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EXHIBIT 10.20
LEASE AGREEMENT
BY AND BETWEEN
AETNA LIFE INSURANCE COMPANY,
A CONNECTICUT CORPORATION
AS LANDLORD
AND
CLASSIFIEDS2000, INC.,
A CALIFORNIA CORPORATION
AS TENANT
DATED FEBRUARY 20, 1998
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TABLE OF CONTENTS
Page
Basic Lease Information..............................................................iv
1. Demise...........................................................................1
2. Premises.........................................................................1
3. Term.............................................................................2
4. Rent.............................................................................3
5. Utility Expenses.................................................................8
6. Late Charge......................................................................8
7. Letter of Credit.................................................................9
8. Security Deposit................................................................11
9. Possession......................................................................11
10. Use Of Premises.................................................................12
11. Acceptance Of Premises..........................................................14
12. Surrender.......................................................................15
13. Alterations And Additions.......................................................16
14. Maintenance and Repairs Of Premises.............................................18
15. Landlord's Insurance............................................................19
16. Tenant's Insurance..............................................................20
17. Indemnification.................................................................21
18. Subrogation.....................................................................22
19. Signs...........................................................................22
20. Free From Liens.................................................................23
21. Entry By Landlord...............................................................23
22. Destruction And Damage..........................................................23
23. Condemnation....................................................................26
24. Assignment And Subletting.......................................................27
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25. Tenant's Default................................................................31
26. Landlord's Remedies.............................................................33
27. Landlord's Right to Perform Tenant's Obligations................................36
28. Attorney's Fees.................................................................36
29. Taxes...........................................................................37
30. Effect Of Conveyance............................................................37
31. Tenant's Estoppel Certificate...................................................37
32. Subordination...................................................................38
33. Environmental Covenants.........................................................38
34. Notices.........................................................................42
35. Waiver..........................................................................43
36. Holding Over....................................................................43
37. Successors And Assigns..........................................................43
38. Time............................................................................44
39. Brokers.........................................................................44
40. Limitation Of Liability.........................................................44
41. Financial Statements............................................................45
42. Rules And Regulations...........................................................45
43. Mortgagee Protection............................................................45
44. Entire Agreement................................................................46
45. Interest........................................................................46
46. Construction....................................................................46
47. Representations And Warranties Of Tenant........................................46
48. Security........................................................................47
49. Jury Trial Waiver...............................................................47
50. Option to Renew.................................................................48
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Exhibit
A Diagram of the Premises
B Tenant Improvements
B-1 Final Plans and Specifications for Tenant
Improvements
C Commencement and Expiration Date
Memorandum
D Rules and Regulations
E Sign Criteria
F Hazardous Materials Disclosure Certificate
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LEASE AGREEMENT
BASIC LEASE INFORMATION
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Lease Date: February 20, 1998
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Landlord: AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
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Landlord's Address: c/o Allegis Realty Investors LLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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All notices sent to Landlord under this Lease
shall be sent to the above address, with copies
to:
Insignia Commercial Group, Inc.
000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000
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Tenant: CLASSIFIEDS2000, INC.
a California corporation
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Tenant's Contact Person: Sani El-Fishawy
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Tenant's Address and
Telephone Number:
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Prior to 000 Xxxxxxx Xxxxxx
Commencement Date: Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
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From and after Commencement 000 Xxxxxxx Xxxxxx
Date: Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
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Premises Square Footage: Approximately twenty thousand (20,000) rentable
square feet
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Premises Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx
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Project: 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx,
together with the land on which the Project is
situated and all Common Areas
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Building (if not the same
as the Project): Same as the Project
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Length of Term: Sixty (60) months
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Estimated Commencement Date: April 1, 1998
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Estimated Expiration Date: March 31, 2003
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Rent Commencement Date: April 1, 1998
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Monthly Base Rent: Monthly Base Monthly Base
Months Sq. Ft. Rate Rent
------- ------ ------------ -------------
1-12 20,000 x $1.80 = $36,000.00
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13-60 Monthly Base Rent to be increased in
accordance with the Consumer Price Index
Price (see Paragraph 4(a) of the Lease)
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Prepaid Rent: Thirty-Six Thousand Dollars ($36,000.00)
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Prepaid Additional Rent: One Thousand Six Hundred Ninety and 58/100
Dollars ($1,690.58)
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Month to which Prepaid Base
Rent and Additional Rent
will be Applied: First (1st) month of the Term
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Security Deposit: Thirty-Six Thousand Dollars ($36,000.00)
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Permitted Use: General office use, including sales and marketing
of on-line classified advertising
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Unreserved Parking Spaces: Seventy-four (74) nonexclusive and undesignated
parking spaces
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Broker(s): Cornish & Xxxxx Commercial ("LANDLORD'S BROKER")
CPS ("TENANT'S BROKER")
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Tenant Improvements One Hundred Thousand Dollars ($100,000.00)
Allowance: (viz., $5.00 per rentable square foot)
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Architect: Xxxxxxx Xxxx & Associates
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between Landlord and
Tenant on the Lease Date. The defined terms used in this Lease which are defined
in the Basic Lease Information attached to this Lease Agreement ("BASIC LEASE
INFORMATION") shall have the meaning and definition given them in the Basic
Lease Information. The Basic Lease Information, the exhibits, the addendum or
addenda described in the Basic Lease Information, and this Lease Agreement are
and shall be construed as a single instrument and are referred to herein as the
"LEASE".
1. DEMISE
In consideration for the rents and all other charges and payments payable
by Tenant, and for the agreements, terms and conditions to be performed by
Tenant in this Lease, LANDLORD DOES HEREBY LEASE TO TENANT, AND TENANT DOES
HEREBY HIRE AND TAKE FROM LANDLORD, the Premises described below (the
"PREMISES"), upon the agreements, terms and conditions of this Lease for the
Term hereinafter stated.
2. PREMISES
The Premises demised by this Lease is located in that certain building (the
"BUILDING") specified in the Basic Lease Information, which Building is located
in that certain real estate development (the "PROJECT") specified in the Basic
Lease Information. The Premises has the address and contains the square footage
specified in the Basic Lease Information. The location and dimensions of the
Premises are depicted on EXHIBIT A, which is attached hereto and incorporated
herein by this reference. Tenant shall have the non-exclusive right (in common
with the other tenants, Landlord and any other person granted use by Landlord)
to use the Common Areas (as hereinafter defined), except that, with respect to
parking, Tenant shall have only a license to use the number of non-exclusive and
undesignated parking spaces set forth in the Basic Lease Information in the
Project's parking areas (the "PARKING AREAS"); provided, however, that Landlord
shall not be required to enforce Tenant's right to use such parking spaces; and,
provided further, that the number of parking spaces allocated to Tenant
hereunder shall be reduced on a proportionate basis in the event any of the
parking spaces in the Parking Areas are taken or otherwise eliminated as a
result of any Condemnation (as hereinafter defined) or casualty event affecting
such Parking Areas. No easement for light or air is incorporated in the
Premises. For purposes of this Lease, the term "COMMON AREAS" shall mean all
areas and facilities outside the Premises and within the exterior boundary line
of the Project that are provided and designated by Landlord for the
non-exclusive use of Landlord, Tenant and other tenants of the Project and their
respective employees, guests and invitees.
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The Premises demised by this Lease shall include the Tenant Improvements
(as that term is defined in EXHIBIT B attached hereto) to be constructed by
Landlord within the interior of the Premises. Landlord shall construct the
Tenant Improvements on the terms and conditions set forth in EXHIBIT B. Landlord
and Tenant agree to and shall be bound by the terms and conditions of EXHIBIT B.
Landlord has the right, in its sole discretion, from time to time, to: (a)
make changes to the Common Areas, including, without limitation, changes in the
location, size, shape and number of driveways, entrances, parking spaces,
parking areas, ingress, egress, direction of driveways, entrances, corridors and
walkways; (b) close temporarily any of the Common Areas for maintenance purposes
so long as reasonable access to the Premises remains available; (c) add
additional buildings and improvements to the Common Areas or remove existing
buildings or improvements therefrom; (d) use the Common Areas while engaged in
making additional improvements, repairs or alterations to the Project or any
portion thereof; and (e) do and perform any other acts or make any other changes
in, to or with respect to the Common Areas and the Project as Landlord may, in
its sole discretion, deem to be appropriate, provided only that such actions do
not materially interfere with Tenant's use of the Building.
3. TERM
The term of this Lease (the "TERM") shall be for the period of months
specified in the Basic Lease Information, commencing on the earliest to occur of
the following dates (the "COMMENCEMENT DATE"):
(a) The date the Tenant Improvements are substantially completed, as
indicated by approval by the appropriate governmental agency as being in
accordance with its building code and the building permit issued for such
improvements, as evidenced by the issuance of a final building inspection
approval; provided, however, in no event shall the date determined pursuant to
this Paragraph 3(a) be earlier than April 1, 1998; or
(b) The date Landlord's architect and general contractor have both
certified in writing to Tenant that the Tenant Improvements have been
substantially completed in accordance with the plans and specifications
therefor; provided, however, in no event shall the date determined pursuant to
this Paragraph 3(b) be earlier than April 1, 1998; or
(c) The date Tenant commences occupancy of the Premises; provided, however,
that Tenant shall not be deemed to have commenced occupancy of the Premises for
purposes of this Paragraph 3(c) if Tenant enters upon the Premises prior to the
Commencement Date solely to fixturize the Premises for Tenant's business
operations in accordance with Paragraph 9(b) below.
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In the event the actual Commencement Date, as determined pursuant to the
foregoing, is a date other than the Estimated Commencement Date, then Landlord
and Tenant shall promptly execute a Commencement and Expiration Date Memorandum
in the form attached hereto as EXHIBIT C (the "COMMENCEMENT DATE MEMORANDUM"),
wherein the parties shall specify the Commencement Date and the date on which
the Term expires (the "EXPIRATION DATE").
4. RENT
(a) BASE RENT. Tenant shall pay to Landlord, in advance on the first day of
each month commencing on the Rent Commencement Date (as hereinafter defined),
without further notice or demand and without offset or deduction, the monthly
installments of rent specified in the Basic Lease Information (the "BASE RENT").
As used herein, "RENT COMMENCEMENT DATE" means the earlier to occur of the
Commencement Date or April 1, 1998. Tenant understands and agrees that Base Rent
and Additional Rent shall accrue and be payable hereunder commencing on the Rent
Commencement Date irrespective of whether or not the Term has commenced by such
date and that Landlord would not have entered into this Lease but for Tenant's
willingness to pay Base Rent and Additional Rent to Landlord commencing on the
Rent Commencement Date.
The Base Rent under this Paragraph 4(a) shall be adjusted, as stated below,
on April 1 of each year during the Term commencing on April 1, 1999 to reflect
percentage increases in the cost of living. The Consumer Price Index (U.S.
Department of Labor Consumer Price Index (all items) for Urban Wage Earners and
Clerical Workers, San Francisco Bay Area (1982-1984=100), hereinafter referred
to as the "INDEX") published for the month immediately preceding each such
adjustment date (each, an "ADJUSTMENT INDEX") and the Index published for the
month immediately preceding the Commencement Date of this Lease ("BASE INDEX")
shall be compared and the percentage difference between the Adjustment Index and
the Base Index shall be determined. The initial Base Rent specified in the Basic
Lease Information shall be increased by adding to said initial Base Rent the
percentage amount of said initial Base Rent equal to the percentage difference
between the Base Index and the applicable Adjustment Index; provided, however,
in no event shall the initial Base Rent hereunder be increased by less than four
percent (4%) or more than seven percent (7%) for any one year. When the adjusted
Base Rent is determined after each adjustment date, Landlord shall give Tenant
written notice indicating the amount thereof and the method of computation. If
the Consumer Price Index is changed or discontinued, Landlord shall substitute
an official index published by the Bureau of Labor Statistics or its successor
or similar governmental agency as may then be in existence and shall be most
nearly equivalent thereto.
Upon execution of this Lease, Tenant shall pay to Landlord the Prepaid Rent
and first monthly installment of estimated Additional Rent (as hereinafter
defined)
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specified in the Basic Lease Information to be applied toward Base Rent and
Additional Rent for the month commencing on the Rent Commencement Date.
(b) ADDITIONAL RENT. This Lease is intended to be a triple-net Lease with
respect to Landlord; and subject to Paragraph 14(b) below and the other
provisions of this Lease, the Base Rent owing hereunder is (1) to be paid by
Tenant absolutely net of all costs and expenses relating to Landlord's ownership
and operation of the Project and the Building, and (2) not to be reduced, offset
or diminished, directly or indirectly, by any cost, charge or expense payable
hereunder by Tenant or by others in connection with the Premises, the Building
and/or the Project or any part thereof. The provisions of this Paragraph 4(b)
for the payment of Expenses (as hereinafter defined) are intended to pass on to
Tenant all such costs and expenses. Commencing on the Rent Commencement Date, in
addition to the Base Rent, Tenant shall pay to Landlord, in accordance with this
Paragraph 4, all costs and expenses paid or incurred by Landlord in connection
with the ownership, operation, maintenance, management and repair of the
Premises, the Building and/or the Project or any part thereof (collectively, the
"EXPENSES"), including, without limitation, all the following items (the
"ADDITIONAL RENT"):
(1) Taxes and Assessments. All real estate taxes and assessments,
which shall include any form of tax, assessment, fee, license fee, business
license fee, levy, penalty (if a result of Tenant's delinquency), or tax (other
than net income, estate, succession, inheritance, transfer or franchise taxes),
imposed by any authority having the direct or indirect power to tax, or by any
city, county, state or federal government or any improvement or other district
or division thereof, whether such tax is (i) determined by the area of the
Premises, the Building and/or the Project or any part thereof, or the Rent and
other sums payable hereunder by Tenant or by other tenants, including, but not
limited to, any gross income or excise tax levied by any of the foregoing
authorities with respect to receipt of Rent and/or other sums due under this
Lease; (ii) upon any legal or equitable interest of Landlord in the Premises,
the Building and/or the Project or any part thereof; (iii) upon this transaction
or any document to which Tenant is a party creating or transferring any interest
in the Premises, the Building and/or the Project; (iv) levied or assessed in
lieu of, in substitution for, or in addition to, existing or additional taxes
against the Premises, the Building and/or the Project, whether or not now
customary or within the contemplation of the parties; or (v) surcharged against
the parking area. Tenant and Landlord acknowledge that Proposition 13 was
adopted by the voters of the State of California in the June, 1978 election and
that assessments, taxes, fees, levies and charges may be imposed by governmental
agencies for such purposes as fire protection, street, sidewalk, road, utility
construction and maintenance, refuse removal and for other governmental services
which may formerly have been provided without charge to property owners or
occupants. It is the intention of the parties that all new and increased
assessments, taxes, fees, levies and charges due to any cause whatsoever are to
be included within the definition of real property taxes for purposes of this
Lease. "TAXES AND
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ASSESSMENTS" shall also include legal and consultants' fees, costs and
disbursements incurred in connection with proceedings to contest, determine or
reduce taxes, Landlord specifically reserving the right, but not the obligation,
to contest by appropriate legal proceedings the amount or validity of any taxes.
(2) Insurance. All insurance premiums for the Building and/or the
Project or any part thereof, including premiums for "all risk" fire and extended
coverage insurance, commercial general liability insurance, rent loss or
abatement insurance, earthquake insurance, flood or surface water coverage, and
other insurance as Landlord deems necessary in its sole discretion, and any
deductibles paid under policies of any such insurance.
(3) Utilities. The cost of all Utilities (as hereinafter defined)
serving the Premises, the Building and the Project that are not separately
metered to Tenant, any assessments or charges for Utilities or similar purposes
included within any tax xxxx for the Building or the Project, including without
limitation, entitlement fees, allocation unit fees, and/or any similar fees or
charges and any penalties (if a result of Tenant's delinquency) related thereto,
and any amounts, taxes, charges, surcharges, assessments or impositions levied,
assessed or imposed upon the Premises, the Building or the Project or any part
thereof, or upon Tenant's use and occupancy thereof, as a result of any
rationing of Utility services or restriction on Utility use affecting the
Premises, the Building and/or the Project, as contemplated in Paragraph 5 below
(collectively, "UTILITY EXPENSES").
(4) Common Area Expenses. All costs to operate, maintain, repair,
replace, supervise, insure and administer the Common Areas, including supplies,
materials, labor and equipment used in or related to the operation and
maintenance of the Common Areas, including parking areas (including, without
limitation, all costs of resurfacing and restriping parking areas), signs and
directories on the Building and/or the Project, landscaping (including
maintenance contracts and fees payable to landscaping consultants), amenities,
sprinkler systems, sidewalks, walkways, driveways, curbs, lighting systems and
security services, if any, provided by Landlord for the Common Areas, and any
charges, assessments, costs or fees levied by any association or entity of which
the Project or any part thereof is a member or to which the Project or any part
thereof is subject.
(5) Parking Charges. Any parking charges or other costs levied,
assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by any governmental
authority or insurer in connection with the use or occupancy of the Building or
the Project.
(6) Maintenance and Repair Costs. Except for costs which are the
responsibility of Landlord pursuant to Paragraph 14(b) below, all costs to
maintain, repair, and replace the Premises, the Building and/or the Project or
any part thereof, including without limitation, (i) all costs paid under
maintenance, management and
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service agreements such as contracts for janitorial, security and refuse
removal, (ii) all costs to maintain, repair and replace the roof coverings of
the Building or the Project or any part thereof, (iii) all costs to maintain,
repair and replace the heating, ventilating, air conditioning, plumbing, sewer,
drainage, electrical, fire protection, life safety and security systems and
other mechanical and electrical systems and equipment serving the Premises, the
Building and/or the Project or any part thereof (collectively, the "SYSTEMS").
Notwithstanding anything to the contrary contained in Paragraph 4(b)(4) above or
this Paragraph 4(b)(6), "Expenses" shall exclude costs incurred by Landlord in
remediating Hazardous Materials (as hereinafter defined) from the Project except
to the extent that the presence of such Hazardous Materials has resulted from
the actions or inactions of Tenant or Tenant's Affiliates (as hereinafter
defined) or Tenant or Tenant's Affiliates have exacerbated the presence of or
contamination caused by such Hazardous Materials. Nothing contained herein shall
be deemed to limit or restrict Tenant's obligations under Paragraph 33 below.
(7) Life Safety Costs. All costs to install, maintain, repair and
replace all life safety systems, including, without limitation, all fire alarm
systems, serving the Premises, the Building and/or the Project or any part
thereof (including all maintenance contracts and fees payable to life safety
consultants) whether such systems are or shall be required by Landlord's
insurance carriers, Laws (as hereinafter defined) or otherwise.
(8) Management and Administration. All costs for management and
administration of the Premises, the Building and/or the Project or any part
thereof, including, without limitation, a property management fee, accounting,
auditing, billing, postage, salaries and benefits for clerical and supervisory
employees, whether located on the Project or off-site, payroll taxes and legal
and accounting costs and fees for licenses and permits related to the ownership
and operation of the Project.
Notwithstanding anything in this Paragraph 4(b) to the contrary, with
respect to all sums payable by Tenant as Additional Rent under this Paragraph
4(b) for the repair or replacement of any item or the construction of any new
item in connection with the physical operation of the Premises, the Building or
the Project (i.e., HVAC, roof membrane or coverings and parking area) which is a
capital item the repair or replacement of which properly would be capitalized
under generally accepted accounting principles, Tenant shall be required to pay
only the prorata share of the cost of the item falling due within the Term
(including any Renewal Term) based upon the amortization of the same over the
useful life of such item, as reasonably determined by Landlord.
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(c) PAYMENT OF ADDITIONAL RENT.
(1) On or before the Rent Commencement Date, Landlord shall submit to
Tenant an estimate of monthly Additional Rent for the period between the Rent
Commencement Date and the following December 31 and Tenant shall pay such
estimated Additional Rent on a monthly basis, in advance, on the first day of
each month. Tenant shall continue to make said monthly payments until notified
by Landlord of a change therein. By April 1 of each calendar year, Landlord
shall endeavor to provide to Tenant a statement showing the actual Additional
Rent due to Landlord for the prior calendar year, to be prorated during the
first year from the Rent Commencement Date. If the total of the monthly payments
of Additional Rent that Tenant has made for the prior calendar year is less than
the actual Additional Rent chargeable to Tenant for such prior calendar year,
then Tenant shall pay the difference in a lump sum within ten (10) days after
receipt of such statement from Landlord. Any overpayment by Tenant of Additional
Rent for the prior calendar year shall be credited towards the Additional Rent
next due.
(2) Landlord's then-current annual operating and capital budgets for
the Building and the Project or the pertinent part thereof shall be used for
purposes of calculating Tenant's monthly payment of estimated Additional Rent
for the current year, subject to adjustment as provided above. Landlord shall
make the final determination of Additional Rent for the year in which this Lease
terminates as soon as possible after termination of such year. Even though the
Term has expired and Tenant has vacated the Premises, Tenant shall remain liable
for payment of any amount due to Landlord in excess of the estimated Additional
Rent previously paid by Tenant, and, conversely, Landlord shall promptly return
to Tenant any overpayment. Failure of Landlord to submit statements as called
for herein shall not be deemed a waiver of Tenant's obligation to pay Additional
Rent as herein provided.
(d) GENERAL PAYMENT TERMS. The Base Rent, Additional Rent and all other
sums payable by Tenant to Landlord hereunder, including, without limitation, any
late charges assessed pursuant to Paragraph 6 below and any interest assessed
pursuant to Paragraph 45 below, are referred to as the "RENT". All Rent shall be
paid without deduction, offset or abatement (except as specifically provided
herein) in lawful money of the United States of America. Checks are to be made
payable to Aetna Life Insurance Company and shall be mailed to: Aetna Life
Insurance Company, Allegis Business Center, Department #44820, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-0000 or to such other person or place as Landlord may, from
time to time, designate to Tenant in writing. The Rent for any fractional part
of a calendar month at the commencement or termination of the Lease term shall
be a prorated amount of the Rent for a full calendar month based upon a thirty
(30) day month.
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5. UTILITY EXPENSES
(a) Tenant shall pay the cost of all water, sewer use, sewer discharge
fees and permit costs and sewer connection fees, gas, heat, electricity, refuse
pick-up, janitorial service, telephone and all materials and services or other
utilities (collectively, "UTILITIES") billed or metered separately to the
Premises and/or Tenant, together with all taxes, assessments, charges and
penalties added to or included within such cost. Tenant acknowledges that the
Premises, the Building and/or the Project may become subject to the rationing of
Utility services or restrictions on Utility use as required by a public utility
company, governmental agency or other similar entity having jurisdiction
thereof. Tenant acknowledges and agrees that its tenancy and occupancy hereunder
shall be subject to such rationing or restrictions as may be imposed upon
Landlord, Tenant, the Premises, the Building and/or the Project, and Tenant
shall in no event be excused or relieved from any covenant or obligation to be
kept or performed by Tenant by reason of any such rationing or restrictions.
Tenant agrees to comply with energy conservation programs implemented by
Landlord by reason of rationing, restrictions or Laws.
(b) Landlord shall not be liable for any loss, injury or damage to
property caused by or resulting from any variation, interruption, or failure of
Utilities due to any cause whatsoever, or from failure to make any repairs or
perform any maintenance. No temporary interruption or failure of such services
incident to the making of repairs, alterations, improvements, or due to
accident, strike, or conditions or other events shall be deemed an eviction of
Tenant or relieve Tenant from any of its obligations hereunder. In no event
shall Landlord be liable to Tenant for any damage to the Premises or for any
loss, damage or injury to any property therein or thereon occasioned by
bursting, rupture, leakage or overflow of any plumbing or other pipes
(including, without limitation, water, steam, and/or refrigerant lines),
sprinklers, tanks, drains, drinking fountains or washstands, or other similar
cause in, above, upon or about the Premises, the Building, or the Project. The
foregoing notwithstanding, Landlord shall not be relieved of liability from its
own gross negligence or willful misconduct. For purposes of this Lease, "gross
negligence" shall refer to an action taken by Landlord with reckless disregard
for the consequences thereof.
6. LATE CHARGE
Notwithstanding any other provision of this Lease, Tenant hereby
acknowledges that late payment to Landlord of Rent, or other amounts due
hereunder will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to ascertain. If any Rent or
other sums due from Tenant are not received by Landlord or by Landlord's
designated agent within five (5) days after their due date, then Tenant shall
pay to Landlord a late charge equal to ten percent (10%) of such overdue amount,
plus any costs and attorneys' fees incurred by Landlord by reason of Tenant's
failure to pay Rent
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and/or other charges when due hereunder. Landlord and Tenant hereby agree that
such late charges represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of Tenant's late payment and shall not be
construed as a penalty. Landlord's acceptance of such late charges shall not
constitute a waiver of Tenant's default with respect to such overdue amount or
estop Landlord from exercising any of the other rights and remedies granted
under this Lease.
Initials: Landlord _______ Tenant _______
7. LETTER OF CREDIT
(a) Upon execution of this Lease, Tenant shall, at Tenant's sole cost and
expense, cause the LC Issuer (as hereinafter defined) to increase the face
amount of the Existing Letter of Credit (as hereinafter defined) from One
Hundred Thousand Dollars ($100,000) to Two Hundred Fifty Thousand Dollars
($250,000) (the "LC FACE AMOUNT") and Landlord shall retain the Existing Letter
of Credit, as so amended (the "LETTER OF CREDIT"), as security for Tenant's
performance of all of Tenant's covenants and obligations under this Lease, which
security shall be in addition to the Security Deposit provided pursuant to
Paragraph 8 below; provided, however, that neither the Letter of Credit nor any
Letter of Credit Proceeds (as defined below) shall be deemed an advance rent
deposit or an advance payment of any other kind, or a measure of Landlord's
damages upon Tenant's Default. Subject to Paragraph 7(b) below, the Letter of
Credit shall be maintained in effect from the date hereof through the date that
is sixty (60) days after the Expiration Date (the "LC TERMINATION DATE"). On the
LC Termination Date, Landlord shall return to Tenant the Letter of Credit and
any Letter of Credit Proceeds then held by Landlord (other than those Letter of
Credit Proceeds Landlord is entitled to retain under the terms of this Paragraph
7(a)); provided, however, that in no event shall any such return be construed as
an admission by Landlord that Tenant has performed all of its obligations
hereunder. Landlord shall not be required to segregate the Letter of Credit
Proceeds from its other funds and no interest shall accrue or be payable to
Tenant with respect thereto. Landlord may (but shall not be required to) draw
upon the Letter of Credit and use the proceeds therefrom (the "LETTER OF CREDIT
PROCEEDS") or any portion thereof to cure any Default under this Lease and to
compensate Landlord for any damage Landlord incurs as a result of such Default,
and for any other purpose for which Landlord is entitled to use, apply or retain
the Security Deposit or any portion thereof pursuant to Paragraph 8 below, it
being understood that any use of the Letter of Credit Proceeds shall not
constitute a bar or defense to any of Landlord's remedies set forth in Paragraph
26 below. In such event and upon written notice from Landlord to Tenant
specifying the amount of the Letter of Credit Proceeds so utilized by Landlord
and the particular purpose for which such amount was applied, Tenant shall
immediately deliver to Landlord an amendment to the Letter of Credit or a
replacement Letter of Credit in an amount equal to the full LC Face Amount.
Tenant's failure to deliver such
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replacement Letter of Credit to Landlord within ten (10) days of Landlord's
notice shall constitute a Default hereunder. As used herein, "EXISTING LETTER OF
CREDIT" shall mean the stand-by letter of credit furnished by Tenant to Landlord
pursuant to the Lease Agreement by and between Landlord and Tenant, dated as of
July 28, 1997, relating to certain premises commonly known as 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx.
(b) Upon the second (2nd) anniversary of the Commencement Date, Landlord
shall review Tenant's financial statements and other information requested by
Landlord regarding the prospects for Tenant's continued business operations
throughout the remainder of the Term (collectively, "TENANT'S FINANCIALS"). In
the event Tenant's Financials are acceptable to Landlord in its sole and
absolute discretion, then Landlord shall return the Letter of Credit to Tenant
and Tenant shall have the right to cancel the Letter of Credit.
(c) The Letter of Credit shall be an unconditional, stand-by irrevocable
letter of credit issued by either the Menlo Park office of Imperial Bank (the
"LC ISSUER") or the San Francisco office of another major national bank insured
by the Federal Deposit Insurance Corporation and otherwise satisfactory to
Landlord (the "BANK"), naming Landlord as beneficiary, in the amount of the LC
Face Amount, and otherwise acceptable to Landlord in form and substance. The
Letter of Credit shall be for a one-year term and shall provide: (i) that
Landlord may make partial and multiple draws thereunder, up to the face amount
thereof, (ii) that Landlord may draw upon the Letter of Credit up to the full
amount thereof and the Bank will pay to Landlord the amount of such draw upon
receipt by the Bank of a sight draft signed by Landlord and accompanied by a
written certification from Landlord to the Bank stating either that: (A) a
Default has occurred and is continuing under this Lease and any applicable grace
period has expired, or (B) Landlord has not received notice from the Bank at
least thirty (30) days prior to the then current expiry date of the Letter of
Credit that the Letter of Credit will be renewed by the Bank for at least one
(1) year beyond the relevant annual expiration date or, in the case of the last
year of the Term, sixty (60) days after the Expiration Date, together with a
replacement Letter of Credit or a modification to the existing Letter of Credit
effectuating such renewal, and Tenant has not otherwise furnished Landlord with
a replacement Letter of Credit as hereinafter provided; and (iii) that, in the
event of Landlord's assignment or other transfer of its interest in this Lease,
the Letter of Credit shall be freely transferable by Landlord, without recourse
and without the payment of any fee or consideration, to the assignee or
transferee of such interest and the Bank shall confirm the same to Landlord and
such assignee or transferee. In the event that the Bank shall fail to (y) notify
Landlord that the Letter of Credit will be renewed for at least one (1) year
beyond the then applicable expiration date, and (z) deliver to Landlord a
replacement Letter of Credit or a modification to the existing Letter of Credit
effectuating such renewal, and Tenant shall not have otherwise delivered to
Landlord, at least thirty (30) days prior to the relevant annual expiration
date, a replacement Letter of Credit in the amount
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required hereunder and otherwise meeting the requirements set forth above, then
Landlord shall be entitled to draw on the Letter of Credit as provided above,
and shall hold the proceeds of such draw as Letter of Credit Proceeds pursuant
to Paragraph 7(a) above.
8. SECURITY DEPOSIT
Concurrently with Tenant's execution of the Lease, in addition to the
Letter of Credit provided pursuant to Paragraph 7 above, Tenant shall deposit
with Landlord the Security Deposit specified in the Basic Lease Information as
security for the full and faithful performance of each and every term, covenant
and condition of this Lease. Landlord may use, apply or retain the whole or any
part of the Security Deposit as may be reasonably necessary (a) to remedy any
Default by Tenant under this Lease, (b) subject to Paragraph 22 below, to repair
damage to the Premises caused by Tenant, (c) to clean the Premises upon
termination of this Lease, (d) to reimburse Landlord for the payment of any
amount which Landlord may reasonably spend or be required to spend by reason of
Tenant's Default, and (e) to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's Default. Within thirty (30) days
following the expiration of the Term, the Security Deposit or any balance
thereof shall be returned to Tenant or, at the option of Landlord, to the last
assignee of Tenant's interest in this Lease. Landlord shall not be required to
keep the Security Deposit separate from its general funds and Tenant shall not
be entitled to any interest on such deposit. If Landlord so uses or applies all
or any portion of said deposit, within five (5) days after written demand
therefor Tenant shall deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to the full extent of the above amount, and
Tenant's failure to do so shall be a default under this Lease. In the event
Landlord transfers its interest in this Lease, Landlord shall transfer the then
remaining amount of the Security Deposit to Landlord's successor in interest,
and thereafter Landlord shall have no further liability to Tenant with respect
to such Security Deposit. Nothing contained herein shall be deemed or construed
to limit Tenant's obligations under Paragraph 17 below.
9. POSSESSION
(a) TENANT'S RIGHT OF POSSESSION. Landlord shall deliver possession of the
Premises to Tenant upon the Commencement Date.
(b) EARLY OCCUPANCY. Notwithstanding the provisions of Paragraph 9(a)
above, in the event the Tenant Improvements have been substantially completed
prior to April 1, 1998, then Tenant shall be permitted to enter upon the
Premises at times convenient to Landlord during the period commencing on the
date of substantial completion (but in no event earlier than March 16, 1998) and
April 1, 1998 for the sole purpose of fixturizing the Premises for Tenant's
business operations; provided, however, that prior to any such entry, Tenant
shall provide
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Landlord with proof of Tenant's insurance as set forth in Paragraph 16 of this
Lease. Such entry upon the Premises shall be subject to all of the provisions of
this Lease, except that Tenant shall not be required to pay Base Rent or
Additional Rent as long as Tenant is not operating its business in the Premises
during such early possession period. All materials, work, installations,
equipment and decorations of any nature brought upon or installed by Tenant in
the Premises prior to the Commencement Date shall be at Tenant's sole risk.
(c) DELAY IN DELIVERING POSSESSION. If for any reason whatsoever, Landlord
cannot deliver possession of the Premises to Tenant on or before the Estimated
Commencement Date, this Lease shall not be void or voidable, nor shall Landlord,
or Landlord's agents, advisors, employees, partners, shareholders, directors,
invitees or independent contractors (collectively, "LANDLORD'S AGENTS"), be
liable to Tenant for any loss or damage resulting therefrom. Tenant shall not be
liable for Rent until Landlord delivers possession of the Premises to Tenant.
The Expiration Date shall be extended by the same number of days that Tenant's
possession of the Premises was delayed beyond the Estimated Commencement Date.
10. USE OF PREMISES
(a) PERMITTED USE. The use of the Premises by Tenant and Tenant's agents,
advisors, employees, partners, shareholders, directors, invitees and independent
contractors (collectively, "TENANT'S AGENTS") shall be solely for the Permitted
Use specified in the Basic Lease Information and for no other use. Tenant shall
not permit any objectionable or unpleasant odor, smoke, dust, gas, noise or
vibration to emanate from or near the Premises. The Premises shall not be used
to create any nuisance or trespass, for any illegal purpose, for any purpose not
permitted by Laws, for any purpose that would invalidate the insurance or
increase the premiums for insurance on the Premises, the Building or the Project
or for any purpose or in any manner that would interfere with other tenants' use
or occupancy of the Project. Tenant agrees to pay to Landlord, as Additional
Rent, any increases in premiums on policies resulting from Tenant's Permitted
Use or any other use or action by Tenant or Tenant's Agents which increases
Landlord's premiums or requires additional coverage by Landlord to insure the
Premises. Tenant agrees not to overload the floor(s) of the Building.
(b) COMPLIANCE WITH GOVERNMENTAL REGULATIONS AND PRIVATE RESTRICTIONS.
Tenant and Tenant's Agents shall, at Tenant's expense, faithfully observe and
comply with (1) all municipal, state and federal laws, statutes, codes, rules,
regulations, ordinances, requirements, and orders (collectively, "LAWS"), now in
force or which may hereafter be in force pertaining to the Premises or Tenant's
use of the Premises, the Building or the Project, whether substantial in cost or
otherwise, provided, however, that except as provided in Paragraph 10(c) below,
Tenant shall not be required to make or, except as provided in Paragraph 4
above, pay for, structural changes to the Premises or the Building (including,
without
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limitation, installation of fire sprinkler systems, seismic reinforcement and
related alterations, and removal of asbestos) not related to Tenant's specific
use of the Premises unless the requirement for such changes is imposed as a
result of any improvements or additions made or proposed to be made at Tenant's
request; (2) all recorded covenants, conditions and restrictions affecting the
Project ("PRIVATE RESTRICTIONS") now in force or which may hereafter be in
force; and (3) any and all rules and regulations set forth in EXHIBIT D and any
other rules and regulations now or hereafter promulgated by Landlord related to
parking or the operation of the Premises, the Building and/or the Project
(collectively, the "RULES AND REGULATIONS"). The judgment of any court of
competent jurisdiction, or the admission of Tenant in any action or proceeding
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any such Laws or Private Restrictions, shall be conclusive of that fact
as between Landlord and Tenant.
(c) COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT. Landlord and Tenant
hereby agree and acknowledge that the Premises, the Building and/or the Project
may be subject to, among other Laws, the requirements of the Americans with
Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq., including,
but not limited to Title III thereof, and all regulations and guidelines related
thereto, together with any and all laws, rules, regulations, ordinances, codes
and statutes now or hereafter enacted by local or state agencies having
jurisdiction thereof, including all requirements of Title 24 of the State of
California, as the same may be in effect on the date of this Lease and may be
hereafter modified, amended or supplemented (collectively, the "ADA"). Any
Tenant Improvements to be constructed hereunder shall be in compliance with the
requirements of the ADA, and all costs incurred for purposes of compliance
therewith shall be a part of and included in the costs of the Tenant
Improvements. As between Landlord and Tenant, Tenant shall be solely responsible
for conducting its own independent investigation of this matter and for ensuring
that the design of all Tenant Improvements strictly complies with all
requirements of the ADA. Subject to reimbursement pursuant to Paragraph 4 above,
if under the ADA any barrier removal work or other work is required to the
Building, the Common Areas or the Project or in connection with access to the
Premises, restrooms or any improvements to the Premises or Project completed by
Landlord in May 1997, then such work shall be the responsibility of Landlord;
provided, if such work is required under the ADA as a result of Tenant's use of
the Premises or any work or Alteration (as hereinafter defined) made to the
Premises by or on behalf of Tenant, then such work shall be performed by
Landlord at the sole cost and expense of Tenant. Except as otherwise expressly
provided in this provision, Tenant shall be responsible at its sole cost and
expense for fully and faithfully complying with all applicable requirements of
the ADA related to the Premises and/or Tenant's use thereof during the Term,
including without limitation, not discriminating against any disabled persons in
the operation of Tenant's business in or about the Premises, and offering or
otherwise providing auxiliary aids and services as, and when,
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required by the ADA. Within ten (10) days after receipt, Tenant shall advise
Landlord in writing, and provide Landlord with copies of (as applicable), any
notices alleging violation of the ADA relating to any portion of the Premises,
the Building or the Project; any claims made or threatened orally or in writing
regarding noncompliance with the ADA and relating to any portion of the
Premises, the Building, or the Project; or any governmental or regulatory
actions or investigations instituted or threatened regarding noncompliance with
the ADA and relating to any portion of the Premises, the Building or the
Project. Tenant shall and hereby agrees to protect, defend (with counsel
acceptable to Landlord) and hold Landlord and Landlord's Agents harmless and
indemnify Landlord and Landlord's Agents from and against all liabilities,
damages, claims, losses, penalties, judgments, charges and expenses (including
attorneys' fees, costs of court and expenses necessary in the prosecution or
defense of any litigation including the enforcement of this provision) arising
from or in any way related to, directly or indirectly, Tenant's or Tenant's
Agents' violation or alleged violation of the ADA related to the Premises and/or
Tenant's use thereof during the Term. Tenant agrees that the obligations of
Tenant herein shall survive the expiration or earlier termination of this Lease
11. ACCEPTANCE OF PREMISES
(a) By entry hereunder, except as specifically provided in Paragraph 11(b)
below, Tenant accepts the Premises as suitable for Tenant's intended use and as
being in good and sanitary operating order, condition and repair, AS IS, and
without representation or warranty by Landlord as to the condition, use or
occupancy which may be made thereof. Any exceptions to the foregoing must be by
written agreement executed by Landlord and Tenant. On the Commencement Date or
within fifteen (15) days thereafter, Landlord and Tenant shall jointly inspect
the Premises and make a list (the "PUNCH LIST") of any defective items or
conditions in the Tenant Improvements existing on the Commencement Date.
Landlord shall cause the Contractor (as defined in EXHIBIT B hereto) to correct
the items described on the Punch List promptly after the Commencement Date.
(b) Notwithstanding the terms of Paragraph 11(a) above, Landlord shall (i)
repair or replace the front door of the Premises prior to the Commencement Date,
and (ii) cause the HVAC, electrical and plumbing systems serving the Premises to
be in good working order and the roof on the Building to be in good condition on
the Commencement Date. Any claims by Tenant under the preceding sentence shall
be set forth on the Punch List. In the event Tenant fails to specify any claims
on the Punch List, then Landlord shall be conclusively deemed to have satisfied
its obligations under this Paragraph 11.
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12. SURRENDER
Tenant agrees that on the last day of the Term, or on the sooner
termination of this Lease, Tenant shall surrender the Premises to Landlord (a)
in good condition and repair (damage by acts of God, fire, and normal wear and
tear excepted), but with all interior walls painted or cleaned so they appear
painted, any carpets cleaned, all floors cleaned and waxed, all non-working
light bulbs and ballasts replaced and all roll-up doors and plumbing fixtures in
good condition and working order, and (b) otherwise in accordance with Paragraph
33(h). Normal wear and tear shall not include any damage or deterioration to the
floors of the Premises arising from the use of forklifts in, on or about the
Premises (including, without limitation, any marks or stains on any portion of
the floors), and any damage or deterioration that would have been prevented by
proper maintenance by Tenant, or Tenant otherwise performing all of its
obligations under this Lease. On or before the expiration or sooner termination
of this Lease, (i) Tenant shall remove all of Tenant's Property (as hereinafter
defined) and Tenant's signage from the Premises, the Building and the Project
and repair any damage caused by such removal, and (ii) Landlord may, by notice
to Tenant given not later than ninety (90) days prior to the Expiration Date
(except in the event of a termination of this Lease prior to the scheduled
Expiration Date, in which event no advance notice shall be required), require
Tenant at Tenant's expense to remove any or all Alterations and to repair any
damage caused by such removal. Any of Tenant's Property not so removed by Tenant
as required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and
disposition of such property; provided, however, that Tenant shall remain liable
to Landlord for all costs incurred in storing and disposing of such abandoned
property of Tenant. All Tenant Improvements and Alterations except those which
Landlord requires Tenant to remove shall remain in the Premises as the property
of Landlord. If the Premises are not surrendered at the end of the Term or
sooner termination of this Lease, and in accordance with the provisions of this
Paragraph 12 and Paragraph 33(h) below, Tenant shall continue to be responsible
for the payment of Rent (as the same may be increased pursuant to Paragraph 36
below) until the Premises are so surrendered in accordance with said Paragraphs,
and Tenant shall indemnify, defend and hold Landlord harmless from and against
any and all loss or liability resulting from delay by Tenant in so surrendering
the Premises including, without limitation, any loss or liability resulting from
any claim against Landlord made by any succeeding tenant or prospective tenant
founded on or resulting from such delay and losses to Landlord due to lost
opportunities to lease any portion of the Premises to any such succeeding tenant
or prospective tenant, together with, in each case, actual attorneys' fees and
costs.
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13. ALTERATIONS AND ADDITIONS
(a)Tenant shall not make, or permit to be made, any alteration, addition or
improvement (hereinafter referred to individually as an "ALTERATION" and
collectively as the "ALTERATIONS") to the Premises or any part thereof without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld; provided, however, that Landlord shall have the right in its sole and
absolute discretion to consent or to withhold its consent to any Alteration
which affects the structural portions of the Premises, the Building or the
Project or the Systems serving the Premises, the Building and/or the Project or
any portion thereof (such Alterations described in this proviso being herein
referred to as "STRUCTURAL Alterations"). Notwithstanding the foregoing, Tenant
shall have the right to make Alterations (specifically excluding, however,
Structural Alterations) to the Premises with prior notice to but without the
consent of Landlord, provided that such Alterations are constructed and
performed in full compliance with the terms of Paragraphs 13(b) through (f)
below and do not exceed two thousand five hundred dollars ($2,500) in cost on an
individual basis or ten thousand dollars ($10,000) in the aggregate over the
Term of this Lease.
(b) Any Alteration to the Premises shall be at Tenant's sole cost and
expense, in compliance with all applicable Laws and all requirements requested
by Landlord, including, without limitation, the requirements of any insurer
providing coverage for the Premises or the Project or any part thereof, and in
accordance with plans and specifications approved in writing by Landlord, and
shall be constructed and installed by a contractor approved in writing by
Landlord. As a further condition to giving consent, Landlord may require Tenant
to provide Landlord, at Tenant's sole cost and expense, a payment and
performance bond in form acceptable to Landlord, in a principal amount not less
than one and one-half times the estimated costs of such Alterations, to ensure
Landlord against any liability for mechanic's and materialmen's liens and to
ensure completion of work. Before Alterations may begin, valid building permits
or other permits or licenses required must be furnished to Landlord, and, once
the Alterations begin, Tenant will diligently and continuously pursue their
completion. Landlord may monitor construction of the Alterations and Tenant
shall reimburse Landlord for its costs (including, without limitation, the costs
of any construction manager retained by Landlord) in reviewing plans and
documents and in monitoring construction. Tenant shall maintain during the
course of construction, at its sole cost and expense, builders' risk insurance
for the amount of the completed value of the Alterations on an all-risk
non-reporting form covering all improvements under construction, including
building materials, and other insurance in amounts and against such risks as
Landlord shall reasonably require in connection with the Alterations. In
addition to and without limitation on the generality of the foregoing, Tenant
shall ensure that its contractor(s) procure and maintain in full force and
effect during the course of construction a "broad form" commercial general
liability and property damage policy of insurance naming Landlord, Tenant and
Landlord's lenders as additional
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insureds. The minimum limit of coverage of the aforesaid policy shall be in the
amount of not less than Three Million Dollars ($3,000,000.00) for injury or
death of one person in any one accident or occurrence and in the amount of not
less than Three Million Dollars ($3,000,000.00) for injury or death of more than
one person in any one accident or occurrence, and shall contain a severability
of interest clause or a cross liability endorsement. Such insurance shall
further insure Landlord and Tenant against liability for property damage of at
least One Million Dollars ($1,000,000.00).
(c) All Alterations, including, but not limited to, heating, lighting,
electrical, air conditioning, fixed partitioning, drapery, wall covering and
paneling, built-in cabinet work and carpeting installations made by Tenant,
together with all property that has become an integral part of the Premises or
the Building, shall at once be and become the property of Landlord, except to
the extent such items consist of trade fixtures or Tenant's Property. If
requested by Landlord, Tenant will pay, prior to the commencement of
construction, an amount determined by Landlord necessary to cover the costs of
demolishing such Alterations and/or the cost of returning the Premises and the
Building to its condition prior to such Alterations.
(d) No private telephone systems and/or other related computer or
telecommunications equipment or lines may be installed without Landlord's prior
written consent except to the extent the same (i) may be installed without the
making of Alterations to the Premises or the Building, or (ii) are installed as
part of the Tenant Improvements and are shown on the Final Plans and
Specifications (as defined in EXHIBIT B attached hereto) and approved by
Landlord in accordance with the procedures set forth in EXHIBIT B hereto. If
Landlord's consent is required under this Paragraph 25(d), such consent shall
not be unreasonably withheld; provided, however, that Landlord shall have the
right in its sole and absolute discretion to consent or to withhold its consent
to any installation or Alteration which affects the structural portions of the
Premises, the Building or the Project or the Systems serving the Premises, the
Building and/or the Project or any portion thereof. If Landlord gives such
consent, all equipment must be installed within the Premises and, at the request
of Landlord made at any time prior to the expiration of the Term, removed upon
the expiration or sooner termination of this Lease and the Premises restored to
the same condition as before such installation.
(e) Notwithstanding anything herein to the contrary, before installing any
equipment or lights which generate an undue amount of heat in the Premises, or
if Tenant plans to use any high-power usage equipment in the Premises, Tenant
shall obtain the written permission of Landlord. Landlord may refuse to grant
such permission unless Tenant agrees to pay the costs to Landlord for
installation of supplementary air conditioning capacity or electrical systems
necessitated by such equipment.
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(f) Tenant agrees not to proceed to make any Alterations, notwithstanding
consent from Landlord to do so to the extent required under this Paragraph 13,
until Tenant notifies Landlord in writing of the date Tenant desires to commence
construction or installation of such Alterations and Landlord has approved such
date in writing, in order that Landlord may post appropriate notices to avoid
any liability to contractors or material suppliers for payment for Tenant's
improvements. Tenant will at all times permit such notices to be posted and to
remain posted until the completion of work.
14. MAINTENANCE AND REPAIRS OF PREMISES
(a) MAINTENANCE BY TENANT. Subject to the provisions of Paragraphs 22 and
23 below, throughout the Term, Tenant shall, at its sole expense, (1) keep and
maintain in good order and condition the Premises, and repair and replace every
part thereof, including glass, windows, window frames, window casements,
skylights, interior and exterior doors, door frames and door closers; interior
lighting (including, without limitation, light bulbs and ballasts), the plumbing
and electrical systems exclusively serving the Premises, all communications
systems serving the Premises, Tenant's signage, interior demising walls and
partitions, equipment, interior painting and interior walls and floors, and the
roll-up doors, ramps and dock equipment, including, without limitation, dock
bumpers, dock plates, dock seals, dock levelers and dock lights located in or on
the Premises (excepting only those portions of the Building or the Project to be
maintained by Landlord, as provided in Paragraph 14(b) below), (2) furnish all
expendables, including light bulbs, paper goods and soaps, used in the Premises,
and (3) keep and maintain in good order and condition, repair and replace all of
Tenant's security systems in or about or serving the Premises. Tenant shall not
do nor shall Tenant allow Tenant's Agents to do anything to cause any damage,
deterioration or unsightliness to the Premises, the Building or the Project. .
Nothing contained herein shall be deemed or construed to limit Tenant's
obligations under Paragraph 17 below.
(b) MAINTENANCE BY LANDLORD. Subject to the provisions of Paragraphs 14(a),
22 and 23, and further subject to Tenant's obligation under Paragraph 4 to
reimburse Landlord, in the form of Additional Rent, for the cost and expense of
the following items, Landlord agrees to repair and maintain the following items:
the roof coverings (provided that Tenant installs no additional air conditioning
or other equipment on the roof that damages the roof coverings, in which event
Tenant shall pay all costs resulting from the presence of such additional
equipment); the Systems serving the Premises and the Building, excluding the
plumbing and electrical systems exclusively serving the Premises; and the
Parking Areas, pavement, landscaping, sprinkler systems, sidewalks, driveways,
curbs, and lighting systems in the Common Areas. Subject to the provisions of
Paragraphs 14(a), 22 and 23, Landlord, at its own cost and expense, agrees to
repair
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and maintain the following items: the structural portions of the roof
(specifically excluding the roof coverings), the foundation, the footings, the
floor slab, and the load bearing walls and exterior walls of the Building
(excluding any glass and any routine maintenance, including, without limitation,
any painting, sealing, patching and waterproofing of such walls).
Notwithstanding anything in this Paragraph 14 to the contrary and subject to the
provisions of Paragraph 22 below, Landlord shall have the right to either repair
or to require Tenant to repair any damage to any portion of the Premises, the
Building and/or the Project caused by or created due to any act, omission,
negligence or willful misconduct of Tenant or Tenant's Agents and to restore the
Premises, the Building and/or the Project, as applicable, to the condition
existing prior to the occurrence of such damage; provided, however, that in the
event Landlord elects to perform such repair and restoration work, Tenant shall
reimburse Landlord upon demand for all costs and expenses incurred by Landlord
in connection therewith. Landlord's obligation hereunder to repair and maintain
is subject to the condition precedent that Landlord shall have received written
notice of the need for such repairs and maintenance and a reasonable time to
perform such repair and maintenance. Tenant shall promptly report in writing to
Landlord any defective condition which Landlord is required to repair, and,
except to the extent that Landlord otherwise has actual knowledge of such
defective condition, failure to so report such defects shall make Tenant
responsible to Landlord for the costs and expenses of repairing any Preventable
Damage occurring after the date Tenant obtains actual knowledge of such
defective condition and any liability incurred by Landlord by reason of Tenant's
failure to notify Landlord of such defective condition in a timely manner as
provided herein. As used herein, "PREVENTABLE DAMAGE" means any damage or
deterioration which could have been prevented had Landlord received timely
notice of the defective condition. Nothing contained herein shall be deemed or
construed to limit Tenant's obligations under Paragraph 17 below.
(c) TENANT'S WAIVER OF RIGHTS. Tenant hereby expressly waives all rights to
make repairs at the expense of Landlord or to terminate this Lease, as provided
for in California Civil Code Sections 1941 and 1942, and 1932(1), respectively,
and any similar or successor statute or law in effect or any amendment thereof
during the Term.
15. LANDLORD'S INSURANCE
(a) Landlord shall purchase and keep in force fire, extended coverage and
"all risk" insurance covering the Building and the Project in an amount equal to
the full replacement cost thereof, as determined by Landlord from time to time,
specifically excluding, however, land value, footings and foundations. Tenant
shall, at its sole cost and expense, comply with any and all reasonable
requirements pertaining to the Premises, the Building and the Project of any
insurer necessary for the maintenance of reasonable fire and commercial general
liability insurance, covering
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the Building and the Project. Landlord, at Tenant's cost, may maintain "Loss of
Rents" insurance, insuring that the Rent will be paid in a timely manner to
Landlord for a period of at least twelve (12) months if the Premises, the
Building or the Project or any portion thereof are destroyed or rendered
unusable or inaccessible by any cause insured against under this Lease.
16. TENANT'S INSURANCE
(a) COMMERCIAL GENERAL LIABILITY INSURANCE. Tenant shall, at Tenant's
expense, secure and keep in force a "broad form" commercial general liability
insurance and property damage policy covering the Premises, insuring Tenant, and
naming Landlord and its lenders as additional insureds, against liability
arising out of the ownership, use, occupancy or maintenance of the Premises. The
minimum limit of coverage of such policy shall be in the amount of not less than
One Million Dollars ($1,000,000.00) for injury or death of one person in any one
accident or occurrence and in the amount of not less than One Million Dollars
($1,000,000.00) for injury or death of more than one person in any one accident
or occurrence, shall include an extended liability endorsement providing
contractual liability coverage (which shall include coverage for Tenant's
indemnification obligations in this Lease), and shall contain a severability of
interest clause or a cross liability endorsement. Such insurance shall further
insure Landlord and Tenant against liability for property damage of at least One
Million Dollars ($1,000,000.00). Landlord may from time to time require
reasonable increases in any such limits if Landlord believes that additional
coverage is necessary or desirable. The limit of any insurance shall not limit
the liability of Tenant hereunder. No policy maintained by Tenant under this
Paragraph 16(a) shall contain a deductible greater than five thousand dollars
($5,000.00). No policy shall be cancelable or subject to reduction of coverage
without thirty (30) days prior written notice to Landlord, and loss payable
clauses shall be subject to Landlord's approval. Such policies of insurance
shall be issued as primary policies and not contributing with or in excess of
coverage that Landlord may carry, by an insurance company authorized to do
business in the State of California for the issuance of such type of insurance
coverage and rated A:XIII or better in Best's Key Rating Guide.
(b) PERSONAL PROPERTY INSURANCE. Tenant shall maintain in full force and
effect on all of its personal property, furniture, furnishings, trade or
business fixtures and equipment (collectively, "TENANT'S PROPERTY") on the
Premises, a policy or policies of fire and extended coverage insurance with
standard coverage endorsement to the extent of the full replacement cost
thereof. No such policy shall contain a deductible greater than five thousand
dollars ($5,000.00). During the term of this Lease the proceeds from any such
policy or policies of insurance shall be used for the repair or replacement of
the fixtures and equipment so insured. Landlord shall have no interest in the
insurance upon Tenant's equipment and fixtures and will sign all documents
reasonably necessary in connection with the
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settlement of any claim or loss by Tenant. Landlord will not carry insurance on
Tenant's possessions.
(c) WORKER'S COMPENSATION INSURANCE; EMPLOYER'S LIABILITY INSURANCE. Tenant
shall, at Tenant's expense, maintain in full force and effect worker's
compensation insurance with not less than the minimum limits required by law,
and employer's liability insurance with a minimum limit of coverage of One
Million Dollars ($1,000,000).
(d) EVIDENCE OF COVERAGE. Tenant shall deliver to Landlord certificates of
insurance and true and complete copies of any and all endorsements required
herein for all insurance required to be maintained by Tenant hereunder at the
time of execution of this Lease by Tenant. Tenant shall, at least thirty (30)
days prior to expiration of each policy, furnish Landlord with certificates of
renewal or "binders" thereof. Each certificate shall expressly provide that such
policies shall not be cancellable or otherwise subject to modification except
after thirty (30) days prior written notice to Landlord and the other parties
named as additional insureds as required in this Lease (except for cancellation
for nonpayment of premium, in which event cancellation shall not take effect
until at least ten (10) days notice has been given to Landlord).
17. INDEMNIFICATION
(a) OF LANDLORD. Tenant shall indemnify and hold harmless Landlord and
Landlord's Agents against and from any and all claims, liabilities, judgments,
costs, demands, causes of action and expenses (including, without limitation,
reasonable attorneys' fees) arising from (1) the use of the Premises, the
Building or the Project by Tenant or Tenant's Agents, or from any activity done,
permitted or suffered by Tenant or Tenant's Agents in or about the Premises, the
Building or the Project, and (2) any act, neglect, fault, willful misconduct or
omission of Tenant or Tenant's Agents in connection with this Lease, or from any
breach or default in the terms of this Lease by Tenant or Tenant's Agents, and
(3) any action or proceeding brought on account of any matter in items (1) or
(2). If any action or proceeding is brought against Landlord by reason of any
such claim, upon notice from Landlord, Tenant shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord. As a material part of
the consideration to Landlord, Tenant hereby releases Landlord and Landlord's
Agents from responsibility for, waives its entire claim of recovery for and
assumes all risk of (i) damage to property or injury to persons in or about the
Premises, the Building or the Project from any cause whatsoever (except that
which is caused by the gross negligence or willful misconduct of Landlord or
Landlord's Agents or by the failure of Landlord to observe any of the terms and
conditions of this Lease, if such failure has persisted for an unreasonable
period of time after written notice of such failure), or (ii) loss resulting
from business interruption or loss of income at the
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Premises. The obligations of Tenant under this Paragraph 17 shall survive any
termination of this Lease.
(b) NO IMPAIRMENT OF INSURANCE. The foregoing indemnity shall not relieve
any insurance carrier of its obligations under any policies required to be
carried by either party pursuant to this Lease, to the extent that such policies
cover the peril or occurrence that results in the claim that is subject to the
foregoing indemnity.
18. SUBROGATION
Landlord and Tenant hereby mutually waive any claim against the other and
its Agents for any loss or damage to any of their property located on or about
the Premises, the Building or the Project that is caused by or results from
perils covered by property insurance carried by the respective parties, to the
extent of the proceeds of such insurance actually received with respect to such
loss or damage, whether or not due to the negligence of the other party or its
Agents. Because the foregoing waivers will preclude the assignment of any claim
by way of subrogation to an insurance company or any other person, each party
now agrees to immediately give to its insurer written notice of the terms of
these mutual waivers and shall have their insurance policies endorsed to prevent
the invalidation of the insurance coverage because of these waivers. Nothing in
this Paragraph 18 shall relieve a party of liability to the other for failure to
carry insurance required by this Lease.
19. SIGNS
Tenant shall not place or permit to be placed in, upon, or about the
Premises, the Building or the Project any exterior lights, decorations,
balloons, flags, pennants, banners, advertisements or notices, or erect or
install any signs, windows or door lettering, placards, decorations, or
advertising media of any type which can be viewed from the exterior the Premises
without obtaining Landlord's prior written consent or without complying with
Landlord's signage criteria specified on EXHIBIT E hereto, as the same may be
modified by Landlord from time to time, and with all applicable Laws, and will
not conduct, or permit to be conducted, any sale by auction on the Premises or
otherwise on the Project. Tenant shall remove any sign, advertisement or notice
placed on the Premises, the Building or the Project by Tenant upon the
expiration of the Term or sooner termination of this Lease, and Tenant shall
repair any damage or injury to the Premises, the Building or the Project caused
thereby, all at Tenant's expense. If any signs are not removed, or necessary
repairs not made, Landlord shall have the right to remove the signs and repair
any damage or injury to the Premises, the Building or the Project at Tenant's
sole cost and expense.
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20. FREE FROM LIENS
Tenant shall keep the Premises, the Building and the Project 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, attorneys' 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, the Building and the
Project, from mechanics' and materialmen's liens. Tenant shall give to Landlord
at least five (5) business days' prior written notice of commencement of any
repair or construction on the Premises.
21. ENTRY BY LANDLORD
Tenant shall permit Landlord and Landlord's Agents to enter into and upon
the Premises at all reasonable times, upon reasonable notice (except in the case
of an emergency, for which no notice shall be required), and subject to Tenant's
reasonable security arrangements, for the purpose of inspecting the same or
showing the Premises to prospective purchasers, lenders or tenants or to alter,
improve, maintain and repair the Premises or the Building as required or
permitted of Landlord under the terms hereof, or for any other business purpose,
without any rebate of Rent and without any liability to Tenant for any loss of
occupation or quiet enjoyment of the Premises thereby occasioned (except for
actual damages resulting from the gross negligence or willful misconduct of
Landlord); and Tenant shall permit Landlord to post notices of
non-responsibility and ordinary "for sale" or "for lease" signs. No such entry
shall be construed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an eviction of Tenant from the Premises. Landlord may
temporarily close entrances, doors, corridors, elevators or other facilities
without liability to Tenant by reason of such closure in the case of an
emergency and when Landlord otherwise reasonably deems such closure necessary.
22. DESTRUCTION AND DAMAGE
(a) If the Premises are damaged by fire or other perils covered by extended
coverage insurance, Landlord shall, at Landlord's option:
(1) In the event of total destruction (which shall mean destruction or
damage in excess of twenty-five percent (25%) of the full insurable value
thereof)
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of the Premises, elect either to commence promptly to repair and restore the
Premises and prosecute the same diligently to completion, in which event this
Lease shall remain in full force and effect; or not to repair or restore the
Premises, in which event this Lease shall terminate. Landlord shall give Tenant
written notice of its intention within sixty (60) days after the date (the
"CASUALTY DISCOVERY DATE") Landlord obtains actual knowledge of such
destruction. If Landlord elects not to restore the Premises, this Lease shall be
deemed to have terminated as of the date of such total destruction.
(2) In the event of a partial destruction (which shall mean
destruction or damage to an extent not exceeding twenty-five percent (25%) of
the full insurable value thereof) of the Premises for which Landlord will
receive insurance proceeds sufficient to cover the cost to repair and restore
such partial destruction and, if the damage thereto is such that the Premises
may be substantially repaired or restored to its condition existing immediately
prior to such damage or destruction within one hundred eighty (180) days from
the Casualty Discovery Date, Landlord shall commence and proceed diligently with
the work of repair and restoration, in which event the Lease shall continue in
full force and effect. If such repair and restoration requires longer than one
hundred eighty (180) days or if the insurance proceeds therefor (plus any
amounts Tenant may elect or is obligated to contribute) are not sufficient to
cover the cost of such repair and restoration, Landlord may elect either to so
repair and restore, in which event the Lease shall continue in full force and
effect, or not to repair or restore, in which event the Lease shall terminate.
In either case, Landlord shall give written notice to Tenant of its intention
within sixty (60) days after the Casualty Discovery Date. If Landlord elects not
to restore the Premises, this Lease shall be deemed to have terminated as of the
date of such partial destruction.
(3) Notwithstanding anything to the contrary contained in this
Paragraph, in the event of damage to the Premises occurring during the last
twelve (12) months of the Term, Landlord and Tenant may each elect to terminate
this Lease by written notice of such election given to the other within thirty
(30) days after the Casualty Discovery Date; provided, however, that Tenant
shall have the right to terminate this Lease under this Paragraph 22(a)(3) only
if its use of the Premises is materially disrupted as a result of such damage.
(b) If the Premises are damaged by any peril not covered by extended
coverage insurance, and the cost to repair such damage exceeds any amount Tenant
may agree to contribute, Landlord may elect either to commence promptly to
repair and restore the Premises and prosecute the same diligently to completion,
in which event this Lease shall remain in full force and effect; or not to
repair or restore the Premises, in which event this Lease shall terminate.
Landlord shall give Tenant written notice of its intention within sixty (60)
days after the Casualty Discovery Date. If Landlord elects not to restore the
Premises, this Lease shall be deemed to have terminated as of the date on which
Tenant surrenders possession of the
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Premises to Landlord, except that if the damage to the Premises materially
impairs Tenant's ability to continue its business operations in the Premises,
then this Lease shall be deemed to have terminated as of the date such damage
occurred.
(c) Notwithstanding anything to the contrary in this Xxxxxxxxx 00, Xxxxxxxx
shall have the option to terminate this Lease, exercisable by notice to Tenant
within sixty (60) days after the Casualty Discovery Date, in each of the
following instances:
(1) If more than twenty-five percent (25%) of the full insurable value
of the Building or the Project is damaged or destroyed, regardless of whether or
not the Premises are destroyed.
(2) If the Building or the Project or any portion thereof is damaged
or destroyed and the repair and restoration of such damage requires longer than
one hundred eighty (180) days from the Casualty Discovery Date.
(3) If the Building or the Project or any portion thereof is damaged
or destroyed and the insurance proceeds therefor are not sufficient to cover the
costs of repair and restoration.
(4) If the Building or the Project or any portion thereof is damaged
or destroyed during the last twelve (12) months of the Term.
(d) If the Premises is damaged or destroyed to the extent that the Premises
cannot be fully repaired or restored by Landlord within one hundred eighty (180)
days after the Casualty Discovery Date, Tenant may terminate this Lease
immediately upon notice thereof to Landlord, which notice shall be given, if at
all, not later than fifteen (15) days after Landlord notifies Tenant of
Landlord's estimate of the period of time required to repair such damage or
destruction.
(e) In the event of repair and restoration as herein provided, the monthly
installments of Base Rent shall be abated proportionately in the ratio which
Tenant's use of the Premises is impaired during the period of such repair or
restoration; provided, however, that Tenant shall not be entitled to such
abatement to the extent that such damage or destruction resulted from the
wrongful or grossly negligent acts of Tenant or Tenant's Agents. Except as
expressly provided in the immediately preceding sentence with respect to
abatement of Base Rent, Tenant shall have no claim against Landlord for, and
hereby releases Landlord and Landlord's Agents from responsibility for and
waives its entire claim of recovery for any cost, loss or expense suffered or
incurred by Tenant as a result of any damage to or destruction of the Premises,
the Building or the Project or the repair or restoration thereof, including,
without limitation, any cost, loss or expense resulting from any loss of use of
the whole or any part of the Premises, the
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Building or the Project and/or any inconvenience or annoyance occasioned by such
damage, repair or restoration.
(f) If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall repair or restore only the initial Tenant Improvements,
if any, constructed by Landlord in the Premises pursuant to the terms of this
Lease, substantially to their condition existing immediately prior to the
occurrence of the damage or destruction; and Tenant shall promptly repair and
restore, at Tenant's expense, Tenant's Alterations which were not constructed by
Landlord.
(g) Tenant hereby waives the provisions of California Civil Code Section
1932(2) and Section 1933(4) which permit termination of a lease upon destruction
of the leased premises, and the provisions of any similar law now or hereinafter
in effect, and the provisions of this Paragraph 22 shall govern exclusively in
case of such destruction.
23. CONDEMNATION
(a) If twenty-five percent (25%) or more of either the Premises, the
Building or the Project or the parking areas for the Building or the Project is
taken for any public or quasi-public purpose by any lawful governmental power or
authority, by exercise of the right of appropriation, inverse condemnation,
condemnation or eminent domain, or sold to prevent such taking (each such event
being referred to as a "CONDEMNATION"), Landlord may, at its option, terminate
this Lease as of the date title vests in the condemning party. If twenty-five
percent (25%) or more of the Premises is taken and if the Premises remaining
after such Condemnation and any repairs by Landlord would be untenantable for
the conduct of Tenant's business operations, Tenant shall have the right to
terminate this Lease as of the date title vests in the condemning party. If
either party elects to terminate this Lease as provided herein, such election
shall be made by written notice to the other party given within thirty (30) days
after the nature and extent of such Condemnation have been finally determined.
If neither Landlord nor Tenant elects to terminate this Lease to the extent
permitted above, Landlord shall promptly proceed to restore the Premises, to the
extent of any Condemnation award received by Landlord, to substantially the same
condition as existed prior to such Condemnation, allowing for the reasonable
effects of such Condemnation, and a proportionate abatement shall be made to the
Base Rent corresponding to the time during which, and to the portion of the
floor area of the Premises (adjusted for any increase thereto resulting from any
reconstruction) of which, Tenant is deprived on account of such Condemnation and
restoration, as reasonably determined by Landlord. Except as expressly provided
in the immediately preceding sentence with respect to abatement of Base Rent,
Tenant shall have no claim against Landlord for, and hereby releases Landlord
and Landlord's Agents from responsibility for and waives its entire claim of
recovery for any cost, loss or expense suffered or incurred by Tenant as a
result of any Condemnation or the repair or restoration of the Premises,
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the Building or the Project or the parking areas for the Building or the Project
following such Condemnation, including, without limitation, any cost, loss or
expense resulting from any loss of use of the whole or any part of the Premises,
the Building, the Project or the parking areas and/or any inconvenience or
annoyance occasioned by such Condemnation, repair or restoration. The provisions
of California Code of Civil Procedure Section 1265.130, which allows either
party to petition the Superior Court to terminate the Lease in the event of a
partial taking of the Premises, the Building or the Project or the parking areas
for the Building or the Project, and any other applicable law now or hereafter
enacted, are hereby waived by Tenant.
(b) 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 with any Condemnation, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease or otherwise;
provided, however, that Tenant shall be entitled to receive any award separately
allocated by the condemning authority to Tenant for Tenant's relocation expenses
or the value of Tenant's Property (specifically excluding fixtures, Alterations
and other components of the Premises which under this Lease or by law are or at
the expiration of the Term will become the property of Landlord), provided that
such award does not reduce any award otherwise allocable or payable to Landlord.
24. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not voluntarily or by operation of law, (1) mortgage,
pledge, hypothecate or encumber this Lease or any interest herein, (2) assign or
transfer this Lease or any interest herein, sublease the Premises or any part
thereof, or any right or privilege appurtenant thereto, or allow any other
person (the employees and invitees of Tenant excepted) to occupy or use the
Premises, or any portion thereof, without first obtaining the written consent of
Landlord, which consent shall not be withheld unreasonably provided that (i)
Tenant is not then in Default under this Lease nor is any event then occurring
which with the giving of notice or the passage of time, or both, would
constitute a Default hereunder, and (ii) Tenant has not previously assigned or
transferred this Lease or any interest herein or subleased the Premises or any
part thereof, excluding only a Limited Sublease (as hereinafter defined) entered
into by Tenant in accordance with Paragraph 24(h) below. When Tenant requests
Landlord's consent to such assignment or subletting, it shall notify Landlord in
writing of the name and address of the proposed assignee or subtenant and the
nature and character of the business of the proposed assignee or subtenant and
shall provide current and prior financial statements for the proposed assignee
or subtenant in a form reasonably acceptable to Landlord. Tenant shall also
provide Landlord with a copy of the proposed sublease or assignment agreement,
including all material terms and conditions thereof. Except in the case of a
Limited Sublease (as hereinafter defined) or an assignment or sublease to a
Tenant Affiliate
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(as hereinafter defined), Landlord shall have the option, to be exercised within
thirty (30) days of receipt of the foregoing, to (1) terminate this Lease as of
the commencement date stated in the proposed sublease or assignment, (2)
sublease or take an assignment, as the case may be, from Tenant of the interest,
or any portion thereof, in this Lease and/or the Premises that Tenant proposes
to assign or sublease, on the same terms and conditions as stated in the
proposed sublet or assignment agreement, (3) consent to the proposed assignment
or sublease, or (4) refuse its consent to the proposed assignment or sublease,
providing that such consent shall not be unreasonably withheld, delayed or
conditioned so long as Tenant is not then in Default under this Lease nor is any
event then occurring which with the giving of notice or the passage of time, or
both, would constitute a Default hereunder. In the event Landlord elects to
terminate this Lease or sublease or take an assignment from Tenant of the
interest, or portion thereof, in the Lease and/or the Premises that Tenant
proposes to assign or sublease as provided in the foregoing clauses (1) and (2),
respectively, then Landlord shall have the additional right to negotiate
directly with Tenant's proposed assignee or subtenant and to enter into a direct
lease or occupancy agreement (collectively, a "DIRECT LEASE") with such party on
such terms as shall be acceptable to Landlord in its sole and absolute
discretion, and Tenant hereby waives any claims against Landlord related
thereto, including, without limitation, any claims for any compensation or
profit related to such Direct Lease, provided that any such Direct Lease shall
contain a release of Tenant of all of its obligations hereunder accruing during
the term of such Direct Lease with respect to the portion of the Premises
demised thereunder.
(b) Notwithstanding anything to the contrary contained in Paragraph 24(a)
above, Tenant shall have the right with the consent of Landlord, which consent
shall not be unreasonably withheld, to assign this Lease or to sublease the
Premises or any part thereof to a Tenant Affiliate. In the event Tenant proposes
to enter into an assignment or sublease with a Tenant Affiliate, then Tenant
shall provide Landlord with the information required to be delivered pursuant to
said Paragraph 24(a). Landlord shall have the option, to be exercised within
thirty (30) days of receipt of the foregoing, to (1) consent to the proposed
assignment or sublease, or (2) refuse its consent to the proposed assignment or
sublease, providing that such consent shall not be unreasonably withheld. For
purposes of this Paragraph 24, a "TENANT AFFILIATE" shall mean an entity that
controls, is controlled by or is under common control with, Tenant; and a party
shall be deemed to "control" another party for purposes of the aforesaid
definition only if the first party owns more than fifty percent (50%) of the
stock or other beneficial interests of the second party.
(c) Without otherwise limiting the criteria upon which Landlord may
withhold its consent under Paragraphs 24(a) and (b) above or Paragraph 24(h)
below, Landlord shall be entitled to consider all reasonable criteria including,
but not limited to, the following: (1) whether or not the proposed subtenant or
assignee is engaged in a business which, and the use of the Premises will be in
an manner
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which, is in keeping with the then character and nature of all other tenancies
in the Project, (2) whether the use to be made of the Premises by the proposed
subtenant or assignee will conflict with any so-called "exclusive" use then in
favor of any other tenant of the Building or the Project, and whether such use
would be prohibited by any other portion of this Lease, including, but not
limited to, any rules and regulations then in effect, or under applicable Laws,
and whether such use imposes a greater load upon the Premises and the Building
and Project services then imposed by Tenant, (3) the business reputation of the
proposed individuals who will be managing and operating the business operations
of the assignee or subtenant, and the long-term financial and competitive
business prospects of the proposed assignee or subtenant, and (4) the
creditworthiness and financial stability of the proposed assignee or subtenant
in light of the responsibilities involved. In any event, Landlord may withhold
its consent to any assignment or sublease, if (i) the actual use proposed to be
conducted in the Premises or portion thereof conflicts with the provisions of
Paragraph 10(a) or (b) above or with any other lease which restricts the use to
which any space in the Building or the Project may be put, or (ii) the proposed
assignment or sublease requires Alterations to the Premises or portions thereof
other than Alterations approved by Landlord pursuant to Paragraph 13 above.
(d) If Landlord approves an assignment or subletting as herein provided,
Tenant shall pay to Landlord, as Additional Rent, the difference, if any,
between (1) the Base Rent plus Additional Rent allocable to that part of the
Premises affected by such assignment or sublease pursuant to the provisions of
this Lease, and (2) the rent and any additional rent payable by the assignee or
sublessee to Tenant, less reasonable and customary market-based leasing
commissions, if any, incurred by Tenant in connection with such assignment or
sublease. The assignment or sublease agreement, as the case may be, after
approval by Landlord, shall not be amended without Landlord's prior written
consent, and shall contain a provision directing the assignee or subtenant to
pay the rent and other sums due thereunder directly to Landlord upon receiving
written notice from Landlord that Tenant is in default under this Lease with
respect to the payment of Rent. In the event that, notwithstanding the giving of
such notice, Tenant collects any rent or other sums from the assignee or
subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord
and shall immediately forward the same to Landlord. Landlord's collection of
such rent and other sums shall not constitute an acceptance by Landlord of
attornment by such assignee or subtenant. A consent to one assignment,
subletting, occupation or use shall not be deemed to be a consent to any other
or subsequent assignment, subletting, occupation or use, and consent to any
assignment or subletting shall in no way relieve Tenant of any liability under
this Lease. Any assignment or subletting without Landlord's consent shall be
void, and shall, at the option of Landlord, constitute a Default under this
Lease.
(e) Notwithstanding any assignment or subletting, Tenant and any guarantor
or surety of Tenant's obligations under this Lease shall at all times remain
fully
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responsible and liable for the payment of the Rent and for compliance with all
of Tenant's other obligations under this Lease (regardless of whether Landlord's
approval has been obtained for any such assignment or subletting).
(f) Tenant shall pay Landlord's reasonable fees (including, without
limitation, the fees of Landlord's counsel), incurred in connection with
Landlord's review and processing of documents regarding any proposed assignment
or sublease, not to exceed the sum of two thousand five hundred dollars
($2,500.00) per transaction.
(g) Notwithstanding anything in this Lease to the contrary, in the event
Landlord consents to an assignment or subletting by Tenant in accordance with
the terms of this Paragraph 24, Tenant's assignee or subtenant shall have no
right to further assign this Lease or any interest therein or thereunder or to
further sublease all or any portion of the Premises. In furtherance of the
foregoing, Tenant acknowledges and agrees on behalf of itself and any assignee
or subtenant claiming under it (and any such assignee or subtenant by accepting
such assignment or sublease shall be deemed to acknowledge and agree) that no
sub-subleases or further assignments of this Lease shall be permitted at any
time.
(h) Notwithstanding anything in this Paragraph 24 to the contrary, Tenant
shall have the right with the consent of Landlord, which consent shall not be
unreasonably withheld, to sublease a portion of the Premises comprising not more
than ten thousand (10,000) rentable square for a term ending not later than
twenty-four (24) months after the Commencement Date (such sublease being herein
referred to as a "LIMITED SUBLEASE"). In the event Tenant proposes to enter into
a Limited Sublease, then Tenant shall provide Landlord with the information
required to be delivered pursuant to Paragraph 24(a) above. Landlord shall have
the option, to be exercised within twenty (20) days of receipt of the foregoing,
to (1) consent to the proposed assignment or sublease, or (2) refuse its consent
to the proposed assignment or sublease, provided that such consent shall not be
unreasonably withheld, delayed or conditioned so long as Tenant is not then in
Default beyond any applicable cure periods. Nothing contained herein shall be
deemed to limit Landlord's right to approve any Tenant Improvements in
accordance with EXHIBIT B hereto or any Alterations in accordance with Paragraph
13 above.
(i) Tenant acknowledges and agrees that the restrictions, conditions and
limitations imposed by this Paragraph 24 on Tenant's ability to assign or
transfer this Lease or any interest herein, to sublet the Premises or any part
thereof, to transfer or assign any right or privilege appurtenant to the
Premises, or to allow any other person to occupy or use the Premises or any
portion thereof, are, for the purposes of California Civil Code Section 1951.4,
as amended from time to time, and for all other purposes, reasonable at the time
that the Lease was entered into, and shall be deemed to be reasonable at the
time that Tenant seeks to assign or
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transfer this Lease or any interest herein, to sublet the Premises or any part
thereof, to transfer or assign any right or privilege appurtenant to the
Premises, or to allow any other person to occupy or use the Premises or any
portion thereof.
25. TENANT'S DEFAULT
The occurrence of any one of the following events shall constitute an event
of default on the part of Tenant ("DEFAULT"):
(a) The abandonment of the Premises by Tenant; the vacation of the Premises
by Tenant for a period of twenty one (21) consecutive days; or any vacation of
the Premises by Tenant which would cause any insurance policy to be invalidated
or otherwise lapse; in each of the foregoing cases irrespective of whether or
not Tenant is then in monetary default under this Lease. Tenant agrees to notice
and service of notice as provided for in this Lease and waives any right to any
other or further notice or service of notice which Tenant may have under any
statute or law now or hereafter in effect;
(b) Failure to pay any installment of Rent or any other monies due and
payable hereunder, said failure continuing for a period of five (5) days after
the same is due;
(c) A general assignment by Tenant or any guarantor or surety of Tenant's
obligations hereunder (collectively, "GUARANTOR") for the benefit of creditors;
(d) The filing of a voluntary petition in bankruptcy by Tenant or any
Guarantor, the filing by Tenant or any Guarantor of a voluntary petition for an
arrangement, the filing by or against Tenant or any Guarantor of a petition,
voluntary or involuntary, for reorganization, or the filing of an involuntary
petition by the creditors of Tenant or any Guarantor, said involuntary petition
remaining undischarged for a period of sixty (60) days;
(e) Receivership, attachment, or other judicial seizure of substantially
all of Tenant's assets on the Premises, such attachment or other seizure
remaining undismissed or undischarged for a period of sixty (60) days after the
levy thereof;
(f) Death or disability of Tenant or any Guarantor, if Tenant or such
Guarantor is a natural person, or the failure by Tenant or any Guarantor to
maintain its legal existence, if Tenant or such Guarantor is a corporation,
partnership, limited liability company, trust or other legal entity;
(g) Failure of Tenant to execute and deliver to Landlord any estoppel
certificate, subordination agreement, or lease amendment within the time periods
and in the manner required by Paragraphs 31 or 32 or 43;
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(h) An assignment or sublease, or attempted assignment or sublease, of this
Lease or the Premises by Tenant contrary to the provision of Paragraph 24,
unless such assignment or sublease is expressly conditioned upon Tenant having
received Landlord's consent thereto;
(i) Failure of Tenant to restore the Letter of Credit or the Security
Deposit to the amount and within the time period provided in Paragraph 7 or
Paragraph 8, respectively, above;
(j) Failure in the performance of any of Tenant's covenants, agreements or
obligations hereunder (except those failures specified as events of Default in
subparagraphs (b), (l) or (m) above or any other subparagraphs of this Paragraph
25, which shall be governed by such other Paragraphs), which failure continues
for thirty (30) days after written notice thereof from Landlord to Tenant,
provided that, if Tenant has exercised reasonable diligence to cure such failure
and such failure cannot be cured within such thirty (30) day period despite
reasonable diligence, Tenant shall not be in default under this subparagraph so
long as Tenant thereafter diligently and continuously prosecutes the cure to
completion and actually completes such cure within ninety (90) days after the
giving of the aforesaid written notice;
(k) Chronic delinquency by Tenant in the payment of Rent, or any other
periodic payments required to be paid by Tenant under this Lease. "CHRONIC
DELINQUENCY" shall mean failure by Tenant to pay Rent, or any other payments
required to be paid by Tenant under this Lease within three (3) days after
written notice thereof for any three (3) months (consecutive or nonconsecutive)
during any period of twelve (12) months. In the event of a Chronic Delinquency,
in addition to Landlord's other remedies for Default provided in this Lease, at
Landlord's option, Landlord shall have the right to require that Rent be paid by
Tenant quarterly, in advance;
(l) Chronic overuse by Tenant or Tenant's Agents of the number of
undesignated parking spaces set forth in the Basic Lease Information. "CHRONIC
OVERUSE" shall mean use by Tenant or Tenant's Agents of a number of parking
spaces greater than the number of parking spaces set forth in the Basic Lease
Information more than three (3) times during the Term after written notice by
Landlord;
(m) Any insurance required to be maintained by Tenant pursuant to this
Lease shall be canceled or terminated or shall expire or be reduced or
materially changed, except as permitted in this Lease; and
(n) Any failure by Tenant to discharge any lien or encumbrance placed on
the Project or any part thereof in violation of this Lease within ten (10) days
after the
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date such lien or encumbrance is filed or recorded against the Project or any
part thereof.
Tenant agrees that any notice given by Landlord pursuant to Paragraph
25(j), (k) or (l) above shall satisfy the requirements for notice under
California Code of Civil Procedure Section 1161, and Landlord shall not be
required to give any additional notice in order to be entitled to commence an
unlawful detainer proceeding.
26. LANDLORD'S REMEDIES
(a) TERMINATION. In the event of any Default by Tenant, then in addition to
any other remedies available to Landlord at law or in equity and under this
Lease, Landlord shall have the immediate option to terminate this Lease and all
rights of Tenant hereunder by giving written notice of such intention to
terminate. In the event that Landlord shall elect to so terminate this Lease
then Landlord may recover from Tenant:
(1) the worth at the time of award of any unpaid Rent and any other
sums due and payable which have been earned at the time of such termination;
plus
(2) the worth at the time of award of the amount by which the unpaid
Rent and any other sums due and payable which would have been earned after
termination until the time of award exceeds the amount of such rental loss
Tenant proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by which the unpaid
Rent and any other sums due and payable for the balance of the term of this
Lease after the time of award exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course would be likely to result
therefrom, including, without limitation, (A) any costs or expenses incurred by
Landlord (1) in retaking possession of the Premises; (2) in maintaining,
repairing, preserving, restoring, replacing, cleaning, altering, remodeling or
rehabilitating the Premises or any affected portions of the Building or the
Project, including such actions undertaken in connection with the reletting or
attempted reletting of the Premises to a new tenant or tenants; (3) for leasing
commissions, advertising costs and other expenses of reletting the Premises; or
(4) in carrying the Premises, including taxes, insurance premiums, utilities and
security precautions; (B) any unearned brokerage commissions paid in connection
with this Lease; and (C) any unamortized portion of the Tenant Improvement
Allowance (such Tenant Improvement Allowance to be amortized over the Term in
the manner reasonably determined by Landlord), plus
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(5) such reasonable attorneys' fees incurred by Landlord as a result
of a Default, and costs in the event suit is filed by Landlord to enforce such
remedy; and plus
(6) at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law.
As used in subparagraphs (1) and (2) above, the "worth at the time of award" is
computed by allowing interest at an annual rate equal to twelve percent (12%)
per annum or the maximum rate permitted by law, whichever is less. As used in
subparagraph (3) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award, plus one percent (1%). Tenant waives redemption
or relief from forfeiture under California Code of Civil Procedure Sections 1174
and 1179, or under any other pertinent present or future Law, in the event
Tenant is evicted or Landlord takes possession of the Premises by reason of any
Default of Tenant hereunder.
(b) CONTINUATION OF LEASE. In the event of any Default by Tenant, then in
addition to any other remedies available to Landlord at law or in equity and
under this Lease, Landlord shall have the remedy described in California Civil
Code Section 1951.4 (Landlord may continue this Lease in effect after Tenant's
Default and abandonment and recover Rent as it becomes due, provided Tenant has
the right to sublet or assign, subject only to reasonable limitations). In
addition, Landlord shall not be liable in any way whatsoever for its failure or
refusal to relet the Premises. For purposes of this Paragraph 26(b), the
following acts by Landlord will not constitute the termination of Tenant's right
to possession of the Premises:
(1) Acts of maintenance or preservation or efforts to relet the
Premises, including, but not limited to, alterations, remodeling, redecorating,
repairs, replacements and/or painting as Landlord shall consider advisable for
the purpose of reletting the Premises or any part thereof; or
(2) The appointment of a receiver upon the initiative of Landlord to
protect Landlord's interest under this Lease or in the Premises.
(c) RE-ENTRY. In the event of any Default by Tenant, Landlord shall also
have the right, with or without terminating this Lease, in compliance with
applicable law, to re-enter the Premises and remove all persons and property
from the Premises; such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant.
(d) RELETTING. In the event of the abandonment of the Premises by Tenant or
in the event that Landlord shall elect to re-enter as provided in Paragraph
26(c) or shall take possession of the Premises pursuant to legal proceeding or
pursuant to
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any notice provided by law, then if Landlord does not elect to terminate this
Lease as provided in Xxxxxxxxx 00(x), Xxxxxxxx may from time to time, without
terminating this Lease, relet the Premises or any part thereof for such term or
terms and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable with the right to make
alterations and repairs to the Premises in Landlord's sole discretion. In the
event that Landlord shall elect to so relet, then rentals received by Landlord
from such reletting shall be applied in the following order: (1) to reasonable
attorneys' fees incurred by Landlord as a result of a Default and costs in the
event suit is filed by Landlord to enforce such remedies; (2) to the payment of
any costs of such reletting; (3) to the payment of the costs of any alterations
and repairs to the Premises; (4) to the payment of Rent due and unpaid
hereunder; and (5) the residue, if any, shall be held by Landlord and applied in
payment of future Rent and other sums payable by Tenant hereunder as the same
may become due and payable hereunder. Should that portion of such rentals
received from such reletting during any month, which is applied to the payment
of Rent hereunder, be less than the Rent payable during the month by Tenant
hereunder, then Tenant shall pay such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly. Tenant shall also pay to Landlord, as soon
as ascertained, any costs and expenses incurred by Landlord in such reletting or
in making such alterations and repairs not covered by the rentals received from
such reletting.
(e) TERMINATION. No re-entry or taking of possession of the Premises by
Landlord pursuant to this Paragraph 26 shall be construed as an election to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination by Landlord
because of any Default by Tenant, Landlord may at any time after such reletting
elect to terminate this Lease for any such Default.
(f) CUMULATIVE REMEDIES. The remedies herein provided are not exclusive and
Landlord shall have any and all other remedies provided herein or by law or in
equity.
(g) NO SURRENDER. No act or conduct of Landlord, whether consisting of the
acceptance of the keys to the Premises, or otherwise, shall be deemed to be or
constitute an acceptance of the surrender of the Premises by Tenant prior to the
expiration of the Term, and such acceptance by Landlord of surrender by Tenant
shall only flow from and must be evidenced by a written acknowledgment of
acceptance of surrender signed by Landlord. The surrender of this Lease by
Tenant, voluntarily or otherwise, shall not work a merger unless Landlord elects
in writing that such merger take place, but shall operate as an assignment to
Landlord of any and all existing subleases, or Landlord may, at its option,
elect in writing to treat such surrender as a merger terminating Tenant's estate
under this Lease, and
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thereupon Landlord may terminate any or all such subleases by notifying the
sublessee of its election so to do within five (5) days after such surrender.
27. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
(a) Without limiting the rights and remedies of Landlord contained in
Paragraph 26 above, if Tenant shall be in Default in the performance of any of
the terms, provisions, covenants or conditions to be performed or complied with
by Tenant pursuant to this Lease, then Landlord may at Landlord's option,
without any obligation to do so, and without notice to Tenant perform any such
term, provision, covenant, or condition, or make any such payment and Landlord
by reason of so doing shall not be liable or responsible for any loss or damage
thereby sustained by Tenant or anyone holding under or through Tenant or any of
Tenant's Agents.
(b) Without limiting the rights of Landlord under Paragraph 27(a) above,
Landlord shall have the right at Landlord's option, without any obligation to do
so, to perform any of Tenant's covenants or obligations under this Lease without
notice to Tenant in the case of an emergency, as determined by Landlord in its
sole and absolute judgment, or if Landlord otherwise determines in its sole
discretion that such performance is necessary or desirable for the proper
management and operation of the Building or the Project or for the preservation
of the rights and interests or safety of other tenants of the Building or the
Project.
(c) If Landlord performs any of Tenant's obligations hereunder in
accordance with this Paragraph 27, the full amount of the cost and expense
incurred or the payment so made or the amount of the loss so sustained shall
immediately be owing by Tenant to Landlord, and Tenant shall promptly pay to
Landlord upon demand, as Additional Rent, the full amount thereof with interest
thereon from the date of payment by Landlord at the lower of (1) ten percent
(10%) per annum, or (2) the highest rate permitted by applicable law.
28. ATTORNEY'S FEES
(a) If either party hereto fails to perform any of its obligations under
this Lease or if any dispute arises between the parties hereto concerning the
meaning or interpretation of any provision of this Lease, then the defaulting
party or the party not prevailing in such dispute, as the case may be, shall pay
any and all costs and expenses incurred by the other party on account of such
default and/or in enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either
party in enforcing a judgment in its favor under this Lease shall be recoverable
separately from and in addition to any other amount included in such judgment,
and such attorneys' fees obligation is intended to be
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severable from the other provisions of this Lease and to survive and not be
merged into any such judgment.
(b) Without limiting the generality of Paragraph 28(a) above, if Landlord
utilizes the services of an attorney for the purpose of collecting any Rent due
and unpaid by Tenant or in connection with any other breach of this Lease by
Tenant, Tenant agrees to pay Landlord actual attorneys' fees as determined by
Landlord for such services, regardless of the fact that no legal action may be
commenced or filed by Landlord.
29. TAXES
Tenant shall be liable for and shall pay, prior to delinquency, all taxes
levied against Tenant's Property. If any Alteration installed by Tenant pursuant
to Paragraph 13 or any of Tenant's Property is assessed and taxed with the
Project or Building, Tenant shall pay such taxes to Landlord within ten (10)
days after delivery to Tenant of a statement therefor.
30. EFFECT OF CONVEYANCE
The term "Landlord" as used in this Lease means, from time to time, the
then current owner of the Building or the Project containing the Premises, so
that, in the event of any sale of the Building or the Project, Landlord shall be
and hereby is entirely freed and relieved of all future covenants and
obligations of Landlord hereunder, provided that the purchaser of the Building
or the Project has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder arising from and after the effective date of
such sale or other transfer.
31. TENANT'S ESTOPPEL CERTIFICATE
From time to time, upon written request of Landlord, Tenant shall execute,
acknowledge and deliver to Landlord or its designee, a written certificate
stating (a) the date this Lease was executed, the Commencement Date of the Term
and the date the Term expires; (b) the date Tenant entered into occupancy of the
Premises; (c) the amount of Rent and the date to which such Rent has been paid;
(d) that this Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (or, if assigned, modified,
supplemented or amended, specifying the date and terms of any agreement so
affecting this Lease); (e) that this Lease represents the entire agreement
between the parties with respect to Tenant's right to use and occupy the
Premises (or specifying such other agreements, if any); (f) that all obligations
under this Lease to be performed by Landlord as of the date of such certificate
have been satisfied (or specifying those as to which Tenant claims that Landlord
has yet to perform); (g) that all required contributions by Landlord to Tenant
on account of Tenant's improvements have been received (or stating exceptions
thereto); (h) that on such date there exist no defenses or offsets
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that Tenant has against the enforcement of this Lease by Landlord (or stating
exceptions thereto); (i) that no Rent or other sum payable by Tenant hereunder
has been paid more than one (1) month in advance (or stating exceptions
thereto); (j) that security has been deposited with Landlord, stating the
original amount thereof and any changes thereto; and (k) any other matters
evidencing the status of this Lease that may be reasonably required either by a
lender making a loan to Landlord to be secured by a deed of trust covering the
Building or the Project or by a purchaser of the Building or the Project. Any
such certificate delivered pursuant to this Paragraph 31 may be relied upon by a
prospective purchaser of Landlord's interest or a mortgagee of Landlord's
interest or assignee of any mortgage upon Landlord's interest in the Premises.
If Tenant shall fail to provide such certificate within ten (10) days of receipt
by Tenant of a written request by Landlord as herein provided, such failure
shall, at Landlord's election, constitute a Default under this Lease, and Tenant
shall be deemed to have given such certificate as above provided without
modification and shall be deemed to have admitted the accuracy of any
information supplied by Landlord to a prospective purchaser or mortgagee.
32. SUBORDINATION
Landlord shall have the right to cause this Lease to be and remain subject
and subordinate to any and all mortgages, deeds of trust and ground leases, if
any ("ENCUMBRANCES") that are now or may hereafter be executed covering the
Premises, or any renewals, modifications, consolidations, replacements or
extensions thereof, for the full amount of all advances made or to be made
thereunder and without regard to the time or character of such advances,
together with interest thereon and subject to all the terms and provisions
thereof; provided only, that in the event of termination of any such ground
lease or upon the foreclosure of any such mortgage or deed of trust, so long as
Tenant is not in default, the holder thereof ("HOLDER") shall agree to recognize
Tenant's rights under this Lease as long as Tenant shall pay the Rent and
observe and perform all the provisions of this Lease to be observed and
performed by Tenant. Within ten (10) days after Landlord's written request,
Tenant shall execute, acknowledge and deliver any and all reasonable documents
required by Landlord or the Holder to effectuate such subordination. If Tenant
fails to do so, such failure shall constitute a Default by Tenant under this
Lease. Notwithstanding anything to the contrary set forth in this Paragraph 32,
Tenant hereby attorns and agrees to attorn to any person or entity purchasing or
otherwise acquiring the Premises at any sale or other proceeding or pursuant to
the exercise of any other rights, powers or remedies under such Encumbrance.
33. ENVIRONMENTAL COVENANTS
(a) Prior to executing this Lease, Tenant has completed, executed and
delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL
DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as
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EXHIBIT F and incorporated herein by this reference. Tenant covenants,
represents and warrants to Landlord that the information on the Initial
Disclosure Certificate is true and correct and accurately describes the
Hazardous Materials which will be manufactured, treated, used or stored on or
about the Premises by Tenant or Tenant's Agents. Tenant shall, on each
anniversary of the Commencement Date and at such other times as Tenant desires
to manufacture, treat, use or store on or about the Premises new or additional
Hazardous Materials which were not listed on the Initial Disclosure Certificate,
complete, execute and deliver to Landlord an updated Disclosure Certificate
(each, an "UPDATED DISCLOSURE CERTIFICATE") describing Tenant's then current and
proposed future uses of Hazardous Materials on or about the Premises, which
Updated Disclosure Certificates shall be in the same format as that which is set
forth in EXHIBIT F or in such updated format as Landlord may require from time
to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not
less than thirty (30) days prior to the date Tenant intends to commence the
manufacture, treatment, use or storage of new or additional Hazardous Materials
on or about the Premises, and Landlord shall have the right to approve or
disapprove such new or additional Hazardous Materials in its sole and absolute
discretion. Tenant shall make no use of Hazardous Materials on or about the
Premises except as described in the Initial Disclosure Certificate or as
otherwise approved by Landlord in writing in accordance with this Paragraph
33(a).
(b) As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and
include any substance that is or contains (1) any "hazardous substance" as now
or hereafter defined in Section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42
U.S.C. Section 9601 et seq.) or any regulations promulgated under CERCLA; (2)
any "hazardous waste" as now or hereafter defined in the Resource Conservation
and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 et seq.) or any
regulations promulgated under RCRA; (3) any substance now or hereafter regulated
by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601
et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum
by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5)
asbestos and asbestos-containing material, in any form, whether friable or
non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing
materials; or (8) any additional substance, material or waste (A) the presence
of which on or about the Premises (i) requires reporting, investigation or
remediation under any Environmental Laws (as hereinafter defined), (ii) causes
or threatens to cause a nuisance on the Premises or any adjacent area or
property or poses or threatens to pose a hazard to the health or safety of
persons on the Premises or any adjacent area or property, or (iii) which, if it
emanated or migrated from the Premises, could constitute a trespass, or (B)
which is now or is hereafter classified or considered to be hazardous or toxic
under any Environmental Laws.
(c) As used in this Lease, the term "ENVIRONMENTAL LAWS" shall mean and
include (1) CERCLA, RCRA and TSCA; and (2) any other federal, state or local
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laws, ordinances, statutes, codes, rules, regulations, orders or decrees now or
hereinafter in effect relating to (A) pollution, (B) the protection or
regulation of human health, natural resources or the environment, (C) the
treatment, storage or disposal of Hazardous Materials, or (D) the emission,
discharge, release or threatened release of Hazardous Materials into the
environment.
(d) Tenant agrees that during its use and occupancy of the Premises it will
(1) not (A) permit Hazardous Materials to be present on or about the Premises
except in a manner and quantity necessary for the ordinary performance of
Tenant's business (provided that Tenant shall not be responsible under this
Paragraph 33(d)(1)(A) for the on-site migration of Hazardous Materials from
off-site sources not under the control of Tenant or any Affiliate of Tenant,
provided that neither Tenant nor Tenant's Agents exacerbate the presence of or
contamination caused by such Hazardous Materials), or (B) release, discharge or
dispose of any Hazardous Materials on, in, at, under, or emanating from, the
Premises, the Building or the Project; (2) comply with all Environmental Laws
relating to the Premises and the use of Hazardous Materials on or about the
Premises and not engage in or permit others to engage in any activity at the
Premises in violation of any Environmental Laws; and (3) immediately notify
Landlord of (A) any inquiry, test, investigation or enforcement proceeding by
any governmental agency or authority against Tenant, Landlord or the Premises,
Building or Project relating to any Hazardous Materials or under any
Environmental Laws or (B) the occurrence of any event or existence of any
condition that would cause a breach of any of the covenants set forth in this
Paragraph 33. For purposes of this Paragraph 33(d), "AFFILIATE" shall mean a
party which controls, is controlled by or is under common control with, Tenant.
(e) If Tenant's use of Hazardous Materials on or about the Premises results
in a release, discharge or disposal of Hazardous Materials on, in, at, under, or
emanating from, the Premises, the Building or the Project, Tenant agrees to
investigate, clean up, remove or remediate such Hazardous Materials in full
compliance with (1) the requirements of (A) all Environmental Laws and (B) any
governmental agency or authority responsible for the enforcement of any
Environmental Laws; and (2) any additional requirements of Landlord that are
reasonably necessary to protect the value of the Premises, the Building or the
Project.
(f) Upon reasonable notice to Tenant, Landlord may inspect the Premises and
surrounding areas for the purpose of determining whether there exists on or
about the Premises any Hazardous Material or other condition or activity that is
in violation of the requirements of this Lease or of any Environmental Laws.
Such inspections may include, but are not limited to, entering the Premises or
adjacent property with drill rigs or other machinery for the purpose of
obtaining laboratory samples. Landlord shall not be limited in the number of
such inspections during the Term of this Lease. In the event (1) such
inspections reveal the presence of any
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such Hazardous Material or other condition or activity in violation of the
requirements of this Lease or of any Environmental Laws, or (2) Tenant or its
Agents contribute or knowingly consent to the presence of any Hazardous
Materials in, on, under, through or about the Premises, the Building or the
Project or exacerbate the condition of or the conditions caused by any Hazardous
Materials in, on, under, through or about the Premises, the Building or the
Project, Tenant shall reimburse Landlord for the cost of such inspections within
ten (10) days of receipt of a written statement therefor. Tenant will supply to
Landlord such historical and operational information regarding the Premises and
surrounding areas as may be reasonably requested to facilitate any such
inspection and will make available for meetings appropriate personnel having
knowledge of such matters. Tenant agrees to give Landlord at least sixty (60)
days' prior notice of its intention to vacate the Premises so that Landlord will
have an opportunity to perform such an inspection prior to such vacation. The
right granted to Landlord herein to perform inspections shall not create a duty
on Landlord's part to inspect the Premises, or liability on the part of Landlord
for Tenant's use, storage, treatment or disposal of Hazardous Materials, it
being understood that Tenant shall be solely responsible for all liability in
connection therewith.
(g) Landlord shall have the right, but not the obligation, prior or
subsequent to a Default, without in any way limiting Landlord's other rights and
remedies under this Lease, to enter upon the Premises, or to take such other
actions as it deems necessary or advisable, to investigate, clean up, remove or
remediate any Hazardous Materials or contamination by Hazardous Materials
present on, in, at, under, or emanating from, the Premises, the Building or the
Project in violation of Tenant's obligations under this Lease or under any
Environmental Laws. Notwithstanding any other provision of this Lease, Landlord
shall also have the right, at its election, in its own name or as Tenant's
agent, to negotiate, defend, approve and appeal, at Tenant's expense, any action
taken or order issued by any governmental agency or authority with regard to any
such Hazardous Materials or contamination by Hazardous Materials in violation of
Tenant's obligations under this Lease or under any Environmental Laws. All costs
and expenses paid or incurred by Landlord in the exercise of the rights set
forth in this Paragraph 33 shall be payable by Tenant upon demand.
(h) Tenant shall surrender the Premises to Landlord upon the expiration or
earlier termination of this Lease free of debris, waste or Hazardous Materials
placed on, about or near the Premises by Tenant or Tenant's Agents, and, to the
extent of any such debris, waste or Hazardous Materials, in a condition which
complies with all Environmental Laws and any additional requirements of Landlord
that are reasonably necessary to protect the value of the Premises, the Building
or the Project, including, without limitation, the obtaining of any closure
permits or other governmental permits or approvals related to Tenant's use of
Hazardous Materials in or about the Premises. Tenant's obligations and
liabilities pursuant to the provisions of this Paragraph 33 shall survive the
expiration or earlier
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termination of this Lease. If the condition of all or any portion of the
Premises, the Building, and/or the Project is not in compliance with the
provisions of this Lease with respect to Hazardous Materials, including, without
limitation, all Environmental Laws, at the expiration or earlier termination of
this Lease, then at Landlord's sole option, Landlord may require Tenant to hold
over possession of the Premises until Tenant can surrender the Premises to
Landlord in the condition in which the Premises existed as of the Commencement
Date and prior to the appearance of such Hazardous Materials except for normal
wear and tear, including, without limitation, the conduct or performance of any
closures as required by any Environmental Laws. For purposes hereof, the term
"normal wear and tear" shall not include any deterioration in the condition or
diminution of the value of any portion of the Premises, the Building, and/or the
Project in any manner whatsoever related to directly, or indirectly, Hazardous
Materials. Any such holdover by Tenant will be with Landlord's consent, will not
be terminable by Tenant in any event or circumstance and will otherwise be
subject to the provisions of Paragraph 36 of this Lease.
(i) Tenant agrees to indemnify and hold harmless Landlord from and against
any and all claims, losses (including, without limitation, loss in value of the
Premises, the Building or the Project, liabilities and expenses (including
attorney's fees)) sustained by Landlord attributable to (1) any Hazardous
Materials placed on or about the Premises, the Building or the Project by Tenant
or Tenant's Agents, or (2) Tenant's breach of any provision of this Paragraph
33.
(j) Notwithstanding anything in this Paragraph 33 to the contrary, Tenant
shall not be responsible for the clean up or remediation of, and shall not
required to indemnify Landlord against, any costs or liabilities attributable
to, Hazardous Materials placed on or about the Premises (i) prior to the
Commencement Date by third parties not related to Tenant or Tenant's Agents, or
(ii) by Landlord at any time, except in either case to the extent that Tenant or
Tenant's Agents have contributed to or exacerbated the presence of such
Hazardous Materials.
(k) The provisions of this Paragraph 33 shall survive the expiration or
earlier termination of this Lease.
34. NOTICES
All notices and demands which are required or may be permitted to be given
to either party by the other hereunder shall be in writing and shall be sent by
United States mail, postage prepaid, certified, or by personal delivery or
overnight courier, addressed to the addressee at Tenant's Address or Landlord's
Address as specified in the Basic Lease Information, or to such other place as
either party may from time to time designate in a notice to the other party
given as provided herein. Copies of all notices and demands given to Landlord
shall additionally be sent to Landlord's property manager at the address
specified in the Basic Lease Information or at such
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other address as Landlord may specify in writing from time to time. Notice shall
be deemed given upon actual receipt (or attempted delivery if delivery is
refused ), if personally delivered, or one (1) business day following deposit
with a reputable overnight courier that provides a receipt, or on the third
(3rd) day following deposit in the United States mail in the manner described
above.
35. WAIVER
The waiver of any breach of any term, covenant or condition of this Lease
shall not be deemed to be a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or condition herein
contained. The subsequent acceptance of Rent by Landlord shall not be deemed to
be a waiver of any preceding breach by Tenant, other than the failure of Tenant
to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such Rent. No delay or
omission in the exercise of any right or remedy of Landlord in regard to any
Default by Tenant shall impair such a right or remedy or be construed as a
waiver. Any waiver by Landlord of any Default must be in writing and shall not
be a waiver of any other Default concerning the same or any other provisions of
this Lease.
36. HOLDING OVER
Any holding over after the expiration of the Term, without the express
written consent of Landlord, shall constitute a Default and, without limiting
Landlord's remedies provided in this Lease, such holding over shall be construed
to be a tenancy at sufferance, at a rental rate of one hundred fifty percent
(150%) of the Base Rent last due in this Lease, plus Additional Rent, and shall
otherwise be on the terms and conditions herein specified, so far as applicable;
provided, however, in no event shall any renewal or expansion option or other
similar right or option contained in this Lease be deemed applicable to any such
tenancy at sufferance. If the Premises are not surrendered at the end of the
Term or sooner termination of this Lease, and in accordance with the provisions
of Paragraphs 12 and 33(h), Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all loss or liability resulting from delay by
Tenant in so surrendering the Premises including, without limitation, any loss
or liability resulting from any claim against Landlord made by any succeeding
tenant or prospective tenant founded on or resulting from such delay and losses
to Landlord due to lost opportunities to lease any portion of the Premises to
any such succeeding tenant or prospective tenant, together with, in each case,
actual attorneys' fees and costs.
37. SUCCESSORS AND ASSIGNS
The terms, covenants and conditions of this Lease shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of all of the parties hereto. If Tenant shall consist
of
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more than one entity or person, the obligations of Tenant under this Lease shall
be joint and several.
38. TIME
Time is of the essence of this Lease and each and every term, condition and
provision herein.
39. BROKERS
Landlord and Tenant each represents and warrants to the other that neither
it nor its officers or agents nor anyone acting on its behalf has dealt with any
real estate broker except the Broker(s) specified in the Basic Lease Information
in the negotiating or making of this Lease, and each party agrees to indemnify
and hold harmless the other from any claim or claims, and costs and expenses,
including attorneys' fees, incurred by the indemnified party in conjunction with
any such claim or claims of any other broker or brokers to a commission in
connection with this Lease as a result of the actions of the indemnifying party.
Landlord shall be responsible for a commission payable to Landlord's Broker in
connection with the execution of this Lease pursuant to a separate written
agreement between Landlord and Landlord's Broker, and Landlord's Broker shall be
solely responsible for any commission or fee payable to Tenant's Broker in
connection with this Lease or the subject matter hereof.
40. LIMITATION OF LIABILITY
Tenant agrees that, in the event of any default or breach by Landlord with
respect to any of the terms of the Lease to be observed and performed by
Landlord (1) Tenant shall look solely to the then-current landlord's interest in
the Building for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord;
(2) no other property or assets of Landlord, its partners, shareholders,
officers, directors, employees, investment advisors, or any successor in
interest of any of them (collectively, the "LANDLORD PARTIES") shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies; (3) no personal liability shall at any time be asserted or
enforceable against any one or more of the Landlord Parties; and (4) no judgment
will be taken against any one or more of the Landlord Parties. The provisions of
this section shall apply only to the Landlord and the parties herein described,
and shall not be for the benefit of any insurer nor any other third party. This
provision shall survive the termination or expiration of this Lease.
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41. FINANCIAL STATEMENTS
Within ten (10) days after Landlord's request, Tenant shall deliver to
Landlord the then current financial statements of Tenant (including interim
periods following the end of the last fiscal year for which annual statements
are available), prepared or compiled by a certified public accountant, including
a balance sheet and profit and loss statement for the most recent prior year.
42. RULES AND REGULATIONS
Tenant agrees to comply with such reasonable rules and regulations as
Landlord may adopt from time to time for the orderly and proper operation of the
Building and the Project. Such rules may include but shall not be limited to the
following: (a) restriction of employee parking to a limited, designated area or
areas; and (b) regulation of the removal, storage and disposal of Tenant's
refuse and other rubbish at the sole cost and expense of Tenant. The then
current rules and regulations shall be binding upon Tenant upon delivery of a
copy of them to Tenant. Landlord shall not be responsible to Tenant for the
failure of any other person to observe and abide by any of said rules and
regulations. Landlord's current rules and regulations are attached to this Lease
as EXHIBIT D.
43. MORTGAGEE PROTECTION
(a) MODIFICATIONS FOR LENDER. If, in connection with obtaining financing
for the Project or any portion thereof, Landlord's lender shall request
reasonable modifications to this Lease as a condition to such financing, Tenant
shall not unreasonably withhold, delay or defer its consent to such
modifications, provided such modifications do not materially adversely affect
Tenant's rights or increase Tenant's obligations under this Lease.
(b) RIGHTS TO CURE. Tenant agrees to give to any trust deed or mortgage
holder ("HOLDER"), by registered mail, at the same time as it is given to
Landlord, a copy of any notice of default given to Landlord, provided that prior
to such notice Tenant has been notified, in writing, (by way of notice of
assignment of rents and leases, or otherwise) of the address of such Holder.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then the Holder shall have an
additional twenty (20) days after expiration of such period, or after receipt of
such notice from Tenant (if such notice to the Holder is required by this
Paragraph 43(b)), whichever shall last occur within which to cure such default
or if such default cannot be cured within that time, then such additional time
as may be necessary if within such twenty (20) days, any Holder has commenced
and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated.
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44. ENTIRE AGREEMENT
This Lease, including the Exhibits and any Addenda attached hereto, which
are hereby incorporated herein by this reference, contains the entire agreement
of the parties hereto, and no representations, inducements, promises or
agreements, oral or otherwise, between the parties, not embodied herein or
therein, shall be of any force and effect.
45. INTEREST
Any installment of Rent and any other sum due from Tenant under this Lease
which is not received by Landlord within ten (10) days from when the same is due
shall bear interest from the date such payment was originally due under this
Lease until paid at an annual rate equal to the maximum rate of interest
permitted by law. Payment of such interest shall not excuse or cure any Default
by Tenant. In addition, Tenant shall pay all costs and attorneys' fees incurred
by Landlord in collection of such amounts.
46. CONSTRUCTION
This Lease shall be construed and interpreted in accordance with the laws
of the State of California. The parties acknowledge and agree that no rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall be employed in the interpretation of this Lease, including
the Exhibits and any Addenda attached hereto. All captions in this Lease are for
reference only and shall not be used in the interpretation of this Lease.
Whenever required by the context of this Lease, the singular shall include the
plural, the masculine shall include the feminine, and vice versa. If any
provision of this Lease shall be determined to be illegal or unenforceable, such
determination shall not affect any other provision of this Lease and all such
other provisions shall remain in full force and effect.
47. REPRESENTATIONS AND WARRANTIES OF TENANT
Tenant hereby makes the following representations and warranties, each of
which is material and being relied upon by Landlord, is true in all respects as
of the date of this Lease, and shall survive the expiration or termination of
the Lease.
(a) If Tenant is an entity, Tenant is duly organized, validly existing and
in good standing under the laws of the state of its organization and the persons
executing this Lease on behalf of Tenant have the full right and authority to
execute this Lease on behalf of Tenant and to bind Tenant without the consent or
approval of any other person or entity. Tenant has full power, capacity,
authority and legal right to execute and deliver this Lease and to perform all
of its obligations
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hereunder. This Lease is a legal, valid and binding obligation of Tenant,
enforceable in accordance with its terms.
(b) Tenant has not (1) made a general assignment for the benefit of
creditors, (2) filed any voluntary petition in bankruptcy or suffered the filing
of an involuntary petition by any creditors, (3) suffered the appointment of a
receiver to take possession of all or substantially all of its assets, (4)
suffered the attachment or other judicial seizure of all or substantially all of
its assets, (5) admitted in writing its inability to pay its debts as they come
due, or (6) made an offer of settlement, extension or composition to its
creditors generally.
48. SECURITY
(a) Tenant acknowledges and agrees that, while Landlord may engage security
personnel to patrol the Building or the Project, Landlord is not providing any
security services with respect to the Premises, the Building or the Project and
that Landlord shall not be liable to Tenant for, and Tenant waives any claim
against Landlord with respect to, any loss by theft or any other damage suffered
or incurred by Tenant in connection with any unauthorized entry into the
Premises or any other breach of security with respect to the Premises, the
Building or the Project.
(b) Tenant hereby agrees to the exercise by Landlord and Landlord's Agents,
within their sole discretion, of such security measures as, but not limited to,
the evacuation of the Premises, the Building or the Project for cause, suspected
cause or for drill purposes, the denial of any access to the Premises, the
Building or the Project and other similarly related actions that it deems
necessary to prevent any threat of property damage or bodily injury. The
exercise of such security measures by Landlord and Landlord's Agents, and the
resulting interruption of service and cessation of Tenant's business, if any,
shall not be deemed an eviction or disturbance of Tenant's use and possession of
the Premises, or any part thereof, or render Landlord or Landlord's Agents
liable to Tenant for any resulting damages or relieve Tenant from Tenant's
obligations under this Lease.
49. JURY TRIAL WAIVER
Tenant hereby waives any right to trial by jury with respect to any action
or proceeding (i) brought by Landlord, Tenant or any other party, relating to
(A) this Lease and/or any understandings or prior dealings between the parties
hereto, or (B) the Premises, the Building or the Project or any part thereof, or
(ii) to which Landlord is a party. Tenant hereby agrees that this Lease
constitutes a written consent to waiver of trial by jury pursuant to the
provisions of California Code of Civil Procedure Section 631, and Tenant does
hereby constitute and appoint Landlord its true and lawful attorney-in-fact,
which appointment is coupled with an interest, and Tenant does hereby authorize
and empower Landlord, in the name,
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place and stead of Tenant, to file this Lease with the clerk or judge of any
court of competent jurisdiction as a statutory written consent to waiver of
trial by jury.
50. OPTION TO RENEW
Tenant shall have one (1) option (the "RENEWAL OPTION") to extend the Term
for a period of five (5) years beyond the Expiration Date (the "RENEWAL TERM").
The Renewal Option shall be effective only if Tenant is not in Default under
this Lease beyond the expiration of any applicable cure period either at the
time of exercise of the Renewal Option or the time of commencement of the
Renewal Term. The Renewal Option must be exercised, if at all, by written notice
(the "ELECTION NOTICE") from Tenant to Landlord given not more than twelve (12)
months nor less than six (6)) months prior to the expiration of the initial
Term. Except as hereinafter provided in this Paragraph 50, any such notice given
by Tenant to Landlord shall be irrevocable. If Tenant fails to exercise the
Renewal Option in a timely manner as provided for above, the Renewal Option
shall be void. The Renewal Term shall be upon the same terms and conditions as
the initial Term, except that the annual Base Rent during the Renewal Term shall
be equal to an amount specified by Landlord in a written notice (the "RENEWAL
RATE NOTICE") to Tenant given prior to the expiration of the initial Term.
Tenant shall have ten (10) days after receipt of the Renewal Rate Notice (the
"RESPONSE PERIOD") to advise Landlord whether or not Tenant agrees to pay the
Base Rent specified in the Renewal Rate Notice. If Tenant agrees to pay such
Base Rent, then Landlord and Tenant shall promptly enter into an amendment to
this Lease providing for the lease of the Premises by Tenant during the Renewal
Term upon the terms stated in the Renewal Rate Notice. If Tenant does not agree
to pay the Base Rent specified in the Renewal Rate Notice, Tenant shall have the
right to rescind its Election Notice in writing within the Response Period and
neither party shall have any further rights or obligations under this Paragraph
50. If Tenant fails to provide Landlord with written notice of rescission prior
to the expiration of the Response Period, then Tenant shall be deemed to have
agreed to pay the Base Rent specified in the Renewal Rate Notice.
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Landlord and Tenant have executed and delivered this Lease as of the Lease
Date specified in the Basic Lease Information.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY, CLASSIFIEDS2000, INC.,
a Connecticut corporation a California corporation
By: Allegis Realty Investors LLC
Its Investment Advisor and Agent By: /s/ SANI EL-FISHAWY
-----------------------------
Print Name: SANI EL-FISHAWY
---------------------
Its: CEO
----------------------------
By: /s/ XXXXXXX XXXXXXXX
-------------------------------
Xxxxxxx Xxxxxxxx
Vice President By: _____________________________
Print Name: _____________________
Its: ____________________________
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EXHIBIT A
DIAGRAM OF THE PREMISES
57
EXHIBIT B
TENANT IMPROVEMENTS
This exhibit, entitled "TENANT IMPROVEMENTS", is and shall constitute
EXHIBIT B to the Lease Agreement, dated as of the Lease Date, by and between
Landlord and Tenant for the Premises. The terms and conditions of this EXHIBIT B
are hereby incorporated into and are made a part of the Lease. Capitalized terms
used, but not otherwise defined, in this EXHIBIT B have the meanings ascribed to
such terms in the Lease.
1. TENANT IMPROVEMENTS
Subject to the conditions set forth below, Landlord agrees to construct
certain Tenant Improvements in the Premises pursuant to the terms of this
EXHIBIT B.
2. DEFINITION
"TENANT IMPROVEMENTS" as used in the Lease and this EXHIBIT B shall include
only those improvements within the interior portions of the Premises which are
depicted on the Final Plans and Specifications (hereafter defined in Paragraph
3) or described hereinbelow. "TENANT IMPROVEMENTS" shall specifically not
include any Alterations installed or constructed by Tenant, and any of Tenant's
Property.
The Tenant Improvements may include:
(a) Partitioning, doors, floor coverings, finishes, ceilings, wall
coverings and painting, millwork and similar items.
(b) Electrical wiring, lighting fixtures, outlets and switches, and other
electrical work.
(c) Duct work, terminal boxes, diffusers and accessories required for the
completion of the heating, ventilation and air conditioning systems serving the
Premises, including the cost of meter and key control for after-hour air
conditioning.
(d) Any additional Tenant requirements including, but not limited to odor
control, special heating, ventilation and air conditioning, noise or vibration
control or other special systems.
(e) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and accessories
installed within the Building and serving the Premises.
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(f) All plumbing, fixtures, pipes, and accessories to be installed within
the Building and serving the Premises.
3. PLANS AND SPECIFICATIONS
Landlord shall retain the architect specified in the Basic Lease
Information ("ARCHITECT") for the preparation of preliminary and final working
architectural and engineering plans and specifications for the Tenant
Improvements ("PLANS AND SPECIFICATIONS"). Tenant shall cooperate with the
Architect and shall furnish within ten (10) days after request therefor, all
information required by the Architect for completion of the Plans and
Specifications, and shall provide (in writing, if requested by Landlord), not
later than three (3) business days after request therefor, any approval or
disapproval of the Plans and Specifications which Tenant is permitted to give
under this EXHIBIT B. The Plans and Specifications shall be subject to
Landlord's approval, which approval shall not be unreasonably withheld. The
Plans and Specifications approved by Landlord shall be referred to herein as the
"FINAL PLANS AND SPECIFICATIONS." Landlord shall not be deemed to have acted
unreasonably if it withholds its approval of any plans, specifications, drawings
or other details or of any Change Request (hereafter defined in Paragraph 7
below) because, in Landlord's reasonable opinion, the work as described in any
such item, or any Change Request, as the case may be: (a) is likely to adversely
affect Building systems, the structure of the Building or the safety of the
Building and/or its occupants; (b) might impair Landlord's ability to furnish
services to Tenant; (c) would increase the cost of operating the Building or the
Project (unless Tenant agrees in writing to pay the full amount of any such
increase); (d) would violate any Laws; (e) contains or uses Hazardous Materials;
(f) would adversely affect the appearance of the Building or the Project or the
marketability of the Premises to subsequent tenants; (g) is prohibited by any
ground lease affecting the Building and/or the Project, any Private Restrictions
or any mortgage, trust deed or other instrument encumbering the Building and/or
the Project; (h) is likely to be substantially delayed because of unavailability
or shortage of labor or materials necessary to perform such work or the
difficulties or unusual nature of such work; (i) is not, at a minimum in
accordance with Landlord's building standards, or (j) would increase the Tenant
Improvements Cost (defined in Paragraph 6 below) by more than ten percent (10%)
from the cost originally estimated and anticipated by the parties. The foregoing
reasons, however, shall not be the only reasons for which Landlord may withhold
its approval, whether or not such other reasons are similar or dissimilar to the
foregoing. Neither the approval by Landlord of the Final Plans and
Specifications or any other plans, specifications, drawings or other items
associated with the Tenant Improvements nor Landlord's performance, supervision
or monitoring of the Tenant Improvements shall constitute any warranty or
covenant by Landlord to Tenant of the adequacy of the design for Tenant's
intended use of the Premises. As between Landlord and Tenant, Tenant agrees to,
and does hereby, assume full and complete responsibility to ensure that the
Tenant Improvements and the Final Plans and Specifications are adequate to
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fully meet the needs and requirements of Tenant's intended operations of its
business within the Premises and Tenant's use of the Premises. Landlord and
Tenant shall indicate their approval of the Final Plans and Specifications by
initialing them and attaching them to the Lease as EXHIBIT B-1. Upon completion
of the Final Plans and Specifications and approval thereof by Landlord and
Tenant, Landlord will obtain one or more bids for the work shown on the Final
Plans and Specifications and furnish a cost breakdown to Tenant. In the event
the estimated Tenant Improvements Cost, based on such bid(s) and the reasonably
anticipated costs of other items constituting the Tenant Improvements Cost,
exceeds the Tenant Improvements Allowance (hereafter defined in Paragraph 5),
plus any amounts which Tenant desires to pay as an Excess Tenant Improvements
Cost (hereafter defined in Paragraph 7) ("TENANT'S T.I. BUDGET"), at Tenant's
request, the Final Plans and Specifications may be revised, at Tenant's cost and
expense. Any such revisions shall be subject to Landlord's approval, and the
amended Final Plans and Specifications, as approved by Landlord and Tenant,
shall thereafter be deemed to be the Final Plans and Specifications for the
Tenant Improvements. The amended Final Plans and Specifications shall be
approved by Tenant (in writing, if requested by Landlord) not later than three
(3) business days after Landlord's request therefor. Landlord shall thereafter
submit such amended Final Plans and Specifications to its contractor (the
"CONTRACTOR") for re-bidding, and shall furnish a cost breakdown to Tenant. If
the estimated Tenant Improvements Cost, as determined by the bids based on the
amended Final Plans and Specifications and the reasonably anticipated costs of
other items constituting the Tenant Improvements Cost, result in an Excess
Tenant Improvements Cost, then Tenant shall pay such Excess Tenant Improvements
Cost as and when required by Paragraph 8. Tenant's failure to approve or
disapprove any matters which Tenant shall be entitled to approve or disapprove
pursuant to this Paragraph 3 shall be conclusively deemed to be approval of same
by Tenant.
4. LANDLORD TO CONSTRUCT IMPROVEMENTS
When the Final Plans and Specifications (as amended, if required by
Paragraph 3 above) have been approved by Landlord and Tenant, Landlord shall
submit such Final Plans and Specifications to all governmental authorities
having rights of approval over the Tenant Improvement work and shall apply for
all governmental approvals and building permits. Subject to satisfaction of all
conditions precedent and subsequent to its obligations under this EXHIBIT B, and
further subject to the provisions of Xxxxxxxxx 0, Xxxxxxxx shall thereafter
direct the Contractor to commence and proceed to complete construction of the
Tenant Improvements in accordance with the Final Plans and Specifications. The
Contractor shall be engaged by Landlord pursuant to a guaranteed maximum price
contract.
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5. TENANT IMPROVEMENTS ALLOWANCE
(a) Landlord shall provide an allowance for the planning and construction
of the Tenant Improvements in the amount specified in the Basic Lease
Information ("TENANT IMPROVEMENTS ALLOWANCE"). The Tenant Improvements Allowance
shall be the maximum contribution by Landlord for the Tenant Improvements Cost.
Should the actual cost of planning and constructing those Tenant Improvements
depicted on the Final Plans and Specifications be less than the Tenant
Improvements Allowance, the Tenant Improvements Allowance shall be reduced to an
amount equal to said actual cost.
(b) In the event the actual cost of constructing the Tenant Improvements
depicted on the Final Plans and Specifications is less than the Tenant
Improvements Allowance, then Landlord and Tenant shall set forth the amount of
the unused Tenant Improvements Allowance (the "REMAINING ALLOWANCE") on the
Commencement Date Memorandum. Landlord shall thereafter disburse the Remaining
Allowance to Tenant to reimburse Tenant for costs actually incurred in making
Alterations to the Premises pursuant to Paragraph 13 above as necessary to
re-demise the Premises following the expiration of the Limited Sublease. Tenant
shall provide Landlord with invoices, receipts and other documentation
reasonably requested by Landlord to substantiate such costs.
6. TENANT IMPROVEMENTS COST
The Tenant Improvements Cost ("TENANT IMPROVEMENTS COST") shall include all
costs and expenses associated with the design, preparation, approval and
construction of the Tenant Improvements, including, but not limited, to the
following:
(a) All costs of preliminary and final architectural and engineering plans
and specifications for the Tenant Improvements, and engineering costs associated
with completion of the State of California energy utilization calculations under
Title 24 legislation;
(b) All costs of obtaining building permits and other necessary
authorizations and approvals from local governmental authorities;
(c) All costs of interior design and finish schedule plans and
specifications including as-built drawings;
(d) All direct and indirect costs of procuring, constructing and installing
the Tenant Improvements in the Premises, including, but not limited to, the
construction fee for overhead and profit and the cost of all on-site supervisory
and administrative staff, office, equipment and temporary services rendered by
Landlord, Landlord's consultants and property manager and the Contractor in
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connection with construction of the Tenant Improvements and all labor (including
overtime) and materials constituting the Tenant Improvements;
(e) All fees payable to the Architect, the Contractor, subcontractors and
Landlord's engineering firm if they are required by Tenant and/or any
governmental authorities to redesign any portion of the Tenant Improvements
following Tenant's approval of the Final Plans and Specifications;
(f) All construction and project management fees payable by Landlord to
Landlord's property management company or any other individual or entity;
provided, however, that the construction management fee payable to Landlord's
property management company shall not exceed an amount equal to four percent
(4%) of the Tenant Improvements Cost; and
(g) Utility connection fees.
In no event shall the Tenant Improvements Cost include any costs of
procuring, constructing or installing in the Premises any of Tenant's Property.
7. EXCESS TENANT IMPROVEMENTS COST
If the Tenant Improvements Cost is more than the Tenant Improvements
Allowance, then the difference between the Tenant Improvements Cost and the
Tenant Improvements Allowance ("EXCESS TENANT IMPROVEMENTS COST") shall be paid
by Tenant to Landlord in cash, within ten (10) days of delivery of statements
from Landlord to Tenant therefor. If construction of the Tenant Improvements
will result in an Excess Tenant Improvements Cost, Landlord shall not be
obligated to commence or continue construction of the Tenant Improvements if
payment of the Excess Tenant Improvements Costs by Tenant is not received within
ten (10) days after delivery by Landlord to Tenant of a statement therefor;
provided, however, that Landlord may, at its option, commence or continue
construction of the Tenant Improvements, in which event Tenant shall pay the
Excess Tenant Improvements Cost within ten (10) days after delivery by Landlord
to Tenant of the statement therefor. If Landlord so elects to commence
construction of the Tenant Improvements or has already commenced construction of
the Tenant Improvements when there occurs an Excess Tenant Improvements Cost,
then Landlord shall be entitled to suspend or terminate construction of the
Tenant Improvements if payment by Tenant to Landlord of the Excess Tenant
Improvement Costs has not been received within ten (10) days after delivery by
Landlord to Tenant of a statement therefor.
8. CHANGE REQUEST
When the Final Plans and Specifications have been approved by Landlord,
there shall be no changes without Landlord's prior written consent, except for
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(a) necessary on-site installation variations or minor changes necessary to
comply with building codes and other governmental regulations; (b) one or more
revisions, if requested by Tenant, to adjust the estimated Tenant Improvements
Cost to Tenant's T.I. Budget therefor, as permitted by Paragraph 3 above; and
(c) changes approved in writing by both parties. Any costs related to such
governmentally required or requested and approved changes shall be added to the
Tenant Improvements Cost and, to the extent such cost results in Excess Tenant
Improvements Cost, shall be paid for by Tenant as and with any Excess Tenant
Improvements Cost as set forth in Paragraph 8. The billing for such additional
costs to Tenant shall be accompanied by evidence of the amounts billed as is
customarily used in the business. Costs related to changes shall include,
without limitation, any architectural or design fees, construction management
fees and the Contractor's price for effecting the change.
9. TERMINATION
(a) Notwithstanding anything to the contrary contained in the Lease, in the
event the City of Sunnyvale (the "CITY") fails to issue a building permit for
the construction of the Tenant Improvements within sixty (60) days after the
submission to the City of the Final Plans and Specifications, together with such
additional documents as the City shall require in connection therewith (the
"PERMIT PERIOD"), and provided that the delay by the City is not caused by any
action or inaction on the part of Tenant, Tenant shall have the right to
terminate the Lease by written notice given to Landlord, if at all, not later
than ten (10) days after the end of the Permit Period. If Tenant fails to
deliver a notice of termination to Landlord in a timely manner as provided
herein, then Tenant's right to terminate the Lease under this Paragraph 9(a)
shall lapse and shall thereafter be null and void.
(b) If the Lease is terminated prior to completion of the Tenant
Improvements for any reason due to the Default of Tenant under the Lease, in
addition to any other damages available to Landlord, Tenant shall pay to
Landlord, within five (5) days of receipt of a statement therefor, all costs
incurred by Landlord through the date of termination in connection with the
Tenant Improvements. Landlord shall have the right to terminate the Lease, upon
written notice to Tenant, if Landlord is unable to obtain a building permit for
the Tenant Improvements within one hundred twenty (120) days from the date the
Lease is mutually executed.
10. INTEREST
Any payments required to be made by Tenant hereunder which are not paid
when due shall bear interest at the maximum rate permitted by law from the due
date therefor until paid.
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11. DISCLAIMER
Landlord shall have no liability to Tenant in the event construction of the
Tenant Improvements is delayed or prevented due to any cause beyond Landlord's
reasonable control. If Tenant is entitled or permitted to enter the Premises
prior to completion of the Tenant Improvements, Landlord shall not be liable to
Tenant or Tenant's Agents for any loss or damage to property, or injury to
person, arising from or related to such entry. Tenant shall take all reasonable
precautions to protect against such loss, damage or injury during construction
of the Tenant Improvements, and shall not interfere with the conduct of the
Tenant Improvement work. Tenant shall cooperate with all reasonable directives
of Landlord and the Contractor in order to minimize any disruption or delay in
completion of the Tenant Improvements work.
12. CONSTRUCTION WARRANTIES
Landlord shall obtain from the Contractor warranties (collectively,
"Construction Warranties") for all components of the Tenant Improvements for
which warranties are customarily provided in the construction industry. To the
extent Tenant is required to maintain and repair the Premises or any portion
thereof pursuant to the Lease and such maintenance and repair is covered by any
Construction Warranty, Landlord shall enforce such Construction Warranty or
shall assign such Construction Warranty to Tenant and permit Tenant to enforce
the same.
13. LEASE PROVISIONS; CONFLICT
The terms and provisions of the Lease, insofar as they are applicable, in
whole or in part, to this EXHIBIT B, are hereby incorporated herein by
reference. In the event of any conflict between the terms of the Lease and this
EXHIBIT B, the terms of this EXHIBIT B shall prevail. Any amounts payable by
Tenant to Landlord hereunder shall be deemed to be Additional Rent under the
Lease and, upon any default in the payment of same, Landlord shall have all
rights and remedies available to it as provided for in the Lease.
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EXHIBIT B-1
FINAL PLANS AND SPECIFICATIONS FOR
TENANT IMPROVEMENTS
Reference is hereby made to that certain Lease Agreement dated February 20,
1998 by and between AETNA LIFE INSURANCE COMPANY, a Connecticut corporation, as
landlord ("LANDLORD"), and CLASSIFIEDS2000, INC., a California corporation, as
tenant ("TENANT") ("LEASE Agreement").
The Final Plans and Specifications (as defined in EXHIBIT B to the Lease
Agreement) consists of the following described drawings, specifications and
other documents:
Title of Drawing, Specification or
Other Document Date
The Final Plans and Specifications have been initialed by both Landlord and
Tenant and are on file with Landlord.
Initials: Landlord _______ Tenant _______
65
EXHIBIT C
COMMENCEMENT AND EXPIRATION DATE MEMORANDUM
LANDLORD: AETNA LIFE INSURANCE COMPANY
TENANT: CLASSIFIEDS2000, INC.
LEASE DATE: February 20, 1998
PREMISES: Located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
Tenant hereby accepts the Premises as being in the condition required under
the Lease, with all Tenant Improvements completed (except for minor punchlist
items which Landlord agrees to complete).
Landlord has expended _________________________ Dollars ($____________) of
the Tenant Improvements Allowance pursuant to EXHIBIT B of the Lease in
connection with the planning, design and construction of the Tenant
Improvements. The balance of the Tenant Improvements Allowance,
_________________________ Dollars ($____________), is available for application
by Tenant toward the cost of Alterations in accordance with Paragraph 5(b) of
said EXHIBIT B.
The Commencement Date of the Lease is hereby established as , 1998 and the
Expiration Date is , 2003.
TENANT: CLASSIFIEDS2000, INC.
a California corporation
By: _____________________________________
Print Name: _____________________________
Its: ____________________________________
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66
Approved and Agreed:
LANDLORD:
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By: Allegis Realty Investors LLC
Its Investment Advisor and Agent
By: __________________________________
Xxxxxxx Xxxxxxxx
Vice President
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EXHIBIT D
RULES AND REGULATIONS
This exhibit, entitled "Rules and Regulations," is and shall constitute
Exhibit D to the Lease Agreement, dated as of the Lease Date, by and between
landlord and Tenant for the Premises. The terms and conditions of this Exhibit D
are hereby incorporated into and are made a part of the Lease. Capitalized terms
used, but not otherwise defined, in this Exhibit D have the meanings ascribed to
such terms in the Lease.
1. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord without the consent of Landlord.
2. All window coverings installed by Tenant and visible from the outside
of the building require the prior written approval of Landlord.
3. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance or any flammable or combustible materials on or around
the Premises, except to the extent that Tenant is permitted to use the same
under the terms of Paragraph 33 of the Lease.
4. Tenant shall not alter any lock or install any new locks or bolts on
any door at the Premises without the prior consent of Landlord.
5. Tenant shall not make any duplicate keys without the prior consent of
Landlord.
6. Tenant shall park motor vehicles in parking areas designated by
Landlord except for loading and unloading. During those periods of loading and
unloading, Tenant shall not unreasonably interfere with traffic flow around the
Building or the Project and loading and unloading areas of other tenants. Tenant
shall not park motor vehicles in designated parking areas after the conclusion
of normal daily business activity.
7. Tenant shall not disturb, solicit or canvas any tenant or other
occupant of the Building or Project and shall cooperate to prevent same.
8. No person shall go on the roof without Landlord's permission.
9. Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of the
Building, to such a degree as to be objectionable to Landlord or other tenants,
shall be placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or in noise-dampening housing or other devices sufficient to
eliminate noise or vibration.
X-0
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00. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and shall not be
left in parking or receiving areas overnight.
11. Tractor trailers which must be unhooked or parked with dolly wheels
beyond the concrete loading areas must use steel plates or wood blocks under the
dolly wheels to prevent damage to the asphalt paving surfaces. No parking or
storing of such trailers will be permitted in the auto parking areas of the
Project or on streets adjacent thereto.
12. Forklifts which operate on asphalt paving areas shall not have solid
rubber tires and shall only use tires that do not damage the asphalt.
13. Tenant is responsible for the storage and removal of all trash and
refuse. All such trash and refuse shall be contained in suitable receptacles
stored behind screened enclosures at locations approved by Landlord.
14. Tenant shall not store or permit the storage or placement of goods or
merchandise in or around the common areas surrounding the Premises. No displays
or sales of merchandise shall be allowed in the parking lots or other common
areas.
15. Tenant shall not permit any animals, including but not limited to, any
household pets, to be brought or kept in or about the Premises, the Building,
the Project or any of the common areas.
INITIALS:
TENANT:______________
LANDLORD:____________
X-0
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XXXXXXX X
SIGN CRITERIA
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EXHIBIT F
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord to evaluate your proposed uses of the premises (the "PREMISES")
and to determine whether to enter into a lease agreement with you as tenant. If
a lease agreement is signed by you and the Landlord (the "LEASE AGREEMENT"), on
an annual basis in accordance with the provisions of Paragraph 33 of the Lease
Agreement, you are to provide an update to the information initially provided by
you in this certificate. Any questions regarding this certificate should be
directed to, and when completed, the certificate should be delivered to:
Landlord: Aetna Life Insurance Company
c/o Allegis Realty Investors LLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Name of (Prospective) Tenant: Classifieds2000, Inc.
Mailing Address: __________________________________________________________
___________________________________________________________________________
Contact Person, Title and Telephone Number(s): ____________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s): ______________________________________________________
___________________________________________________________________________
Address of (Prospective) Premises: ________________________________________
Length of (Prospective) initial Term: _____________________________________
___________________________________________________________________________
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1. GENERAL INFORMATION:
Describe the proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled, and services and activities to be provided or
otherwise conducted. Existing tenants should describe any proposed changes to
on-going operations.
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials (as hereinafter defined) be used,
generated, treated, stored or disposed of in, on or about the
Premises? Existing tenants should describe any Hazardous Materials
which continue to be used, generated, treated, stored or disposed of
in, on or about the Premises.
Wastes Yes 0 No 0
Chemical Products Yes 0 No 0
Other Yes 0 No 0
If Yes is marked, please explain: ____________________________________
______________________________________________________________________
______________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, treated, stored or disposed of in, on
or about the Premises, including the applicable hazard class and an
estimate of the quantities of such Hazardous Materials to be present
on or about the Premises at any given time; estimated annual
throughput; the proposed location(s) and method of storage (excluding
nominal amounts of ordinary household cleaners and janitorial supplies
which are not regulated by any Environmental Laws, as hereinafter
defined); and the proposed location(s) and method(s) of treatment or
disposal for each Hazardous Material, including, the estimated
frequency, and the proposed contractors or subcontractors. Existing
tenants should attach a list setting forth the information requested
above and such list should include actual data from on-going
operations and the identification of any variations in such
information from the prior year's certificate.
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3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage or treatment of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps proposed in,
on or about the Premises? Existing tenants should describe any such
actual or proposed activities.
Yes 0 No 0
If yes, please explain: ______________________________________________
______________________________________________________________________
______________________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing tenants should describe any additional identification
numbers issued since the previous certificate.
Yes 0 No 0
4.2 Has your company filed a biennial or quarterly reports as a hazardous
waste generator? Existing tenants should describe any new reports
filed.
Yes 0 No 0
If yes, attach a copy of the most recent report filed.
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5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no wastewater or other
wastes discharged.
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
5.2 Will any such wastewater or waste be treated before discharge?
Yes 0 No 0
If yes, describe the type of treatment proposed to be conducted.
Existing tenants should describe the actual treatment conducted.
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used in
your company's operations in, on or about the Premises that will
discharge into the air; and will such air emissions be monitored?
Existing tenants should indicate whether or not there are any such air
filtration systems or stacks in use in, on or about the Premises which
discharge into the air and whether such air emissions are being
monitored.
Yes 0 No 0
If yes, please describe: _____________________________________________
______________________________________________________________________
______________________________________________________________________
6.2 Do you propose to operate any of the following types of equipment, or
any other equipment requiring an air emissions permit? Existing
tenants should specify any such equipment being operated in, on or
about the Premises.
_____ Spray booth(s) _____ Incinerator(s)
_____ Dip tank(s) _____ Other (Please describe)
_____ Drying oven(s) _____ No Equipment Requiring Air Permits
If yes, please describe: _____________________________________________
______________________________________________________________________
______________________________________________________________________
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6.3 Please describe (and submit copies of with this Hazardous Materials
Disclosure Certificate) any reports you have filed in the past
[thirty-six] months with any governmental or quasi-governmental
agencies or authorities related to air discharges or clean air
requirements and any such reports which have been issued during such
period by any such agencies or authorities with respect to you or your
business operations.
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("MANAGEMENT PLAN") or Hazardous
Materials Business Plan and Inventory ("BUSINESS PLAN") pursuant to
Fire Department or other governmental or regulatory agencies'
requirements? Existing tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes 0 No 0
If yes, attach a copy of the Management Plan or Business Plan.
Existing tenants should attach a copy of any required updates to the
Management Plan or Business Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the Premises
listed or regulated under Proposition 65? Existing tenants should
indicate whether or not there are any new Hazardous Materials being so
used which are listed or regulated under Proposition 65.
Yes 0 No 0
If yes, please describe: _____________________________________________
______________________________________________________________________
______________________________________________________________________
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8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has your
company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company received
requests for information, notice or demand letters, or any other
inquiries regarding its operations? Existing tenants should indicate
whether or not any such actions, orders or decrees have been, or are
in the process of being, undertaken or if any such requests have been
received.
Yes 0 No 0
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders or
decrees and also describe any requests, notices or demands, and attach
a copy of all such documents. Existing tenants should describe and
attach a copy of any new actions, orders, decrees, requests, notices
or demands not already delivered to Landlord pursuant to the
provisions of Paragraph 33 of the Lease Agreement.
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regarding any environmental or health and safety
concerns?
Yes 0 No 0
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and other documents
related thereto as requested by Landlord. Existing tenants should
describe and attach a copy of any new complaint(s),
cross-complaint(s), pleadings and other related documents not already
delivered to Landlord pursuant to the provisions of Paragraph 33 of
the Lease Agreement.
8.3 Have there been any problems or complaints from adjacent tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns? Existing
tenants should indicate whether or not there have been any such
problems or complaints from adjacent tenants, owners or other
neighbors at, about or near the Premises and the current status of any
such problems or complaints.
Yes 0 No 0
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If yes, please describe. Existing tenants should describe any such
problems or complaints not already disclosed to Landlord under the
provisions of the signed Lease Agreement and the current status of any
such problems or complaints.
9. PERMITS AND LICENSES
9.1 Attach copies of all permits and licenses issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any Hazardous Materials permits,
wastewater discharge permits, air emissions permits, and use permits
or approvals. Existing tenants should attach copies of any new permits
and licenses as well as any renewals of permits or licenses previously
issued.
As used herein, "HAZARDOUS MATERIALS" shall mean and include any substance
that is or contains (a) any "hazardous substance" as now or hereafter defined in
Section 101(14) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 et seq.) or
any regulations promulgated under CERCLA; (b) any "hazardous waste" as now or
hereafter defined in the Resource Conservation and Recovery Act, as amended
("RCRA") (42 U.S.C. Section 6901 et seq.) or any regulations promulgated under
RCRA; (c) any substance now or hereafter regulated by the Toxic Substances
Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 et seq.) or any
regulations promulgated under TSCA; (d) petroleum, petroleum by-products,
gasoline, diesel fuel, or other petroleum hydrocarbons; (e) asbestos and
asbestos-containing material, in any form, whether friable or non-friable; (f)
polychlorinated biphenyls; (g) lead and lead-containing materials; or (h) any
additional substance, material or waste (A) the presence of which on or about
the Premises (i) requires reporting, investigation or remediation under any
Environmental Laws (as hereinafter defined), (ii) causes or threatens to cause a
nuisance on the Premises or any adjacent property or poses or threatens to pose
a hazard to the health or safety of persons on the Premises or any adjacent
property, or (iii) which, if it emanated or migrated from the Premises, could
constitute a trespass, or (B) which is now or is hereafter classified or
considered to be hazardous or toxic under any Environmental Laws; and
"ENVIRONMENTAL LAWS" shall mean and include (a) CERCLA, RCRA and TSCA; and (b)
any other federal, state or local laws, ordinances, statutes, codes, rules,
regulations, orders or decrees now or hereinafter in effect relating to (i)
pollution, (ii) the protection or regulation of human health, natural resources
or the environment, (iii) the treatment, storage or disposal of Hazardous
Materials, or (iv) the emission, discharge, release or threatened release of
Hazardous Materials into the environment.
The undersigned hereby acknowledges and agrees that this Hazardous
Materials Disclosure Certificate is being delivered to Landlord in connection
with the evaluation of a Lease Agreement and, if such Lease Agreement is
executed, will
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77
be attached thereto as an exhibit. The undersigned further acknowledges and
agrees that if such Lease Agreement is executed, this Hazardous Materials
Disclosure Certificate will be updated from time to time in accordance with
Paragraph 33 of the Lease Agreement. The undersigned further acknowledges and
agrees that the Landlord and its partners, lenders and representatives may, and
will, rely upon the statements, representations, warranties, and certifications
made herein and the truthfulness thereof in entering into the Lease Agreement
and the continuance thereof throughout the term, and any renewals thereof, of
the Lease Agreement. I [print name] ____________________, acting with full
authority to bind the (proposed) Tenant and on behalf of the (proposed) Tenant,
certify, represent and warrant that the information contained in this
certificate is true and correct.
(PROSPECTIVE) TENANT:
CLASSIFIEDS2000, INC.,
a California corporation
By: /s/ SANI EL-FISHAWY
------------------------------------
Title: PRESIDENT
------------------------------------
Date: 2/9/98
------------------------------------
INITIALS:
TENANT: /s/ SE
--------------
/s/ CS
LANDLORD: --------------
F-8
