EXHIBIT 10.5
[RREEF FUNDS LOGO] INDUSTRIAL LEASE
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TABLE OF CONTENTS
ARTICLE PAGE
REFERENCE PAGE .......................................................... ii
1 USE AND RESTRICTIONS ON USE ............................................ 1
2 TERM ................................................................... 1
3 RENT ................................................................... 1
4 REAL ESTATE TAXES ...................................................... 2
5 SECURITY DEPOSIT ....................................................... 2
6 ALTERNATIONS ........................................................... 3
7 TENANT'S REPAIRS ....................................................... 3
8 LANDLORD'S REPAIRS ..................................................... 4
9 SIGNS .................................................................. 4
10 LIENS .................................................................. 4
11 ASSIGNMENT AND SUBLETTING .............................................. 5
12 INDEMNIFICATION ........................................................ 5
13 INSURANCE .............................................................. 6
14 WAIVER OF SUBROGATION .................................................. 6
15 SERVICES AND UTILITIES ................................................. 6
16 HOLDING OVER ........................................................... 6
17 SUBORDINATION .......................................................... 7
18 RULES AND REGULATIONS .................................................. 7
19 REENTRY BY LANDLORD .................................................... 7
20 DEFAULT ................................................................ 7
21 REMEDIES ............................................................... 8
22 QUIET ENJOYMENT ........................................................ 9
23 DAMAGE BY FIRE, ETC .................................................... 9
24 EMINENT DOMAIN ......................................................... 11
25 SALES BY LANDLORD ...................................................... 11
26 ESTOPPEL CERTIFICATE ................................................... 11
27 SURRENDER OF PREMISES .................................................. 11
28 NOTICES ................................................................ 12
29 TAXES PAYABLE BY TENANT ................................................ 12
30 DEFINED TERMS AND HEADINGS ............................................. 12
31 ERISA REPRESENTATION ................................................... 13
32 ENFORCEABILITY ......................................................... 13
33 COMMISIONS ............................................................. 13
34 TIME AND APPLICABLE .................................................... 13
35 PARKING ................................................................ 13
36 SUCCESSORS AND ASSIGNS ................................................. 13
37 ENTIRE AGREEMENT ....................................................... 13
38 EXAMINATION NOT OPTION ................................................. 14
39 RECORDATION ............................................................ 14
40 TENANT'S PROPORTIONATE SHARE ........................................... 14
41 COMMON AREAS AND COMMON AREA EXPENSE ................................... 14
42 REIMBURSEMENT OF INSURANCE ............................................. 15
43 HAZARDOUS WASTE ........................................................ 15
44 FIRST RIGHT OF REFUSAL ................................................. 16
45 SCHEDULE OF RENTS ...................................................... 17
46 CORPORATE AUTHORITY .................................................... 17
47 LIMITATION OF LANDLORD'S LIABILITY ..................................... 17
EXHIBIT A - PREMISES
EXHIBIT B - LANDLORD' S AND TENANT'S IMPROVEMENTS
INDUSTRIAL-NET REFERENCE PAGE
PROPERTY: San Xxxxxx Industrial Park
LANDLORD: RREEF WEST-V, INC., a Delaware Corporation
XXXXXXXX'S ADDRESS: 000-X Xxxxxxx Xxxx Xxxxx, #000
Xxxxxxxxx, Xxxxxxxxxx 00000
TENANT: Viko Technology, Inc., a California corporation
TENANT'S ADDRESS: 0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
LEASE REFERENCE DATE: July 10, 1991
PREMISES: 2006 Xxxxxx Avenue
Santa Clara, California 95050
(see Exhibit A for outline of Premises, attached
hereto and incorporated herein by reference)
USE: Electronic burn-in testing services, systems
Assembly and related administration and
warehousing.
PREMISES RENTABLE AREA: approximately 11,200 square feet
COMMENCEMENT DATE: August 15, 1991
TERMINATION DATE: August 31, 1997
TERM OF LEASE: Six (6) years and fifteen (15) days beginning on
The Commencement Date and ending on the
Termination Date (unless sooner terminated
pursuant to the Lease)
ANNUAL BASE RENT: $40,500.00 see also Article 46. "SCHEDULE OF
RENTS."
MONTHLY INSTALLMENT OF RENT: $3,375.00 see also Article 46. "SCHEDULE OF
RENTS."
TENANT'S PROPORTIONATE SHARE: 9.30% see also Article 40. "TENANT'S
PROPORTIONATE SHARE."
SECURITY DEPOSIT: $5,150.00
TENANT'S MONTHLY INSTALLMENT OF ESTIMATED COMMON AREA COSTS: $350.00
REAL ESTATE BROKER DUE COMMISSION: CB Commercial
The reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page Information and
the Lease, the Lease shall control. This Lease includes exhibits "A" and "B",
both of which are made a part hereof.
LANDLORD: TENANT:
RREEF WEST-V,INC., Viko Technology, Inc.,
A Delaware corporation a California corporation
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx xx Xxxxxxxx
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Xxxx Xxxxxx
Title: Director of Properties Title: [ILLEGIBLE]
Dated: [ILLEGIBLE] Dated: [ILLEGIBLE]
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Title: District Manager
Dated: 7-12-91
LEASE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises set forth and described on the Reference Page. The Reference Page,
including all terms defined thereon, is hereby incorporated as part of this
Lease.
1. USE AND RESTRICTIONS ON USE.
The Premises shall be continuously used and occupied by Tenant, but only
for the purpose listed on the Reference Page, to the extent permitted by
applicable zoning regulations. Tenant shall at its own cost and expense obtain
any and all licenses and permits necessary for any such use. The parking of
automobiles, trucks or other vehicles in the areas not specifically designated
on Exhibit A and the outside storage of any property are prohibited without
Landlord's prior written consent. Tenant shall comply with all governmental
laws, ordinances and regulations applicable to the use of the Premises and its
occupancy thereof, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of any violations or
nuisances in or upon, or connected with, the Premise, all at Tenant's sole
expense. If, as a result of any change in the governmental laws, ordinances and
regulations, the Premises must be altered to lawfully accommodate Xxxxxx's use
and occupancy thereof, such alterations shall be made only with the consent of
Landlord, but the entire cost thereof shall be borne by Tenant not to exceed
$20,000.00 per occurrence. In the event cost of such compliance exceeds
$20,000.00 Landlord shall have the option to complete required work at its
expense or to terminate the Lease with 60 day notice to Tenant. Provided, that,
the necessity of Landlord's consent shall in no way create any liability against
Landlord for failure of Tenant to comply, or alter the Premises to comply, with
such laws, ordinances and regulations. Tenant shall not permit any objectionable
or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building, or un reasonably
interfere with such tenants' use of their respective premises or permit any use
which would adversely affect the reputation of the Building. Without Landlord's
prior written consent, Tenant shall not receive, store or otherwise handle any
product, material or merchandise which is explosive or highly flammable. Tenant
will not permit the Premises to be used for any purpose (including, without
limitation, the storage of merchandise) in any manner which would render the
insurance thereon void or increase the insurance rate thereof, and tenant shall
immediately cease and desist from such use, paying all cost and expense
resulting from such improper use.
2. TERM.
The Term of this Lease shall be as indicated on the Reference Page (unless
sooner terminated as herein provided). Xxxxxx agrees that in the event of the
inability of Landlord to deliver possession of the Premises on the Commencement
Date, Landlord shall not be liable for any damage thereby, but Tenant shall not
liable for any rent until the time when Landlord can, after notice to Tenant,
deliver possession of the Premises to Tenant. No such failure to give possession
on the Commencement Date shall affect the other obligations of Tenant hereunder,
nor shall such failure be construed in any way to extend the Term. If Landlord
is unable to deliver possession of the Premises within 90 days of the
Commencement Date (other than as a result of strikes, shortages of materials or
similar matters beyond the reasonable control of Landlord and Tenant is noticed
by Landlord in writing as to such delay), Tenant shall have the option to
terminate this Lease unless said delay is as a result of : (a) Tenant's failure
to agree to plans and specifications; (b) Tenant's request for materials,
finishes or installations other than Landlord's standard; (c) Tenant's change in
plans; or (d) performance or completion by a party employed by Xxxxxx. If said
delay is the result of any of the foregoing, the Commencement Date and the
payment of rent hereunder shall be accelerated by the number of days of such
delay.
In the event Landlord shall permit Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be subject to all the provisions of
the Lease. Said early possession shall not advance the Termination Date. Upon
completion of Landlord's improvements, as stated on exhibit "B", tenant shall
have two (2) weeks early occupancy with no rent due.
3. RENT. See also Article 46. "SCHEDULE OF RENTS."
Xxxxxx agrees to pay to Landlord the Annual Rent by paying the Monthly
Installment of Rent on or before the first day of each full calendar month
during the Term, except that the first month's rent shall be paid upon the
execution hereof. Rent for any period during the Term which is less than one
full month shall be a prorated portion of the Monthly Installment of Rent based
upon a 30 day month. Said rent shall be paid to Landlord, without deduction or
offset and without notice or demand at the Landlord's address, as set forth on
the Reference Page, or to such other person or at such other place as Landlord
may from time to time designate in writing.
Tenant recognizes that late payment of any rent or other sum due hereunder
will result in administrative expense to Landlord, the extent of which
additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is due and
payable pursuant to this Lease, and when such amount remains due and unpaid ten
days after said amount is due, such amount shall be increased by a late charge
in an amount equal to the greater of: (a) $50.00, or (b) a sum equal to 5% of
the unpaid rent or other payment. The amount of the late charge to be paid by
Tenant shall be reassessed and added to Xxxxxx's obligation for each successive
monthly period until paid. The provisions of this Article in no way relieve
Tenant of the obligation to pay rent or other payments on or before the date on
which they are due, nor do the terms of this Article in any way affect
Xxxxxxxx's remedies pursuant to Article 21 of this Lease in the event said rent
or other payment is unpaid after the date due.
No security or guarantee which may now or hereafter be furnished to
Landlord for the payment of rent or the performance of the Tenant's other
obligations under this Lease shall in any way constitute a bar to the recovery
of the Premises or defense to any
action in unlawful detainer or to any other action which Landlord may bring for
a breach of any of the terms, covenants or conditions of this Lease.
4. REAL ESTATE TAXES.
Xxxxxxxx agrees to pay all general and special taxes, assessments and
governmental charges of any kind and nature whatsoever (hereinafter collectively
referred to as "Taxes") lawfully levied against the Building, the real property
on which it is situated and the grounds, parking areas, driveways and alleys
around the Building. Tenant shall pay to Landlord as additional rent upon demand
at the time the bill for each installment for any tax year applicable to the
Term (or any renewal or extension thereof) issues, Tenant's Proportionate Share
of the amount of such taxes applicable to each installment less any monthly
payments paid by Tenant as provided below for such tax year. Prior to the actual
determination of the Taxes for a calendar year, Landlord may, if it so elects
and at any time or from time to time during said calendar year, estimate the
amount of such Taxes. If, in the estimation of Landlord, such Taxes will exceed
the previous year's Taxes, Landlord shall give Tenant written notification of
the amount of such estimated excess and Tenant agrees that it will increase its
Monthly Installment of Rent subsequent to receipt of such written notification
to include such excess. If the total Tenant actually paid for estimated taxes
pursuant to this Paragraph is more than the actual Tax, Landlord shall remit the
excess to Tenant within thirty (30) days of the making of such determination or,
at Landlord's election, credit such amount against the next Monthly Installment
of Rent. In addition, Tenant shall pay upon demand Xxxxxx's Proportionate Share
of any fees, expenses and cost incurred by Landlord in protesting any
assessments, levies or the tax rate, to be offeset solely and proportionately by
any savings achieved by appeal. Taxes shall include the following by way of
illustration, but not limitation: real estate taxes; any other such taxes,
charges and assessments which are levied with respect to the Building, and any
improvements, fixtures and equipment and all other property of Landlord, real or
personal, located in the Building and used in connection with the operation of
the Building and the land upon which they are situated including any payments to
any ground lessor in reimbursement of tax payments made by such lessor; fees or
assessments for any governmental services to the Building; service payments in
lieu of taxes; dues or assessments payable to any property owners association
due to Landlord's ownership of the Building; water and sewer charges; and any
gross receipts tax and/or any tax which shall be levied in addition to or in
lieu of real estate, possessory interest or personal properly taxes. Any payment
to be made pursuant to this Article with respect to the real estate tax year in
which the Lease commences or terminates shall be prorated.
5. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit. Said sum shall be
held by Xxxxxxxx as security for the faithful performance by Tenant of all the
terms, covenants and conditions of this Lease to be kept and performed by Xxxxxx
and not as an advance rental deposit or as a measure of Landlord's damage in
case of Xxxxxx's default. If Tenant defaults with respect to any provision of
this Lease, Landlord may use any part of this Security Deposit for the payment
of any rent or any other sum in default, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of Tenant's default,
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion is so used, Tenant shall within
five days after written demand therefore deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep this Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on such deposit. If Tenant shall fully
and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant at such time
after termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease have been fulfilled within fourteen (14)
days of Tenant's surrender of Premises consistent with Article 27.
6. ALTERATIONS.
Tenant shall not make or suffer to be made any alterations, additions, or
improvements, including, but not limited to, the attachment of any fixtures or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements in excess of $5,000.00 non-structural as required by Article 7
without the prior written consent of Landlord, which may be withheld in
Landlord's reasonable discretion. Any alteration, additions or improvements to
be done by Tenant as part of Tenant's initial occupancy shall be specified in
Exhibit B. Any alteration, addition, or improvement in, on or to the Premises
including carpeting, but excepting movable furniture and personal property of
Tenant removable without material damage to the properly or the Premises, shall
be and remain the property of Tenant during the Term but shall, unless Landlord
elects otherwise, become a part of the realty and belong to Landlord without
compensation to Tenant upon the expiration or sooner termination of the Term and
title shall pass to Landlord under this Lease as by a bill of sale. When
applying for such consent, Tenant shall, if requested by Landlord, furnish
complete plans and specifications for such alterations, additions and
improvements. In the event landlord consents to the making of any such
alteration, addition, or improvement by Tenant, at Xxxxxx's sole cost and
expense. All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide such assurances to
Landlord, including but not limited to, waivers of lien, surety company
performance bonds and personal guaranties of individuals of substance, as
Landlord shall require to assure payment of the costs thereof and to protect
landlord against any loss from any mechanics', materialmen's or other liens.
Tenant shall pay in addition to any sums due pursuant to Article 4 above any
increase in real estate taxes attributable to any such alteration, addition, or
improvement for so long, during the Term, as such increase is ascertainable.
Upon the expiration or sooner termination of the Term as herein provided, Tenant
shall upon demand by Landlord, at Tenant's sole cost and expense, forthwith and
with all due diligence remove any such alterations, additions or improvements
which are designated by Landlord to be removed, and Tenant shall forthwith and
with all due diligence, at its sole cost and expense, repair and restore
Premises to their original condition, reasonable wear and tear and loss by
casualty covered by Article 23 excepted.
7. TENANT'S REPAIRS.
(A) Tenant shall as its own cost and expense keep and maintain all parts
of the Premises, the Building and the surrounding real estate for which Landlord
is not expressly responsible under the terms of the Lease, including portions
shared in common with
other tenants of the Building but not including other tenant's premises, in good
condition, promptly making all necessary repairs and replacements, whether
ordinary or extraordinary, or nonstructural, with materials and workmanship of
the same character, kind and quality as the original, including but not limited
to windows, glass and plate glass, doors, skylights, any special office entries,
interior walls and finish work, floors and floor coverings, downspouts, gutters,
heating and air conditioning and air conditioning systems, electrical systems
and fixtures, sprinkler systems, dock boards, truck doors, dock bumpers,
plumbing work and fixtures, termite and pest extermination, regular removal of
trash and debris. Tenant as part of its obligations hereunder shall (i) keep the
parking areas, driveways, alleys and the whole of the property in a clean and
sanitary condition, and (iii) without injury to the roof, other horizontal
surfaces of the Building, downspouts, parking areas, driveways and sidewalks,
remove all snow and ice from same. Tenant will, as far as possible, keep all
such parts of the Premises, Building and the real estate on which the Building
is located from deterioration due to ordinary wear and from falling temporarily
out of repair, and upon termination of this Lease in any way Tenant will yield
up the Premises to Landlord in good condition and repair, reasonable wear and
tear and loss by fire or other casually covered by insurance to be maintained by
Landlord pursuant Paragraph 23 (A) hereof excepted (but not excepting any damage
to glass or loss not reimbursed by insurance because of the existence of a
deductible under the appropriate policy).
(B) Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees.
(C) Tenant and its employees, customer and licensees shall have the
nonexclusive right to use, in common with the other parties occupying said
Building, common parking areas, if any, (exclusive of any parking or work load
areas designated or to be designated by Landlord for the exclusive use of Tenant
or other tenants occupying or to be occupying other portions of the Building),
driveways and alleys adjacent to said Building, subject to such reasonable rules
and regulations as Landlord may from time to time prescribe. Further, Landlord
reserves the right to perform, upon notice to Tenant, the paving and landscape
maintenance for the grounds around the Building, including, but not limited to,
the mowing of the grass, care of shrubs, general landscaping and maintenance of
common parking areas, if any, driveways and alleys, roof repairs, exterior
painting, common sewage line plumbing, and repair and maintenance of any other
items, the obligations for which are shared by other tenants in the Building and
other improvements of which the Premises are a part, all of which are otherwise
Tenant's obligations under Paragraph 7(A), and Tenant shall, in lieu of the
obligations set forth under Paragraph 7(A) with respect to such items, be liable
for Tenant's Proportionate Share (as set forth on the Reference Page) of the
cost and expense thereof including a reasonable management fee unless Landlord
in its sole discretion determines that such cost and expense is properly
allocable in another proportion or solely to either Tenant or the other tenants
occupying said Building. Tenant shall pay to Landlord its share, determined as
aforesaid, of such costs and expenses, upon demand, as additional rent, in the
event Landlord elects to perform or cause to be performed such work.
(D) Tenant shall, at its own cost and expenses, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord, (and a copy thereof shall be furnished to Landlord), for
servicing all heating and air conditioning systems and equipment within the
Premises. The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within 30 days of the date Tenant takes possession of the Premises.
(E) Tenant shall, at its own cost and expense to the extent not covered by
the insurance to be maintained by Landlord under Article 23, repair any damage
to the Premises or the Building resulting from and/or caused in whole or in part
by the negligence or misconduct of Tenant, its agents, servants, employees,
patrons, customers, or any other person entering upon the properly as a result
of Tenant's business activities or caused by Tenant's default hereunder.
8. LANDLORD'S REPAIRS.
Landlord shall at its expense maintain in good repair, reasonable wear and
tear and any casualty covered by the provisions of Article 23 excepted, only the
foundation and the structural soundness of the exterior walls and of the roof of
the Building. Tenant shall immediately give Landlord written notice of any such
defect or need for repairs after which Landlord shall have a reasonable
opportunity to repair the same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of the Lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special store
fronts or office entries.
9. SIGNS.
Tenant's shall not install any signs upon the Premises or the exterior of
the Building without Landlord's prior written consent. If Landlord shall consent
to any sign, upon termination of the Lease Tenant shall remove said sign and
restore the Premises and/or the Building in accordance with the provisions of
Article 6 or, at Landlord's option, said sign shall become part of the realty
and belong to Landlord without compensation to Tenant and title shall pass to
Landlord under this Lease as by a bill of sale.
10. LIENS.
Tenant shall keep the Premises and Xxxxxx's leasehold interest in the
Premises tree from any liens arising out of any work performed, materials
furnished, or obligations incurred by tenant. In the event that Tenant shall
not, within ten days following the imposition of any such lien, cause the same
to be released of record, Landlord shall have the right to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Xxxxxxxx and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to it by Tenant on demand with interest at the rate of 18% per
annum or the highest rate permitted by law, whichever is lower.
11. ASSIGNMENT OF SUBLETTING.
(A) Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises, whether voluntary or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, or assign this Lease for security purposes, without the prior written
consent the Landlord, which consent shall not be unreasonably withheld, and
such restrictions shall be binding upon any assignee or subtenant to which
Landlord has consented. In the event Tenant desires to sublet the Premises, or
any portion thereof, or assign this Lease, Tenant shall give written notice
thereof to Landlord at least 90 days but no more than 180 days prior to the
proposed commencement date of such subletting or assignment, which notice shall
set forth the name of the proposed subtenant or assignee, the relevant terms of
any sublease and copies of financial reports and other relevant financial
information of the proposed subtenant or assignee. Notwithstanding any permitted
assignment or subletting, Tenant shall at all times remain directly and
primarily responsible and liable for the payment of the rent herein specified
and for compliance with all of its other obligations under this Lease. Upon the
occurrence of an "event of default" (as hereinafter defined), if the Premises or
any part thereof are then sublet, Landlord, in addition to any other remedies
provided herein or by law, may collect directly from such subtenant all rents
due and becoming due to Tenant under such sublease and apply such rent against
any sums due to Landlord from Tenant hereunder. No such collection directly from
an assignee or subtenant shall be construed to constitute a novation or a
release of Tenant from the further performance of Xxxxxx's obligations
hereunder.
(B) In addition to Xxxxxxxx's right to approve of any subtenant or
assignee, Landlord shall have option, in its sole discretion, in the event of
any proposed of any subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised by Xxxxxxxx's
giving Tenant written notice thereof within 15 days following Xxxxxxxx's receipt
of Tenant's written notice as required above. If this Lease shall be terminated
with respect to the entire Premises the Term shall end the date stated in
Tenant's notice as the effective date of the sublease or assignment as if that
date had been originally fixed in this Lease for the expirations of the Term. If
Landlord recaptures only a portion of the Premises, the rent during the
unexpired Term shall xxxxx, proportionately, based on the rent as of the date
immediately prior to such recapture. Tenant shall, at Xxxxxx's own cost and
expense, discharge in full any outstanding commission obligation on the part of
Landlord with respect to this Lease, and any commissions which may be due and
owing as a result of any proposed assignment or subletting, whether or not the
Premises are recaptured pursuant hereto and rented by Landlord to the proposed
tenant or any other tenant.
(C) Consent by Landlord to any assignment or subletting shall not include
consent to the assignment or transferring of any lease renewal option rights or
space option rights of the Premises, special privileges or extra services
granted to Tenant by this Lease, or addendum or amendment thereto or letter of
agreement (and such options, right, privileges or services shall terminate upon
such assignment), unless Landlord specifically grants in writing such options,
right, privileges or services to assign or subtenant. Any sale, assignment,
mortgage, transfer of this Lease or subletting which does not comply with the
provisions of this Article shall be void.
(D) In the event that Tenant sells, sublets, assigns, or transfers this
Lease and at any time receives periodic rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to Landlord,
Tenant shall pay to Landlord 100% of the gross increase in such rent as such
rent is received by Tenant and 100% of any other consideration received by
Tenant from such subtenant in connection with such sublease or in the case of an
assignment of this lease by Tenant, Landlord shall receive 100% of any
consideration paid to tenant by such assignee in connection with such assignment
less broker's commission and reasonable attorney's fees.
(E) Should Landlord agree to authorize and execute an assignment or
sublease agreement, Tenant will pay to Landlord on demand a sum equal to all of
Landlord's costs. Including attorney's fees, incurred in connection with such
assignment or transfer.
12. INDEMNIFICAITON.
Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for any damage to any property or any injury to any person in or about
the Premises or the Building by or from any cause whatsoever, (including without
limiting the foregoing, rain or water leakage of any character from the roof,
windows, walls, basement, pipes, plumbing works or appliances, the Building not
being in good condition or repair, gas, fire, oil, electricity or theft); except
that Landlord will indemnify and hold Tenant harmless from such claims to the
extent caused by the negligent or willful act of Landlord, or its agents,
employees or contractors. Tenant shall hold Landlord harmless from and defend
landlord against any and all claims, liability or costs (including court costs
and attorney's fees) for any damage to any property or any injury to any person
occurring in, on or about the Premises or the Building when such injury or
damage shall be caused by or arise from, in part or in whole, (a) the act,
neglect, fault, or omission to meet the standards imposed by any duty with
respect to the injury or damage, by Tenant, its agents, servants, employees or
invitees; (b) the conduct or management of any work or thing whatsoever done by
the Tenant in or about the Premises or from transactions of the Tenant
concerning the Premises; or (c) any breach or default on the part of the Tenant
in the performance of any covenant or
agreement on the part of the Tenant to be performed pursuant to this Lease. The
provisions of this Article shall survive the termination of this Lease with
respect to any claims or liability occurring prior to such termination.
13. INSURANCE.
Tenant agrees to purchase at its own expense and to keep in force during
the term of this Lease a comprehensive public liability and property damage
insurance policy to protect against any liability to the public or to any
invitee of Tenant or Landlord incident to the use of or resulting from any
accident occurring upon the Premises with a comprehensive single limit of not
less than $1,000,00.00. Said policy or policies shall: (a) name Landlord in or
as an additional insured, and insure Landlord's contingent liability under this
Lease; (b) be issued by an insurance company which is acceptable to Landlord;
and (c) provide that said insurance shall not be cancelled unless 30 days prior
written notice shall have been given to Landlord. Said policy or policies or
certificates thereof shall be delivered to Landlord by Tenant upon the
Commencement Date and upon each renewal of said insurance.
14. WAIVER OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights of recovery against each other for any
loss insured by fire, extended coverage or all risk insurance now or hereafter
existing for the benefit of the respective party. Each party shall obtain any
special endorsements required by their insurer to evidence compliance with
aforementioned waiver.
15. SERVICE AND UTILITIES.
Landlord agrees to provide, at its cost, water, electricity and telephone
service connections into the Premises; but Tenant shall pay for all water, gas,
heat, light, power, telephone, sewer, sprinkler system charges and other
utilities and services used on or from the Premises, including without
limitation, Tenant's Proportionate Share of any central station signaling system
installed in the Premises or the Building, together with any taxes, penalties,
and surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballets. If
any such services are not separately metered to Tenant, Tenant shall pay such
proportion of all charges jointly shared or metered with other premises as
determined by Landlord, in its sole discretion, to be reasonable. Any such
charges paid by Xxxxxxxx and assessed against Tenant shall be immediately
payable to Landlord on demand and shall be additional rent hereunder. Landlord
shall in no event be liable for any interruption or failure of utility services
on or to the Premises. Tenant shall not be required to pay water use penalties
not caused by Xxxxxx's use.
16. HOLDING OVER.
Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or part thereof after Termination hereof by lapse of time or otherwise
150% of the amount of the Annual Rent for the last period prior to the date of
such termination Plus all rent adjustments as provided in Article 4,41 and 42
prorated on a daily basis, and also pay all damages sustained by Landlord by
reason of such retention, and shall indemnify and hold Landlord harmless from
any loss or liability resulting from such holding over and delay in surrender.
If Landlord gives notice to Tenant of Landlord's election thereof, such holding
over shall constitute renewal of this Lease for a period from month to month or
for one year, whichever shall be specified in such notice, in either case at
150% of the Annual Rent being paid to Landlord under this Lease immediately
prior thereto, Plus all rent adjustments as provided in Article 4,41 and 42 but
if the Landlord does not so elect, acceptance by Landlord of rent after such
termination shall not constitute a renewal; this provision shall not be deemed
to waive Landlord's right of re-entry or any other right hereunder or at law.
17. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to ground or underlying lease and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against or affecting the
Building, Landlord's interest or estate therein, or any ground or underlying
lease; provided, however, that if the lessor, mortgagee trustee, or holder of
any such mortgage or deed of trust elects to have Xxxxxx's interest in this
Lease be superior to any such instrument, then by notice to Tenant this Lease
shall be deemed superior, whether this Lease was executed before or after said
instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
18. RULES AND REGULATIONS.
Landlord reserves the right to establish reasonable rules and regulations
which will be applied uniformly to all tenants. Tenant shall faithfully observe
and comply with all the rules and regulations as set forth in Exhibit C if any
attached hereto and all reasonable modifications of and additions thereto from
time to time put into effect by Landlord as well as all covenants, conditions
and restrictions of record. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Building of any such
rules and regulations.
19. REENTRY BY LANDLORD.
Landlord reserves and shall at all times have the right to reenter, with
24 hour notice, the Premises to inspect the same, to supply any service to be
provided by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants, and to alter, improve, or repair the Premises
and any other portion of the Building, without abatement of rent, and may for
that purpose erect, use, and maintain scaffolding, pipes, conduits, and
necessary structures in and through the Building and premises where reasonably
required by the character of the work to be performed, provided entrance to the
Premises shall not be blocked thereby, and further provide that the business of
Tenant shall not be interested with unreasonably. In the event that Landlord
requires access to any under-floor duct, Landlord's liability for carpet (or
other floor covering) replacement shall be limited to replacement of the piece
removed. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Xxxxxx's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in the premises, excluding Tenant's
vaults and safes, or special security areas (designated in advance), and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in an emergency to obtain entry to any portion of the
Premises. Landlord shall also have the right at any time to charge the
arrangement and/or location of entrances or passageways, door and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building,
and to change the name, number or designation by which the Building is commonly
known.
20. DEFAULT.
The following events shall be deemed to be events of default under this
Lease:
(A) Tenant shall fall to pay when due any sum of money becoming due to be
paid to Landlord hereunder, whether such sum be any installment of the rent
herein reserved, any other amount treated as additional rent hereunder, or any
payment or reimbursement to Landlord required herein, whether or not treated as
additional rent hereunder, and such failure shall continue for a period of ten
days from the date such payment was due; or
(B) Tenant shall fail to comply with any term, Provision or covenant of
this Lease other than by failing to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, and shall not cure such failure
within 20 days (forthwith, if the default involves a hazardous condition) after
written notice thereof to Tenant; or
(C) Tenant shall abandon any substantial portion of the Premises; or
(D) Except where Landlord consents to Tenant's hold over under Article 16,
Tenant shall fail to vacate the Premises immediately upon termination of the
Lease, by lapse of time or otherwise, or upon termination of Xxxxxx's right to
possession only; or
(E) The leasehold interest of Tenant shall be levied upon under execution
or be attached by process of law or Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give sufficient security to Landlord to
insure payment thereof or shall fail to satisfy any adjustment rendered thereon
and have the same released, and such default shall continue for ten days after
written notice thereof to Tenant: or
(F) Tenant shall become insolvent, admit in writing its inability to pay
its debts generally as they become due, file a petition in bankruptcy or a
petition to take advantage of any insolvency statute, make an assignment for the
benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United Stated or any state thereof; or
(G) A court of competent jurisdiction shall enter an order, judgment or
decree adjudicating Tenant a bankrupt, or appointing a receiver of Tenant, or of
the whole or any substantial part of its property, without the consent of
Tenant, or approving a petition filed against tenant seeking reorganization or
arrangement of Tenant under the bankruptcy laws of the United States, as now in
effect or hereafter amended, or any state thereof, and such order, judgment or
decree shall not be vacated or set aside or stayed within 30 days from the date
of entry thereof.
21. REMEDIES.
Upon the occurrence of any of such events of default described in Article
20 or elsewhere in this Lease, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand whatsoever:
(A) Landlord, may at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease;
(B) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free right to enter into and upon the
Premises in such
event with or without process of law and to repossess Landlord of the Premises
as of Landlord's former estate and to expel or remove tenant and any others who
may be occupying or within the Premises and to remove any and all property
therefrom, without being deemed in any manner guilty of trespass, eviction of
forcible entry or detainer, and without incurring any liability for any damage
resulting therefrom, Tenant hereby waiving any right to claim damage for such
reentry and expulsion , and without relinquishing Landlord's right to rent or
any other right given to Landlord hereunder or by operation pf law;
(C) Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages from Tenant: (i) The
worth at the time of award of any unpaid rent, including any amounts treated as
additional rent hereunder, which has been earned at the time of such
termination; plus (ii) The worth at the time of award of the amount by which the
unpaid rent, including any amounts treated as additional rent hereunder, which
would have been earned after termination until the time of awards exceeds the
amount of such rental loss Tenant proves could have been reasonably avoided;
plus (iii) The worth at the time of award of the amount by which the unpaid
rent, including any amounts treated as additional rent hereunder, for the
balance of the term after the time of award exceeds the amount of such rental
loss that tenant proves could be reasonably avoided; plus (iv) Any other amount
necessary to compensate landlord for all the detriment proximately caused by
Xxxxxx's failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom; plus (v) Such
other amounts in addition to or in lieu of the foregoing as may be permitted
from time to time by applicable California law.
As used in (i) and (ii) above, the "worth at the time of award" is
computed by allowing interest at the maximum legal rate at the time of the
award. As used in (iii) 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 of award plus one percent (1%).
(D) (i) Upon any termination of Tenant's right to possession only without
termination of the Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Xxxxxx's signs and other evidences of tenancy, and take and
hold possession thereof as provided in subparagraph (B) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or in
part, from any obligation including tenant's to pay the rent, including any
amounts treated as additional rent, hereunder for the full Term. In any such
case Tenant shall pay forthwith to Landlord, if landlord so elects, a sum equal
to the entire amount of the rent, including any amounts treated as additional
rent hereunder, for the residue of the Term plus any other sums provided herein
to be paid by Xxxxxx for the remainder of the Term;
(ii) Landlord may, but need not, relet the Premises or any part thereof
for such rent and upon such terms as Landlord in its sole discretion shall
determine (including the right to relet the Premises for a greater or lesser
term than that remaining under this Lease, the right to relet the Premises as a
part of a larger area, and the right to change the character or use made of the
Premises) and Landlord shall not be required to accept any tenant offered by
tenant or to observe any instructions given by Tenant about such reletting. In
any such case, Landlord may make repairs, alterations and additions in or to the
Premises, and redecorate the same to the extent Landlord deems necessary or
desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Xxxxxxxx's expenses of reletting including, without limitation, any broker's
commission incurred by landlord. If the consideration collected by landlord upon
any such reletting plus any sums previously collected from tenant are not
sufficient to pay the full amount of all rent, including any amounts treated as
additional rent hereunder and other sums reserved in this lease for the
remaining term hereof, together with the cost of repairs, alterations,
additions, redecorating, and xxxxxx's expenses of reletting and the collection
of the rent accruing therefrom (including attorney's fee and broker's
commissions), Tenant shall pay to Landlord the amount of such deficiency upon
demand and tenant agrees that landlord may file suit to recover any sums falling
due under this section from time to time;
(E) Landlord may, at Xxxxxxxx's option, enter into and upon the Premises,
with or without process of law, if Landlord determines in its sole discretion
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Xxxxxx is responsible hereunder and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
resulting therefrom and Xxxxxx agrees to reimburse Landlord, on demand, as
additional rent, for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligation under this Lease;
(F) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Xxxxxxxx's
control. Any such property of Tenant not retaken by Tenant from storage within
30 days after removal from the Premises shall, at Landlord's option, be deemed
conveyed by Tenant to Landlord under this Lease as by a bill of sale without
further payment or credit by Landlord to Tenant.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
at equity (all such remedies being cumulative), nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. No act or thing
done by Landlord or its agents during the Term shall be deemed a termination of
this Lease or an acceptance of the surrender of the Premises, and no agreement
to terminate this Lease or accept a surrender of said Premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provision and covenants herein contained. Xxxxxxxx's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as an accord and
satisfaction, compromise or waiver of such default, unless Landlord so notifies
Tenant in writing. Forbearance by Landlord in enforcing one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. If, on account of any breach or default by Tenant under the Lease, it
shall become necessary or appropriate for landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's rights or
remedies, Xxxxxx agrees to pay all attorneys' fees incurred by Landlord.
22. QUIET ENJOYMENT
Landlord represent and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the Term without hindrance or molestation
from Landlord subject to the terms and provisions of this Lease. In the event
this Lease is a sublease, then Xxxxxx agrees to take the Premises subject to the
provision of the prior leases. Landlord shall not be liable for any interference
or disturbance by other tenants or third persons, nor shall Tenant be released
from any of the obligations of this Lease because of such interference or
disturbance.
23. DAMAGE BY FIRE, ETC.
(A) Landlord agrees to maintain standard fire and extended coverage
insurance covering the Building in an amount not less than 90% of the full
"replacement cost" thereof (as such term is defined in the Replacement Cost
Endorsement to be attached thereto, if any) insuring against the perils of fire
and lightning and including extended coverage, and earthquake and flood
coverage, or at Landlord's option, "All Risk" coverage, with earthquake and
flood coverage, all such coverages and endorsements to be as defined, provided
and limited in the standard bureau forms prescribed by the insurance regulatory
authority for the state in which the property is situated for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of Paragraphs 23(C), 23(D)
and 23(F), such insurance shall be for the sole benefit of Landlord and under
its sole control. Such insurance shall include protection for continuation of
rental payments for a period of 12 months in the event of any damage caused by
the perils referred to above. Tenants agrees to pay Landlord, as additional
rental, Xxxxxx's Proportionate Share of Landlord's cost of maintaining such
insurance. Said payments shall be made to Landlord within ten days after
presentation to Tenant of Landlord's statement setting forth the amount due, and
the failure to pay such share shall be treated in the same manner as a default
in the payment of rent hereunder when due. Any payment to be made pursuant to
this Paragraph with respect to the year in which the Lease commences or
terminates shall be prorated. Tenant shall not take out separates insurance
concurrent in form or contributing in the event of loss with that required to be
maintained by Landlord hereunder unless Landlord is included as an additional
insured thereon. Tenant shall immediately notify Landlord whenever any such
separate insurance is taken out and shall promptly deliver to Landlord the
policy or policies of such insurance.
(B) If the Building should be damaged or destroyed by fire, tornado or
other casually, Tenant shall give immediate written notice thereof to Landlord.
(C) If the Building should be damaged by any peril covered by the
insurance to be provided by Landlord under Paragraph 23(A), but only to such
extent that the Building can in Landlord's estimation be materially restored
within 180 days after the date upon which Landlord is notified by Tenant of such
damage (except that Landlord may elect not to rebuild if such damage occurs
during the last year of the term), this Lease shall not terminate, and Landlord
shall at its sole cost and expense thereupon proceed with reasonable diligence
to rebuild and repair such Building to substantially the condition in which it
existed prior to such damage, except Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvement which may have been placed in, on or about the Premises by Tenant.
If the premises are untenantable in whole or in part following such damage, the
rent payable hereunder during the period in which the Premises are untenantable
shall be reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to materially restore the
Building within 180 days after the date upon which Landlord is notified by
Tenant of such damage, Tenant may (if it has given Landlord at least 30 days
notice of its need and intent to do so) at its option terminate this Lease by
delivering written notice of termination to Landlord as Tenant's exclusive
remedy. Whereupon all rights and obligations hereunder shall cease and
terminate; provided, however, that if construction is delayed because of
changes, deletions, or additions in construction requested by Tenant, strikes,
lockouts, casualties, acts of God, war, material or labor shortages,
Governmental regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed. For purposes hereof, the Building
or Premises shall be deemed "materially restored" if they are in such condition
as would not prevent or materially interfere with Xxxxxx's use of the Premises
for the purpose for which it was then being used.
(D) If the Building should be damaged or destroyed by fire, tornado or
other casualty and Landlord is not required to rebuild pursuant to the
provisions of Paragraph 23(C), this Lease shall at the option of Landlord, upon
notice to Tenant, given within 30 days after Landlord is notified by Tenant of
such damage, terminate and the rent shall be abated during the unexpired portion
of this Lease, effective upon the date of the occurrence of such damage.
(E) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises or the Building requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within 15 days after such
requirement is made by any such holder, whereupon this Lease shall end on the
date of such notice to Tenant as if the date of such notice were the date
originally fixed in this Lease for the expiration of the Term
(F) In the event of any damage or destruction to the Premises by any peril
covered by the provisions of this Article, Tenant shall, upon notice from
Landlord, forthwith remove, at its sole cost and expense, such portion or all of
Tenant's shelves, bins, machinery and other trade fixtures and all other
property belonging to Tenant or his licensees from such portion or all of the
premises as Landlord shall request and Tenant hereby indemnifies and holds
Landlord (including without limitation the trustee and beneficiaries if Landlord
is a trust), Landlord's agents and employees harmless from any loss, liability,
claims, suits, costs, expenses, including attorney's fees and damages, both real
and alleged, arising out of any damage or injury as a result of the failure to
properly secure the Premises prior to such removal and/or as a result of such
removal.
24. EMINENT DOMAIN.
(A) If the whole or any substantial part of the Building should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
Premises or Building for the purposes for which they are then being used, this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said property shall occur.
(B) If part of the Building shall be taken for any public or quasi-public
use under any government law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this Lease is not terminated
as provided in Paragraph 24(A), this Lease shall not terminate but the rent
payable hereunder during the unexpired portion of this lease shall be reduced to
such extent, if at all, as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the Premises to a
condition suitable for Xxxxxx's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
(C) In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings; provided that Tenant shall not be
entitled to receive any award for Tenant's loss of its leasehold interest, the
right to such award being hereby assigned by Tenant to Landlord.
25. SALE BY LANDLORD.
In event of a sale or conveyance by Landlord of the Building, the
same shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Xxxxxx, and in such event Xxxxxx agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. Except as set forth
in this Article, this Lease shall not be affected by any such sale, and Xxxxxx
agrees to attorn to the purchaser or assignee. If any security has been given by
Tenant to secure the faithful performance of any the covenants of this Lease.
Landlord may transfer or deliver said security, as such, to Xxxxxxxx's successor
in interest and thereupon Landlord shall be discharged from any further
liability with regard to said security, provided that any successor shall not be
liable for such security unless such successor receives the same.
26. ESTOPPEL CERTIFICATES.
Within ten days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord or any
prospective Landlord or mortgagee or prospective mortgagee a sworn statement
certifying: (a) the date of commencement of this Lease, (b) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications hereto, that this Lease is in full force and effect, as modified,
and stating the date and nature of such modification), (c) the date to which the
rent and other sums payable under this Lease have been paid, (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in tenant's statement, and (e)such other matters requested
by Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Article may be relied upon by any mortgagee, beneficiary or purchaser and
Tenant shall be liable for all loss, cost or expense resulting from the failure
of any sale or funding of any loan caused by any material misstatement contained
in such estoppel certificate. Tenant hereby irrevocably appoints Landlord or if
Landlord is a trust, Landlord's beneficiary or agent, as attorney-in-fact for
the Tenant with full power and authority to execute and deliver in the name of
Tenant such estoppel certificate if Tenant fails to deliver the same within such
ten day period and such certificate as signed by Landlord, Landlord's
beneficiary or agent, as the case may be, shall be fully binding on Tenant, if
Tenant fails to deliver a contrary certificate within five days after receipt by
Xxxxxx of a copy of the certificate executed by Landlord, Xxxxxxxx's beneficiary
or agent, as the case may be, on behalf of Xxxxxx.
27. SURRENDER OF PREMISES.
Tenant shall, at least 90 days before the last day of the Term
arrange to meet Landlord for a joint inspection of the Premises. In the event of
Tenant's failure to arrange such joint inspection, Xxxxxxxx's inspection at or
after Xxxxxx's vacating the Premises shall be conclusively deemed correct for
purposes of determining Tenant's responsibility for repairs and restoration.
At the end of the Term or any renewal thereof or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same condition as received or
first installed broom clean and free of all debris, ordinary wear and tear and
damage by fire, earthquake, Act of God, or the elements alone excepted. Tenant
may, upon termination of this Lease, remove all movable partitions of less than
full height from floor to ceiling, counters, and other personal property of
Tenant removable without material damage to such property or the Premises
previously installed by Tenant, at Tenant's sole cost, title to which shall be
in Tenant until such termination, repairing such damage caused by such removal.
Property not so removed shall be deemed abandoned by the Tenant and title to the
same shall thereupon pass to Landlord under this Lease as by a bill of sale.
Upon request by Landlord, Tenant shall remove any or all permanent improvements
or additions to the Premises installed at Tenant's cost and all movable
partitions, counters and other personal property of Tenant removable without
material damage to such property or the Premises which may be left by Tenant and
repair any damage resulting from such removal. Tenant shall indemnify Landlord
against any loss or liability resulting from delay by Xxxxxx in so surrendering
the Premises, including without limitation any claims made by any succeeding
Xxxxxx founded on such delay.
All obligation of Tenant hereunder not fully performed as of the
expiration or earlier termination of the Term of this Lease shall survive the
expiration or earlier termination of the Term. Upon the expiration or earlier
termination of the Term, Tenant
shall pay to Landlord the amount, as estimated by Landlord, necessary: (i) to
repair and restore the Premises as provided herein; and (ii) to discharge
Tenant's obligation for unpaid amounts due Landlord. All such amounts shall be
used and held by Landlord for payment of such obligations of Tenant, with Tenant
being liable for any additional costs upon demand by Landlord, or with any
excess to be returned to Tenant after all such obligations have been determined
and satisfied. Any Security Deposit shall be credited against the amount payable
by Tenant hereunder.
28. NOTICES.
Any notice or document required or permitted to be delivered
hereunder shall be in writing and shall be effective upon delivery, if
personally delivered, or two days after mailing, if mailed. All notices shall be
personally delivered or sent by United States Mail, postage prepaid, Certified
or Registered Mail, addressed to the parties hereto at the respective addresses
set forth opposite their respective signatures on the Reference Page, or at such
other address as they have theretofore specified by written notice delivered in
accordance herewith.
29. TAXES PAYABLE BY TENANT.
In addition to rent and other charges to be paid by Tenant
hereunder, Tenant shall reimburse to Landlord, upon demand, any and all taxes
payable by Landlord (other than net income taxes) whether or not now customary
or within the contemplation of the parties hereto: (a) upon, allocable to, or
measured by or on the gross or net rent payable hereunder, including without
limitation any gross income tax, sales tax or excise tax levied by the State,
any political subdivision thereof, or the Federal Government with respect to the
receipt of such rent; or (b) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy of the
Premises or any portion thereof, including any sales, use or service tax imposed
as a result thereof; or (c) upon or measured by the Tenant's gross receipt or
payroll or the value of Tenant's equipment, furniture, fixtures, and other
personal property of Tenant or leasehold improvements, alterations, additions,
located in the Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring an interest or an estate in the
Premises.
In addition to the foregoing, Xxxxxx agrees to pay, before
delinquency, any and all taxes levied or assessed against Tenant and which
become payable during the term hereof upon Tenant's equipment, furniture,
fixtures, and other personal property of Tenant located in the Premises.
30. DEFINED TERMS AND HEADINGS.
The article headings herein are for convenience of reference and
shall in no way define, increase, limit, or describe the scope or intent of any
provision of this Lease. Any indemnification of, insurance of, or option granted
to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case, where this
Lease is signed by more than one person, the obligations hereunder shall be
joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, martial communities, firms, or corporations, and
their and each of their respective successors, executors, administrators, and
permitted assigns, according to the context hereof. Xxxxxx agrees to furnish
promptly upon demand a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease. The Term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications (which were available for inspection
by Tenant at the time the Lease was executed) of the Building and including a
proportionate share of any common areas. Tenant hereby consents and agrees that
the calculation of rentable area on the Reference Page shall be controlling.
31. ERISA REPRESENTATION.
Tenant represents and warrants to Landlord that, as of the date hereof,
neither Tenant nor any affiliate of Tenant has employee pension or
profit-sharing plans that hold, in the aggregate, beneficial interests
representing greater than five percent of the total assets of any RREEF
investment fund. Tenant acknowledges that a breach of the foregoing
representation and warranty may constitute a prohibited transaction under the
terms of the Employee Retirement Income Security Act of 1975 and the Internal
Revenue Code, as modified by PTE 82-51, an administrative exemption from certain
of the prohibited transaction rules granted to the RREEF Funds by the United
States Department of Labor (46 Fed. Reg. 14,238 (April 2, 1982)). If, at any
time, Tenant or any affiliate of Tenant has employee pension or profit-sharing
plans that hold, in the aggregate, beneficial interests representing greater
than five percent of the total assets of any RREEF investment fund, Tenant shall
promptly advise Landlord of such fact in writing.
32. ENFORCEABILITY.
If for any reason whatsoever any of the provisions hereof shall be void,
unenforceable or ineffective, all of the other provisions shall be and remain in
full force and effect.
33. COMMISSIONS.
Each of the parties (i) represents and warrants to the other that it has
not dealt with any broker or finder in connection with this Lease, except as
described on the Reference Page; and (ii) indemnifies and holds the other
harmless from any and all losses, liability, costs or expenses (including
attorneys' fees) incurred as a result of any breach of the foregoing warranty.
34. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease
shall in all respects be governed by the laws of the state in which the Building
is located.
35. PARKING
Tenant shall have the right to use in common with other tenants or
occupants of the Building the parking facilities of the Building, as shown on
Exhibit A, if any, as designated from time to time by Landlord. Tenant shall not
at any time park or permit the parking of Tenant's vehicles, or the vehicles of
others, adjacent to loading areas or so as to interfere in any way with the use
of such areas. Tenant shall not park or permit to be parked any inoperative
vehicles or equipment on any portion of the parking or loading areas.
36. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Article 11, the terms, covenants and
conditions contained herein shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators, marital communities, if any,
and assigns of the parties hereto.
37. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the
parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument duly executed by the parties hereto.
38. EXAMINATION NOT OPTION
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Xxxxxx,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything contained herein
to the contrary, Landlord may withhold delivery of possession of the Premises
from Tenant until such time as Xxxxxx has paid to Landlord the security deposit
required by Article 5, the first month's rent as set forth in Article 3, and any
sum owed pursuant hereto.
39. RECORDATION.
Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the prior written consent of the other party, and the
party offering the same for recording shall pay all charges and taxes incident
thereto.
40. TENANT'S PROPORTIONATE SHARE
Tenant's proportionate Share is defined as the percentage obtained by
dividing the number of square feet in the Leased Premises by the total number of
leasable square feet at the property. In the event that the number of square
feet in either the Leased Premises or the entire property is modified, Tenant's
Proportionate Share shall thereafter be adjusted accordingly.
41. COMMON AREAS AND COMMON AREA EXPENSE
1. "Common areas" herein referred to means all areas and facilities
outside the demised Premises, within the exterior boundaries of the complex of
which the demised Premises form a part, that are provided and designated by the
Landlord from time to time for the general use and convenience of the Tenant and
of other tenants of the Landlord having the common use of such areas, and their
respective authorized representatives and invitees. Common areas include,
without limitation, driveways, parking areas, sidewalks, and landscaped areas.
2. Landlord shall maintain the common areas, establish and enforce
reasonable rules and regulations concerning such areas, close any of the common
areas to whatever extent required in the opinion of Landlord's counsel to
prevent a dedication of any of the common areas or the accrual of any rights of
any person or of the public to the common areas, close temporarily any of the
common areas for maintenance purposes, and make changes to the common areas
including, without limitation, changes in the location of driveways, entrances,
exits, vehicular parking spaces, parking area, the direction of the flow of
traffic or construction of additional buildings thereupon, without any
restriction whatsoever.
3. Tenant, as additional rent, shall pay to Landlord its Proportionate
Share of common area costs within ten (10) days of receiving a bill therefor
from Landlord, but no more frequently than monthly.
4. "Common areas costs", shall mean the same as "common area
maintenance cost" and said terms shall mean all sums expended by the Landlord
for the supervision, maintenance, repair, replacement and operation of the
common area, plus an allowance of fifteen percent (15%) of such costs of the
Landlord for administrative fee. Common area cost shall include without
limitation: landscape supplies, maintenance, repair and replacement;: parking
lot sweeping, striping and sealing; parking lot pavement
repair and replacement; painting of curbs and truckwell railings; cost of
liability insurance for the common area; security services for the common area;
parking lot lighting costs; maintenance and repair of common sewer lines and
such other costs as Landlord considers necessary in its sole judgment to
maintain the common areas.
5. Landlord shall have the right, at its option, to estimate tenant's
Proportionate Share of common area costs next due and to collect and impound
from Tenant on monthly or quarterly basis, as Landlord may elect, the amount of
Tenant's estimated Proportionate Share of such costs. Landlord shall provide
Tenant with a reconciliation of Xxxxxx's impound account at least annually, and
if such reconciliation shall indicate that Tenant's impound account is
insufficient to satisfy Tenant's Proportionate Share of common area costs for
the period estimated, Tenant shall immediately pay to Landlord any deficiency.
Any excess in such impound account shall be applied to reduce the estimated
payments for the next ensuing period.
42. REIMBURSEMENT OF INSURANCE.
Tenant, upon demand, shall pay to Landlord its Proportionate share of the
premium for fire, extended coverage and other property insurance obtained by the
Landlord on the Premises and on the building or buildings of which the Premises
form a part, including the common areas.
Additionally, the Tenant shall, upon demand, pay to the Landlord any
increase in such insurance premium resulting to the overall cost on the building
or buildings covered by such policies because of any special conditions relating
to the tenant's operations which require a higher premium. Landlord's insurance
carrier or Landlord's insurance agent shall make the judgment as to the sum of
money so involved, which judgment shall be conclusive.
Landlord shall have the right, at its option, to estimate Tenant's
Proportionate Share of insurance cost next due to collect and impound from
Tenant on a monthly or quarterly basis, as Landlord may elect, the amount of
tenant's estimated Proportionate Share of such costs. Landlord shall provide
Tenant with a reconciliation of Xxxxxx's impound account at least annually, and
if such reconciliation shall indicate that tenant's impound account is
insufficient to satisfy tenant's Proportionate Share of insurance cost for the
period estimated, Tenant shall immediately pay to Landlord any deficiency. Any
excess in such impound account shall be used to reduce the estimated payments
for the next ensuing period.
Xxxxxx agrees at all times during the term of this Lease, and at Xxxxxx's
sole expense, to keep all trade fixtures, equipment and merchandise of Tenant,
or any subtenant of Tenant that may be in the Premises from time to time,
insured against loss or damage by fire or the hazards commonly referred to under
the extended coverage endorsement, for an amount of ninety percent (90%) of full
replacement value. The proceeds from any such insurance must be used by the
Tenant to restore or replace any such trade fixtures, equipment and merchandise
in the Premises.
43. HAZARDOUS MATERIALS.
(a) Tenant agrees that Tenant, its agents and contractors, licensees, or
invitees shall not handle, use manufacture, store or dispose of any flammables,
explosives, radioactive materials, hazardous wastes or materials, toxic wastes
or materials, or other similar substances, petroleum products or derivatives
(collectively "Hazardous Materials") on, under, or about the Premises, without
Landlord's prior written consent (which consent may be given or withheld in
Landlord's sole direction), provided that Tenant may handle, store, use or
dispose of products containing small quantities of Hazardous Materials, which
products are of a type customarily found in offices and households (such as
aerosol cans containing insecticides, toner for copies, paints, paint remover,
and the like), provider further that Tenant shall handle, store, use and dispose
of any such Hazardous Materials in a safe and lawful manner and shall not allow
such Hazardous Materials to containment the Premises or the environment.
(b) Without limiting the above, tenant shall reimburse, defend,
indemnify and hold Landlord harmless from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys fees and
costs, arising out of or in any way connected with t he use, manufacture,
storage, or disposal of Hazardous materials by Tenant, its agents or contractors
on, under or about the Premises including, without limitation, the costs of any
required or necessary investigation, repair, cleanup or detoxification and the
preparation of any closure or other required plans in connection herewith,
whether voluntary or compelled by governmental authority. The indemnity
obligations of Tenant under this clause shall survive any termination of the
Lease.
(c) Notwithstanding anything set forth in this Lease, Tenant shall only
be responsible for contamination of Hazardous Materials or any cleanup resulting
directly therefrom, resulting directly from matters occurring or Hazardous
Materials deposited (other than by contractors, agents or representatives
controlled by Landlord) during the Lease term, and any other period of
time during which Tenant is in actual or constructive occupancy of the Premises.
Tenant shall take reasonable precautions to prevent the contamination of the
Premise with Hazardous Materials by third parties.
(d) It shall not be unreasonable for Landlord to withhold its consent to
any proposed Assignment or Sublease if (i) the proposed Assignee's or
Sublessee's anticipated use of the premises involves the generation, storage,
use, treatment or disposal of Hazardous Materials; (ii) the proposed Assignee or
Sublessee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such Assignee's or
Sublessee's actions or use of the property in question; or (iii) the proposed
Assignee or Sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
hazardous material.
44. FIRST RIGHT OF OFFER.
1. Tenant shall, provided the Lease is in full force and effect and
Tenant is not in default under any of the other terms and conditions of the
lease at the time of notification or commencement nor during any three months
(consecutive or non-consecutive) in any twelve (12) month period, have the right
to lease the Expansion Premises consisting of approximately 27,600 square feet
in the following increments as such space becomes available: 2004 Xxxxxx Avenue,
approximately 10,800 square feet and 2016 Xxxxxx Avenue, approximately 16,800
square feet as shown on Exhibit "A" attached hereto. Landlord shall give written
notice to Tenant of the availability of the Expansion Premises and upon receipt
of such notice, Tenant shall have a period of seven (7) business days in which
to exercise Tenant's right to lease said space, failing which Landlord may lease
such space to any third party on whatever basis Landlord desires, and Tenant
shall have no further rights with respect to the space covered by such notice.
2. If Tenant exercises an expansion option hereunder,, the Expansion
Premises shall automatically be included in the Premises and the Annual Rent, as
adjusted, shall be applied thereto, in accordance with the provisions hereof,
effective as of the date of availability of such space specified in Landlord's
notice to Tenant, or such later date as the space actually becomes available.
Tenant's Proportionate Share shall increase accordingly. The lease term for such
Expansion Premises shall be negotiated, but, not less than a minimum of one (1)
year.
3. All space leased by Tenant pursuant to this expansion option shall
be on an "as is" basis.
4. The Annual rent for the Expansion Premises prior to any rent
adjustment shall be the market rate for comparable space in the Building and in
other buildings of like quality in the same rental market as of the date the
extension term is to commence. In no event shall the Annual Rent on a rentable
square foot basis for the Expansion Premises be less than the Annual rent on a
square foot basis paid by Tenant for its initial Leased Premises as increased by
any rent adjustment pursuant to the Lease. Landlord shall give to Tenant written
notice of the annual rent which shall be applicable for the Expansion Premises
at the time that notice of the availability of the space is given to Tenant.
Landlord and Tenant shall have thirty (30) days after Landlord receives
notification from Tenant of Tenant's desire to lease said Expansion Premises in
which to agree on the new annual rent, failing which Tenant shall have no
further rights with respect to space covered by such notice.
5 If requested by Landlord, Tenant shall, prior to the beginning of
the term for the Expansion Premises, execute a written memorandum
confirming the Annual Rent for the Expansion Premises.
45. SCHEDULE OF RENTS.
In accordance with Article 3, the Annual Rent and Monthly Installment of
minimum rent shall increase per the schedule shown below:
Months 1-18 : $ 3,375.00 per month or $ 40,500.00 per year;
Months 19-36 : $ 5,152.00 per month or $ 61,824.00 per year;
Months 37-48 : $ 5,600.00 per month or $ 67,200.00 per year;
Months 49-60 : $ 6,048.00 per month or $ 72,576.00 per year;
Months 61-72 : $ 6,496.00 per month or $ 77,952.00 per year.
All other expenses as provided for in Articles 4, 41, and 42 shall
commence on August 15, 1991 and all other provisions of the lease shall remain
in effect.
46. CORPORATE AUTHORITY.
If Tenant is a corporation, Tenant represents and warrant that this Lease
and the undersigned's execution of this Lease has been duly authorized and
approved by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation executing this Lease on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation.
47. LIMITATION OF LANDLORD'S LIABILITY
Redress for any claims against Landlord under this Lease shall only be
made against Landlord to the extent of Landlord's interest in the property to
which the leased premises are a part. The obligations of Landlord under this
lease shall not be personally
binding on, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, the general
partners thereof or any beneficiaries, stockholders, employees or agents of
Landlord, or the investment manager.
The parties hereto have executed this Lease on the dates specified immediately
below their respective signatures.
LANDLORD: TANANT:
RREEF WEST-V, INC. Viko Technology, Inc.,
a Delaware corporation a California corporation
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx xx Xxxxxxxx
--------------------------------- ---------------------------------
Xxxx Xxxxxx
Title: Director of Properties Title: [ILLEGIBLE]
Dated: [ILLEGIBLE] Dated: 7/11/91
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
Title: District Manager
Dated: 7-12-91
EXHIBIT "A"
to that certain Lease Agreement dated July 10, 1991 by and between RREEF WEST-V,
Inc., a Delaware corporation and Viko Technology, Inc., a California
corporation.
PREMISES
This site plan is intended only to show the general layout of the property or a
part thereof. Landlord reserves the right to alter, vary, add to or omit in
whole or in part any structures, and/or improvements, and/or common areas and/or
land area shown on this plan. All measurements and distances are approximate.
This plan is not drawn to scale.
[XXXXXX AVENUE/SAN XXXXXX INDUSTRIAL PARK MAP]
EXHIBIT "A"
page one of one
EXHIBIT "B"
to that certain Lease Agreement dated July 10, 1991 by and between RREEF WEST-V,
INC., a Delaware corporation and Viko Technology, Inc., a California
corporation.
LANDLORD'S AND TENANT'S IMPROVEMENTS
Landlord shall, at it sole cost and expense, increase the Premises power
capabilities to a total of 800 amps; 120/208 volts; 3 phase.
Landlord shall reimburse Tenant upon receipt of paid invoices and lien releases,
up to maximum of $ 10,000.00 for improvement work performed by Tenant to the
Leased Premises. In no event will Landlord reimburse Tenant for the cost of
decorator items, i.e. wallpaper, decorative lightning, desks, furniture, etc, or
any business equipment, machinery or any other business fixture. It may include
the cost of structural calculations and addition of a window on the front,
outside wall subject to Landlord's approval.
Landlord will have the roof inspected no later than September 30, 1991 and
perform necessary and recommended maintenance.
Tenant shall contract its own improvement work. Xxxxxx accepts full
responsibility that all work will be performed in a workmanlike manner by a
licensed contractor in accordance with Article 6 of this Lease.
In addition to the above, tenant hereby accepts the demised Premises in an
"as-is" condition. Landlord shall ensure that all mechanical equipment,
including electrical, roll-up doors, electric light bulbs, tube and ballasts,
plumbing, heating, ventilating and air conditioning systems, are in good
operating order at the time of occupancy by Tenant.
EXHIBIT "B"
page one of one
EXHIBIT "C
to that certain Lease Agreement dated July 10, 1991 by and between RREEF WEST-V,
INC., a Delaware corporation and Viko Technology, Inc., a California
corporation.
PARKING
This sit plan is intended only to show the general layout of the property or a
part thereof. Landlord reserves the right to alter, vary, add to or omit in
whole or in part any structures, and/or improvements, and/or common areas and/or
land area shown on this plan. All measurements and distances are approximate.
This plan is not drawn to scale.
[MAP]
EXHIBIT "C"
page one of one
FIRST AMENDMENT TO LEASE
THIS AMENDMENT, dated this 26th day of December, 1996 between RREEF West-V,
Inc., a Delaware corporation ("Landlord") and Viko Technology, Inc., a
California corporation ("Tenant"), for the Premises located in the city of Santa
Xxxxx, county of Santa Xxxxx, State of California, commonly known as 2006 Xxxxxx
Avenue.
1. RECITALS.
Landlord and Tenant, being parties to that certain Lease dated July 10, 1991 and
attached hereto is Exhibit "A", hereby express their mutual desire and intent to
extend the terms of the Lease and amend by this writing those terms, covenants
and conditions contained in Article 2. "TERM" and Article 46. "SCHEDULE OF
RENTS." As hereinafter provided.
2. AMENDMENTS.
Article 2 "TERM" shall hereafter additionally provide as follows:
Effective February 1, 1997 the Termination Date of the Lease shall be
extended for four (4) years and five (5) months from August 31, 1997 to January
31, 2002.
Article 46. "SCHEDULE OF RENTS" shall hereafter additionally provide as follows:
Effective February 1, 1997 the Annual Rent and Monthly Installment Rent
shall be as follows:
February 1, 1997 - January 31, 1998: $6,944.00 per month or $83,328.00 per
year;
February 1, 1998 - January 31, 1999: $7,280.00 per month or $87,360.00 per
year;
February 1, 1999 - January 31, 2000: $7,616.00 per month or $91,392.00 per
year;
February 1, 2000 - January 31, 2001: $8,064.00 per month or $96,768.00 per
year;
February 1, 2001 - January 31, 2002: $8,400.00 per month or $100,800.00
per year.
3. INCORPORATION.
Except as modified herein, all other terms and condition of the Lease between
the parties above described, as attached hereto, shall continue in full force
and effect.
4. CORPORATE AUTHORITY.
If Tenant is a corporation, Tenant represents and warrants that this Amendment
and the undersigned's execution of this Amendment has been duly authorized and
approved by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation executing this Amendment on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this Amendment on behalf of the corporation.
5. LIMITATION OF LANDLORD'S LIABILITY.
Redress for any claims against Landlord under this Amendment shall only be made
against Landlord to the extent of Landlord's interest in the property to which
the Leased Premises are a part. The obligations of landlord under this Amendment
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers as the
case may be, the general partners thereof or any beneficiaries, stockholders,
employees or agents of Landlord, or the investment manager.
The parties hereto have executed this Amendment on the dates specified
immediately below their respective signature.
LANDLORD: TENANT
RREEF West.V,Inc. Viko Technology, Inc.
a Delaware corporation a California corporation
By: RREEF MANAGEMENT COMPANY
a California corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxx xx Xxxxxxxx
--------------------- ---------------------------
Xxxxxx X. Xxxx
Title: Vice President, Property Management Title: VP
Dated: 1/3/97 Dated: 1/2/97
EXHIBIT "A"
attached to and made a part of that certain First Amendment to Lease dated
December 26, 1996, between RREEF West-V, Inc., a Delaware corporation
("Landlord") and Viko Technology , Inc., a California corporation ("Tenant"),
for the premises located at 2006 Xxxxxx Avenue, Santa Clara, California.
ORIGINAL LEASE DOCUMENTS
(ATTACHED HERETO)
TABLE OF CONTENTS
ARTICLE PAGE
REFERENCE PAGE.................................................. ii
1 USE AND RESTRICTIONS ON USE..................................... 1
2 TERM............................................................ 1
3 RENT............................................................ 1
4 REAL ESTATE TAXES............................................... 2
5 SECURITY DEPOSIT................................................ 2
6 ALTERNATIONS.................................................... 3
7 TENANT'S REPAIRS................................................ 3
8 LANDLORD'S REPAIRS.............................................. 4
9 SIGNS........................................................... 4
10 LIENS........................................................... 4
11 ASSIGNMENT AND SUBLETTING....................................... 5
12 INDEMNIFICATION................................................. 5
13 INSURANCE....................................................... 6
14 WAIVER OF SUBROGATION........................................... 6
15 SERVICES AND UTILITIES.......................................... 6
16 HOLDING OVER.................................................... 6
17 SUBORDINATION................................................... 7
18 RULES AND REGULATIONS........................................... 7
19 REENTRY BY LANDLORD............................................. 7
20 DEFAULT......................................................... 7
21 REMEDIES........................................................ 8
22 QUIET ENJOYMENT................................................. 9
23 DAMAGE BY FIRE, ETC............................................. 9
24 EMINENT DOMAIN.................................................. 11
25 SALES BY LANDLORD............................................... 11
26 ESTOPPEL CERTIFICATE............................................ 11
27 SURRENDER OF PREMISES........................................... 11
28 NOTICES......................................................... 12
29 TAXES PAYABLE BY TENANT......................................... 12
30 DEFINED TERMS AND HEADINGS...................................... 12
31 ERISA REPRESENTATION............................................ 13
32 ENFORCEABILITY.................................................. 13
33 COMMISIONS...................................................... 13
34 TIME AND APPLICABLE............................................. 13
35 PARKING......................................................... 13
36 SUCCESSORS AND ASSIGNS.......................................... 13
37 ENTIRE AGREEMENT................................................ 13
38 EXAMINATION NOT OPTION.......................................... 14
39 RECORDATION..................................................... 14
40 TENANT'S PROPORTIONATE SHARE.................................... 14
41 COMMON AREAS AND COMMON AREA EXPENSE............................ 14
42 REIMBURSEMENT OF INSURANCE...................................... 15
43 HAZARDOUS WASTE................................................. 15
44 FIRST RIGHT OF REFUSA........................................... 16
45 SCHEDULE OF RENTS............................................... 17
46 CORPORATE AUTHORITY............................................. 17
47 LIMITATION OF LANDLORD'S LIABILITY.............................. 17
EXHIBIT A - PREMISES
EXHIBIT B - LANDLORD' S AND TENANT'S IMPROVEMENTS
INDUSTRIAL-NET REFERENCE PAGE
PROPERTY: San Xxxxxx Industrial Park
LANDLORD: RREEF WEST-V, INC., a Delaware Corporation
XXXXXXXX'S ADDRESS: 000-X Xxxxxxx Xxxx Xxxxx, #000
Xxxxxxxxx, Xxxxxxxxxx 00000
TENANT: Viko Technology, Inc., a California corporation
TENANT'S ADDRESS: 0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
LEASE REFERENCE DATE: July 10, 1991
PREMISES: 2006 Xxxxxx Avenue
Santa Clara, California 95050
(see Exhibit A for outline of Premises, attached
hereto and incorporated herein by reference)
USE: Electronic burn-in testing services, systems
Assembly and related administration and
warehousing.
PREMISES RENTABLE AREA: approximately 11,200 square feet
September 6, 1991 (handwritten Insert)
COMMENCEMENT DATE: 1991
TERMINATION DATE: August 31, 1997
TERM OF LEASE: Six (6) years and fifteen (15) days beginning on
The Commencement Date and ending on the
Termination Date (unless sooner terminated
pursuant to the Lease)
ANNUAL BASE RENT: $40,500.00 see also Article 46. "SCHEDULE OF
RENTS."
Starts 9/20/91 (handwritten Insert)
MONTHLY INSTALLMENT OF RENT: $3,375.00 see also Article 46. "SCHEDULE OF
RENTS."
TENANT'S PROPORTIONATE SHARE: 9.30% see also Article 40. "TENANT'S
PROPORTIONATE SHARE."
SECURITY DEPOSIT: $5,150.00
TENANT'S MONTHLY INSTALLMENT OF ESTIMATED COMMON AREA COSTS: $350.00
REAL ESTATE BROKER DUE COMMISSION: CB Commercial
The reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page Information and
the Lease, the Lease shall control. This Lease includes exhibits "A" and "B",
both of which are made a part hereof.
LANDLORD: TENANT:
RREEF WEST-V, INC., Viko Technology, Inc.,
A Delaware corporation a California corporation
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx xx Xxxxxxxx
-------------------- -----------------------
Xxxx Xxxxxx Title: VP MKT
Title: Director of Properties
Dated: 7/11/91
Dated: 7/18/91
By: /s/ Xxxxxx X. Xxxx
------------------
Xxxxxx X. Xxxx
Title: District Manager
Dated: 7-12-91
LEASE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises set forth and described on the Reference Page. The Reference Page,
including all terms defined thereon, is hereby incorporated as part of this
Lease.
1. USE AND RESTRICTIONS ON USE.
The Premises shall be continuously used and occupied by Tenant, but only
for the purpose listed on the Reference Page, to the extent permitted by
applicable zoning regulations. Tenant shall at its own cost and expense obtain
any and all licenses and permits necessary for any such use. The parking of
automobiles, trucks or other vehicles in the areas not specifically designated
on Exhibit A and the outside storage of any property are prohibited without
Landlord's prior written consent. Tenant shall comply with all governmental
laws, ordinances and regulations applicable to the use of the Premises and its
occupancy thereof, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of any violations or
nuisances in or upon, or connected with, the Premise, all at Tenant's sole
expense. If, as a result of any change in the governmental laws, ordinances and
regulations, the Premises must be altered to lawfully accommodate Xxxxxx's use
and occupancy thereof, such alterations shall be made only with the consent of
Landlord, but the entire cost thereof shall be borne by Tenant not to exceed
$20,000.00 per occurrence. In the event cost of such compliance exceeds
$20,000.00 Landlord shall have the option to complete required work at its
expense or to terminate the Lease with 60 day notice to Tenant. Provided, that,
the necessity of Landlord's consent shall in no way create any liability against
Landlord for failure of Tenant to comply, or alter the Premises to comply, with
such laws, ordinances and regulations. Tenant shall not permit any objectionable
or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building, or un reasonably
interfere with such tenants' use of their respective premises or permit any use
which would adversely affect the reputation of the Building. Without Landlord's
prior written consent, Tenant shall not receive, store or otherwise handle any
product, material or merchandise which is explosive or highly flammable. Tenant
will not permit the Premises to be used for any purpose (including, without
limitation, the storage of merchandise) in any manner which would render the
insurance thereon void or increase the insurance rate thereof, and tenant shall
immediately cease and desist from such use, paying all cost and expense
resulting from such improper use.
2. TERM.
The Term of this Lease shall be as indicated on the Reference Page (unless
sooner terminated as herein provided). Xxxxxx agrees that in the event of the
inability of Landlord to deliver possession of the Premises on the Commencement
Date, Landlord shall not be liable for any damage thereby, but Tenant shall not
liable for any rent until the time when Landlord can, after notice to Tenant,
deliver possession of the Premises to Tenant. No such failure to give possession
on the Commencement Date shall affect the other obligations of Tenant hereunder,
nor shall such failure be construed in any way to extend the Term. If Landlord
is unable to deliver possession of the Premises within 90 days of the
Commencement Date (other than as a result of strikes, shortages of materials or
similar matters beyond the reasonable control of Landlord and Tenant is noticed
by Landlord in writing as to such delay), Tenant shall have the option to
terminate this Lease unless said delay is as a result of : (a) Tenant's failure
to agree to plans and specifications; (b) Tenant's request for materials,
finishes or installations other than Landlord's standard; (c) Tenant's change in
plans; or (d) performance or completion by a party employed by Xxxxxx. If said
delay is the result of any of the foregoing, the Commencement Date and the
payment of rent hereunder shall be accelerated by the number of days of such
delay.
In the event Landlord shall permit Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be subject to all the provisions of
the Lease. Said early possession shall not advance the Termination Date. Upon
completion of Landlord's improvements, as stated on exhibit "B", tenant shall
have two (2) weeks early occupancy with no rent due.
3. RENT. See also Article 46. "SCHEDULE OF RENTS."
Xxxxxx agrees to pay to Landlord the Annual Rent by paying the Monthly
Installment of Rent on or before the first day of each full calendar month
during the Term, except that the first month's rent shall be paid upon the
execution hereof. Rent for any period during the Term which is less than one
full month shall be a prorated portion of the Monthly Installment of Rent based
upon a 30 day month. Said rent shall be paid to Landlord, without deduction or
offset and without notice or demand at the Landlord's address, as set forth on
the Reference Page, or to such other person or at such other place as Landlord
may from time to time designate in writing.
Tenant recognizes that late payment of any rent or other sum due hereunder
will result in administrative expense to Landlord, the extent of which
additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is due and
payable pursuant to this Lease, and when such amount remains due and unpaid ten
days after said amount is due, such amount shall be increased by a late charge
in an amount equal to the greater of: (a) $50.00, or (b) a sum equal to 5% of
the unpaid rent or other payment. The amount of the late charge to be paid by
Tenant shall be reassessed and added to Xxxxxx's obligation for each successive
monthly period until paid. The provisions of this Article in no way relieve
Tenant of the obligation to pay rent or other payments on or before the date on
which they are due, nor do the terms of this Article in any way affect
Xxxxxxxx's remedies pursuant to Article 21 of this Lease in the event said rent
or other payment is unpaid after the date due.
No security or guarantee which may now or hereafter be furnished to
Landlord for the payment of rent or the performance of the Tenant's other
obligations under this Lease shall in any way constitute a bar to the recovery
of the Premises or defense to any action in unlawful detainer or to any other
action which Landlord may bring for a breach of any of the terms, covenants or
conditions of this Lease.
4. REAL ESTATE TAXES.
Xxxxxxxx agrees to pay all general and special taxes, assessments and
governmental charges of any kind and nature whatsoever (hereinafter collectively
referred to as "Taxes") lawfully levied against the Building, the real property
on which it is situated and the grounds, parking areas, driveways and alleys
around the Building. Tenant shall pay to Landlord as additional rent upon demand
at the time the bill for each installment for any tax year applicable to the
Term (or any renewal or extension thereof) issues, Tenant's Proportionate Share
of the amount of such taxes applicable to each installment less any monthly
payments paid by Tenant as provided below for such tax year. Prior to the actual
determination of the Taxes for a calendar year, Landlord may, if it so elects
and at any time or from time to time during said calendar year, estimate the
amount of such Taxes. If, in the estimation of Landlord, such Taxes will exceed
the previous year's Taxes, Landlord shall give Tenant written notification of
the amount of such estimated excess and Tenant agrees that it will increase its
Monthly Installment of Rent subsequent to receipt of such written notification
to include such excess. If the total Tenant actually paid for estimated taxes
pursuant to this Paragraph is more than the actual Tax, Landlord shall remit the
excess to Tenant within thirty (30) days of the making of such determination or,
at Landlord's election, credit such amount against the next Monthly Installment
of Rent. To be offest solely and proportionately by and savings achieved by
appeal. In addition, Tenant shall pay upon demand Tenant's Proportionate Share
of any fees, expenses and cost incurred by Landlord in protesting any
assessments, levies or the tax rate to be offset soley and proportionately by
any savings achieved by appeal.
Taxes shall include the following by way of illustration, but not limitation:
real estate taxes; any other such taxes, charges and assessments which are
levied with respect to the Building, and any improvements, fixtures and
equipment and all other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and the land
upon which they are situated including any payments to any ground lessor in
reimbursement of tax payments made by such lessor; fees or assessments for any
governmental services to the Building; service payments in lieu of taxes; dues
or assessments payable to any property owners association due to Landlord's
ownership of the Building; water and sewer charges; and any gross receipts tax
and/or any tax which shall be levied in addition to or in lieu of real estate,
possessory interest or personal properly taxes. Any payment to be made pursuant
to this Article with respect to the real estate tax year in which the Lease
commences or terminates shall be prorated.
5. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit. Said sum shall be
held by Xxxxxxxx as security for the faithful performance by Tenant of all the
terms, covenants and conditions of this Lease to be kept and performed by Xxxxxx
and not as an advance rental deposit or as a measure of Landlord's damage in
case of Xxxxxx's default. If Tenant defaults with respect to any provision of
this Lease, Landlord may use any part of this Security Deposit for the payment
of any rent or any other sum in default, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of Tenant's default,
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion is so used, Tenant shall within
five days after written demand therefore deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep this Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on such deposit. If Tenant shall fully
and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant at such time
after termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease have been fulfilled within fourteen (14)
days of Tenant's surrender of Premises consistent with Article 27.
6. ALTERATIONS.
Tenant shall not make or suffer to be made any alterations, additions, or
improvements, including, but not limited to, the attachment of any fixtures or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements in excess of $5,000.00 non-structural as required by Article 7
without the prior written consent of Landlord, which may be withheld in
Landlord's Reasonable discretion. Any alteration, additions or improvements to
be done by Tenant as part of Tenant's initial occupancy shall be specified in
Exhibit B. Any alteration, addition, or improvement in, on or to the Premises
including carpeting, but excepting movable furniture and personal property of
Tenant removable without material damage to the properly or the Premises, shall
be and remain the property of Tenant during the Term but shall, unless Landlord
elects otherwise, become a part of the realty and belong to Landlord without
compensation to Tenant upon the expiration or sooner termination of the Term and
title shall pass to Landlord under this Lease as by a bill of sale. When
applying for such consent, Tenant shall, if requested by Landlord, furnish
complete plans and specifications for such alterations, additions and
improvements. In the event landlord consents to the making of any such
alteration, addition, or improvement by Tenant, at Xxxxxx's sole cost and
expense. All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide such assurances to
Landlord, including but not limited to, waivers of lien, surety company
performance bonds and personal guaranties of individuals of substance, as
Landlord shall require to assure payment of the costs thereof and to protect
landlord against any loss from any mechanics', materialmen's or other liens.
Tenant shall pay in addition to any sums due pursuant to Article 4 above any
increase in real estate taxes attributable to any such alteration, addition, or
improvement for so long, during the Term, as such increase is ascertainable.
Upon the expiration or sooner termination of the Term as herein provided, Tenant
shall upon demand by Landlord, at Tenant's sole cost and expense, forthwith and
with all due diligence remove any such alterations, additions or improvements
which are designated by Landlord to be removed, and Tenant shall forthwith and
with all due diligence, at its sole cost and expense, repair and restore
Premises to their original condition, reasonable wear and tear and loss by
casualty covered by Article 23 excepted.
7. TENANT'S REPAIRS.
(A) Tenant shall as its own cost and expense keep and maintain all parts
of the Premises, the Building and the surrounding real estate for which Landlord
is not expressly responsible under the terms of the Lease, including portions
shared in common with other tenants of the Building but not including other
tenant's premises, in good condition, promptly making all necessary repairs and
replacements, whether ordinary or extraordinary, or nonstructural, with
materials and workmanship of the same character, kind and quality as the
original, including but not limited to windows, glass and plate glass,
doors, skylights, any special office entries, interior walls and finish work,
floors and floor coverings, downspouts, gutters, heating and air conditioning
and air conditioning systems, electrical systems and fixtures, sprinkler
systems, dock boards, truck doors, dock bumpers, plumbing work and fixtures,
termite and pest extermination, regular removal of trash and debris, Tenant as
part of its obligations hereunder shall (i) keep the parking areas, driveways,
alleys and the whole of the property in a clean and sanitary condition, and
(iii) without injury to the roof, other horizontal surfaces of the Building,
downspouts, parking areas, driveways and sidewalks, remove all snow and ice from
same. Tenant will, as far as possible, keep all such parts of the Premises,
Building and the real estate on which the Building is located from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, reasonable wear and tear and loss by fire
or other casually covered by insurance to be maintained by Landlord pursuant
Paragraph 23 (A) hereof excepted (but not excepting any damage to glass or loss
not reimbursed by insurance because of the existence of a deductible under the
appropriate policy).
(B) Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees.
(C) Tenant and its employees, customer and licensees shall have the
nonexclusive right to use, in common with the other parties occupying said
Building, common parking areas, if any, (exclusive of any parking or work load
areas designated or to be designated by Landlord for the exclusive use of Tenant
or other tenants occupying or to be occupying other portions of the Building),
driveways and alleys adjacent to said Building, subject to such reasonable rules
and regulations as Landlord may from time to time prescribe. Further, Landlord
reserves the right to perform, upon notice to Tenant, the paving and landscape
maintenance for the grounds around the Building, including, but not limited to,
the mowing of the grass, care of shrubs, general landscaping and maintenance of
common parking areas, if any, driveways and alleys, roof repairs, exterior
painting, common sewage line plumbing, and repair and maintenance of any other
items, the obligations for which are shared by other tenants in the Building and
other improvements of which the Premises are a part, all of which are otherwise
Tenant's obligations under Paragraph 7(A), and Tenant shall, in lieu of the
obligations set forth under Paragraph 7(A) with respect to such items, be liable
for Tenant's Proportionate Share (as set forth on the Reference Page) of the
cost and expense thereof including a reasonable management fee unless Landlord
in its sole discretion determines that such cost and expense is properly
allocable in another proportion or solely to either Tenant or the other tenants
occupying said Building. Tenant shall pay to Landlord its share, determined as
aforesaid, of such costs and expenses, upon demand, as additional rent, in the
event Landlord elects to perform or cause to be performed such work.
(D) Tenant shall, at its own cost and expenses, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord, (and a copy thereof shall be furnished to Landlord), for
servicing all heating and air conditioning systems and equipment within the
Premises. The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within 30 days of the date Tenant takes possession of the Premises.
(E) Tenant shall, at its own cost and expense to the extent not covered by
the insurance to be maintained by Landlord under Article 23, repair any damage
to the Premises or the Building resulting from and/or caused in whole or in part
by the negligence or misconduct of Tenant, its agents, servants, employees,
patrons, customers, or any other person entering upon the properly as a result
of Tenant's business activities or caused by Tenant's default hereunder.
8. LANDLORD'S REPAIRS.
Landlord shall at its expense maintain in good repair, reasonable wear and
tear and any casualty covered by the provisions of Article 23 excepted, only the
foundation and the structural soundness of the exterior walls and of the roof of
the Building. Tenant shall immediately give Landlord written notice of any such
defect or need for repairs after which Landlord shall have a reasonable
opportunity to repair the same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of the Lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special store
fronts or office entries.
9. SIGNS.
Tenant's shall not install any signs upon the Premises or the exterior of
the Building without Landlord's prior written consent. If Landlord shall consent
to any sign, upon termination of the Lease Tenant shall remove said sign and
restore the Premises and/or the Building in accordance with the provisions of
Article 6 or, at Landlord's option, said sign shall become part of the realty
and belong to Landlord without compensation to Tenant and title shall pass to
Landlord under this Lease as by a bill of sale.
10. LIENS.
Tenant shall keep the Premises and Xxxxxx's leasehold interest in the
Premises tree from any liens arising out of any work performed, materials
furnished, or obligations incurred by tenant. In the event that Tenant shall
not, within ten days following the imposition of any such lien, cause the same
to be released of record, Landlord shall have the right to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Xxxxxxxx and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to it by Tenant on demand with interest at the rate of 18% per
annum or the highest rate permitted by law, whichever is lower.
11. ASSIGNMENT OF SUBLETTING.
(A) Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises, whether voluntary or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, or assign this Lease for security purposes, without the prior written
consent the Landlord, which consent shall not be unreasonably withheld, and
such restrictions shall be binding upon any assignee or subtenant to which
Landlord has consented. In the event Tenant desires to sublet the Premises, or
any portion thereof, or assign this Lease, Tenant shall give written notice
thereof to Landlord at least 90 days but no more than 180 days prior to the
proposed commencement date of such subletting or assignment, which notice shall
set forth the name of the proposed subtenant or assignee, the relevant terms of
any sublease and copies of financial reports and other relevant financial
information of the proposed subtenant or assignee. Notwithstanding any permitted
assignment or subletting, Tenant shall at all times remain directly and
primarily responsible and liable for the payment of the rent herein specified
and for compliance with all of its other obligations under this Lease. Upon the
occurrence of an "event of default" (as hereinafter defined), if the Premises or
any part thereof are then sublet, Landlord, in addition to any other remedies
provided herein or by law, may collect directly from such subtenant all rents
due and becoming due to Tenant under such sublease and apply such rent against
any sums due to Landlord from Tenant hereunder. No such collection directly from
an assignee or subtenant shall be construed to constitute a novation or a
release of Tenant from the further performance of Xxxxxx's obligations
hereunder.
(B) In addition to Xxxxxxxx's right to approve of any subtenant or
assignee, Landlord shall have option, in its sole discretion, in the event of
any proposed of any subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised by Xxxxxxxx's
giving Tenant written notice thereof within 15 days following Xxxxxxxx's receipt
of Tenant's written notice as required above. If this Lease shall be terminated
with respect to the entire Premises the Term shall end the date stated in
Tenant's notice as the effective date of the sublease or assignment as if that
date had been originally fixed in this Lease for the expirations of the Term. If
Landlord recaptures only a portion of the Premises, the rent during the
unexpired Term shall xxxxx, proportionately, based on the rent as of the date
immediately prior to such recapture. Tenant shall, at Xxxxxx's own cost and
expense, discharge in full any outstanding commission obligation on the part of
Landlord with respect to this Lease, and any commissions which may be due and
owing as a result of any proposed assignment or subletting, whether or not the
Premises are recaptured pursuant hereto and rented by Landlord to the proposed
tenant or any other tenant.
(C) Consent by Landlord to any assignment or subletting shall not include
consent to the assignment or transferring of any lease renewal option rights or
space option rights of the Premises, special privileges or extra services
granted to Tenant by this Lease, or addendum or amendment thereto or letter of
agreement (and such options, right, privileges or services shall terminate upon
such assignment), unless Landlord specifically grants in writing such options,
right, privileges or services to assign or subtenant. Any sale, assignment,
mortgage, transfer of this Lease or subletting which does not comply with the
provisions of this Article shall be void.
(D) In the event that Tenant sells, sublets, assigns, or transfers this
Lease and at any time receives periodic rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to Landlord,
Tenant shall pay to Landlord 100% of the gross increase in such rent as such
rent is received by Tenant and 100% of any other consideration received by
Tenant from such subtenant in connection with such sublease or in the case of an
assignment of this lease by Tenant, Landlord shall receive 100% of any
consideration paid to tenant by such assignee in connection with such assignment
less broker's commission and reasonable attorney's fees.
(E) Should Landlord agree to authorize and execute an assignment or
sublease agreement, Tenant will pay to Landlord on demand a sum equal to all of
Landlord's costs. Including attorney's fees, incurred in connection with such
assignment or transfer.
12. INDEMNIFICAITON.
Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for any damage to any property or any injury to any person in or about
the Premises or the Building by or from any cause whatsoever, (including without
limiting the foregoing, rain or water leakage of any character from the roof,
windows, walls, basement, pipes, plumbing works or appliances, the Building not
being in good condition or repair, gas, fire, oil, electricity or theft); except
that Landlord will indemnify and hold Tenant harmless from such claims to the
extent caused by the negligent or willful act of Landlord, or its agents,
employees or contractors. Tenant shall hold Landlord harmless from and defend
landlord against any and all claims, liability or costs (including court costs
and attorney's fees) for any damage to any property or any injury to any person
occurring in, on or about the Premises or the Building when such injury or
damage shall be caused by or arise from, in part or in whole, (a) the act,
neglect, fault, or omission to meet the standards imposed by any duty with
respect to the injury or damage, by Tenant, its agents, servants, employees or
invitees; (b) the conduct or management of any work or thing whatsoever done by
the Tenant in or about the Premises or from transactions of the Tenant
concerning the Premises; or (c) any breach or default on the part of the Tenant
in the performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease. The provisions of this Article shall survive
the termination of this Lease with respect to any claims or liability occurring
prior to such termination.
13. INSURANCE.
Tenant agrees to purchase at its own expense and to keep in force during
the term of this Lease a comprehensive public liability and property damage
insurance policy to protect against any liability to the public or to any
invitee of Tenant or Landlord incident to the use of or resulting from any
accident occurring upon the Premises with a comprehensive single limit of not
less than $1,000,00.00. Said policy or policies shall: (a) name Landlord in or
as an additional insured, and insure Landlord's contingent liability under this
Lease; (b) be issued by an insurance company which is acceptable to Landlord;
and (c) provide that said insurance shall not be cancelled unless 30 days prior
written notice shall have been given to Landlord. Said policy or policies or
certificates thereof shall be delivered to Landlord by Tenant upon the
Commencement Date and upon each renewal of said insurance.
14. WAIVER OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights of recovery against each other for any
loss insured by fire, extended coverage or all risk insurance now or hereafter
existing for the benefit of the respective party. Each party shall obtain any
special endorsements required by their insurer to evidence compliance with
aforementioned waiver.
15. SERVICE AND UTILITIES.
Landlord agrees to provide, at its cost, water, electricity and telephone
service connections into the Premises; but Tenant shall pay for all water, gas,
heat, light, power, telephone, sewer, sprinkler system charges and other
utilities and services used on or from the Premises, including without
limitation, Tenant's Proportionate Share of any central station signaling system
installed in the Premises or the Building, together with any taxes, penalties,
and surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballets. If
any such services are not separately metered to Tenant, Tenant shall pay such
proportion of all charges jointly shared or metered with other premises as
determined by Landlord, in its sole discretion, to be reasonable. Any such
charges paid by Xxxxxxxx and assessed against Tenant shall be immediately
payable to Landlord on demand and shall be additional rent hereunder. Landlord
shall in no event be liable for any interruption or failure of utility services
on or to the Premises. Tenant shall not be required to pay water use penalties
not caused by Xxxxxx's use.
16. HOLDING OVER.
Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or part thereof after Termination hereof by lapse of time or otherwise
150% of the amount of the Annual Rent for the last period prior to the date of
such termination
Plus all rent adjustments provided in Articles 4,41 and 42 prorated on a daily
basis, and also pay all damages sustained by Landlord by reason of such
retention, and shall indemnify and hold Landlord harmless from any loss or
liability resulting from such holding over and delay in surrender. If Landlord
gives notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month to month or for one
year, whichever shall be specified in such notice, in either case at 150% of the
Annual Rent being paid to Landlord under this Lease immediately prior thereto,
but if the Landlord does not so elect, acceptance by Landlord of rent after such
termination shall not constitute a renewal; this provision shall not be deemed
to waive Landlord's right of re-entry or any other right hereunder or at law.
17. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to ground or underlying lease and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against or affecting the
Building, Landlord's interest or estate therein, or any ground or underlying
lease; provided, however, that if the lessor, mortgagee trustee, or holder of
any such mortgage or deed of trust elects to have Xxxxxx's interest in this
Lease be superior to any such instrument, then by notice to Tenant this Lease
shall be deemed superior, whether this Lease was executed before or after said
instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
18. RULES AND REGULATIONS.
Landlord reserves the right to establish reasonable rules and regulations
which will be applied uniformly to all tenants. Tenant shall faithfully observe
and comply with all the rules and regulations as set forth in Exhibit C if any
attached hereto and all reasonable modifications of and additions thereto from
time to time put into effect by Landlord as well as all covenants, conditions
and restrictions of record. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Building of any such
rules and regulations.
19. REENTRY BY LANDLORD.
Landlord reserves and shall at all times have the right to reenter, with
24 hour notice, the Premises to inspect the same, to supply any service to be
provided by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants, and to alter, improve, or repair the Premises
and any other portion of the Building, without abatement of rent, and may for
that
purpose erect, use, and maintain scaffolding, pipes, conduits, and necessary
structures in and through the Building and premises where reasonably required by
the character of the work to be performed, provided entrance to the Premises
shall not be blocked thereby, and further provide that the business of Tenant
shall not be interested with unreasonably. In the event that Landlord requires
access to any under-floor duct, Landlord's liability for carpet (or other floor
covering) replacement shall be limited to replacement of the piece removed.
Tenant hereby waives any claim for damages for any injury or inconvenience to or
interference with Xxxxxx's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to unlock
all of the doors in the premises, excluding Tenant's vaults and safes, or
special security areas (designated in advance), and Landlord shall have the
right to use any and all means which Landlord may deem proper to open said doors
in an emergency to obtain entry to any portion of the Premises. Landlord shall
also have the right at any time to charge the arrangement and/or location of
entrances or passageways, door and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Building, and to change the name, number
or designation by which the Building is commonly known.
20. DEFAULT.
The following events shall be deemed to be events of default under this
Lease:
(A) Tenant shall fall to pay when due any sum of money becoming due to be
paid to Landlord hereunder, whether such sum be any installment of the rent
herein reserved, any other amount treated as additional rent hereunder, or any
payment or reimbursement to Landlord required herein, whether or not treated as
additional rent hereunder, and such failure shall continue for a period of ten
days from the date such payment was due; or
(B) Tenant shall fail to comply with any term, Provision or covenant of
this Lease other than by failing to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, and shall not cure such failure
within 20 days (forthwith, if the default involves a hazardous condition) after
written notice thereof to Tenant; or
(C) Tenant shall abandon or any substantial portion of the Premises; or
(D) Except where Landlord consents to Tenant's hold over under Article 16,
Tenant shall fail to vacate the Premises immediately upon termination of the
Lease, by lapse of time or otherwise, or upon termination of Xxxxxx's right to
possession only; or
(E) The leasehold interest of Tenant shall be levied upon under execution
or be attached by process of law or Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give sufficient security to Landlord to
insure payment thereof or shall fail to satisfy any adjustment rendered thereon
and have the same released, and such default shall continue for ten days after
written notice thereof to Tenant: or
(F) Tenant shall become insolvent, admit in writing its inability to pay
its debts generally as they become due, file a petition in bankruptcy or a
petition to take advantage of any insolvency statute, make an assignment for the
benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United Stated or any state thereof; or
(G) A court of competent jurisdiction shall enter an order, judgment or
decree adjudicating Tenant a bankrupt, or appointing a receiver of Tenant, or of
the whole or any substantial part of its property, without the consent of
Tenant, or approving a petition filed against tenant seeking reorganization or
arrangement of Tenant under the bankruptcy laws of the United States, as now in
effect or hereafter amended, or any state thereof, and such order, judgment or
decree shall not be vacated or set aside or stayed within 30 days from the date
of entry thereof.
21. REMEDIES.
Upon the occurrence of any of such events of default described in Article
20 or elsewhere in this Lease, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand whatsoever:
(A) Landlord, may at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease;
(B) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free right to enter into and upon the
Premises in such event with or without process of law and to repossess Landlord
of the Premises as of Landlord's former estate and to expel or remove tenant and
any others who may be occupying or within the Premises and to remove any and all
property therefrom, without being deemed in any manner guilty of trespass,
eviction of forcible entry or detainer, and without incurring any liability for
any damage resulting therefrom, Tenant hereby waiving any right to claim damage
for such reentry and expulsion , and without relinquishing Landlord's right to
rent or any other right given to Landlord hereunder or by operation pf law;
(C) Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages from Tenant: (i) The
worth at the time of award of any unpaid rent, including any amounts treated as
additional rent
hereunder, which has been earned at the time of such termination; plus (ii) The
worth at the time of award of the amount by which the unpaid rent, including any
amounts treated as additional rent hereunder, which would have been earned after
termination until the time of awards exceeds the amount of such rental loss
Tenant proves could have been reasonably avoided; plus (iii) The worth at the
time of award of the amount by which the unpaid rent, including any amounts
treated as additional rent hereunder, for the balance of the term after the time
of award exceeds the amount of such rental loss that tenant proves could be
reasonably avoided; plus (iv) Any other amount necessary to compensate landlord
for all the detriment proximately caused by Xxxxxx's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom; plus (v) Such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable
California law.
As used in (i) and (ii) above, the "worth at the time of award" is
computed by allowing interest at the maximum legal rate at the time of the
award. As used in (iii) 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 of award plus one percent (1%).
(D) (i) Upon any termination of Tenant's right to possession only
without termination of the Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Xxxxxx's signs and other evidences of tenancy, and take and
hold possession thereof as provided in subparagraph (B) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or in
part, from any obligation including tenant's to pay the rent, including any
amounts treated as additional rent, hereunder for the full Term. In any such
case Tenant shall pay forthwith to Landlord, if landlord so elects, a sum equal
to the entire amount of the rent, including any amounts treated as additional
rent hereunder, for the residue of the Term plus any other sums provided herein
to be paid by Xxxxxx for the remainder of the Term;
(ii) Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord in its sole discretion
shall determine (including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right to relet the
Premises as a part of a larger area, and the right to change the character or
use made of the Premises) and Landlord shall not be required to accept any
tenant offered by tenant or to observe any instructions given by Tenant about
such reletting. In any such case, Landlord may make repairs, alterations and
additions in or to the Premises, and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Xxxxxxxx's expenses of reletting including, without
limitation, any broker's commission incurred by landlord. If the consideration
collected by landlord upon any such reletting plus any sums previously collected
from tenant are not sufficient to pay the full amount of all rent, including any
amounts treated as additional rent hereunder and other sums reserved in this
lease for the remaining term hereof, together with the cost of repairs,
alterations, additions, redecorating, and xxxxxx's expenses of reletting and the
collection of the rent accruing therefrom (including attorney's fee and broker's
commissions), Tenant shall pay to Landlord the amount of such deficiency upon
demand and tenant agrees that landlord may file suit to recover any sums falling
due under this section from time to time;
(E) Landlord may, at Xxxxxxxx's option, enter into and upon the Premises,
with or without process of law, if Landlord determines in its sole discretion
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Xxxxxx is responsible hereunder and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
resulting therefrom and Xxxxxx agrees to reimburse Landlord, on demand, as
additional rent, for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligation under this Lease;
(F) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Xxxxxxxx's
control. Any such property of Tenant not retaken by Tenant from storage within
30 days after removal from the Premises shall, at Landlord's option, be deemed
conveyed by Tenant to Landlord under this Lease as by a bill of sale without
further payment or credit by Landlord to Tenant.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
at equity (all such remedies being cumulative), nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. No act or thing
done by Landlord or its agents during the Term shall be deemed a termination of
this Lease or an acceptance of the surrender of the Premises, and no agreement
to terminate this Lease or accept a surrender of said Premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provision and covenants herein contained. Xxxxxxxx's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as an accord and
satisfaction, compromise or waiver of such default, unless Landlord so notifies
Tenant in writing. Forbearance by Landlord in enforcing one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. If, on account of any breach or default by Tenant under the Lease, it
shall become necessary or appropriate for landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's rights or
remedies, Xxxxxx agrees to pay all attorneys' fees incurred by Landlord.
22. QUIET ENJOYMENT
Landlord represent and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the Term without hindrance or molestation
from Landlord subject to the terms and provisions of this Lease. In the event
this Lease is a sublease, then Xxxxxx agrees to take the Premises subject to the
provision of the prior leases. Landlord shall not be liable for any interference
or disturbance by other tenants or third persons, nor shall Tenant be released
from any of the obligations of this Lease because of such interference or
disturbance.
23. D AMAGE BY FIRE, ETC.
(A) Landlord agrees to maintain standard fire and extended coverage
insurance covering the Building in an amount not less than 90% of the full
"replacement cost" thereof (as such term is defined in the Replacement Cost
Endorsement to be attached thereto, if any) insuring against the perils of fire
and lightning and including extended coverage, and earthquake and flood
coverage, or at Landlord's option, "All Risk" coverage, with earthquake and
flood coverage, all such coverages and endorsements to be as defined, provided
and limited in the standard bureau forms prescribed by the insurance regulatory
authority for the state in which the property is situated for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of Paragraphs 23(C), 23(D)
and 23(F), such insurance shall be for the sole benefit of Landlord and under
its sole control. Such insurance shall include protection for continuation of
rental payments for a period of 12 months in the event of any damage caused by
the perils referred to above. Tenants agrees to pay Landlord, as additional
rental, Xxxxxx's Proportionate Share of Landlord's cost of maintaining such
insurance. Said payments shall be made to Landlord within ten days after
presentation to Tenant of Landlord's statement setting forth the amount due, and
the failure to pay such share shall be treated in the same manner as a default
in the payment of rent hereunder when due. Any payment to be made pursuant to
this Paragraph with respect to the year in which the Lease commences or
terminates shall be prorated. Tenant shall not take out separates insurance
concurrent in form or contributing in the event of loss with that required to be
maintained by Landlord hereunder unless Landlord is included as an additional
insured thereon. Tenant shall immediately notify Landlord whenever any such
separate insurance is taken out and shall promptly deliver to Landlord the
policy or policies of such insurance.
(B) If the Building should be damaged or destroyed by fire, tornado or
other casually, Tenant shall give immediate written notice thereof to Landlord.
(C) If the Building should be damaged by any peril covered by the
insurance to be provided by Landlord under Paragraph 23(A), but only to such
extent that the Building can in Landlord's estimation be materially restored
within 180 days after the date upon which Landlord is notified by Tenant of such
damage (except that Landlord may elect not to rebuild if such damage occurs
during the last year of the term), this Lease shall not terminate, and Landlord
shall at its sole cost and expense thereupon proceed with reasonable diligence
to rebuild and repair such Building to substantially the condition in which it
existed prior to such damage, except Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvement which may have been placed in, on or about the Premises by Tenant.
If the premises are untenantable in whole or in part following such damage, the
rent payable hereunder during the period in which the Premises are untenantable
shall be reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to materially restore the
Building within 180 days after the date upon which Landlord is notified by
Tenant of such damage, Tenant may (if it has given Landlord at least 30 days
notice of its need and intent to do so) at its option terminate this Lease by
delivering written notice of termination to Landlord as Tenant's exclusive
remedy. Whereupon all rights and obligations hereunder shall cease and
terminate; provided, however, that if construction is delayed because of
changes, deletions, or additions in construction requested by Tenant, strikes,
lockouts, casualties, acts of God, war, material or labor shortages,
Governmental regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed. For purposes hereof, the Building
or Premises shall be deemed "materially restored" if they are in such condition
as would not prevent or materially interfere with Xxxxxx's use of the Premises
for the purpose for which it was then being used.
(D) If the Building should be damaged or destroyed by fire, tornado or
other casualty and Landlord is not required to rebuild pursuant to the
provisions of Paragraph 23(C), this Lease shall at the option of Landlord, upon
notice to Tenant, given within 30 days after Landlord is notified by Tenant of
such damage, terminate and the rent shall be abated during the unexpired portion
of this Lease, effective upon the date of the occurrence of such damage.
(E) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises or the Building requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within 15 days after such
requirement is made by any such holder, whereupon this Lease shall end on the
date of such notice to Tenant as if the date of such notice were the date
originally fixed in this Lease for the expiration of the Term
(F) In the event of any damage or destruction to the Premises by any peril
covered by the provisions of this Article, Tenant shall, upon notice from
Landlord, forthwith remove, at its sole cost and expense, such portion or all of
Tenant's shelves, bins, machinery and other trade fixtures and all other
property belonging to Tenant or his licensees from such portion or all of the
premises as Landlord shall request and Tenant hereby indemnifies and holds
Landlord (including without limitation the trustee and beneficiaries if Landlord
is a trust), Landlord's agents and employees harmless from any loss, liability,
claims, suits, costs, expenses, including attorney's fees and damages, both real
and alleged, arising out of any damage or injury as a result of the failure to
properly secure the Premises prior to such removal and/or as a result of such
removal.
24. EMINENT DOMAIN.
(A) If the whole or any substantial part of the Building should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
Premises or Building for the purposes for which they are then being used, this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said property shall occur.
(B) If part of the Building shall be taken for any public or
quasi-public use under any government law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated
as provided in Paragraph 24(A), this Lease shall not terminate but the
rent payable hereunder during the unexpired portion of this lease shall be
reduced to such extent, if at all, as may be fair and reasonable under all
of the circumstances and Landlord shall undertake to restore the Premises
to a condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
(C) In the event of any such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to receive and retain
such separate awards and/or portion of lump sum awards as may be allocated
to their respective interests in any condemnation proceedings; provided
that Tenant shall not be entitled to receive any award for Tenant's loss
of its leasehold interest, the right to such award being hereby assigned
by Tenant to Landlord.
25. SALE BY LANDLORD.
In event of a sale or conveyance by Landlord of the Building, the
same shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Xxxxxx, and in such event Xxxxxx agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. Except as set forth
in this Article, this Lease shall not be affected by any such sale, and Xxxxxx
agrees to attorn to the purchaser or assignee. If any security has been given by
Tenant to secure the faithful performance of any the covenants of this Lease.
Landlord may transfer or deliver said security, as such, to Xxxxxxxx's successor
in interest and thereupon Landlord shall be discharged from any further
liability with regard to said security, provided that any successor shall not be
liable for such security unless such successor receives the same.
26. ESTOPPEL CERTIFICATES.
Within ten days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord or any
prospective Landlord or mortgagee or prospective mortgagee a sworn statement
certifying: (a) the date of commencement of this Lease, (b) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications hereto, that this Lease is in full force and effect, as modified,
and stating the date and nature of such modification), (c) the date to which the
rent and other sums payable under this Lease have been paid, (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in tenant's statement, and (e)such other matters requested
by Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Article may be relied upon by any mortgagee, beneficiary or purchaser and
Tenant shall be liable for all loss, cost or expense resulting from the failure
of any sale or funding of any loan caused by any material misstatement contained
in such estoppel certificate. Tenant hereby irrevocably appoints Landlord or if
Landlord is a trust, Landlord's beneficiary or agent, as attorney-in-fact for
the Tenant with full power and authority to execute and deliver in the name of
Tenant such estoppel certificate if Tenant fails to deliver the same within such
ten day period and such certificate as signed by Landlord, Landlord's
beneficiary or agent, as the case may be, shall be fully binding on Tenant, if
Tenant fails to deliver a contrary certificate within five days after receipt by
Xxxxxx of a copy of the certificate executed by Landlord, Xxxxxxxx's beneficiary
or agent, as the case may be, on behalf of Xxxxxx.
27. SURRENDER OF PREMISES.
Tenant shall, at least 90 days before the last day of the Term
arrange to meet Landlord for a joint inspection of the Premises. In the event of
Tenant's failure to arrange such joint inspection, Xxxxxxxx's inspection at or
after Xxxxxx's vacating the Premises shall be conclusively deemed correct for
purposes of determining Tenant's responsibility for repairs and restoration.
At the end of the Term or any renewal thereof or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same condition as received or
first installed broom clean and free of all debris, ordinary wear and tear and
damage by fire, earthquake, Act of God, or the elements alone excepted. Tenant
may, upon termination of this Lease, remove all movable partitions of less than
full height from floor to ceiling, counters, and other personal property of
Tenant removable without material damage to such property or the Premises
previously installed by Tenant, at Tenant's sole cost, title to which shall be
in Tenant until such termination, repairing such damage caused by such removal.
Property not so removed shall be deemed abandoned by the Tenant and title to the
same shall thereupon pass to Landlord under this Lease as by a bill of sale.
Upon request by Landlord, Tenant shall remove any or all permanent improvements
or additions to the Premises installed at Tenant's cost and all movable
partitions, counters and other personal property of Tenant removable without
material damage to such property or the Premises which may be left by Tenant and
repair any damage resulting from such removal. Tenant shall indemnify Landlord
against any loss or liability resulting from delay by Xxxxxx in so surrendering
the Premises, including without limitation any claims made by any succeeding
Xxxxxx founded on such delay.
All obligation of Tenant hereunder not fully performed as of the
expiration or earlier termination of the Term of this Lease shall survive the
expiration or earlier termination of the Term. Upon the expiration or earlier
termination of the Term, Tenant shall pay to Landlord the amount, as estimated
by Landlord, necessary: (i) to repair and restore the Premises as provided
herein; and (ii) to discharge Tenant's obligation for unpaid amounts due
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord,
or with any excess to be returned to Tenant after all such obligations have been
determined and satisfied. Any Security Deposit shall be credited against the
amount payable by Tenant hereunder.
28. NOTICES.
Any notice or document required or permitted to be delivered
hereunder shall be in writing and shall be effective upon delivery, if
personally delivered, or two days after mailing, if mailed. All notices shall be
personally delivered or sent by United States Mail, postage prepaid, Certified
or Registered Mail, addressed to the parties hereto at the respective addresses
set forth opposite their respective signatures on the Reference Page, or at such
other address as they have theretofore specified by written notice delivered in
accordance herewith.
29. TAXES PAYABLE BY TENANT.
In addition to rent and other charges to be paid by Tenant
hereunder, Tenant shall reimburse to Landlord, upon demand, any and all taxes
payable by Landlord (other than net income taxes) whether or not now customary
or within the contemplation of the parties hereto: (a) upon, allocable to, or
measured by or on the gross or net rent payable hereunder, including without
limitation any gross income tax, sales tax or excise tax levied by the State,
any political subdivision thereof, or the Federal Government with respect to the
receipt of such rent; or (b) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy of the
Premises or any portion thereof, including any sales, use or service tax imposed
as a result thereof; or (c) upon or measured by the Tenant's gross receipt or
payroll or the value of Tenant's equipment, furniture, fixtures, and other
personal property of Tenant or leasehold improvements, alterations, additions,
located in the Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring an interest or an estate in the
Premises.
In addition to the foregoing, Xxxxxx agrees to pay, before
delinquency, any and all taxes levied or assessed against Tenant and which
become payable during the term hereof upon Tenant's equipment, furniture,
fixtures, and other personal property of Tenant located in the Premises.
30. DEFINED TERMS AND HEADINGS.
The article headings herein are for convenience of reference and
shall in no way define, increase, limit, or describe the scope or intent of any
provision of this Lease. Any indemnification of, insurance of, or option granted
to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case, where this
Lease is signed by more than one person, the obligations hereunder shall be
joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, martial communities, firms, or corporations, and
their and each of their respective successors, executors, administrators, and
permitted assigns, according to the context hereof. Xxxxxx agrees to furnish
promptly upon demand a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease. The Term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications (which were available for inspection
by Tenant at the time the Lease was executed) of the Building and including a
proportionate share of any common areas. Tenant hereby consents and agrees that
the calculation of rentable area on the Reference Page shall be controlling.
31. ERISA REPRESENTATION.
Tenant represents and warrants to Landlord that, as of the date hereof,
neither Tenant nor any affiliate of Tenant has employee pension or
profit-sharing plans that hold, in the aggregate, beneficial interests
representing greater than five percent of the total assets of any RREEF
investment fund. Tenant acknowledges that a breach of the foregoing
representation and warranty may constitute a prohibited transaction under the
terms of the Employee Retirement Income Security Act of 1975 and the Internal
Revenue Code, as modified by PTE 82-51, an administrative exemption from certain
of the prohibited transaction rules granted to the RREEF Funds by the United
States Department of Labor (46 Fed. Reg. 14,238 (April 2, 1982)). If, at any
time, Tenant or any affiliate of Tenant has employee pension or profit-sharing
plans that hold, in the aggregate, beneficial interests representing greater
than five percent of the total assets of any RREEF investment fund, Tenant shall
promptly advise Landlord of such fact in writing.
32. ENFORCEABILITY.
If for any reason whatsoever any of the provisions hereof shall be void,
unenforceable or ineffective, all of the other provisions shall be and remain in
full force and effect.
33. COMMISSIONS.
Each of the parties (i) represents and warrants to the other that it has
not dealt with any broker or finder in connection with this Lease, except as
described on the Reference Page; and (ii) indemnifies and holds the other
harmless from any and all losses, liability, costs or expenses (including
attorneys' fees) incurred as a result of any breach of the foregoing warranty.
34. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease
shall in all respects be governed by the laws of the state in which the Building
is located.
35. PARKING
Tenant shall have the right to use in common with other tenants or
occupants of the Building the parking facilities of the Building, as shown on
Exhibit "C", if any, as designated from time to time by Landlord. Tenant shall
not at any time park or permit the parking of Tenant's vehicles, or the vehicles
of others, adjacent to loading areas or so as to interfere in any way with the
use of such areas. Tenant shall not park or permit to be parked any inoperative
vehicles or equipment on any portion of the parking or loading areas.
36. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Article 11, the terms, covenants and
conditions contained herein shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators, marital communities, if any,
and assigns of the parties hereto.
37. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the
parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument duly executed by the parties hereto.
38. EXAMINATION NOT OPTION
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Xxxxxx,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything contained herein
to the contrary, Landlord may withhold delivery of possession of the Premises
from Tenant until such time as Xxxxxx has paid to Landlord the security deposit
required by Article 5, the first month's rent as set forth in Article 3, and any
sum owed pursuant hereto.
39. RECORDATION.
Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the prior written consent of the other party, and the
party offering the same for recording shall pay all charges and taxes incident
thereto.
40. TENANT'S PROPORTIONATE SHARE
Tenant's proportionate Share is defined as the percentage obtained by
dividing the number of square feet in the Leased Premises by the total number of
leasable square feet at the property. In the event that the number of square
feet in either the Leased Premises or the entire property is modified, Tenant's
Proportionate Share shall thereafter be adjusted accordingly.
41. COMMON AREAS AND COMMON AREA EXPENSE
1. "Common areas" herein referred to means all areas and facilities
outside the demised Premises, within the exterior boundaries of the complex of
which the demised Premises form a part, that are provided and designated by the
Landlord from time to time for the general use and convenience of the Tenant and
of other tenants of the Landlord having the common use of such areas, and their
respective authorized representatives and invitees. Common areas include,
without limitation, driveways, parking areas, sidewalks, and landscaped areas.
2. Landlord shall maintain the common areas, establish and enforce
reasonable rules and regulations concerning such areas, close any of the common
areas to whatever extent required in the opinion of Landlord's counsel to
prevent a dedication of any of the common areas or the accrual of any rights of
any person or of the public to the common areas, close temporarily any of the
common areas for maintenance purposes, and make changes to the common areas
including, without limitation, changes in the location of driveways, entrances,
exits, vehicular parking spaces, parking area, the direction of the flow of
traffic or construction of additional buildings thereupon, without any
restriction whatsoever.
3. Tenant, as additional rent, shall pay to Landlord its Proportionate
Share of common area costs within ten (10) days of receiving a bill therefor
from Landlord, but no more frequently than monthly.
4. "Common areas costs", shall mean the same as "common area
maintenance cost" and said terms shall mean all sums expended by the Landlord
for the supervision, maintenance, repair, replacement and operation of the
common area, plus an allowance of fifteen percent (15%) of such costs of the
Landlord for administrative fee. Common area cost shall include without
limitation: landscape supplies, maintenance, repair and replacement;: parking
lot sweeping, striping and sealing; parking lot pavement repair and replacement;
painting of curbs and truckwell railings; cost of liability insurance for the
common area; security services for the common area; parking lot lighting costs;
maintenance and repair of common sewer lines and such other costs as Landlord
considers necessary in its sole judgment to maintain the common areas.
5. Landlord shall have the right, at its option, to estimate tenant's
Proportionate Share of common area costs next due and to collect and impound
from Tenant on monthly or quarterly basis, as Landlord may elect, the amount of
Tenant's
estimated Proportionate Share of such costs. Landlord shall provide Tenant with
a reconciliation of Xxxxxx's impound account at least annually, and if such
reconciliation shall indicate that Tenant's impound account is insufficient to
satisfy Tenant's Proportionate Share of common area costs for the period
estimated, Tenant shall immediately pay to Landlord any deficiency. Any excess
in such impound account shall be applied to reduce the estimated payments for
the next ensuing period.
42. REIMBURSEMENT OF INSURANCE.
Tenant, upon demand, shall pay to Landlord its Proportionate share of the
premium for fire, extended coverage and other property insurance obtained by the
Landlord on the Premises and on the building or buildings of which the Premises
form a part, including the common areas.
Additionally, the Tenant shall, upon demand, pay to the Landlord any
increase in such insurance premium resulting to the overall cost on the building
or buildings covered by such policies because of any special conditions relating
to the tenant's operations which require a higher premium. Landlord's insurance
carrier or Landlord's insurance agent shall make the judgment as to the sum of
money so involved, which judgment shall be conclusive.
Landlord shall have the right, at its option, to estimate Tenant's
Proportionate Share of insurance cost next due to collect and impound from
Tenant on a monthly or quarterly basis, as Landlord may elect, the amount of
tenant's estimated Proportionate Share of such costs. Landlord shall provide
Tenant with a reconciliation of Xxxxxx's impound account at least annually, and
if such reconciliation shall indicate that tenant's impound account is
insufficient to satisfy tenant's Proportionate Share of insurance cost for the
period estimated, Tenant shall immediately pay to Landlord any deficiency. Any
excess in such impound account shall be used to reduce the estimated payments
for the next ensuing period.
Xxxxxx agrees at all times during the term of this Lease, and at Xxxxxx's
sole expense, to keep all trade fixtures, equipment and merchandise of Tenant,
or any subtenant of Tenant that may be in the Premises from time to time,
insured against loss or damage by fire or the hazards commonly referred to under
the extended coverage endorsement, for an amount of ninety percent (90%) of full
replacement value. The proceeds from any such insurance must be used by the
Tenant to restore or replace any such trade fixtures, equipment and merchandise
in the Premises.
43. HAZARDOUS MATERIALS.
(a) Tenant agrees that Tenant, its agents and contractors, licensees, or
invitees shall not handle, use manufacture, store or dispose of any flammables,
explosives, radioactive materials, hazardous wastes or materials, toxic wastes
or materials, or other similar substances, petroleum products or derivatives
(collectively "Hazardous Materials") on, under, or about the Premises, without
Landlord's prior written consent (which consent may be given or withheld in
Landlord's sole direction), provided that Tenant may handle, store, use or
dispose of products containing small quantities of Hazardous Materials, which
products are of a type customarily found in offices and households (such as
aerosol cans containing insecticides, toner for copies, paints, paint remover,
and the like), provider further that Tenant shall handle, store, use and dispose
of any such Hazardous Materials in a safe and lawful manner and shall not allow
such Hazardous Materials to containment the Premises or the environment.
(b) Without limiting the above, tenant shall reimburse, defend,
indemnify and hold Landlord harmless from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys fees and
costs, arising out of or in any way connected with t he use, manufacture,
storage, or disposal of Hazardous materials by Tenant, its agents or contractors
on, under or about the Premises including, without limitation, the costs of any
required or necessary investigation, repair, cleanup or detoxification and the
preparation of any closure or other required plans in connection herewith,
whether voluntary or compelled by governmental authority. The indemnity
obligations of Tenant under this clause shall survive any termination of the
Lease.
(c) Notwithstanding anything set forth in this Lease, Tenant shall only
be responsible for contamination of Hazardous Materials or any cleanup resulting
directly therefrom, resulting directly from matters occurring or Hazardous
Materials deposited (other than by contractors, agents or representatives
controlled by Landlord) during the Lease term, and any other period of time
during which Tenant is in actual or constructive occupancy of the Premises.
Tenant shall take reasonable precautions to prevent the contamination of the
Premise with Hazardous Materials by third parties.
(d) It shall not be unreasonable for Landlord to withhold its consent to
any proposed Assignment or Sublease if (i) the proposed Assignee's or
Sublessee's anticipated use of the premises involves the generation, storage,
use, treatment or disposal of Hazardous Materials; (ii) the proposed Assignee or
Sublessee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such Assignee's or
Sublessee's actions or use of the property in question; or (iii) the proposed
Assignee or Sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
hazardous material.
44. FIRST RIGHT OF OFFER.
1. Tenant shall, provided the Lease is in full force and effect and
Tenant is not in default under any of the other terms and conditions of the
lease at the time of notification or commencement nor during any three months
(consecutive or non-consecutive) in any twelve (12) month period, have the right
to lease the Expansion Premises consisting of approximately 27,600 square feet
in the following increments as such space becomes available: 2004 Xxxxxx Avenue,
approximately 10,800 square feet and 2016 Xxxxxx Avenue, approximately 16,800
square feet as shown on Exhibit "A" attached hereto. Landlord shall give written
notice to Tenant of the availability of the Expansion Premises and upon receipt
of such notice, Tenant shall have a period of seven (7) business days in which
to exercise Tenant's right to lease said space, failing which Landlord may lease
such space to any third party on whatever basis Landlord desires, and Tenant
shall have no further rights with respect to the space covered by such notice.
2. If Tenant exercises an expansion option hereunder,, the Expansion
Premises shall automatically be included in the Premises and the Annual Rent, as
adjusted, shall be applied thereto, in accordance with the provisions hereof,
effective as of the date of availability of such space specified in Landlord's
notice to Tenant, or such later date as the space actually becomes available.
Tenant's Proportionate Share shall increase accordingly. The lease term for such
Expansion Premises shall be negotiated, but, not less than a minimum of one (1)
year.
3. All space leased by Tenant pursuant to this expansion option shall
be on an "as is" basis.
4. The Annual rent for the Expansion Premises prior to any rent
adjustment shall be the market rate for comparable space in the Building and in
other buildings of like quality in the same rental market as of the date the
extension term is to commence. In no event shall the Annual Rent on a rentable
square foot basis for the Expansion Premises be less than the Annual rent on a
square foot basis paid by Tenant for its initial Leased Premises as increased by
any rent adjustment pursuant to the Lease. Landlord shall give to Tenant written
notice of the annual rent which shall be applicable for the Expansion Premises
at the time that notice of the availability of the space is given to Tenant.
Landlord and Tenant shall have thirty (30) days after Landlord receives
notification from Tenant of Tenant's desire to lease said Expansion Premises in
which to agree on the new annual rent, failing which Tenant shall have no
further rights with respect to space covered by such notice.
5. If requested by Landlord, Tenant shall, prior to the beginning of
the term for the Expansion Premises, execute a written memorandum confirming the
Annual Rent for the Expansion Premises.
45. SCHEDULE OF RENTS.
In accordance with Article 3, the Annual Rent and Monthly Installment of
minimum rent shall increase per the schedule shown below:
Months 1-18 : $ 3,375.00 per month or $ 40,500.00 per year;
Months 19-36 : $ 5,152.00 per month or $ 61,824.00 per year;
Months 37-48 : $ 5,600.00 per month or $ 67,200.00 per year;
Months 49-60 : $ 6,048.00 per month or $ 72,576.00 per year;
Months 61-72 : $ 6,496.00 per month or $ 77,952.00 per year.
All other expenses as provided for in Articles 4, 41, and 42 shall
commence on September 6, 1991 and all other provisions of the lease shall remain
in effect.
46. CORPORATE AUTHORITY.
If Tenant is a corporation, Tenant represents and warrant that this Lease
and the undersigned's execution of this Lease has been duly authorized and
approved by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation executing this Lease on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation.
47. LIMITATION OF LANDLORD'S LIABILITY
Redress for any claims against Landlord under this Lease shall only be
made against Landlord to the extent of Landlord's interest in the property to
which the leased premises are a part. The obligations of Landlord under this
lease shall not be personally binding on, nor shall any resort be had to the
private properties of, any of its trustees or board of directors and officers,
as the case may be, the general partners thereof or any beneficiaries,
stockholders, employees or agents of Landlord, or the investment manager.
The parties hereto have executed this Lease on the dates specified immediately
below their respective signatures.
LANDLORD: TENANT:
RREEF WEST-V, INC., Viko Technology, Inc.,
A Delaware corporation a California corporation
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx xx Xxxxxxxx
-------------------- -----------------------
Xxxx Xxxxxxx
Title: Director of Properties Title: VP MKT
Dated: 7/15/91 Dated:7/11/91
By: /s/ Xxxxxx X. Xxxx
------------------
Xxxxxx X. Xxxx
Title: District Manager
Dated: 7-12-91
EXHIBIT "A"
to that certain Lease Agreement dated July 10, 1991 by and between RREEF WEST-V,
Inc., a Delaware corporation and Viko Technology, Inc., a California
corporation.
PREMISES
This site plan is intended only to show the general layout of the property or a
part thereof. Landlord reserves the right to alter, vary, add to or omit in
whole or in part any structures, and/or improvements, and/or common areas and/or
land area shown on this plan. All measurements and distances are approximate.
This plan is not drawn to scale.
[XXXXXX AVENUE/XXX XXXXXX INDUSTRIAL PARK MAP]
EXHIBIT "A"
page one of one
EXHIBIT "B"
to that certain Lease Agreement dated July 10, 1991 by and between RREEF WEST-V,
INC., a Delaware corporation and Viko Technology, Inc., a California
corporation.
LANDLORD'S AND TENANT'S IMPROVEMENTS
Landlord shall, at it sole cost and expense, increase the Premises power
capabilities to a total of 800 amps; 120/208 volts; 3 phase.
Landlord shall reimburse Tenant upon receipt of paid invoices and lien releases,
up to maximum of $ 10,000.00 for improvement work performed by Tenant to the
Leased Premises. In no event will Landlord reimburse Tenant for the cost of
decorator items, i.e. wallpaper, decorative lightning, desks, furniture, etc, or
any business equipment, machinery or any other business fixture. It may include
the cost of structural calculations and addition of a window on the front,
outside wall subject to Landlord's approval.
Landlord will have the roof inspected no later than September 30, 1991 and
perform necessary and recommended maintenance.
Tenant shall contract its own improvement work. Xxxxxx accepts full
responsibility that all work will be performed in a workmanlike manner by a
licensed contractor in accordance with Article 6 of this Lease.
In addition to the above, tenant hereby accepts the demised Premises in an
"as-is" condition. Landlord shall ensure that all mechanical equipment,
including electrical, roll-up doors, electric light bulbs, tube and ballasts,
plumbing, heating, ventilating and air conditioning systems, are in good
operating order at the time of occupancy by Tenant.
EXHIBIT "B"
page one of one
EXHIBIT "C
to that certain Lease Agreement dated July 10, 1991 by and between RREEF WEST-V,
INC., a Delaware corporation and Viko Technology, Inc., a California
corporation.
PARKING
This sit plan is intended only to show the general layout of the property or a
part thereof. Landlord reserves the right to alter, vary, add to or omit in
whole or in part any structures, and/or improvements, and/or common areas and/or
land area shown on this plan. All measurements and distances are approximate.
This plan is not drawn to scale.
[PARKING MAP]
EXHIBIT "C"
page one of one
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE is dated for reference purposes only as
January 29, 1999, and is part of that Lease dated July 10, 1991 and the First
Amendment to Lease dated December 26, 1996, (collectively, the "Lease") by and
between SPP REAL ESTATE (SILICON VALLEY), INC., a Delaware corporation,
successor-in-interest to RREEF WEST-V, INC., a Delaware corporation,
("Landlord"), and VIKO TECHNOLOGY, INC., a California corporation ("Tenant"),
and is made with reference to the following facts:
A. The Premises currently leased by Tenant pursuant to the Lease consists
of 11,200 rentable square feet commonly known as 2006 Xxxxxx Avenue , City of
Santa Clara, California.
B. The Lease Term for said Premises currently expires on January 31, 2002.
X. Xxxxxx and Landlord have agreed to expand the square footage of said
Premises by 16,800 rentable square feet as shown on "Exhibit A" attached hereto
and incorporated herein by reference as the "Expansion Space".
X. Xxxxxx and Landlord wish to amend the Lease on the Terms and Conditions
set forth in this Second Amendment to Lease.
NOW, THEREFORE, Landlord and Tenant hereby agree that the Lease Terms is
amended as follows:
1. Landlord's Name: The Lease is hereby amended to reflect change in
ownership of the above-referenced Premises to SPP Real Estate (Silicon Valley),
Inc., a Delaware corporation.
2. Xxxxxxxx's Address: Xxxxxxxx's address for notices amended to
read:
SPP Real Estate (Silicon Valley), Inc.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
3. Premises: Exhibit A is hereby amended to provide for the
Expansion space of 16, 800 rentable square feet resulting in a total of 28,000
rentable square feet.
4. Tenant's Share: Article 40 is hereby amended to mean 23.26% of
the Project and 41.42% of the Building commencing February 1, 1999.
5. Lease Term: Article 2 is hereby amended to provide that the Lease
Term shall be extended through and including January 31, 2004.
6. Base Monthly Rent: Commencing February 1 1999, Articles 3 and 46
are hereby amended to provide for Base Monthly Rent as follows:
Combined Premises: 2006 and 2016 Xxxxxx Avenue
February 1, 1999, through and including January 31, 2000: $23,576.00
per month
February 1, 2000, through and including January 31, 2001: $24,864.00
per month
February 1, 2001, through and including January 31, 2002: $26,040.00
per month
February 1, 2002, through and including January 31, 2003: $30,800.00
per month
February 1, 2003, through and including January 31, 2004: $32,200.00
per month
8. Security Deposit: Article 5 is hereby amended to provide for an
increase in the Security Deposit of $27,050.00 which Tenant has provided
Landlord upon signature hereon for a total of $32,200.00.
SECOND AMENDMENT TO LEASE
9. Tenant's Liability Insurance Minimum: Article 13 is hereby
amended to mean $2,000,000.00.
10. Retained Real Estate Brokers: Tenants warrants that it has not
had any dealings with any real estate brokers or salesmen or incurred any
obligations for the payment of real estate brokerage commissions or finder's
fees which would be earned or due and payable by reason of the execution of this
Lease Amendment.
11. Delivery and Acceptance of Premises: Delivery and acceptance of
the Premises as provided for in paragraph A above shall be "as is".
Tenant shall be allowed to create an opening to allow ingress and
egress between the Premises known as 2006 Xxxxxx Avenue and 2016 Xxxxxx Avenue.
Such opening shall not jeopardize the integrity of the Building and Tenant shall
restore the wall to its pre-existing condition at the end of the Lease Term.
12. Year 2000 Disclaimer: Landlord hereby disclaims any liability
for any and all damages, injuries or other losses, whether ordinary, special,
consequential, punitive or otherwise, arising out of, relating to, or in
connection with, (a) the failure of any automated, computerized and/or software
system or other technology used in, on, or about the Property or relating to the
management or operation of the Property to accurately receive, provide or
process date/time data (including, but not limited to, calculating, comparing
and sequencing) both before and after September 9, 1999, and before, after,
during and between the years 1999 A.D. and 2000 A.D., and leap year calculations
and, or (b) the malfunction, ceasing to function or providing of invalid or
incorrect results by any such technology as a result of date/time data. The
foregoing disclaimer shall apply to any such technology used in, on, or about
the Property or that affects the Property, whether or not such technology is
within the control of Owner or any of Owner's agents or representatives. THE
FOREGOING DISCLAIMER INCLUDES A DISCLAIMER OF ALL WARRANTIES OR REPRESENTATIONS
EXPRESS OR IMPLIED, WITH RESPECT TO THE MATTERS DESCRIBED HEREIN, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. Continuing Obligation: Except as expressly set forth in this
Amendment, all terms and conditions of the Lease remain in full force and
effect, and all terms and conditions of the lease are incorporated herein as
though set forth at length.
14. Effect of Amendment: This Amendment modifies the Lease. In the
event of any conflict or discrepancy between the lease and/or any other previous
documents between the parties and the provisions of this Amendment, then the
provisions of this Amendment, shall control. Except as modified herein, the
Lease shall remain in full force and effect.
15. Authority: Each individual executing this Amendment on behalf of
Tenant represents and warrants that he or she is duly authorized to and does
execute and deliver this Amendment pursuant to express authority form Tenant
pursuant to and in accordance with the By-Laws and the other organic documents
of the Tenant corporation.
16. Entire Agreement: The Lease, as modified by this Amendment,
constitutes and contains the entire agreement between the parties, and there are
no binding agreements or representations between the parties except as expressed
herein. Tenant acknowledges that neither Landlord nor Landlord's Agents have
made any legally binding representations or warranties as to any matter except
for such matters binding representations or warranties as to any matter except
for such matters which are expressly set forth herein, including any
representations or warranties relating to the condition of the Premises or the
improvements thereto or the suitability of the Premises or the Project for
Tenant's business.
IN WITNESS WHEREOF, Landlord and Xxxxxx have executed this Second
Amendment to be effective as of the date first set forth above.
LANDLORD: TENANT:
SPP REAL ESTATE (SILCON VALLEY) INC. VIKO TECHNOLOGY, INC.
a Xxxxxx corporation a California corporation
BY: AMB INVESTMENT MANAGEMENT BY: /S/ Xxxx xx Xxxxxxxx
LIMITED PARTNERSHIP, -----------------------
a Maryland limited partnership
Title: Vice President
By: AMB Investment Management Corporation,
a Maryland corporation, its general partner
BY: /s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
Title: Vice President
Dated : 2/1/99 Dated: 1/29/99
EXHIBIT "A"
SILICON VALLEY INDUSTRIAL PORTFOLIO
PROJECT 8L20 XXXXXX INDUSTRIAL PARK
MANUFACTURING & WAREHOUSE TOTAL BUILDING SQUARE FOOTAGE: 120,400
[XXXXXX AVENUE MAP]
BUILDING :A 2002 2016 MANIA AVENUE
67.600 XX.XXX STORY
BUILDING :B 0000 0000 XXXXX XXXXXX
52,800 XX.XXX STORY.
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE is dated for reference purposes only as
April 9, 2003, and is part of that Lease dated July 10, 1991, the First
Amendment to Lease dated December 26, 1996 and the Second Amendment to Lease
dated January 29, 1999 (collectively, the "Lease") by and between AMB PROPERTY,
L.P., a Delaware limited partnership, successor-in-interest to SPP Real Estate
(Silicon Valley), Inc., a Delaware corporation, successor-in-interest to RREEF
WEST-V, INC., a Delaware corporation, ("Landlord"), and VIKO TECHNOLOGY, INC., a
California corporation, ("Tenant") and is made with reference to the following
facts:
A. The premises currently leased by Tenant pursuant to the Lease
consists of 28,000 rentable square feet commonly known as 2006-2016
Xxxxxx Avenue, City of Santa Clara, California.
B. The Lease Term for said Premises currently expires on January
31, 2004.
X. Xxxxxx and landlord wish to amend the Lease on the Terms and
Conditions set forth in this Third Amendment to Lease.
NOW, THEREFORE, Landlord and Tenant hereby agree that the Lease
Terms is amended as follows:
1. Landlord's Name: The Lease is hereby amended to reflect
change in ownership of the above referenced Premises to AMB
Property, L.P., a Delaware limited partnership.
2. Xxxxxxxx's Address: Xxxxxxxx's address for notices is
amended to read:
AMB Property, L.P.
Pier 1, Bay 1
San Francisco, CA 941111
3. Lease Term: Article 2 is hereby amended to provide that the
Lease Term shall be extended through and including April 30, 2006.
4. Base Monthly Rent: Commencing May 1, 2003, Articles 3 is
hereby amended to provide for Base Monthly Rent as follows:
May 1, 2003 through and including April 30, 2004: $18,760.00
per month
May 1, 2004 through and including April 30, 2005: $19,320.00
per month
May 1, 2005 through and including April 30, 2006: $19,880.00
per month
5. Security Deposit: The Security Deposit in the amount of
$32,200.00 shall remain the same.
6. Tenant's Liability Insurance Minimum: The Liability
Insurance Minimum amount shall remain the same.
7. Tenants Right of First Negotiation for Additional Space:
X. Xxxxx and Right of First Negotiation: Landlord hereby
grants to Tenant a right of First Negotiation regarding the leasing
of the "First Negotiation Space" which consists of the portion of
the Building (Project) which is identified and described on Exhibit
"A" as the First Negotiation Space, being approximately 16,800
square feet of rentable space commonly known as 2008 Xxxxxx Avenue,
Santa Clara, California on the terms contained in this Amendment.
B. Negotiation Notice: If landlord proposes to lease all
or part of the First Negotiation Space at any time after the Effective Date of
this Lease and before the expiration or earlier termination of this Right of
First Negotiation, Landlord shall notify Tenant in writing (the "Negotiation
Notice") of the following basic business terms upon which Landlord would be
willing to lease the First Negotiation Space; (i) the portion of the First
Negotiation Space which Landlord propose to lease (the "Offered Space"), (ii)
the term of the proposed lease; (iii) the tenant improvements Landlord is
willing to construct or that it will require be constructed and the contribution
Landlord is willing to make to pay for such tenant improvements; (iv) the rent
for the terms of the lease or formula to be used to determine such rent, and (v)
any other material business terms Landlord elects to specify.
C. Negotiation Period: Tenant shall have ten (10) days
(the "Negotiation Period") from the Negotiation Notice within which to conduct
negotiations with Landlord regarding Xxxxxx's leasing of the Offered Space,
whether on the terms set forth in Landlord's notice or otherwise.
X. Xxxxxx During Negotiation Period: During the
Negotiation Period, Landlord and Xxxxxx will negotiate in good faith in an
attempt to agree on a lease of the Offered Space. Neither Landlord nor Tenant
shall be bound to agree to or accept any terms and conditions for such lease
except those which each party, in its sole discretion, wishes to agree to. "Good
Faith" in such negotiations does not require either party to make concessions to
the other party's position, but only requires that each party give the other
party a reasonable opportunity, within the Negotiation Period, to present and
discuss the party's proposals. Landlord is not bound to agree to any or all of
the terms set forth in the Negotiation Notice if it determines during
negotiations that one or more of said terms is not in Landlord's best interest.
X. Xxxxxxxx's Right To Lease Absent Agreement: if
Landlord and Tenant do not reach agreement in writing for tenant to lease the
Offered Space within the Negotiation Period, Landlord thereafter shall have the
right to offer the Offered Space to any third party, on such terms and
conditions as Landlords may elect, and Landlord shall not thereafter, have any
duty to further offer the Offered Space to Tenant.
F. Termination: The right granted to Tenant in this
paragraph is personal to tenant, and may not be assigned by Xxxxxx to any third
party, either alone or in conjunction with an assignment of this Lease or a
sublease of all or any part of the Premises. The rights granted to Tenant under
this paragraph shall terminate upon the earliest of the following to occur: (i)
the expiration or earlier termination of the Lease; (ii) any assignment by
Tenant of its interest in this Lease; (iii) any subletting by Tenant of
substantially all of the premises for substantially all of the remainder of the
Lease Term, (iv) the termination of this right by default as set forth in
Subparagraph G below, or (v) as to any Offered Space, when the Negotiation
Period ends without Tenant and Landlord reaching a written agreement for Tenant
to lease the Offered Space.
G. Termination By Default: The rights of Tenant under
this Paragraph shall not be effective at any time when Tenant is in default
under this Lease beyond any applicable cure period provided in this Lease. If
Tenant, with the agreement of Landlord, shall nevertheless cure such default,
then the rights provided hereunder shall be reinstated, but any transaction to
lease any or all of the First Negotiation Space entered into by Landlord during
such period of default shall be valid and Tenant shall have no further Right of
First Negotiation as to any such space leased by Landlord while Tenant is in
default under this sub-paragraph.
H. No Right To Negotiation for Renewal or Extension
Space: The right granted to Tenant by this paragraph shall not arise on account
of or in connection with the renewal or extension of the term of any then
existing lease affecting all or any portion of the First Negotiation Space.
8. Delivery and Acceptance of Premises: Delivery and acceptance of
the Premises as provided for in Paragraph A above shall be "as is".
9. Continuing Obligation: Except as express set forth in this
Amendment, all terms and conditions of the Lease remain in full force and
effect, and all terms and conditions of the Lease are incorporated herein
as though set forth at length.
10. Effect of Amendment: This amendment modifies the Lease. In the
event of any conflict or discrepancy between the Lease and/or any other
previous documents between the parties and the provisions of this
Amendment, then the provisions of this Amendment shall control. Except as
modified herein, the Lease shall remain in full force and effect.
11. Authority: Each individual executing this Amendment on behalf of
Tenant represents and warrants that he or she is duly authorized to and
does execute and deliver this Amendment pursuant to express authority from
Tenant pursuant to and in accordance with the By-Laws and the other
organic documents of the Tenant corporation.
12. Entire Agreement: The Lease, as modified by this Amendment,
constitutes and contains the entire agreement between the parties, and
there are no binding agreements or representations between the parties,
except as expressed herein. Tenant acknowledges that neither Landlord nor
Landlord's Agents have made any legally binding representations or
warranties as to any matter except for such matters binding representation
or warranties as to any matter except for such matters which are expressly
set forth herein, including any representations or warranties relating to
the condition of the Premises or the improvements thereto or the
suitability of the Premises or the Project for Tenant's business.
IN WITNESS WHEREOF, Landlord and Xxxxxx have executed this Second
Amendment to be effective as of this date first set forth above.
LANDLORD: TENANT:
AMB PROPERTY, L.P. VIKO TECHNOLOGY, INC.
a Delaware limited partnership a California corporation
By: AMB Property Corporation By: /s/ Xxxx xx Xxxxxxxx
a Maryland corporation, its general partner --------------------
Xxxx xx Xxxxxxxx VP
[Print Name and Title]
BY: /s/ Xxxx X. Xxxxx By:___________________________
-------------------
Xxxx X. Xxxxx
Title: Senior Vice President _______________________________
[Print Name and Title]
Date: 4/30/03 Date: _________________________
PROJECT 8L20- DESCRIPTION
MFG./WAREHOUSE - SANTA CLARA, CA
BOULEVARD
[DESCRIPTION MAP]
BUILDING A: 2000-2016 XXXXXX AVENUE-67.600 SF
BUILDING B: 0000 XXXXXX XXXXXX- 00,000 SF
TOTAL PROJECT SQUARE FOOTAGE 120,400
408,922,0400 [ORCHARD LOGO]