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EXHIBIT 10.5
2121 S. EL CAMINO REAL
OFFICE LEASE
between
CORNERSTONE PROPERTIES I, LLC,
as Landlord
and
NetRight Technologies, Inc.
A Delaware Corporation
as Tenant
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TABLE OF CONTENTS
Page
1. Premises 1
2. Term 1
3. Rent; Additional Charges 1
4. Additional Charges for Expenses and Real Estate Taxes 2
5. Use 3
6. Construction of Premises; Building Changes 3
7. Alterations 4
8. Repairs and Maintenance 4
9. Liens 5
10. Compliance with Laws and Insurance Requirements 5
11. Protection of Lenders 5
12. Damage and Destruction 6
13. Eminent Domain 7
14. Assignment and Subletting 8
15. Utilities and Services 8
16. Default 9
17. Liability of Landlord; Indemnity by Tenant 10
18. Insurance 12
19. Access to Premises 12
20. Notices 12
21. Tenant's Certificate 13
22. Tax on Tenant's Personal Property 13
23. Security Deposit 13
24. Landlord's Option to Relocate Tenant 13
25. ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Surrender of Lease Premises 13
27. Miscellaneous 14/15
EXHIBIT A Floor Plan
EXHIBIT A-1 Definition of Standard Building Improvements
EXHIBIT B Definitions of Real Estate Taxes, Building Expenses and
Common Area Expenses
EXHIBIT C Rules and Regulations
EXHIBIT D Option to Extend
i.
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2121 S. EL CAMINO REAL OFFICE LEASE
BASIC LEASE INFORMATION SUMMARY
("Summary")
Lease Date: November 30, 1998
Building Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Landlord: CORNERSTONE PROPERTIES I, LLC
Address of Landlord: ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant: NETRIGHT TECHNOLOGIES, INC.
A California Corporation
Rentable Area of Premises (Article 1): 11,516 Rentable Square Feet (RSF)
Term (Article 2): Three Years (36) Months
January 01, 1999 - December 31, 2001
Target Commencement Date: The target commencement date shall be
the later of (a) January 01, 1999; or
(b) the substantial completion of
tenant improvements. Substantial
completion is defined in Paragraph 2.
Monthly Base Rent (Article 3):
6,841 Square Feet Commencement - August 31, 1999 $2.75/rsf $18,813.00/month
11,516 Square Feet September 1, 1999 - December 31, 1999 $2.75/rsf $31,669.00/month
January 1, 2000 - December 31, 2000 $3.00/rsf $34,548.00/month
January 1, 2001 - December 31, 2001 $3.10/rsf $35,700.00/month
Security Deposit (Article 23): $35,700.00
The first months rent of $18,813.00 and the security deposit of $35,700.00 for a
total of $54,513.00 are due upon Lease execution.
Tenant's Common Area Expense Share (Article 4):
6.19% (11,516 square feet /186,000 square feet)
Base Year (Article 4): 1999
Use (Article 5): General Office and other related uses.
Tenant's Minimum General Liability
Insurance (Article 16): $1,000,000.00 per occurrence
$500,000.00 per person, per occurrence
$100,000.00 property damage
Tenant Improvements:
Costs paid by Landlord: Standard tenant improvement upgrades as
described on Exhibit A-1.
Costs paid by Tenant: All costs associated with data/phone
cabling and supplemental HVAC in the
server room.
Option to Extend: Tenant shall have Two (2), One (1) year options to extend the
Lease upon no less than six (6) months written notice to Landlord. The rental
rate shall be the then current market rate as calculated on Exhibit D.
ii.
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Stock: Landlord shall receive One Hundred Thousand (100,000) shares of Series C
stock at a price per share of Two Dollars and Ten Cents ($2.10) for a total
value of Two Hundred Ten Thousand Dollars ($210,000.00). Tenant shall exchange
the One Hundred Thousand (100,000) shares of Series C stock for a Two Hundred
Ten Thousand Dollar ($210,000.00) credit against its obligation to pay Monthly
Base Rent (as under this Lease) which credit shall be applicable against
Tenant's rental obligation on a chronological basis beginning with the first
month's Base Rent.
Each reference in the Lease to the Summary shall mean the respective
information set forth above and shall be deemed to incorporate all of the terms
provided under the particular Lease paragraph pertaining to such information. To
the extent there is any conflict between the provisions hereof and any more
specific provision of this Lease, such more specific provision shall control.
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2121 South El Camino Real
OFFICE LEASE
THIS LEASE is entered as of November 30, 1998 by and between
CORNERSTONE PROPERTIES I, LLC ("Landlord"), and NETRIGHT TECHNOLOGIES, INC.
("Tenant").
Landlord and Tenant hereby agree as follows:
1. PREMISES.
Subject to the contents of this Lease, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord the premises described in the
Basic Lease Information Summary (the "Summary") (the "Premises") in the building
described in the Summary (the "Building"), as shown on the floor plan (s)
attached as Exhibit A to this Lease. The Building is part of an office complex
consisting of ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (the "Complex"). All measurements of
area contained in this Lease are conclusively agreed to be correct and binding
upon the parties, even if a subsequent measurement of any one of these areas
determines that it is more or less than the amount of area reflected in the
Lease. Any such subsequent determination that the area is more or less than
shown in this Lease shall not result in a change in any of the computations of
rent, improvement allowances or other matters described in this Lease where area
is a factor.
2. TERM.
The term of this lease (the "Term") is thirty-six months and
commences on the later of (a) January 01, 1999 in the condition required
hereunder; or (b) the "substantial completion" of tenant improvements in
accordance with Exhibit A as extended hereunder. The dates on which the Term
commences and terminates pursuant to this Article 2 are herein called the
"Commencement Date and the "Expiration Date," respectively. If, for any reason,
Landlord cannot deliver possession of the Premises to Tenant on or prior to the
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom. In such case,
Tenant shall not pay any rent and the Commencement Date shall not occur until
such date as Landlord can deliver the Premises, provided, however that if
Landlord's failure to deliver the Premises is attributable to any action or
inaction by Tenant, then the Commencement Date shall not be advanced to the date
on which possession of the Premises is delivered to Tenant and Landlord shall be
entitled to full performance by Tenant (including payment of rent) from the date
the Premises would have been ready for delivery to Tenant but for Tenant's
action or inaction, provided Landlord shall deliver possession of the Premises
no later than February 01, 1999, or Tenant shall have the right to terminate
this Lease upon written notice to Landlord, and the Commencement Date shall be
delayed the same number of days such delivery of possession by Landlord is
delayed. "Substantial Completion" means the date the tenant improvements are
substantially completed in accordance to Exhibit "A".
3. RENT, ADDITIONAL CHARGES.
3.1 BASE RENT. Tenant will pay to Landlord during the Term the
monthly Base Rent set forth in the Summary (the "Base Rent") in consecutive
monthly installments on or before the first day of each calendar month, in
advance, at the address specified for Landlord in the Summary, or such other
place as Landlord may designate in writing, without any prior demand and without
any deductions or setoff. Upon execution of this Lease, Tenant shall pay to
Landlord the first month's Base Rent. If the Commencement Date occurs on a day
other than the first day of a calendar month, or the Expiration Date occurs on a
day other than the last day of a calendar month, then the rental for such
fractional month will be prorated based on a thirty (30) day month.
3.2 ADDITIONAL CHARGES. Tenant shall pay to Landlord all charges and
other amounts required to be paid by Tenant under this Lease (herein called
"Additional Charges") as additional rent at the place where the Base Rent is
payable. Landlord will have the same remedies for a default in the payment of
any Additional Charges as for a default in the payment of Base Rent. (Base Rent
and Additional Charges are sometimes collectively referred to herein as "rent.")
3.3 LATE CHARGE. If Tenant fails to pay any Base Rent or additional
Charges within five (5) business days after written notice, such unpaid amounts
will be subject to a late payment charge equal to five percent (5%) of the
unpaid amounts in each instance. The late payment charge has been agreed upon by
Landlord and Tenant, after negotiation, as a reasonable estimate of the
additional administrative costs and detriment that will be incurred by Landlord
as a result of any such failure by Tenant, the actual costs thereof being
extremely difficult if not impossible to determine. The late payment charge
constitutes liquidated damages to compensate Landlord for its damages resulting
from such failure to pay and shall be paid to Landlord together with such unpaid
amounts.
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4. ADDITIONAL CHARGES FOR EXPENSES AND REAL ESTATE TAXES.
4.1 DEFINITION OF EXPENSES. For purposes of this Article 4, the
following terms shall have the meanings set forth in this Section 4.1. "Tenant's
Building Percentage Share", "Tenant's Common Area Expense percentage Share" and
"Base Year" shall be as set forth in the Summary. Landlord may adjust these
percentages as a result of any change in the rentable area of the Premises or
the total rentable area of the Building or the other building in the Complex.
"Computation Year" means each calendar year during the Term, including any
partial calendar year in which the Term may commence or terminate. "Real Estate
Taxes", "Building Expenses", "Insurance Expenses" and "Common Area Expenses" are
defined in Exhibit B to this Lease.
Exclusions from Definition of "Expenses", including Real Estate Taxes, Building
Expenses, Insurance Expenses and Common Area Expenses (collectively "Expenses")
as defined in Exhibit B to this Lease.
The term "Expenses" shall not include the following:
(a) Costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements made for Lessee or
present or prospective lessees of the Building;
(b) The cost of any service provided to Tenant which is provided to
other tenants of the Building or the Project in quantities which are materially
in excess of that which would represent a fair proportion of such services based
upon Tenant Proportionate Share, but the costs so excluded shall be limited to
that amount which is in excess of the fair proportion of such services provided
to Tenant.
(c) Interest, principal, points and fees on debts or amortization on
any mortgage or mortgages or any other debt instrument encumbering the Project
or any portion of the Project.
(d) Landlord's general corporate overhead and general and
administrative expenses not related to the Building or Project.
(e) Costs incurred in connection with the original acquisition of the
property upon which the Project is located and the original construction of the
Project.
(f) Legal fees, brokerage commissions, advertising costs, or other
related expenses incurred in connection with the leasing of the Building or the
Project or associated with disputes with tenants or other occupants of the
Building or the Project or with the enforcement of any lease or defense of
Landlord's title to or interest in the Building or the Project or any part
thereof.
(g) Any improvements, alterations or expenditures of a capital nature,
unless the costs are amortized in accordance with generally accepted accounting
principles with interest over the useful life of the improvement, alteration or
expenditure, and that only portion of the costs so amortized, with interest,
which is allocated to the period of the term of this Lease shall be included as
an Operating Expense during each calendar year of the term of this Lease.
(h) The cost of damage and repairs necessitated by the negligence or
willful misconduct of Landlord or of Landlord's agents, employees, contractors
or invitees.
(i) Executive salaries or salaries of service personnel to the extent
that such executives or service personnel perform services other than in
connection with the management, operation, repair or maintenance of the Building
or Project.
(j) Advertising or promotional expenditures and other costs (including
permit, license and inspections fees) related to or incurred in renovating or
otherwise improving, decorating, painting or altering vacant space in the
Building or the Project.
(k) The cost of any service provided to Tenant or other occupants of
the Building for which Landlord receives reimbursement.
(l) The cost of any service provided to any other tenant of the
Building or the Project which is not also provided to Tenant.
(m) Any cost or expense incurred by reason of the remediation or
clean-up of any contamination of the Building or Project, or the soils or ground
water underlying the Building or the Project, by hazardous materials or toxic
substances, except to the extent such contamination results from Tenant's
activities within the Premises.
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4.2 PAYMENT OF CHARGES. From the first day of the thirteenth month
of the Term through the Expiration Date, Tenant shall pay to Landlord as
Additional Charges (i) Tenant's Building Share of the total dollar increase, if
any, in Building Expenses attributable to each Computation Year over Building
Expenses for the Base Year, (ii) Tenant's Building Share of the total dollar
increase, if any, in Real Estate Taxes attributable to each Computation Year
over Real Estate Taxes for the Base Year, (iii) Tenant's Building Share of the
total dollar increase, if any, in Insurance Expenses attributable to each
Computation Year over Insurance Expenses for the Base Year and (iv) Tenant's
Common Area Expense Share of the total dollar increase, if any, in Common Area
Expenses attributable to each Computation Year over Common Area Expenses for the
Base Year. During the last month of each Computation Year or as soon thereafter
as practicable, Landlord shall give to Tenant notice of Landlord's estimate of
the amounts payable by Tenant for the following Computation Year. On or before
the first day of each month during the following Computation Year, Tenant shall
pay to Landlord one- twelfth (1/12th) of the estimated amounts, provided that
until Landlord gives such notice, Tenant shall continue to pay on the basis of
the prior year's estimate until the first day of the calendar month after
Landlord gives such notice. If at any time or times Landlord determines that the
amounts payable by Tenant for the current Computation Year will vary from its
estimate given to Tenant , Landlord, by notice to Tenant, may revise its
estimate for the Computation Year, and subsequent payments for the Computation
year shall be based upon the revised estimate. Following the end of each
Computation Year, Landlord shall deliver to Tenant a statement of amounts
payable for the Computation Year. If the statement shows an amount owing by
Tenant that is less than the payments for such Computation Year previously made
by Tenant, and if no Event of Default is outstanding, Landlord shall credit the
amount to the next payments of rent due. If the statement shows an amount owing
by Tenant that is more than the estimated payments for the Computation Year
previously made by Tenant, Tenant shall pay the deficiency to Landlord within
thirty (30) days after delivery of such statement. The respective obligations of
Landlord and Tenant under this Section 4.2 shall survive the Expiration Date. If
the Commencement Date is a day other than the first day of a Computation Year or
the Expiration Date is a day other than the last day of a Computation Year, the
adjustment in rent pursuant to this Section 4.2 for such Computation Year shall
be prorated based on a 365-day year. Landlord shall deliver copies of invoices
and records for the computation year to Tenant supporting Landlord's estimates.
5. USE.
5.1 LIMITATIONS. Tenant shall use the Premises solely for the use or
uses specified in the Summary and for no other use or purpose. Tenant shall take
no action, nor permit any action to be taken, in or about the Premises that will
in any way increase the existing rate of or affect any fire or other insurance
upon the Building or any of its contents, or cause cancellation of any insurance
policy covering all or any part of the Building or any of its contents, or which
will in any way injure or interfere with the rights of other tenants or
occupants of the Building, nor shall Tenant use or allow the Premises to be used
for unlawful or objectionable purpose, nor cause, maintain or permit any
nuisance in, on or about the Premises, nor commit nor suffer to be committed any
waste in, on or upon the Premises. Tenant shall not use or operate any
equipment, machinery or apparatus within the Premises which will injure, vibrate
or shake the Premises or the Building, overload existing electrical systems or
other utilities or equipment servicing the Premises or Building, or impair the
efficient operation of the sprinkler system (if any) or the heating, ventilating
and air conditioning equipment within or servicing the Premises or the Building.
Tenant shall not cause or permit any Hazardous Materials to be brought upon,
stored, used, generated or released or disposed of on, under, from or about the
Premises, Building or Complex (including, without limitation, the soil and
groundwater thereunder) without the prior written consent of Landlord except for
office and janitorial supplies used in compliance with the laws.
5.2 COMMON AREA. Tenant shall have a non-exclusive right to use the
Common Area, provided, however, that Tenant's use of the Common Area shall be
subject to such rules and regulations as Landlord shall make from time to time.
As used in this Lease, the term "Common Area" shall mean the area and
improvements designated by Landlord from time to time as "Common Area" for the
use and enjoyment of tenants of the Complex. Landlord reserves the right, from
time to time provided the following does not unreasonably interfere with
Tenant's use of the Premises and access to the Premises, to: (i) utilize
portions of the Common Area for entertainment, displays, product shows, the
leasing of kiosks or such other uses as, in Landlord's judgment, tend to attract
the public, change the shape, size, location and extent of improvements on the
Common Area; (ii) eliminate or add any improvements; and (iii) temporarily close
any portion of the Common Areas for repairs, remodeling and/or alteration, to
prevent a public dedication or the accrual of prescriptive rights, or for any
other reason deemed sufficient by Landlord.
6. CONSTRUCTION OF PREMISES; BUILDING CHANGES.
Landlord shall construct the Premises and perform the work and make
the installations in the Premises substantially as set forth in Exhibit A to
this Lease (the "floor plan"). Landlord reserves the right, at any time and from
time to time, to make alterations, additions, repairs or improvements to or in
or to decrease the size or area of all or any part of the Building, the fixtures
and equipment therein and the areas outside the Building, and the Common Area,
and to change the arrangement and/or location of entrances or passageways,
doors, corridors, elevators, stairs,
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2121 South El Camino Real
toilets and other public parts of the Building, provided that any such
alterations or additions shall not materially diminish the quality or quantity
of services being provided to the Premises or adversely affect the functional
utilization of the Premises, Tenants use of or access to the Premises.
7. ALTERATIONS.
7.1 TRADE FIXTURES. During the Term of this Lease, Tenant may
install Tenant's Trade Fixtures which may be removed without material injury to
the Premises on the Premises without the prior consent of Landlord. All Trade
Fixtures shall remain Tenant's property. "Trade Fixtures" shall not include the
initial Tenant Improvements described in Exhibit A-1 nor any improvements
thereafter made to the Premises by Landlord at any time with Landlord's Funds.
7.2 CONSENT REQUIREMENT FOR ALTERATIONS. Tenant shall make no
alterations, additions or improvements (collectively, "Alterations") to the
Premises or any part thereof without obtaining the prior written consent of
Landlord, not to be unreasonably withheld. Landlord may impose as a condition to
such consent such requirements as Landlord may deem reasonably necessary,
without limitation: (i) that Landlord be furnished with working drawings before
work commences; (ii) that performance and labor and material payment bonds be
furnished; (iii) that Landlord approve the contractor by whom the work is to be
performed; (iv) that adequate course of construction insurance be in place and
the Landlord is named as an additional insured under the contractor's liability
and property damage policies; and (v) that Landlord's instructions relating to
the manner in which the work is to be done and the times during which it is to
be accomplished be complied with. All such alterations, additions or
improvements must be done in compliance with all applicable laws, in a good and
workmanlike manner and diligently prosecuted to completion. Tenant shall deliver
to Landlord upon commencement of such work, a copy of the building permit or
improvement plans with respect thereto. All such work shall be performed so as
not to obstruct the access to the Premises of any other tenant in the Building
or Complex. Should Tenant make any alterations without Landlord's prior written
consent, Landlord shall have the right, in addition to and without limitation of
any right or remedy Landlord may have under this Lease, at law or in equity, to
require the Tenant to remove all or some of the alterations at Tenant's sole
cost and restore the Premises to the same condition as existed prior to
undertaking the alterations. Tenant shall notify Landlord in writing at least
ten (10) days prior to the commencement of any such work in or about the
Premises and Landlord shall have the right at any time and from time to time to
post and maintain notices of nonresponsibility in or about the Premises. Not
withstanding the foregoing, Tenant shall have the right to make Tenant
Improvement's having a value up to Twenty Thousand Dollars ($20,000.00) upon ten
(10) days prior written notice to Landlord.
7.3 POSSESSION. All Tenant's Alterations (not including Trade
Fixtures) shall remain the property of Tenant during the Term but shall not be
altered or removed from the Premises. At the expiration or sooner termination of
the Term, all Tenant's Alterations shall be surrendered to Landlord and shall
then become Landlord's property, and Landlord shall have no obligation to
reimburse Tenant for all or any portion of the value or cost thereof; provided,
however, that if Landlord requires Tenant to remove any Tenant's Alterations,
which removal requirement Landlord shall notify Tenant of at the time Tenant
first requests Landlord's consent, Tenant shall so remove such Tenant's
Alterations, and Tenant shall restore the Premises to the condition which
existed prior to the installation of such Tenant's Alterations, prior to the
expiration or sooner termination of the Term.
8. REPAIRS AND MAINTENANCE.
8.1 TENANT'S OBLIGATIONS. By occupying the Premises, Tenant accepts
the Premises as being in the condition in which Landlord is obligated to deliver
the Premises under the terms of this Lease. Tenant shall at the end of the Term
surrender the Premises to Landlord in substantially the same condition as when
received, except for ordinary wear and tear and Alterations. Landlord has no
obligation and has made no promise to alter, remodel, improve, repair, decorate
or paint the interior all or any part of the Premises, the Building or the
Common Area except as specifically set forth in the Work Letter. Notwithstanding
the foregoing, Tenant shall have no obligation to make any structural or capital
improvements, repairs or replacements to any portion of the Premises.
8.2 LANDLORD'S OBLIGATIONS. Landlord shall repair, replace and
maintain the structural portions of the Building, the Building systems and the
Common Area. If the necessity for such maintenance and repairs is in any way
caused by the act, neglect, fault, or omission of Tenant, its agents, servants,
employees or invitees, Tenant shall pay promptly to Landlord 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 such maintenance unless Landlord
receives notice of the need for such repairs or maintenance from Tenant and
fails to make such repairs or perform such maintenance for a reasonable period
of time following such notice by Tenant. Rent shall not ▇▇▇▇▇ nor shall Landlord
be liable as a result of any injury to or interference with Tenant's business
arising from the making of any repairs, or the performance of any maintenance,
in or to any portion of the Building, the Premises or the Common Area, excepting
the negligence or willful misconduct of Landlord, Agents, servants, employees,
licensees or contractors.
4.
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9. LIENS.
Tenant shall keep the Premises and the Building free from any liens
arising out of any work performed, material furnished or obligations incurred by
or for Tenant. In the event that Tenant shall not, within ten (10) days
following the imposition of any such lien, cause the lien to be released of
record by payment or posting of a proper bond, Landlord shall have in addition
to all other remedies provided herein and by law the right but not the
obligation to cause same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All such sums paid by
Landlord and all expenses incurred by it in connection therewith (including
without limitation reasonable counsel fees) shall be payable to Landlord by
Tenant upon demand. Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law or that Landlord
shall deem proper for the protection of Landlord, the Premises, and the
Building, from mechanics' and material men's liens. Tenant shall give to
Landlord at least ten (10) business days' prior written notice of commencement
of any repair or construction on the Premises.
10. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS.
Tenant, at Tenant's cost and expense, and irrespective of the cost
of compliance, shall comply with all laws, orders and regulations of federal,
state, county and municipal authorities relating to the Premises or the use
thereof, and with all rules, orders, regulations or requirements of the American
Insurance Association (formerly the National Board of Fire Underwriters) and
with any similar body that shall hereafter perform the function of such
Association, except that Tenant shall not be required to make any structural
Alterations in order to comply unless such Alterations shall be necessitated by
Tenant's Alterations or Trade Fixtures, by Tenant's particular use of the
Premises, by Tenant's application for any permit or governmental approval,
and/or by the acts, omissions or negligence of Tenant or its servants,
employees, contractors, agents, visitors or licensees.
11. PROTECTION OF LENDERS.
11.1 SUBORDINATION. Without the necessity of any additional
document, this Lease shall be the subject and subordinate at all times to: (a)
all reciprocal easement agreements and all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Building, the land on
which the Building is located or the Common Area, or any of the foregoing, and
(b) 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 on which the Building is
located, ground leases or underlying leases, or Landlord's interest or estate in
any of said items, is specified as security. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be subordinated to this
Lease any of the items referred to in clause (a) or (b) above. Tenant shall
execute and deliver, upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the priority or subordination of
this Lease with respect to any such ground leases, underlying leases, reciprocal
easement agreements or similar documents or instruments, or with respect to the
lien of any such mortgage or deed of trust and containing such matters as
lenders customarily and reasonably require in connection with such agreements,
including, provisions that the lender will not be liable for: (i) the return of
any security deposit unless the lender receives it from Landlord and (ii) any
defaults on the part of Landlord occurring prior to the time lender takes
possession. Tenant's failure to execute any such document within ten (10) days
after written demand therefor shall constitute an event of Tenant's default by
Tenant under this Lease.
11.2 ATTORNMENT. If Landlord's interest in the Property is acquired
by any ground Landlord, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Landlord's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interests.
Notwithstanding the foregoing, as a condition precedent to Tenant's agreement to
be bound by Section 11.2 of this Lease, Landlord shall provide Tenant with
commercially reasonable non-disturbance agreements in favor of Tenant from any
ground lessors, mortgage holders or lien holders then in existence. Said
non-disturbance agreements shall be in recordable form and may be recorded at
Tenant's election and expense. In the event Landlord fails to provide such
commercially reasonable non-disturbance agreements within thirty (30) days after
the mutual execution of any subordination agreement affecting this Lease, Tenant
shall have the right, exercisable at any time thereafter to give ten (10)
business days' written notice to Landlord terminating this Lease. In the event
Landlord does not provide Tenant with the applicable non-disturbance agreements
within such ten (10) day period, the Lease shall terminate and Landlord shall
reimburse Tenant a proportionate share of all of Tenant's out-of-pocket costs
incurred in connection with the design and construction of any tenant
improvements and Tenant's reasonable legal fees incurred in connection with the
review and negotiation of this Lease. Upon such termination, neither party shall
have any further liability thereunder to the other. Landlord shall also provide
Tenant with commercially reasonable
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2121 South El Camino Real
non-disturbance agreement(s) in favor of Tenant from any ground lessors,
mortgage holders or lien holders of Landlord who later come into existence at
any time prior to the expiration of the term of this Lease.
11.3 NON-DISTURBANCE. As long as Tenant is not in material default
of this Lease, after applicable notices and cure period, Tenant shall be
entitled to continue its occupancy and use of the premises pursuant to the terms
and provisions of this Lease and any transferee of the Premises shall take
subject to the Lease.
12. DAMAGE AND DESTRUCTION.
12.1 DEFINITION OF TERMS. For the purposes of this Lease, the term:
(a) "Insured Casualty" means damage to or destruction of the Premises from a
cause actually insured against, for which the insurance proceeds paid or made
available to Landlord are sufficient to rebuild or restore the Premises under
then-existing building codes to the condition existing immediately prior to the
damage or destruction; and (b) "Uninsured Casualty" means damage to or
destruction of the Premises from a cause not actually insured against, or from a
cause actually insured against but for which the insurance proceeds paid or made
available to Landlord are for any reason insufficient to rebuild or restore the
Premises under then-existing building codes to the condition existing
immediately prior to the damage or destruction, or from a cause actually insured
against but for which the insurance proceeds are not paid or made available to
Landlord within twelve (12) months of the event of damage or destruction.
12.2 INSURED CASUALTY.
(a) In the event of an Insured Casualty where the extent of
damage or destruction is less than twenty-five percent (25%) of the then full
replacement cost of the Premises or the Building, Landlord shall rebuild or
restore the Premises or the Building substantially to the condition existing
immediately prior to the damage or destruction, provided that there exist no
governmental codes or regulations that would interfere with Landlord's ability
to so rebuild or restore.
(b) In the event of an Insured Casualty where the extent of
damage or destruction is equal to or greater than twenty-five percent (25%) of
the then full replacement cost of the Premises or the Building, Landlord may
rebuild or restore the Premises or the Building substantially to the condition
existing immediately prior to the damage or destruction, or terminate this
Lease. Landlord shall notify Tenant in writing within thirty (30) days from the
event of damage or destruction of Landlord's election to either rebuild or
restore the Premises or terminate this Lease.
12.3 UNINSURED CASUALTY. In the event of an Uninsured Casualty,
Landlord may (i) rebuild or restore the Premises as soon as reasonably possible
at Landlord's expense (unless the damage or destruction was caused by a
negligent or willful act of Tenant, in which event Tenant shall pay all costs of
rebuilding or restoring), in which event this Lease shall continue in full force
and effect or (ii) terminate this Lease, in which event Landlord shall give
written notice to Tenant within thirty (30) days after the event of damage or
destruction of Landlord's election to terminate this Lease as of the date of the
event of damage or destruction, and if the damage or destruction was caused by a
negligent or willful act of Tenant, Tenant shall be liable therefor to Landlord.
Notwithstanding the foregoing, Landlord shall have no right to terminate this
Lease with respect to an Uninsured Casualty if the cost of rebuilding or
restoring the damage caused thereby is equal to or less than Two Hundred Fifty
Thousand Dollars ($250,000).
12.4 TENANT'S ELECTION. Notwithstanding anything to the contrary
contained in this Article 12, Tenant may elect to terminate this Lease in the
event the Premises are damaged or destroyed and, in the reasonable opinion of
Landlord's architect or construction consultants, the restoration of the
Premises cannot be substantially completed within ninety (90) days after the
event of damage or destruction. Tenant's election shall be made by written
notice to Landlord within ten (10) days after Tenant receives from Landlord the
estimate of the time needed to complete repair or restoration of the Premises.
If Tenant does not deliver said notice within said ten (10) day period, Tenant
may not later terminate this Lease even if substantial completion of the
rebuilding or restoration occurs subsequent to said ninety (90) day period,
provided that Landlord is proceeding with diligence to rebuild or restore the
Premises. If Tenant delivers said notice within said ten (10) day period, this
Lease shall terminate as of the date of the event of damage or destruction.
12.5 CONTINUANCE OF LEASE. If Landlord is required or elects to
rebuild or restore the Premises pursuant to this Article 12, this Lease shall
remain in effect and Tenant shall have no claim against Landlord for
compensation for inconvenience or loss business during any period of repair or
restoration.
12.6 DAMAGE OR DESTRUCTION NEAR END OF LEASE TERM. Notwithstanding
anything to the contrary contained in this Article 12, in the event the Premises
are damaged or destroyed in whole in part (regardless of the extent of damage)
from any cause during the last twelve (12) months of the Lease Term, Landlord or
Tenant may, terminate this Lease as of the date of the event of damage or
destruction by giving written notice to the other party of Landlord's election
to do so within thirty (30) days after the event of such damage or destruction.
For purposes of this
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Section 12.6, if Tenant has been granted an option to extend or renew the Lease
Term pursuant to another provision of this Lease, then the damage or destruction
shall be deemed to have occurred during the last twelve (12) months of the Lease
Term if Tenant fails to exercise its option to extend or renew within twenty
(20) days of the event of damage or destruction.
12.7 TERMINATION OF LEASE. If the Lease is terminated pursuant to
this Article 12, the current Rentals shall be proportionately reduced during the
period following the event of damage or destruction until the date on which
Tenant surrenders the Premises, based upon the extent to which the damage or
destruction interferes with Tenant's business conducted in the Premises, as
reasonably determined by Landlord, to the extent such loss is covered as an
insured peril by the insurance carried by Landlord, and to the extent the
resulting loss of income is covered by rental income or other insurance carried
by Landlord.
12.8 ABATEMENT OF RENTALS. If the Premises are to be rebuilt or
restored pursuant to this Article 12, the then current Rentals shall be
proportionately reduced during the period of repair or restoration, based upon
the extent to which the making of repairs interferes with Tenant's business
conducted in the Premises, as reasonably determined by Landlord. In the event
Tenant reasonably disputes Landlord's determination regarding Rentals in Section
12.7 above and/or in the preceding sentence, then Tenant shall, within thirty
(30) days following written notice to Tenant of such determination by Landlord,
have the right to send Landlord written notice objecting to such determination
and requesting that Landlord and Tenant determine by arbitration the extent to
which Rentals should be proportionately reduced during the period described in
Section 12.7 above or the period of repair or restoration, which arbitration
shall be carried out pursuant to the rules and procedures of the American
Arbitration Association. All costs and expenses of any such arbitration shall be
shared equally by Landlord and Tenant. The determination of any such arbitration
shall be binding upon Landlord and Tenant.
12.9 LIABILITY FOR PERSONAL PROPERTY. In no event shall Landlord
have any liability for, nor shall it be required to repair or restore, any
injury or damage to any improvements, alterations or additions to the Premises
made by Tenant, trade fixtures, equipment, merchandise, furniture, or any other
property installed by Tenant or at the expense of Tenant. If Landlord or Tenant
do not elect to terminate this Lease pursuant to this Article 12, Tenant shall
be obligated to promptly rebuild or restore the same to the condition existing
immediately prior to the damage or destruction.
12.10 WAIVER OF CIVIL CODE REMEDIES. Landlord and Tenant
acknowledge that the rights and obligations of the parties upon damage or
destruction of the Premises are as set forth herein; therefore Tenant hereby
expressly waives any rights to terminate this Lease upon damage or destruction
of the Premises, except as specifically provided by this Lease, including
without limitation any rights pursuant to the provisions of Subdivision 2 of
Section 1932 and Subdivision 4 of Section 1933 of the California Civil Code, as
amended from time to time, and the provisions of any similar law hereinafter
enacted, which provisions relate to the termination of the hiring of a thing
upon its substantial damage or destruction.
13. EMINENT DOMAIN.
If all or any part of the Premises shall be taken as a result of
the exercise of the power of eminent domain or any transfer in lieu thereof,
this Lease shall terminate as to the part so taken as of the date of taking,
and, in the case of a partial taking, either Landlord or Tenant shall have the
right to terminate this Lease as to the balance of the Premises by written
notice to the other within thirty (30) days after such date; provided, however,
a condition to Tenant's right to terminate shall be that Tenant's use of the
balance of the Premises is substantially handicapped, impeded or impaired by the
taking. If any material part of the building consisting of seventy five percent
(75%) of rentable square feet shall be taken, Landlord shall have the right to
terminate this Lease by written notice to Tenant within thirty (30) days of the
date of taking. In the event of any taking, Landlord shall be entitled to any
and all compensation, damages, income, rent, awards, or any interest therein
whatsoever which may be paid or made in connection therewith, and Tenant shall
have no claim against the Landlord for the value of any unexpired term of this
Lease or otherwise; provided, Landlord shall have no claim to any portion of the
award that is specifically allocable to Tenant's relocation expenses or the
interruption of or damage to Tenant's business. In the event of a partial taking
of the Premises which does not result in a termination of this Lease, the Base
Rent and Additional Charges thereafter to be paid shall be equitably reduced.
14. ASSIGNMENT AND SUBLETTING.
14.1 IN GENERAL. Tenant shall not directly or indirectly,
voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise
transfer or hypothecate its interest in or rights with respect to the Premises
or Tenant's leasehold estate hereunder (collectively, "Assignment"), or permit
all or any portion of the Premises to be occupied by anyone by other than Tenant
or sublet all or any portion of the Premises or transfer a portion of its
interest
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in or rights with respect to Tenant's leasehold estate hereunder (collectively,
"Sublease") without Landlord's prior consent in each instance not to be
reasonably withheld.
14.2 NOTICE TO LANDLORD. If Tenant desires at any time to enter in
an Assignment or a Sublease, Tenant shall first give notice to Landlord of its
desire to do so, which notice shall contain (a) the name and address of the
proposed assignee or subtenant, (b) the nature of the proposed assignee's or
subtenant's business to be carried on in the Premises, (c) the terms and
provisions of the proposed Assignment or Sublease. In addition thereto, Tenant
shall furnish to Landlord such financial information as Landlord may reasonably
request concerning the proposed assignee or subtenant.
14.3 LANDLORD'S OPTION. At any time within ten (10) days after
Landlord's receipt of the notice specified in Section 14.2, Landlord may by
notice to Tenant elect to (a) terminate this Lease as to the portion (including
all) of the Premises that is specified in Tenant's notice, with a proportionate
abatement in the Base Rent, (b) consent to the Sublease or Assignment, or (c)
disapprove the Sublease or Assignment; Landlord shall not unreasonably withhold
its consent to the Assignment or Sublease. Tenant shall pay as additional rent,
Landlord's reasonable attorneys' fees incurred in connection with the review of
any proposed Assignment or Sublease. Tenant agrees to pay Landlord fifty percent
(50%) of the amount by which all sums payable to Tenant in connection with such
Assignment or Sublease exceed the total of (a) Base Rent payable by Tenant to
Landlord hereunder, (b) reasonable leasing commission incurred by Tenant in
connection therewith, and (c) the cost of any Alterations reasonably incurred in
connection therewith, and (d) advertisement costs. If Landlord consents to the
Sublease or Assignment within such ten (10) day period, Tenant may thereafter
within sixty (60) days after Landlord's consent enter into such Assignment or
Sublease with such approved assignee or subtenant upon the terms and conditions
set forth in the notice furnished by Tenant to Landlord pursuant to Section
14.2. No Assignment or Sublease shall be binding on Landlord until Tenant
delivers an executed copy of such Assignment or Sublease to Landlord.
Notwithstanding Section 14.3 or any other provision to the contrary, in the
event Landlord exercises its recapture right under this Section 14.3, Tenant
shall have the right to rescind its notice for request to sublease, assign or
transfer within three (3) business days following receipt of Landlord's notice
of recapture.
14.4 NO RELEASE. No consent by Landlord to any Assignment or
Sublease by Tenant shall relieve Tenant of any obligation to be performed by
Tenant under this Lease, whether arising before or after the Assignment or
Sublease. The consent by Landlord to any Assignment or Sublease shall not
relieve Tenant from the obligation to obtain Landlord's express consent to any
other Assignment or Sublease. Any Assignment or Sublease that fails to comply
with this Article 14 shall be void and, at the option of Landlord, shall
constitute an Event of Default by Tenant under this Lease. The acceptance of
Base Rent or Additional Charges by Landlord from a proposed assignee or
subleasee shall not constitute consent to such Assignment or Sublease by
Landlord.
14.5 AFFILIATES. Occupancy of all or part of the Premises by a
parent, subsidiary or affiliated companies of Tenant or Tenant's parent or
Tenant's subsidiary shall not be deemed an assignment or subletting provided
that such parent, subsidiary or affiliated companies were not formed as a
subterfuge to avoid the obligation of this Article 14.
15. UTILITIES AND SERVICES.
15.1 LANDLORD'S OBLIGATIONS. Landlord agrees to furnish to the
Premises, subject to the rules and regulations of the Building, (a) at all
times, electricity for normal lighting and fractional horsepower office machines
in an amount not to exceed .025 KWH per square foot per normal business day,
nonattended freight and passenger elevator service, and water for lavatory and
drinking purposes, and (b) from 8:00 a.m. to 6:00 p.m. Monday through Friday,
except for generally recognized business holidays in San Mateo, California, heat
and air-conditioning required in Landlord's judgment for the comfortable use and
occupation of the Premises. Landlord may reduce elevator service on evenings,
weekends and holidays. Landlord shall provide sufficient janitorial service for
general office use, as reasonably determined by Landlord. Landlord shall not be
liable for, and Tenant shall not be entitled to, any reduction of Base Rent by
reason of (x) the installation, use of or interruption of use of any equipment
in connection with the furnishing of any of the foregoing services (y) the
failure to furnish or delay in furnishing any of the foregoing services when
such failure is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, or by any other
cause, similar or dissimilar, beyond the reasonable control of Landlord or by
the making of any repairs or improvements to the Premises or to the Building or
any portion of either, or (z) the limitation, curtailment, rationing or
restrictions on use of water, electricity, gas or any other utility servicing
the Premises or the Building by any utility or governmental agency. If Tenant
requests additional or after-hours heating or air conditioning, Landlord shall
provide such service provided that Tenant pays Landlord's reasonable charge for
such services. Tenant further agrees to cooperate fully at all times with
Landlord and to abide by all regulations and requirements which Landlord may
prescribe (including, without limitation, maintaining all window coverings in
the Premises closed whenever the system is in operation) for the proper function
and control of the air conditioning system.
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15.2 RESTRICTIONS. Tenant shall not use any apparatus or device in
the Premises using in excess of 120 volts, that will in any way increase the
amount of electricity usually furnished or supplied for the use of the Premises
as general office space; nor connect with electric current, except through
existing electrical outlets in the Premises, any apparatus or device, for the
purpose of using electric current. If the Tenant shall require water or electric
current in excess of the amount usually furnished or supplied for the use of the
Premises as general office space, Tenant shall first procure the prior
reasonable consent of Landlord to the use of such excess water or electric
current, which consent Landlord may refuse in its sole discretion. Landlord may
condition its consent upon Tenant's agreement to reimburse Landlord monthly for
the excess cost thereof, based upon an estimate agreed upon by Landlord and
Tenant, or, if the parties fail to agree, as established by an independent
licensed engineer.
16. DEFAULT.
16.1 EVENTS OF TENANT'S DEFAULT. Tenant shall be in default of its
obligations under this Lease if any of the following events occurs (an "Event of
Tenant's Default"):
(a) Tenant shall have failed to pay Base Rent or Additional
Charges when due, and such failure is not cured within five (5) days after
delivery of written notice from Landlord specifying such failure to pay; or
(b) Tenant shall have failed to perform any term, covenant,
or condition of this Lease except those requiring the payment of Base Rent or
Additional Charges, and Tenant shall have failed to cure such breach within
thirty (30) days after written notice from Landlord specifying the nature of
such breach where such breach could reasonably be cured within said thirty (30)
day period, or if such breach could not be reasonably cured within said thirty
(30) day period, Tenant shall have failed to commence such cure within said
thirty (30) day period and thereafter continue with due diligence to prosecute
such cure to completion within such time period as is reasonably needed.
(c) Tenant shall have sublet the Premises or assigned its
interest in the Lease in violation of the provisions contained in Section 14; or
(d) Tenant shall have abandoned the Premises or left the
Premises substantially vacant for thirty (30) consecutive days; or
(e) The occurrence of the following: (i) the making by
Tenant of any general arrangements or assignments for the benefit of creditors;
(ii) Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Tenant, the same is dismissed within 60 days); (iii) 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 (iv) 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; provided, however, in the
event that any provision of this Section 16.1 (e) is contrary to any applicable
Law, such provision shall be of no force or effect; or
(f) Tenant shall have failed to deliver documents required
of Tenant pursuant to Section 11 or 21 within the time periods specified
therein.
The notice periods provided for in this Section 16.1 are intended to satisfy any
and all notice requirements imposed on Landlord by law (including, without
limitation, California Code of Civil Procedure Section 1161) and are not in
addition to any such requirements.
16.2 LANDLORD'S REMEDIES. If an Event of Tenant's Default occurs,
Landlord shall have the following remedies, in addition to all other rights and
remedies provided by any Law or otherwise provided in this Lease, to which
Landlord may resort cumulatively or in the alternative:
(a) Landlord may keep this Lease in effect and enforce its
rights and remedies under this Lease. Landlord may enter the Premises and
release them to third parties for Tenant's account for any period, whether
shorter or longer than the remaining Term. Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in releasing the Premises, including
brokers' commissions, expenses of altering and preparing the Premises required
by the releasing in substantially the same condition delivered to Tenant. No act
by Landlord allowed by this subparagraph or intended to mitigate the adverse
effects of a breach of this Lease by Tenant shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate this
Lease. Notwithstanding any releasing without termination, Landlord may later
elect to terminate this Lease because of the default by Tenant. Landlord may
enforce all its rights and remedies under this Lease, including the right to
recover the Rent as it becomes due under the Lease as provided in California
Civil Code Section 1951.4.
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(b) Landlord may terminate this Lease by giving Tenant
written notice of termination in which event this Lease shall terminate on the
date set for termination in such notice. In the event Landlord terminates this
Lease, Landlord shall be entitled, at Landlord's election, to damages in an
amount as set forth in California Civil Code Section 1951.2 as in effect on the
Effective Date. For purposes of computing damages pursuant to California Civil
Code Section 1951.2, an interest rate equal to the Interest Rate shall be used
where permitted. Such damages shall include:
(1) 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, 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%); and
(2) Any other amount necessary to compensate Landlord
for all detriment approximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which in the ordinary course of things would be
likely to result therefrom, including the following: (i) expenses for cleaning,
repairing or restoring the Premises to substantially the same condition as
delivered to Tenant; (ii) broker's fees, advertising costs and other expenses of
reletting the Premises; (iii) costs of carrying the Premises, such as taxes,
insurance premiums, utilities and security precautions; (iv) expenses in
retaking possession of the Premises; and (v) attorneys' fees and court costs
incurred by Landlord in retaking possession of the Premises and in releasing the
Premises or otherwise incurred as a result of Tenant's default.
(c) Nothing in this Section 16.2 shall limit Landlord's
right to indemnification from Tenant as provided in Sections 17.3. Any notice
given by Landlord in order to satisfy the requirements of this Section 16.2
shall also satisfy the notice requirements of California Code of Civil Procedure
Section 1161 regarding unlawful detainer proceedings.
16.3 WAIVER. One party's consent to or approval of any act by the
other party requiring the first party's consent or approval shall not be deemed
to waive or render unnecessary the first party's consent to or approval of any
subsequent similar act by the other party. The receipt by Landlord of any rent,
payment, interest or late charge with or without knowledge of the breach of any
other provision hereof shall not be deemed a waiver of any such breach unless
such waiver is in writing and signed by Landlord. No delay or omission in the
exercise of any right or remedy accruing to either party upon any breach by the
other party under this Lease shall impair such right or remedy or be construed
as a waiver of any such breach therefore or thereafter occurring. The waiver by
either party of any breach of any provision of this Lease shall not be deemed to
be a waiver of any subsequent breach of the same or of any other provisions
herein contained.
16.4 LIMITATION ON EXERCISE OF RIGHTS. At any time that an Event of
Tenant's Default has occurred and remains uncured, (i) Landlord may deny or
withhold any consent or approval requested of it by Tenant which Landlord would
otherwise be obligated to give; and (ii) Tenant may not exercise any option to
extend, right to terminate this Lease, or other right granted to it by this
Lease which would otherwise be available to it.
16.5 WAIVER BY TENANT OF CERTAIN REMEDIES. Tenant waives the
provisions of Sections 1932(l), 1941 and 1942 of the California Civil Code and
any similar or successor law regarding Tenant's right to terminate this Lease or
to make repairs and deduct the expenses of such repairs from the rent due under
this Lease. Tenant hereby waives any right of redemption or relief from
forfeiture under the laws of the State of California, or under any other present
or future law, including the provisions of Sections 1174 and 1179 of the
California Code of Civil Procedure.
16.6 REMEDIES CUMULATIVE. All rights, privileges and remedies of
the parties are cumulative and not alternative or exclusive to the extent
permitted by law except as otherwise provided herein.
17. LIABILITY OF LANDLORD; INDEMNITY BY TENANT.
17.1 LIMITATION ON LANDLORD'S LIABILITY. Except to the extent
caused by Landlord's negligence or willful misconduct, Landlord shall not be
liable to Tenant, nor shall Tenant be entitled to terminate this Lease or to any
abatement of Rent, for any injury to Tenant or any parties affiliated with
Tenant, damage to the property of Tenant or any parties affiliated with Tenant,
or loss to Tenant's business resulting from any cause, including without
limitation any: (i) failure, interruption or installation of any HVAC or other
utility system or service; (ii) failure to furnish or delay in furnishing any
utilities or services when such failure or delay is caused by fire or other
peril, the elements, labor disturbances of any character, or any other accidents
or other conditions beyond the reasonable control of Landlord; (iii) limitation,
curtailment, rationing or restriction on the use of water or electricity, gas or
any other form of energy or any services or utility serving the Complex; (iv)
vandalism or forcible entry by unauthorized persons or the criminal act of any
person; or (v) penetration of water into or onto any portion of the Building
through roof leaks or otherwise.
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Notwithstanding the foregoing but subject to Sections 17.2 and 18.3, Landlord
shall be liable for any such injury, damage or loss which is approximately
caused by Landlord's willful misconduct or negligence.
17.2. LIMITATION ON TENANT'S RECOURSE. If Landlord is a
corporation, trust, partnership, joint venture, unincorporated association or
other form of business entity: (i) the obligations of Landlord shall not
constitute personal obligations of the officers, directors, trustees, partners,
joint ventures, members, owners, stockholders, or other principals or
representatives of such business entity; and (ii) Tenant shall not have recourse
to the assets of such officers, directors, trustees, partners, joint ventures,
members, owners, stockholders, principals or representatives except to the
extent of their interest in the Premises. Notwithstanding anything to the
contrary in this Lease, Tenant shall have recourse only to the interest of
Landlord in the Premises and proceeds thereof for the satisfaction of each and
every remedy of Tenant in the event of default by Landlord hereunder; such
exculpation of personal liability is absolute and without exception whatever.
17.3 MUTUAL INDEMNITY. Landlord and Tenant (the "Indemnifying
Party") shall each hold the other (the "Other Party") harmless, indemnify,
protect and defend the Other Party and the Other Party's employees, agents,
contractors, directors, partners, shareholders, officers, advisors, consultants
and lenders, with legal counsel satisfactory to the Other Party from all
liability, penalties, losses, damages, costs, expenses (including reasonable
attorneys' fees and court costs), causes of action, claims and/or judgments
arising by reason of any death, bodily injury, personal injury or property
damage resulting from (i) the acts or omissions of the Indemnifying Party inside
the Premises; (ii) the negligence or willful misconduct of the Indemnifying
Party or any party affiliated with the Indemnifying Party, wherever the same may
occur; or (iii) an Event of Tenant's Default or other breach of this Lease by
the Indemnifying Party.
17. 4 ASBESTOS. Notwithstanding anything to the contrary in the
Lease, Landlord shall indemnify, defend, protect and hold harmless Tenant from
and against any claims, injuries, causes of action, losses, demands, damages,
penalties, costs and expenses arising from the existence of asbestos containing
materials (ACM) in the Premises and Building unless the presence of airborne
asbestos is the direct result of the gross negligence or willful misconduct of
Tenant.
Landlord shall also comply with the Cornerstone Properties
Operations and Maintenance Program dated 11/16/98 and keep documents regarding
periodic ACM condition inspection reports, periodic air monitoring reports,
training for maintenance personnel, medical surveillance and respiratory
protection program for maintenance staff, and spot checks of the top side of
ceilings annually and after a significant earthquake.
Landlord, at its cost and expense, shall perform quarterly and as
soon as possible after any significant earthquake, air monitoring of the
Premises for the presence of asbestos at four locations on each floor of the
Premises and shall notify Tenant within one (1) business day of any sample
result in the Building that exceeds (1) the OSHA Permissible Exposure Limit
("Action Level") for airborne asbestos of 0.01 f/cc; and ; or (2) the "no
significant risk" level for asbestos under Prop. 65 ( 12 C.C.R. 12705 (b) (1) ),
or such stricter Action Limit or ▇▇▇▇. ▇▇ ▇▇▇▇▇ as may be promulgated.
Landlord shall defend Tenant its employees, agents, contractors,
directors, shareholders, officers, advisors, consultants and invitees with legal
counsel reasonably satisfactory to Tenant, from all liability penalties, losses,
damages, costs, expenses (including attorney fees and court costs to a
reasonable extent), causes of action, claims and judgments arising by reason of
any death, bodily injury, personal injury or property damage resulting from
Landlord's negligence or willful misconduct.
17.5 NOTICE OF CLAIM OR SUIT. Tenant shall promptly notify Landlord
of any claim, action, proceeding or suit instituted or threatened against Tenant
of which Tenant received notice or of which Tenant acquires knowledge and which
names Landlord as a party thereto.
17.6 WAIVER OF JURY TRIAL.
PARAGRAPH DELETED.
17.7 SALE OF PREMISES. In the event of any sale or transfer of the
Premises, the seller, transferor or assignor shall be and hereby is entirely
freed and relieved of all agreements, covenants and obligations of Landlord
thereafter to be performed and it shall be deemed and construed without further
agreement between the parties or their successors in interest or between the
parties and the purchaser, transferee or assignee on any such sale, transfer or
assignment that such purchaser, transferee or assignee has assumed and agreed to
carry out any and all agreements, covenants and obligations of Landlord
hereunder.
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18. INSURANCE.
18.1 TENANT'S INSURANCE. Tenant shall procure at its cost and
expense and keep in effect during the Term broad form comprehensive general
liability insurance, including, without limitation, contractual liability for
Tenant's indemnity obligation contained in Section 17 and specific coverage of
risks arising out of any activities of Tenant pursuant to Articles 7 and 8, with
a combined single limit of liability in an amount equal to the amount set forth
in the Summary. Such coverage shall be in a comprehensive general liability form
with at least the following endorsements to the extent such endorsements are
generally available: (i) deleting any employee exclusion on personal injury
coverage, (ii) including employees as additional insured, (iii) providing for
blanket contractual coverage, broad form property damage coverage and products
completed operations coverage (where applicable), (iv) deleting any liquor
liability exclusions, and (v) providing for coverage of employees' automobile
non ownership liability. Such insurance shall name Landlord and any other party
designated by Landlord as an additional insured, shall be carried by companies
licensed to do business in California and which have a general policy holders'
rating of at least "VIII" as set forth in the most current issue of "Best's
Insurance Guide", shall specifically include the liability assumed hereunder by
Tenant, shall provide that it is primary insurance and not in excess over or
contributory with any other valid, existing and applicable insurance covering
the same loss carried by Landlord or any other party, shall provide for
severability of interests, shall further provide that an act or omission of one
of the named insiders which would void or otherwise reduce coverage shall not
reduce or void the coverage as to any insured, shall afford coverage for all
claims based on acts, omissions, injury or damage which occurred or arose (or
the onset of which occurred or arose) in whole or part during the policy period,
and shall provide that Landlord will receive thirty (30) days' written notice
from the insurer prior to any cancellation or change of coverage. Tenant shall
deliver policies of such insurance or certificates thereof to Landlord on or
before the Commencement Date, and thereafter at least thirty (30) days before
the expiration dates of expiring policies; and in the event Tenant shall fail to
procure such insurance, or to deliver such policies or certificates, Landlord
may, at its option, procure same for the account of Tenant, and the cost thereof
shall be paid to Landlord within five (5) days after delivery to Tenant of bills
therefore. Tenant shall be responsible, at its cost and expense, for separately
insuring Tenant's property. The amounts of such insurance shall be subject to
adjustment from time to time as requested by Landlord based upon Landlord's
determination of the amount of such insurance generally required for comparable
tenants, premises and buildings in the general geographic location of the
Building or required by a lender with an interest in the Building.
18.2 LANDLORD'S INSURANCE. Landlord shall maintain all risk
property insurance covering the estimated replacement cost of the Building.
Landlord may, but is not obligated to, maintain such other insurance and
additional coverages as it may deem necessary, including, but not limited to,
commercial liability insurance and rent loss insurance. The cost of such
insurance to Landlord shall be deemed an Insurance cost. The Building may be
included in a blanket policy (in which case the cost of such insurance allocable
to the Building will be determined by Landlord based upon the insurer's cost
calculations).
18.3 WAIVER OF SUBROGATION. Notwithstanding anything to the
contrary contained herein, to the extent of insurance proceeds received with
respect to the loss, Landlord and Tenant each hereby waives any right of
recovery against the other party and against any other party maintaining a
policy of insurance with respect to the Building or any portion thereof or the
contents of any of the same, for any loss or damage maintained by such other
party with respect to the Building, or the Premises or any portion thereof or
the contents of the same or any operation therein, whether or not such a loss is
caused by the fault or negligence of such other party.
19. ACCESS TO PREMISES.
Landlord, its agents and representatives shall have the right to
enter the Premises at all reasonable times and, except in cases of emergency,
after giving Tenant reasonable notice for any purpose deemed necessary or
desirable by Landlord. Rent shall not ▇▇▇▇▇ as a result thereof. Landlord shall
use reasonable efforts to minimize any interference with Tenant's use of the
Premises or access thereto for its normal business purposes. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises
or any other loss occasioned thereby excepting the negligence or willful
misconduct of Landlord, agents, servants, employees, licensees or contractors.
No entry by Landlord under any circumstances shall be construed or deemed to be
a forcible or unlawful entry into or a detainer of, the Premises, or an
eviction, actual or constructive, of Tenant from the Premises or any portion
thereof. Tenant acknowledges that in the event the Lease is not renewed, that
the Landlord shall have the right to show prospective tenants the Leased
premises during the last ninety (90) days of the Lease term without prior notice
to Tenant during reasonable business hours, provided Landlord comply with
Tenant's security procedures.
20. NOTICES.
Notices or other communications under this Lease shall be effective
only if given in writing, sent by certified mail, by facsimile telecopy or by
courier service with a return receipt requested or delivered personally: (a) to
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2121 South El Camino Real
Tenant (i) at Tenant's address set forth in the Summary, if sent prior to
Tenant's taking possession of the Premises, or (ii) at the Premises, if sent
subsequent to Tenant's taking possession of the Premises, or (b) to Landlord at
Landlord's address set forth in the Summary, or (c) to either Landlord or Tenant
at such other address as either Landlord or Tenant may designate as its new
address for such purpose by notice given to the other in accordance with the
provisions of this Article. A notice shall be deemed to have been given (i) upon
actual receipt or refusal of delivery (ii) when delivered if given by personal
delivery; and in all other cases when actually received at the address for
notices set forth above.
21. TENANT'S CERTIFICATE.
Tenant, at any time and from time to time upon not less than ten
(10) day's prior written notice from Landlord, will execute, acknowledge and
deliver to Landlord a certificate stating that this Lease is in full force and
effect, specifying the dates to which rent has been paid thereunder and
certifying to such other matters as Landlord may reasonably request. Any such
certificate may be relied upon by Landlord and by any prospective purchaser or
mortgagee considering the purchase of or a loan on all or any part of the
Building or any interest therein.
22. TAX ON TENANT'S PERSONAL PROPERTY.
At least ten (10) days prior to delinquency, Tenant shall pay all
taxes levied or assessed upon Tenant's Property and shall deliver satisfactory
evidence of such payment to Landlord, If, as determined by Landlord, the
assessed value of Landlord's property is increased by the inclusion therein of a
value placed upon Tenant's Property, Tenant shall promptly pay such increased
amount to Landlord.
23. SECURITY DEPOSIT.
Upon execution of this Lease, Tenant shall pay to Landlord,
Tenant's security deposit for the faithful performance of all terms, covenants
and conditions of this Lease in the amount specified in the Summary. Landlord
may apply any part of the security deposit to: (i) remedy any default by Tenant
in the payment of rent; (ii) repair damage to the Premises caused by Tenant;
(iii) clean the Premises upon termination of the Lease; and (iv) remedy any
other default of Tenant to the extent provided by Law. Tenant hereby waives the
restriction contained in California Civil Code Section 1950.7. Should Landlord
use any portion of the security deposit, Tenant shall forthwith replenish the
security deposit to the original amount. If Tenant shall fully and faithfully
perform every provision of this Lease, the remaining balance of the security
deposit, if any, shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) within twenty-one (21) days after
the Expiration Date with any deductions itemized in writing. In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer the
security deposit to Landlord's successor in interest and, upon such transfer,
Landlord shall be relieved of any and all liability for or obligation with
respect to the security deposit. Landlord shall not be deemed a Trustee of the
Security Deposit, may use the Security Deposit in Landlord's business, one shall
not be required to segregate it from its general accounts.
24. LANDLORD'S OPTION TO RELOCATE TENANT.
PARAGRAPH DELETED.
25. GUARANTOR.
PARAGRAPH DELETED.
26. SURRENDER OF LEASED PREMISES.
26.1 Tenant shall, at least ninety (90) days before the last day of
the term hereof, give to Landlord a written notice of intention to surrender the
leased premises on that date, but nothing contained herein shall be construed as
an extension of the term hereof or as consent of Landlord to any holding over by
Tenant. At the end of the term or any renewal thereof or other sooner
termination of this Lease, Tenant will peaceably deliver up to the Landlords
possession of the leased premises, together with all improvements or additions
upon or belonging to the same, by whosoever made, in substantially the same
condition as received, or first installed, ordinary wear and tear and damage by
fire, earthquake, act of God or the elements alone excepted. Tenant may, upon
the termination of this Lease, remove, at Tenants sole cost, all trade fixtures
installed by Tenant, title to which shall be in Tenant until such termination,
repairing any damage to the leased caused by such removal. Any of Tenants
personal property and trade fixtures not removed by Tenant at the end of the
term or other sooner termination of this Lease shall be deemed abandoned by the
Tenant if Landlord so elects, and Landlord shall remove, store and disposing of
Tenants abandoned personal property and trade fixtures. Tenant shall indemnify
Landlord against any loss or liability resulting from delay by Tenant in so
surrendering the leased premises, including without limitation, any claims made
by any succeeding Tenant founded on such delay.
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2121 South El Camino Real
The voluntary or other surrender of this lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenacies.
26.2 If Tenant does not give Landlord ninety (90) days written
notice then Tenant will be obligated to pay rent ninety (90) days from when
written notice is given, unless the space has been leased to a new Tenant. In
the event Landlord leases the space to a new Tenant during the ninety (90) day
period, then Tenant will be released from the Lease obligation as of the date of
commencement of the new Lease.
27. MISCELLANEOUS.
27.1 The words "Landlord" and "Tenant" as used herein shall include
the plural as well as the singular. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and several. The
captions preceding the articles of this Lease have been inserted solely as a
matter of convenience and such captions in no way define or limit the scope or
intent of any provision of this Lease.
27.2 The terms, covenants and conditions contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and, except as
otherwise provided herein, their respective personal representatives and
successors and assigns; provided, however, that upon the sale, assignment or
transfer by Landlord named herein (or by any subsequent landlord) of its
interest in the Building as owner or Tenant, including any transfer by operation
of law, Landlord (or such subsequent landlord) shall be relieved from all
subsequent obligations and liabilities arising under this Lease subsequent to
such sale, assignment or transfer.
27.3 Any provision of this Lease which shall prove to be invalid,
void, illegal or unenforceable shall in no way affect, impair or invalidate any
other provisions of this Lease, and such provisions and this Lease shall remain
in full force and effect.
27.4 This Lease shall be construed and enforced in accordance with
the laws of the State of California.
27.5 This instrument, including the exhibits hereto, which are made
a part of this Lease, contains the entire agreement between the parties and all
prior negotiations and agreements are merged herein. Tenant hereby acknowledges
that neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises, the Building or this Lease except as
expressly set forth herein.
27.6 In the event of any action or proceeding brought by either
party against the other under this Lease, the prevailing party shall be entitled
to recover all costs and expenses, including its attorneys' fees, in such action
or proceeding in such amount as the court may adjudge reasonable. The prevailing
party shall be determined by the court based upon an assessment of which party's
major arguments made or positions taken in the proceedings could fairly be said
to have prevailed over the other party's major arguments or positions on major
disputed issues in the court's or arbitrator's decision. If Landlord or Tenant,
through no fault of its own, is named as defendant in any suit brought against
Landlord or Tenant in connection with or in any way arising out of this Lease or
Tenant's use of occupancy of the Premises, Landlord or Tenant shall pay
Landlord's or Tenant's costs and expenses, including, without limitation,
reasonable attorneys fees, incurred in such suit or action.
27.7 If Landlord is unable to fulfill or is delayed in fulfilling
any of Landlord's obligations under this Lease, by reason of acts of God,
accidents, repairs, labor disputes, inability to obtain utilities or materials
or by any other reason beyond Landlord's reasonable control, then no such
inability or delay by Landlord shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Base Rent or Additional Charges, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reason of inconvenience, annoyance, interruption, injury or loss to or
interference with Tenant's business or use and occupancy or quiet enjoyment of
the Premises or any loss or damage occasioned thereby. Tenant hereby waives and
releases any right to terminate this Lease under Section 1932 (1) of the
California Civil Code or any similar law, statute or ordinance now or hereafter
in effect, provided Landlord make all reasonable efforts within a timely manner
to assist Tenant in relocating to suitable space within the project.
27.8 If Tenant shall retain possession of the Premises or any part
thereof without Landlord's consent following the expiration or sooner
termination of this Lease for any reason, then Tenant shall pay to Landlord one
hundred and twenty-five percent (125%) of the Base Rent in effect immediately
prior to the date of such expiration or termination, subject to adjustment as
provided in Article 4.
27.9 In the event of any default by Landlord hereunder, Tenant
shall look only to Landlord's interest in the Building and the land on which the
Building is located or proceeds thereof for the satisfaction of Tenant's
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2121 South El Camino Real
remedies; and no other property or assets of Landlord or any partner, member,
officer or director thereof, disclosed or undisclosed, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease.
27.10 Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
27.11 Tenant shall faithfully observe and comply with the rules and
regulations attached to this Lease as Exhibit C and all modifications thereof
and additions thereto from time to time put into effect by Landlord (the "Rules
and Regulations"). Landlord shall have no duty to enforce the Rules and
Regulations by any other tenant or occupant. In the event of any conflict
between the terms and conditions of this Lease and the Terms and conditions of
the Rules and Regulations, this Lease shall control.
27.12 If Tenant signs this Lease as a corporation or a partnership,
each of the persons executing this Lease on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and existing entity, that
Tenant has full right and authority to enter into this Lease, and that each and
both of the persons signing on behalf of Tenant are authorized to do so. Upon
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
27.13 Tenant and Landlord each represent and warrant to the other
party hereto that it has had no dealings with any real estate broker or agent in
connection with the negotiation of this Lease except the brokers specified in
the Summary, and it knows of no other real estate broker or agent who is
entitled to a commission in connection with this Lease. Each party shall
indemnify the other and hold the other harmless from and against any and all
claims, expenses, demands, losses, liabilities, lawsuits, judgments, costs, and
expenses (including reasonable attorneys' fees) with respect to any leasing
commission or equivalent compensation alleged to be owing on account of such
party's dealings with any real estate broker or agent other than as specified in
the Summary.
27.14 The waiver by Landlord or Tenant of the other party's failure
to perform or observe any provision of this Lease shall not be deemed to be a
continuing waiver of such provision or a waiver of any subsequent failure to
perform the same or any other such provision, and no custom or practice which
may develop between the parties during the Term shall be deemed a waiver of, or
in any way affect, the right of Landlord or Tenant to insist upon performance
and observance by the other party in strict accordance with the terms of this
Lease. The subsequent acceptance of rent hereunder by Landlord shall not be
,deemed to be a waiver of any preceding failure of Tenant to perform or observe
any provision of this Lease, other than the failure of Tenant to pay the
particular rent so accepted, irrespective of any knowledge on the part of
Landlord of such preceding failure at the time of acceptance of such rent.
27.15 Upon Tenant's paying the Base Rent and Additional Charges and
observing and performing all of the provisions of this Lease, Tenant shall be
entitled to the quiet enjoyment of the Premises for the entire Term, subject to
the provisions of this Lease.
27.16 Tenant covenants and agrees that no diminution of light, air
or view by any structure that may hereafter be erected (whether or not by
Landlord) shall entitle Tenant to any reduction of the Base Rent or Additional
Charges under this Lease, result in any liability of Landlord to Tenant, or in
any other way affect this Lease or Tenant's obligations hereunder.
27.17 ADA Compliance: Landlord will be responsible for any work
required to bring the premises into ADA compliance and any future code changes
that effect the building. Landlord shall deliver the Premises to Tenant in
compliance with ADA and all laws.
27.18 Parking: Throughout the term hereof, Tenant shall have the
right to use for its employees parking spaces as available in the parking areas
in and about the Building. The parking areas shall be used on a non-exclusive
basis with other Tenants of the Building. Parking for Tenant's invitees shall be
available in said parking areas on a non-exclusive, first-come, first serve
basis with invitees of other tenants of the Building.
15.
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2121 South El Camino Real
WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
day and year first written above.
Dated: 11/30/98 Landlord: Cornerstone Properties, I, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, Principal
Dated: 11/30/98 Tenant: NetRight Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
16.
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2121 South El Camino Real
EXHIBIT A
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Real
Rayview Plaza: 4th Floor
This exhibit shows a rectangular floor plan designating a 4,675 square foot
area as, "VACANT--TO BE LEASED." The entire floor also portrays nine offices
containing 204 square feet, 144 square feet, 144 square feet, 144 square feet,
204 square feet, 144 square feet, 144 square feet, 144 square feet, and 304
square feet, respectively. Also portrayed is an open work area (unspecified
dimensions), two stairwells (unspecified dimensions), an 80 square foot meeting
room, a 244 square foot conference room, one men's restroom and one women's
restroom (each having unspecified dimensions), two storage rooms with 48 and 36
square feet, respectively, an electrical room (unspecified dimensions), and a
302 square foot kitchen.
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2121 South El Camino Real
EXHIBIT A-1
2121 South El Camino Real
Standard Tenant Improvement Upgrades
Elevation lobby remodel
Parabolic lighting
Second look ceiling tiles
HVAC upgrades
Life safety upgrades
Agreed upon number of private spaces
Glass front offices with brushed aluminum glazing
Upgraded carpet, tile and paint selections
Kitchen with upper and lower cabinetry (appliances not included)
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2121 South El Camino Real
EXHIBIT B
The following defines Real Estate Taxes, Building Expenses and Common Area
Expenses with the exception of those exclusions set forth in Paragraph 4.1.
"Real Estate Taxes" means all taxes, assessments and charges levied upon or with
respect to the Building or any personal property of Landlord used in the
operation thereof, or Landlord's interest in the Building or such personal
property. Real Estate Taxes shall include, without limitation, all general real
property taxes and general and special assessments, charges, fees, or
assessments for transit, housing, police, fire or other governmental services or
purported benefits to the Building or the occupants thereof, service payments in
lieu of taxes, and any tax, fee or excise on the act of entering into this Lease
or any other lease of space in the Building, or on the use or occupancy of the
Building or any part thereof, or on the rent payable under any lease or in
connection with the business of renting space in the Building, that now or
hereafter levied or assessed against Landlord by the United States of America,
the State of California or any political subdivision thereof, public
corporation, district, or any other political or public entity, and shall also
include any other tax, fee or other excise, however described, that may be
levied or assessed as a substitute for, or as an additional to, in whole or in
part, any other Real Estate Taxes whether or not now customary or in the
contemplation of the parties. Real Estate Taxes shall not include franchise,
transfer, inheritance, or capital stock taxes or income taxes ,measured by the
net income of Landlord from all sources unless, due to a change in the method of
taxation, any of such taxes is levied or assessed against Landlord as a
substitute for, or as an addition to, in whole or in part, any other tax that
would otherwise constitute a Real Estate Tax. Real Estate Taxes shall also
include reasonable legal fees, costs, and disbursements incurred in connection
with proceedings to contest, determine, or reduce Real Estate Taxes.
"Building Expenses" means the total cost and expenses paid or incurred
by Landlord in connection with the management, operation, maintenance and repair
of the Buildings, including without limitation: (i) the cost of air
conditioning, electricity, steam, water, heating, mechanical, telephone,
utilities (ii) the cost of repairs, replacements and all labor and material
costs related thereto, and the cost of general maintenance, cleaning and service
contracts and the cost of all supplies, tools and equipment required in
connection therewith, (iii) wages, salaries, payroll taxes and other labor costs
and employee benefits, (iv) management fees, (v) fees, charges and other costs
of all independent contractors engaged by Landlord working in the building, (vi)
accounting and legal expenses, (vii) security protection, (viii) depreciation on
personal property, including, without limitation, carpeting in public corridor
and common areas and window coverings provided by Landlord, (ix) the fair market
rental value of all offices in the Building for the property manager and related
management and operations personnel, (x) the cost of any capital improvements
made in the building after completion of its construction as a labor saving or
energy saving device or to effect other economics in the operation or
maintenance of the Building, or made to the Building after the date of this
Lease that are required under any governmental law or regulations that was not
applicable to the Building at the time that permits for the construction thereof
were obtained such cost to be amortized over such reasonable period as Landlord
shall determine, together with interest on the unamortized balance at the rate
of ten percent (10%) per annum or such higher rate as may have been paid by
Landlord on funds borrowed for the purpose of construction such capital
improvements, (xi) the cost of contesting the validity or applicability of any
governmental enactments which may affect operating expenses, (xii) maintenance
and repair of the roof of the building and the structural parts of the Building,
(xiii) fees for licenses and permits required for the operation of the Building
and Common Area and (xiv) any other expenses of any kind whatsoever reasonably
incurred in connection with the management, operation, maintenance and repair of
the Building (other than Real Estate Taxes, Insurance expenses and any services
for which Landlord is separately and directly reimbursed by tenant or other
tenants in the Building). Building Expenses of a variable nature shall be
adjusted to reflect ninety-five (95%) occupancy of the Building during any
period in which the Building is not at least ninety-five (95%) occupied;
provided, however, no such adjustment shall result in an inequitable allocation
of Building Expenses to Tenant.
"Common Area Expenses" means the total cost and expenses paid or
incurred by Landlord in connection with the management, operation and
maintenance of the Common Area (as defined in Section 5.2), including without
limitation each of those items specified under "Building Expenses" to the extent
applicable to the Common Area.
"Insurance Expenses" shall mean all premiums and costs and expenses for
all policies of insurance which may be obtained by Landlord in its discretion
for (a) the Premises, Building and the Common Areas of the Complex, or any
blanket policies which include the Building or Complex, covering damage thereto
and loss of rents caused by fire and other perils Landlord elects to cover,
including, without limitation, coverage for earthquakes and floods, (b)
commercial general liability insurance for the benefit of Landlord and its
designees and (c) such other coverage required by any lender or which Landlord
elects to obtain for the Premises, Building or Common Areas of the Complex,
including, without limitation, coverage for environmental liability and losses.
Notwithstanding anything to the contrary, Landlord reserves the right to adjust
the Base Insurance Costs if such Base Insurance costs including coverage's for
perils not required or elected to be insured by Landlord in the future.
19.
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EXHIBIT C
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be inscribed,
displayed or printed or affixed to any part of the outside or inside of the
Building/Office Complex or the leased premises without the prior written consent
of Landlord and Landlord shall have the right to remove any such sign, placard,
picture, advertisement, name or notice without notice to and at the expense of
Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the leased premises; provided, however, that Landlord may furnish and
install a Building standard window covering at all exterior windows. Tenant
shall not without prior written consent of Landlord cover or otherwise sunscreen
any window.
2. Landlord shall approve in writing, prior to installation, the method of
attachment of any objects affixed to walls, ceilings or doors.
3. The bulletin board or directory of the Building/Office Complex will be
provided exclusively for the display of the name and location of Tenant only and
Landlord reserves the right to exclude any other names therefrom.
4. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by Tenant or used by Tenant for any purpose other than
ingress and egress from the leased premises. The halls, passages, exits,
entrances, elevators, stairways, balconies and roof are not for the use of the
general public and the Landlord shall in all cases retain the right to control
and prevent access thereto by all persons whose presence in the judgment of the
Landlord shall be prejudicial to the safety, character, reputation and interests
of the Building/Office Complex and its Tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom the
Tenant normally deals in the ordinary course of Tenant's business unless such
persons are engaged in illegal activities. No Tenant and no employees or
invitees of any Tenant shall go upon the roof of the Building/Office Complex.
5. Locks-No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanisms thereof without the prior written consent of the Landlord.
Tenant must, upon the termination of Tenant's tenancy, restore to Landlord all
keys of storage, offices and toilet rooms either furnished to or otherwise
procured by Tenant and in the event of the loss of any keys so furnished Tenant
shall pay to Landlord the costs thereof or of changing the lock or locks opened
by lost keys if Landlord deems it necessary to make a change.
6. The toilet rooms, 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 and 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.
7. Tenant shall not overload the floor of the leased premises or ▇▇▇▇, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the leased premises or any part thereof. No boring, cutting or stringing
of wires shall be permitted except with the prior written consent of the
Landlord and as the Landlord may direct.
8. No furniture, freight or equipment of any kind shall be brought into the
Building/Office Complex without the consent of Landlord and all moving of the
same into or out of the Building/Office Complex shall be done at such time and
in such manner as Landlord shall designate. Landlord shall have the right to
prescribe the weight, size and position of all safes and other heavy equipment
brought into the Building/Office Complex and also the times and manner of moving
the same in and out of the Building/Office Complex. Safes or other heavy objects
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as is necessary to properly distribute the weight. Landlord will not
be responsible for loss of or damage to any such safe or property from any cause
and all damage done to the Building/Office Complex by moving or maintaining any
such safe or other property shall be repaired at the expense of the Tenant.
There shall not be used in any space, or in the public halls of the
Building/Office Complex, either by any Tenant or others, any hand trucks except
those equipped with rubber tires and side guards.
9. Janitorial Service-Tenant shall not employ any person or persons for the
purpose of cleaning the leased premises without the consent of Landlord.
Landlord shall be in no way responsible to Tenant for any loss of property from
the leased premises, however occurring, or for any damage done to the effects of
Tenant by the Janitorial Service or any of Landlord's employees, or by any other
person. Janitorial service will not include the cleaning of carpets and rugs,
other than vacuuming. Tenant shall not cause unnecessary labor by reason of
Tenant's carelessness and indifference in the preservation of good order and
cleanliness.
10. Tenant shall not use, keep or permit to be used any food or noxious gas or
substance in the leased premises, or permit or suffer the leased premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building/Office Complex by reason of noise, odors, and/or
vibrations, or interfere in any way with other Tenants or those having business
therein nor shall any animals or birds be brought in or kept in or about the
leased premises or the Building/Office Complex. No Tenant shall make or permit
to be made any unseemly or disturbing noises or disturb or interfere with
occupants of this or neighboring Buildings or leased premises or those having
business with them whether by the use of any musical instrument, radio,
phonograph, unusual noise, or in any other way. No Tenant shall throw anything
out of door or down the passageways. No trash shall be put in the common areas
before 5:00 p.m.
11. The leased premises shall not be used for manufacturing or for the storage
of merchandise except as such storage may be incidental to the use of the leased
premises for general office purposes. No Tenant shall occupy or permit any
portion of his leased premises for anything other than general office purposes.
No Tenant shall occupy or permit any portion of his leased premises to be
occupied as an office for the manufacture or sale of liquor, narcotics, or
tobacco in any form, or as a medical office, or as a ▇▇▇▇▇▇ shop or manicure
shop. The leased premises shall not be used for lodging or sleeping or for any
illegal purposes.
12. Tenant shall not use or keep in the leased premises or the Building/Office
Complex any kerosene, gasoline, or inflammable or combustible fluid or material,
except office and janitorial supplies.
20.
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2121 South El Camino Real
13. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The location of telephones, call boxes
and other office equipment affixed to the leased premises shall be subject to
the approval of the Landlord.
14. Installation of Floor Coverings-No Tenant shall lay linoleum or other
similar floor covering so that the same shall be affixed to the floor of the
leased premises in any manner except by a paste, or other material, which may
easily be removed with water, the use of cement or other similar adhesive
materials being expressly prohibited. The method of affixing any such linoleum
or other similar floor covering to the floor, as well as the method of affixing
carpets or rugs to the lease premises, shall be subject to approval by Landlord.
The expense of repairs any damage resulting from a violation of this rule shall
be borne by Tenant by whom, or by whose agents, employees, or visitors, the
damage shall have been caused.
15. Carpet/Floor Protection-Tenant shall provide and use chair pad and carpet
protectors at all desk and furniture locations.
16. No furniture, packaging supplies, equipment or merchandise will be received
in the Building/Office Complex or carried up or down in the elevators except
between such hours and in such elevators as shall be designated by Landlord.
17. On Saturdays, Sundays and legal holidays and on other days between the hours
of 7:00 p.m. and 7:00 a.m. the following day, access to the Building/Office
Complex, or the halls, corridors, elevators or stairways in the Building/Office
Complex, or to the leased premises may be refused unless the person seeking
access is known to the person or employee of the Building/Office Complex in
charge and has a pass or is property identified. The Landlord shall in no case
be liable for damages for any error with regard to the admission to or exclusion
from the Building/Office Complex of any person. In case of invasion. mob, riot,
public excitement, or other commotion, the Landlord reserves right to prevent
access to the Building/Office Complex during the continuance of the same by
closing the doors or otherwise, for the safety of the Tenants and protection of
property in the Building/Office Complex. The Landlord reserves the right to
close and keep locked all entrance and exit doors of the Building/Office Complex
on Saturdays, Sundays and legal holidays and other days between the hours of
7:00 p.m. and 7:00 a.m., and during such further hours as Landlord may deem
advisable for the adequate protection of said Building/Office Complex and the
property of its Tenants.
18. All entrance doors in the leased premises shall be left locked when the
leased premises are not in use, and all doors opening to public corridors shall
be kept closed except for normal ingress and egress from the leased premises.
19. Landlord reserves the right to exclude or expel from the Building/Office
Complex any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the rules and regulations of the Building/Office Complex.
20. Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from the Landlord, and no
employee will admit any person (Tenant or otherwise) to any office without
specific instruction from the Landlord.
21. No vending machine or machines of any description shall be installed,
maintained or operated upon the lease premises without the prior written consent
of the Landlord.
22. Landlord shall have the right, exersiable without notice and without
liability to Tenant, to change the name and the street address of the
Building/Office Complex of which the leased premises are a part.
23. Tenant agrees that it shall comply with all fire and security regulations
that may be issued from time to time by Landlord and Tenant also shall provide
Landlord with the name of a designated responsible employee to represent Tenant
in all matters pertaining to such fire or security regulations.
24. Landlord reserves the right by written notice to Tenant to rescind, alter or
waive any rule or regulation at any time prescribed for the Building/Office
Complex and its Tenants.
25. Tenant shall not disturb, solicit or canvass any occupant of the
Building/Office Complex and shall cooperate to prevent the same.
26. Without the prior written consent of Landlord, Tenant shall not use the name
of the Building/Office Complex in connection with or in promoting or advertising
the business of the Tenant except as Tenants address.
27. Landlord shall furnish reasonable amounts of heating and air conditioning
during the hours of 7:00 a.m. to 6:00 p.m., Monday through Friday. In the event
Tenant requires heating and air conditioning during off hours, Saturdays,
Sundays or holidays, there will be a $40.00 per hour charge. Tenants off hours
usage will be billed monthly. Landlord and Tenant shall mutually agree upon an
estimated usage prior to Lease commencement. Tenant will be billed monthly on
this estimated amount and any changes will be adjusted on the end of the year.
28. Energy Conservation Measures - Tenant shall abide by all energy conservation
measures employed by Landlord, including but not limited to requirements that
lights be extinguished upon leaving the leased premises and that draperies by
closed at times specified by Landlord. Tenant shall not use any method of
heating or air conditioning other than that supplied by Landlord.
29. Equipment Defects - Tenant shall give Landlord prompt notice of any
accidents to or defects in the water pipes, gas pipes, electric lights and
fixtures, heating apparatus, or any other service equipment.
30. Parking - Vehicles are to park in properly marked spaces only. Under no
circumstances are vehicles to (a) back in, (b) park in space reserved for other
Tenants, (c) park in driveways, (d) park in front of entrances the
Building/Office Complex, (e) park in unmarked areas, (f) park in loading zones,
(g) park in two or more spaces, (h) park for over 48 hours without registering
the vehicle, in writing, with the Landlord or (i) park in areas reserved the
handicapped. Landlord shall have the right to cause improperly parked cars to be
towed at the owners expense.
21.
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2121 South El Camino Real
EXHIBIT D
Tenant shall have the option to extend the term of Lease for two (2) consecutive
periods of one (1) year each (each an "Option Term", collectively, the "Option
Term"). In the event the parties fail to agree upon the amount of the monthly
rent for the applicable Option Term on or before ninety (90) days prior to the
scheduled commencement thereof, the minimum monthly rent for the Option Term
shall be the fair market rental value to be determined by appraisal in the
manner set forth below.
In the event it becomes necessary under this paragraph to determine the
fair market rental value by appraisal, ninety (90) days prior to commencement of
the applicable extended term, Landlord and Tenant each shall appoint a licensed
real estate broker who has at least five (5) years experience in leasing office
space in the San Mateo area. Each such broker is hereinafter referred to as an
"appraiser." Such appraisers shall each determine the fair market rental value
for the Premises taking into account the value of the Premises and the amenities
provided by the building and prevailing comparable rentals. Such appraisers
shall, within twenty (20) business days after their appointment, complete their
appraisals and submit their appraisal reports to Landlord and Tenant. If the
fair market rental value of the Premises established in the two (2) appraisals
varies by five percent (5%) or less of the higher rental, the average of the two
shall be controlling. If the fair market rental value varies by more than five
percent (5%) of the higher rental, said appraisers, within five (5) days after
submission of the last appraisal, shall appoint a third appraiser who also shall
be a licensed real estate broker having at least five (5) years experience in
leasing office space in the San Mateo area. Such third appraiser shall, within
twenty (20) business days after his appointment, determine by appraisal the fair
market rental value of the Premises, taking into account the same factors
referred to above, and submit his appraisal report to Landlord and Tenant. The
fair market rental value determined by the third appraiser for the Premises
shall be averaged with whichever of the other two appraised values is closest to
that determined by the third appraiser, and said average shall be the fair
market rental value used pursuant to the preceding paragraph. If either Landlord
or Tenant fails to appoint an appraiser, or if an appraiser appointed by either
of them fails, after his appointment, to submit his appraisal within the
required period in accordance with the foregoing, the appraisal submitted by the
appraiser properly appointed and timely submitting his appraisal shall be
controlling. If the two appraisers appointed by Landlord and Tenant are unable
to agree upon a third appraiser within the required period in accordance with
the foregoing, application shall be made within ten (10) days thereafter by
either Landlord or Tenant to the local office of the American Arbitration
Association, which shall appoint a licensed real estate broker satisfying the
requirements set forth above. The cost of all appraisals under this paragraph
shall be borne equally by Landlord and Tenant.
If Tenant is dissatisfied with the determination of the fair market
rental value (whether as the result of negotiations between Landlord and Tenant
or any decision by the appraisers), within twenty (20) days after such
determination Tenant shall have the right to revoke its exercise of the option,
provided that if appraisers have been appointed to determine the fair market
rental value, Tenant shall bear the cost of appointing the appraisers.
Such appraisal also shall take into account that, with respect to the
lease of the Premises to Tenant during the Option Term, Tenant shall not be
receiving any tenant improvement allowance and Landlord shall not be doing any
additional tenant improvement work.
22.
27
AMENDMENT #1
EXPANSION
AMENDMENT, made this 30th day of November 1999, between CORNERSTONE PROPERTIES
I, LLC, having an office at 1720 So. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, "Lessor", and I-MANAGE, INC. having an office at 2121 So. El
Camino Real, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, "Lessee."
WHEREAS, CORNERSTONE PROPERTIES I, LLC, and I-MANAGE, INC. entered into a Master
Lease dated November 30, 1998, covering Suite 400 at ▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, at the rental and upon the terms and conditions
there more particularly set forth; and
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner set
forth below.
RENTABLE AREA OF PREMISES: Effective April 1, 2000, Lessee will lease
approximately 11,516 square feet located at ▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇.
Floor plan attached.
TERM: The term for the above mentioned space shall be from April 1, 2000 to
March 31, 2003.
RENT SCHEDULE:
April 1, 2000 - March 31, 2001 $3.40/square foot $39,154.00/month
April 1, 2001 - March 31, 2002 $3.50/square foot $40,306.00/month
April 1, 2002 - March 31, 2003 $3.60/square foot $41,458.00/month
SECURITY DEPOSIT: With the execution of this amendment, Lessee will provide
Lessor with a security deposit in the amount of $41,458.00.
COSTS PAID BY LESSOR:
1. New carpet in the elevator lobby, sitting area, boardroom, and in the two
guest offices.
2. Construction of two guest offices.
3. Full height wall with door separating the sitting area from the work area.
4. Kitchen floor and kitchen counter top.
COSTS PAID BY LESSEE: All other requested tenant improvements.
BUILDING SIGNAGE: In the event Tenant occupies four (4) or more floors in the
tower, and becomes the largest tenant on the property, and obtains City
approval, Landlord agrees to allow Tenant exterior signage on the building
tower. All terms and conditions to be mutually agreed upon by Tenant and
Landlord.
OPERATING EXPENSES: Lessee will be billed for Operating Costs and Property Taxes
at a proportionate rate of 5.90%. The base year for Operating Costs shall be
2000. The base year for Property Taxes shall be 2000.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of the
Lease negotiated for ▇▇▇▇▇ ▇▇▇ dated November 30, 1998, and subsequent
Amendments, shall remain in full force. Item 11.2 Attornment; second paragraph,
third and fourth sentences shall be modified as follows: "In the event Landlord
fails to provide such commercially reasonable non-disturbance agreements within
thirty (30) days after the mutual execution of any subordination agreement
affecting this Lease, Tenant shall have the right, exercisable at any time
thereafter, to give thirty (30) business days written notice to Landlord
terminating this Lease. In the event Landlord does not provide Tenant with the
applicable non-disturbance agreements within such thirty (30) day period, the
Lease shall terminate...".
28
IN WITNESS WHEREOF, this Amendment to Lessee has been duly executed by the
parties hereto.
Dated: Lessor: CORNERSTONE PROPERTIES I, LLC
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Dated: Lessee: I-MANAGE, INC.
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO