to do so and
affording Landlord ample opportunity to appear, intervene, or otherwise
appropriately assert and protect Landlord's interest with respect thereto. In
addition to all other rights and remedies of Landlord hereunder, if such
Hazardous Materials are not removed from the Premises or the ground or
groundwater underlying the Premises by Tenant within fifteen (15) days after
Landlord or Tenant discovers such Hazardous Materials, Landlord, at its sole
discretion, may, but shall not be obligated to, pay to have the same removed,
and Tenant shall reimburse Landlord within five (5) days of Landlord's demand
for payment.
(c) NOTICE.
(1) Tenant shall immediately notify Landlord in writing of (i)
any enforcement, cleanup, removal, or other governmental or regulatory action
instituted, completed, or threatened pursuant to any Hazardous Materials Laws;
(ii) any claim made or threatened by any person against Tenant, or the Premises
relating to damage contribution, cost recovery, compensation, loss, or injury
resulting from or claimed to result from any Hazardous Materials; and (iii) any
reports made to any environmental agency arising out of or in connection with
any Hazardous Materials in or removed from the Premises, including any
complaints, notices, warnings, or asserted violations in connection therewith,
upon ▇▇▇▇▇▇'s receipt of actual knowledge of the above. Tenant shall also
supply to Landlord as possible, and in any event within five (5) business days
after Tenant first
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receives or sends the same, with copies of all claims, reports, complaints,
notices, warnings, or asserted violations relating in any way to the Premises,
or ▇▇▇▇▇▇'s use thereof. Tenant shall promptly deliver to Landlord copies of
hazardous waste manifests reflecting the legal and proper disposal of all
Hazardous Materials removed from the Premises.
(2) Tenant acknowledges that Tenant has been informed that
Section 25359.7 of the California Health and Safety Code provides that any
tenant of real property who knows, or has reasonable cause to believe, that any
release of hazardous substances has come to be located on or beneath the real
property shall, upon discovery by the tenant of the presence or suspected
presence of a hazardous substance release, give notice of that condition to the
owner of the real property. Failure of the tenant to provide written notice as
required to the owner shall make the lease voidable at the discretion of the
owner. The Health and Safety Code provides that if the tenant has actual
knowledge of the presence of any hazardous substance release and knowingly or
willingly fails to provide written notice as required by the owner, the tenant
is liable for a civil penalty not to exceed $5,000.00 for each violation.
(d) INDEMNIFICATION. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect, and hold Landlord, and each and
any of Landlord's shareholders, partners, officers, directors, employees,
agents, attorneys, successors, and assigns, free and harmless from and against
any and all claims, liabilities, penalties, forfeitures, losses, or expenses
(including actual attorneys' fees and costs) or death of or injury to any
person or damage to any property whatsoever, arising from or caused in whole or
in part, directly, or indirectly, by (i) the presence in, on, under, or about
the Premises or discharge in or from the Premises of any Hazardous Materials
placed or discharged in, on, or under the Premises by Tenant or Tenant's use,
analysis, storage, transportation, disposal, release, threatened release,
discharge, or generation of Hazardous Materials to, in, on, under, about, or
from the Premises, or (ii) Tenant's failure to comply with any Hazardous
Materials Laws. Tenant's obligation hereunder shall include, without
limitation, and whether foreseeable or unforseeable, all costs of any required
or necessary repair, cleanup, or detoxification or decontamination of the
Premises and the preparation and implementation of any closure, remedial
action, or other required plans in connection therewith. For purpose of the
indemnity provisions hereof, any acts or omissions of Tenant, or by employees,
agents, assignees, subtenant, concessionaire, contractors, or subcontractors of
Tenant or others acting for on behalf of Tenant (whether or not they are
negligent, intentional, willful, or unlawful) shall be strictly attributable
to Tenant.
(e) SURVIVAL. All representations, warranties, obligations, and
indemnities with respect to Hazardous Materials shall survive the termination
of this Lease.
Section 10.2 WASTE MANAGEMENT REQUIREMENTS. Without limiting any
other obligations of Tenant under this Lease. Tenant covenants and agrees to
comply with all laws, rules, regulations, and guidelines now or hereafter made
applicable to the Premises respecting the disposal of waste, trash, garbage,
and other matter (liquid or solid), generated by Tenant, the disposal of which
is not otherwise the express obligation of Landlord under this Lease,
including, but not limited to, laws, rules, regulations, and guidelines
respecting recycling and other forms of reclamation (all of which are herein
collectively referred to as "Waste Management Requirements"). Tenant hereby
covenants and agrees to comply with all rules and regulations established by
Landlord to enable Landlord from time to time to comply with Waste Management
Requirements applicable to Landlord (i) as owner of the Premises, and (ii) in
performing Landlord's obligations under this Lease, if any. Tenant covenants
and agrees to indemnify, defend, protect, and hold Landlord harmless from and
against all liability (including costs, expenses, and attorneys' fees) that
Landlord may sustain by reason of Tenant's breach of its obligations under this
Section 10.2. Tenant obligations under this Section 10.2 shall survive the
termination of this Lease.
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