EXHIBIT 10.16
PROPERTY ADDRESS
CYPRESS BUSINESS PARK
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
INDUSTRIAL
LEASE
BETWEEN
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
LANDLORD
AND
MPATH INTERACTIVE, INC.
TENANT
December __, 1996
INDUSTRIAL LEASE
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THIS LEASE is made as of the __ day of December, 1996, between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation ("Landlord"),
and MPATH INTERACTIVE, INC., a Delaware corporation ("Tenant"), for space in the
building located at 000 Xxxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000 (such building,
together with the land upon which it is situated, being herein referred to as
the "Building"). The following schedule (the "Schedule") sets forth certain
basic terms of this Lease:
SCHEDULE
1. Premises 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, XX
2. Rentable Square Feet of Premises: 28,800 rsf
3. Term Sixty (60) Months, Commencing on the
Commencement Date
4. Base Rent:
Period from/to Monthly Rent
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Months 1-12 $ 32,256.00
13-60 $ (See Section 2.c)
5. Tenant's Share of CAM Charges: 24.42%
6. Security Deposit: $ (See Section 17)
7. Broker(s): Xxxxx & Xxxxx (Tenant)
CPS (Landlord)
8. Commencement Date February 1, 1997
9. Landlord's Notice Address: The Xxxx Companies
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
RE: Cypress Business Park
with a copy to: The Prudential Insurance
Company of America
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
ATTN: Real Estate Investments,
Vice President
and The Prudential Insurance
Company of America
0 Xxxxxxxxxxx Xxxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ATTN: Regional Counsel
10. Tenant's Notice Address: Mpath Interactive, Inc.
000 Xxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
ATTN: General Manager
11. Exhibits: A. Floor Plan
B. Tenant Improvement Agreement
C. Commencement Date Memorandum
D. Rules and Regulations
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1. DEMISING CLAUSE
Landlord leases to Tenant and Tenant leases from Landlord the premises (the
"Premises") described in Item 1 of the Schedule and shown on the plan attached
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hereto as Exhibit A. subject to the covenants and conditions set forth in this
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Lease, for a term (the "Term") commencing on the date described in Item 8 of the
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Schedule (the "Commencement Date") and expiring on the last day of the Term
specified in the Schedule (the "Expiration Date"), unless terminated earlier as
otherwise provided in this Lease.
2. RENT
a. Definitions. For purposes of this Lease, the following terms shall have the
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following meanings:
i. "Common Areas" shall mean the parking, landscaping, sidewalks and other
common areas of the Project.
ii. "Project" shall mean the project commonly known as Cypress Business Park.
iii. "Expenses" shall mean (1) all of Landlord's direct costs and expenses of
operation, repair and maintenance of the Building and Common Areas, including,
without limitation, reasonable management fees related to the Project, all as
determined by Landlord in accordance with generally accepted accounting
principles or other recognized accounting principles, consistently applied; (2)
costs, or a portion thereof, properly allocable to the Building or Common Areas
of any capital improvements made to the Building or Common Areas by Landlord
which comprise labor-saving devices or other equipment which improves the
operating efficiency of any system within the Building or Common Areas (such as
an energy management computer system), the costs, or allocable portion thereof,
to be amortized over the useful life thereof (as determined by generally
accepted accounting principles), together with interest upon the amortized
balance at a rate of ten percent (10%); and iv. costs properly allocable to the
Building or Common Areas of any capital improvements made to the Building or
Common Areas by Landlord that are required under any governmental law or
regulation that was not applicable to the Building and Common Areas at the time
the Commencement Date occurs, or that are reasonably required for the health and
safety of tenants in the Building, the costs, or allocable portion thereof, to
be amortized over the useful life thereof (as determined by generally accepted
accounting principles), together with interest upon the unamortized balance at
the rate of ten percent (10%).
v. "Rent" shall mean Base Rent, Adjustment Rent, and any other sums or charges
due from Tenant hereunder. This Lease is intended to be a triple net lease, with
all costs, expenses and charges (including the Expenses) to be paid by Tenant
except as otherwise specifically provided in this Lease.
vi. "Taxes" shall mean all taxes, assessments and fees levied upon the
Building, the property of Landlord located therein or the rents collected
therefrom, by any governmental entity based upon the ownership, leasing, renting
or operation of the Building, including all costs and expenses of protesting any
such taxes, assessments or fees in good faith. Taxes shall not include any net
income, capital stock, succession, transfer, franchise, gift, estate or
inheritance taxes interest on taxes or penalties resulting from Landlord's
failure to pay taxes, any increases in taxes attributable to additional
improvements to the Building unless such improvements are constructed for the
benefit of all tenants of the Project, real estate taxes resulting from
overstandard improvements made by other tenants or any assessments for public
improvements to the extent prepaid in advance of the date due pursuant to any
applicable amortization schedule; provided, however, if at any time during the
Term, a tax or excise on income is levied or assessed by any governmental
entity, in lieu of or as a substitute for, in whole or in part, real estate
taxes or other ad valorem taxes, such tax shall constitute and be included in
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Taxes. For the purpose of determining Taxes for any given year, the amount to be
included for such year (a) from special assessments payable in installments
shall be the amount of the installments (and any interest) due and payable
during such year, and (b) from all other Taxes shall be the amount due and
payable in such year.
vii. "Tenant's Share" shall mean the percentage set forth in Item 5 of the
Schedule.
b. Components of Rent. Tenant agrees to pay the following amounts to Landlord
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at the office of the Building or at such other place as Landlord designates in
writing to Tenant reasonably in advance:
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i. Base rent ("Base Rent") to be paid in monthly installments in the amounts
set forth in Item 4 of the Schedule, in advance on or before the first day of
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each month of the Term, without demand, except that Tenant shall pay the first
month's Base Rent upon execution of this Lease.
ii. Adjustment rent ("Adjustment Rent") in an amount equal to Tenant's Share of
Expenses and Taxes for any calendar year. Prior to each calendar year, or as
soon as reasonably possible, Landlord shall estimate and notify Tenant of the
amount of Adjustment Rent due for such year, as shown in said statement, and
Tenant shall pay Landlord one-twelfth of such estimate on the first day of each
month during such year. Such estimate may be revised by Landlord whenever it
obtains information relevant to making such estimate more accurate. Within one
hundred twenty (120) days after the end of each calendar year, Landlord shall
deliver to Tenant a statement setting forth in reasonable detail the actual
Expenses and Taxes for such calendar year and a statement of the amount of
Adjustment Rent that Tenant has paid and is payable for such year. Within thirty
(30) days after receipt of such statement, Tenant shall pay to Landlord the
amount of Adjustment Rent due for such calendar year minus any payments of
estimated Adjustment Rent made by Tenant for such year. If Tenant's estimated
payments of Adjustment Rent exceed the amount due Landlord for such calendar
year, Landlord shall apply such excess as a credit against Tenant's other
obligations under this Lease or promptly refund such excess to Tenant unless the
Term has already expired, and Tenant is not in default hereunder beyond any
applicable cure period, in which case such amount shall be refunded to Tenant.
In no event will Tenant be entitled to interest on any amount overpaid by Tenant
hereunder.
c. Increase of Rent. The Base Rent shall be adjusted upward every year of the
term hereof, based on the increase in the Consumer Price Index ("CPI"). The
first increase in Base Rent pursuant to this paragraph shall be effective
beginning with the rent payable on the first (1st) day of the thirteenth (13th)
month of the Term, and subsequent increases shall be effective every twelve (12)
months thereafter. Rent shall be determined based on the increase in the CPI
from the Commencement Date, or the last Rent Determination Date (as defined
herein), as the case may be, to a date that is thirty (30) days prior to the
effective date of any increase hereunder (the "Rent Determination Date"). "CPI"
shall mean the Consumer Price Index for Urban Wage Earners and Clerical Workers
(Revised Series) (CPI-W), All Items, for the locality in which the Building is
located (1982-1984 equals 100) of the United States Department of Labor Bureau
of Labor Statistics, over the relevant period. If such index is no longer
published at any time, the Consumer Price Index shall mean a comparable index
selected by Landlord. Notwithstanding the foregoing, in no event shall the Base
Rent for any twelve month period covered hereby be less than the Base Rent in
effect on any Rent Determination Date, and in no event shall any increase under
this paragraph be less than three percent (3%), nor more than seven percent (7%)
of the rent in effect as of the Rent Determination Date. Landlord shall notify
Tenant as soon as possible following the Rent Determination Date of the Base
Rent applicable for the next twelve month period.
d. Payment of Rent. The following provisions shall govern the payment of Rent:
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i. if this Lease commences or ends on a day other than the first day or last day
of a calendar month, respectively, the Rent for such month shall be prorated
accordingly; ii. all Rent shall be paid to Landlord without offset or deduction,
and the covenant to pay Rent shall be independent of every other covenant in
this Lease; iii. any sum due from Tenant to Landlord which is not paid within
thirty (30) days of the date due shall bear interest from the date due until the
date paid at the annual rate of the lower of twelve percent (12%) per annum or
the maximum rate permitted by law (the "Default Rate"); and, in addition, in
recognition of the fact that Landlord will incur certain administration costs
and other damages, the amount of which are not readily quantifiable, but of
which the Late Charge (as defined herein) shall be an approximation, Tenant
shall, in addition to interest at the Default Rate, pay Landlord a late charge
for any Rent payment which is paid more than five (5) days after its due date
equal to five percent (5%) of such payment (the "Late Charge"); iv. Tenant shall
have the right to inspect Landlord's accounting records relative to Expenses and
Taxes during normal business hours at any time within sixty (60) days following
the furnishing to Tenant of the annual statement of Adjustment Rent; and, unless
Tenant shall take written exception to any item in any such statement within
such sixty (60) day period, such statement shall be considered as final and
accepted by Tenant. In the event Tenant takes exception to any item, it shall
specify the item objected to in reasonable detail and shall pay any and all
charges other than the disputed when required hereunder; v. in the event of the
termination of this Lease prior to the determination of any Adjustment Rent,
Tenant's agreement to pay any such sums and Landlord's obligation to refund any
such sums (provided Tenant is not in default hereunder) shall survive the
termination of this Lease; vi. no
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adjustment to the Rent by virtue of the operation of the rent adjustment
provisions in this Lease shall result in the payment by Tenant in any year of
less than the Base Rent shown on the Schedule; vii. Landlord may at any time
change the fiscal year of the Building; viii. each amount owed to Landlord under
this Lease for which the date of payment is not expressly fixed shall be due
within thirty days of Landlord's delivery of an invoice therefor; and ix. if
Landlord fails to give Tenant an estimate of Adjustment Rent prior to the
beginning of any calendar year, Tenant shall continue to pay Adjustment Rent at
the rate for the previous calendar year until Landlord delivers such estimate,
at which time Tenant shall pay retroactively the increased amount for all
previous months of such calendar year, or any surplus shall be credited to the
next payment of Adjustment Rent, or if the Lease has expired or been terminated,
and there shall be no obligations outstanding of Tenant to Landlord under the
Lease, shall be paid to Tenant promptly after discovery thereof. Landlord shall
keep at the Building for a period of at least twelve (12) months after the
expiration of each calendar year, full and accurate books, records and
supporting documents in connection with Landlord's annual statement of Expenses
and Taxes. Tenant shall have the right to challenge the accuracy of any Expenses
or Taxes within the period specified herein after Tenant's receipt of the annual
statement of Adjustment Rent, and, if Tenant challenges any Expenses or Taxes,
Landlord shall make Landlord's books and supporting documents available to
Tenant and Tenant may inspect the same. The Expenses and Taxes shall be
appropriately adjusted on the basis of such audit. Tenant shall pay the cost and
expense of such audit, unless such audit shows a discrepancy of at least four
percent (4%) of Expenses or, as the case may be, Taxes, in which event Landlord
shall pay the costs and expenses of such audit.
e. Allocation of Rent Abatement for Tax Purposes. Landlord and Tenant agree
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that no portion of the Base Rent paid by Tenant during the portion of the term
of this Lease occurring after the expiration of any period during which such
rent was abated shall be allocated, for income tax purposes, nor is such rent
intended by the parties to be allocable, for income tax purposes, to any
abatement period.
3. USE
a. Tenant agrees that it shall occupy and use the Premises only as general
offices and for sales, and for software development and other related uses and
for no other purposes. Tenant shall comply with all present and future federal,
state and municipal laws, ordinances and regulations and all covenants,
conditions and restrictions of record applicable to Tenant's use or occupancy of
the Premises, provided that the terms of such covenants, conditions and
restrictions do not conflict with or contravene the terms of this Lease. Without
limiting the foregoing, Tenant shall not cause, nor authorize any hazardous or
toxic substances to be brought upon, produced, stored, used, discharged or
disposed of in, on or about the Premises, other than commercially reasonable
amounts of such substances used for general office purposes ("Permitted
Hazardous Substances"), without the prior written consent of Landlord and then
only in compliance with all applicable environmental laws. If as a result of
Tenant's use of the Premises i. the amount of insurance premiums payable by
Landlord for insurance maintained for or in respect to the Building is
increased, ii. any such insurance coverage is decreased, or iii. cancellation or
refusal to renew any such insurance policy is threatened, Landlord shall so
notify Tenant, whereupon Tenant shall immediately pay any such increased premium
or cease any such use, failing which (or in the event of a threatened
cancellation or refusal to renew any such insurance policy which may not be
cured by the payment of an additional premium), Landlord shall have the right,
in addition to Landlord's other rights and remedies hereunder, to terminate this
Lease upon written notice to Tenant, effective on the date set forth in such
notice.
b. "Hazardous Substance" shall mean the substances including within the
definitions of the term "Hazardous Substance" under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., and the California Xxxxxxxxx-Xxxxxxx-Xxxxxx
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Hazardous Substance Account Act, California Health & Safety Code Section 25300
et seq., and regulations promulgated thereunder, as amended. "Hazardous Waste"
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shall mean (a) any waste listed as or meeting the identified characteristics of
a "Hazardous Waste" under the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6901 et seq., and regulations promulgated pursuant thereto,
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collectively "RCRA", or (b) any waste meeting the identified characteristics of
"Hazardous Waste" under California Hazardous Waste Control Law, California
Health and Safety Code Section 25100 et. seq., and regulations promulgated
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pursuant thereto, collectively "CHWCL". "Hazardous Waste Facility" shall mean a
hazardous waste facility as defined under CHWCL.
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i. Tenant covenants that, at its sole cost and expense, it will comply
with all applicable laws, rules, regulations, orders, permits, licenses and
operating plans of any governmental authority with respect to the use,
handling, generation, transportation, storage, treatment and/or disposal of
hazardous substances or wastes, and Tenant will provide Landlord with
copies of all permits, registrations or other similar documents that
authorize Tenant to conduct any such activities in connection with its
authorized use of the Premises. Additionally, Tenant agrees to comply with
the Rules and Regulations attached hereto as Exhibit D, the requirements of
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the Board of Fire Underwriters or Landlord's insurance carrier, and to
comply with covenants, conditions and restrictions ("CC&R's") applicable to
the Building, provided that the terms of such covenants, conditions and
restrictions do not conflict with or contravene the terms of this Lease.
ii. Tenant agrees that it shall not operate on the Premises any facility
required to be permitted or licensed as a Hazardous Waste Facility or for
which interim status as such is required. Nor shall Tenant store any
Hazardous Wastes on the Premises for ninety (90) days or more other than
Permitted Hazardous Substances.
iii. Tenant agrees to comply with all applicable laws, rules, regulations,
orders, and permits relating to underground storage tanks (including any
installation, monitoring, maintenance, closure and/or removal of such
tanks) as such tanks are defined in California Health and Safety Code,
Section 25281(u), including, without limitation, complying with California
Health and Safety Code Sections 25280-25299.6 and the regulations
promulgated thereunder. Tenant shall furnish to Landlord copies of all
registrations and permits for any underground storage tanks installed or
operated by Tenant.
iv. If applicable, Tenant shall provide to Landlord in writing the
following information and/or documentation at the Commencement Date and
within sixty (60) days of any change in the required information and/or
documentation:
(1) A list of all hazardous substances and/or wastes that Tenant uses,
handles, generates, transports, stores, treats or disposes in
connection with its operations on the Premises that are not Permitted
Hazardous Substances.
(2) Copies of all Material Safety Data Sheets ("MSDS's") required to
be completed with respect to operations of Tenant at the Premises in
accordance with Title 8, California Code of Regulations Section 5194
or 42 U.S.C. Section 11021, or any amendments thereto. In lieu of this
requirement, Tenant may provide a Hazardous Materials Inventory Sheet
that details the MSDS's.
(3) Copies of all hazardous waste manifests, as defined in Title 22,
California Code of Regulations Section 66481, that Tenant is required
to complete in all connections with its operations at the Premises.
(4) A copy of any Hazardous Materials Management Plans required with
respect to Tenant's operations.
(5) Copies of any Contingency Plans and Emergency Procedures required
of Tenant due to its operations in accordance with Title 22, Chapter
30, Article 20, of the California Code of Regulations, and any
amendments thereto.
(6) Copies of any biennial reports to be furnished to California
Department of Health Services relating to hazardous substances or
wastes.
(7) Copies of all industrial waste water discharge permits.
c. Tenant shall secure Landlord's prior written approval for any proposed
receipt, storage, possession, use, transfer or disposal of "Radioactive
Materials" or "Radiation", as such materials are defined in Title 17,
California Code of Regulations Sections 30100(w) and (z) or possessing the
characteristics of the materials so defined, which approval Landlord may
withhold in its sole
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and absolute discretion. The Tenant in connection with any authorized
receipt, storage, possession, use, transfer or disposal of radioactive
materials or radiation shall:
i. Comply with all federal, state and local laws, rules, regulations,
orders, licenses and permits;
ii. Furnish Landlord with a list of all radioactive materials or
radiation received, stored, possessed, used, transferred or disposed;
and
iii. Furnish Landlord with all licenses, registration materials,
inspection reports, orders and permits in connection with the receipt,
storage, possession, use, transfer or disposal or radioactive
materials or radiation.
d. Tenant agrees to comply with any and all applicable laws, rules,
regulations, and orders with respect to the release into the environment by
Tenant of any hazardous wastes or substances or radiation or radioactive
materials. Tenant agrees to notify Landlord in writing of any unauthorized
release into the environment within twenty-four (24) hours of the time at
which Tenant becomes aware of such release.
e. Tenant shall indemnify, defend, and hold Landlord harmless from any and
all claims, losses, liabilities, costs, reasonable legal fees, and expenses
of any sort arising out of or relating to any unauthorized release into the
environment of hazardous substances or wastes or radiation or radioactive
materials by Tenant or any of Tenant's agents, contractors or invitees, or
Tenant's failure to comply with Subparagraphs (a)-(h) of this section of
the Lease.
f. Tenant agrees to cooperate with Landlord in furnishing Landlord with
complete information regarding Tenant's receipt, handling, use, storage,
transportation, generation, treatment and/or disposal of hazardous
substances or wastes or radiation or radioactive materials. Upon request,
Tenant agrees to grant Landlord reasonable access at reasonable times to
the Premises to inspect Tenant's receipt, handling, use, storage,
transportation, generation, treatment and/or disposal of hazardous
substances wastes or radiation or radioactive materials without being
deemed guilty of any disturbance of Tenant's use or possession and without
being liable to Tenant in any manner. Notwithstanding the foregoing,
Landlord agrees to conduct all such activities on the Premises in a manner
such as to minimize, to the extent reasonable, any interruption to the
business operations of Tenant or Tenant's use of the Premises.
Additionally, Landlord shall have the right at any time during the term if
it reasonably suspects that hazardous substances or hazardous wastes have
been disposed at the Premises in a manner or in such amounts as would
violate law, or within the last eight (8) months of the term, to conduct an
environmental audit of the Premises at Tenant's expense, and Tenant shall
reimburse Landlord for the cost of such audit within thirty (30) days after
billing. Notwithstanding the foregoing, any investigation or inspection
under this section f. shall be at Landlord's sole expense, unless such
investigations demonstrate that the hazardous substances were introduced
into the Premises or Project by Tenant or Tenant's agents, employees or
contractors.
g. Notwithstanding Landlord's rights of inspection and review under this
paragraph, Landlord shall have no obligation or duty to so inspect or
review, and no third party shall be entitled to rely on Landlord to conduct
any sort of inspection or review by reason of the provisions of this
paragraph.
h. On or before the Commencement Date, Landlord shall provide Tenant with
copies of any surveys in its possession regarding hazardous materials that
may be located in the Premises or Common Areas. Landlord hereby warrants to
Tenant that as of the date of this Lease, it has received no written notice
that the Premises, Project or Common Areas are in violation of any
applicable Hazardous Materials Laws. In addition, Tenant shall conduct any
and all investigations of the Property as it shall deem suitable to assure
itself of matters related to the environmental condition of the Property
and shall rely on its own investigations in assessing the environmental
condition of the Premises, Project and Common Areas.
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i. This Section 3 of the Lease shall survive termination of the Lease.
4. CONDITION OF PREMISES
Landlord warrants that the mechanical, electrical, plumbing and other building
systems, truck door, and the roof, sidewalks, parking areas and other structural
components of the building and the Common Areas are in good operating condition
as of the date of delivery of the Premises to Tenant for the purposes of
Tenant's commencement of its construction. Landlord further warrants that as of
the date of delivery of the Premises to Tenant for the purposes of Tenant's
commencement of its construction, it has received no written notice that the
buildings or Common Areas are in violation of any applicable building codes or
laws, including, without limitation, the Americans with Disabilities, Act, Title
24 or any relevant seismic or structural requirements. Subject to the foregoing
representations and warranties of Landlord, Tenant's taking possession of the
Premises shall be conclusive evidence that the Premises were in good order and
satisfactory condition when Tenant took possession, subject to the provisions of
Exhibit B and Landlord's representations set forth in the preceding sentence. No
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agreement of Landlord to alter, remodel, decorate, clean or improve the Premises
or the Building (or to provide Tenant with any credit or allowance for the
same), and no representation regarding the condition of the Premises or the
Building or the suitability of the Premises, Building or Project for Tenant's
business, have been made by or on behalf of Landlord or relied upon by Tenant,
except as provided in Exhibit B
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5. BUILDING SERVICES
a. Basic Services. Landlord shall provide landscaping services to the Project
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and shall repair and maintain and operate the parking, sidewalks and other
Common Areas associated with the Project, in a manner consistent with properties
of similar age, condition and use in the Mountain View, California area, the
cost of which shall be charged as Expenses.
b. Electricity. The Premises shall be separately metered for electrical use.
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Electricity shall be distributed to the Premises by the electric utility company
serving the Building. Tenant at its cost shall make all necessary arrangements
with the electric utility company for metering and paying for electric current
furnished to the Premises.
c. Telephones. Tenant shall arrange for telephone service directly with one or
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more of the public telephone companies servicing the Building and shall be
solely responsible for paying for such telephone service. If Landlord acquires
ownership of the telephone cables in the Building at any time, Landlord shall
permit Tenant to connect to such cables on such terms and conditions as Landlord
may reasonably prescribe. In no event does Landlord make any representation or
warranty with respect to telephone service in the Building, and Landlord shall
have no liability with respect thereto, unless an interruption in service shall
occur due to the gross negligence or willful misconduct of Landlord or its
agents, and provided further that in no event shall Landlord be liable for any
consequential damages related to such interruption in service.
d. Additional Services. Tenant shall contract for its own Water, Gas, Garbage
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Collection, Janitorial, Maintenance of the HVAC (as defined herein) unless
Landlord shall elect to maintain the HVAC pursuant to Section 8.b hereof and
other equipment serving the Premises and all other services that are not the
responsibility of the Landlord hereunder. Landlord shall not be obligated to
furnish any services other than those stated above.
e. Failure or Delay in Furnishing Services. Tenant agrees that Landlord shall
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not be liable for damages for failure or delay in furnishing any service by any
of the public utilities that are required to furnish any such service,, unless
an interruption in service shall occur due to the gross negligence or willful
misconduct of Landlord or its agents, and provided further that in no event
shall Landlord be liable for any consequential damages related to such
interruption in service, nor shall any such failure or delay be considered to be
an eviction or disturbance of Tenant's use of the Premises, or relieve Tenant
from its obligation to pay any Rent when due or from any other obligations of
Tenant under this Lease.
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6. RULES AND REGULATIONS
Tenant shall observe and comply, and shall cause its subtenants, assignees,
invitees, employees, contractors and agents to observe and comply, with the
Rules and Regulations listed on Exhibit "D" attached hereto and with such
reasonable modifications and additions thereto as Landlord may make from time to
time, provided in the event of a conflict between any such modifications and the
terms of this Lease, the terms of this Lease shall prevail. Landlord shall not
be liable for failure of any person to obey the Rules and Regulations. Landlord
shall not be obligated to enforce the Rules and Regulations against any person,
and the failure of Landlord to enforce any such Rules and Regulations shall not
constitute a waiver thereof or relieve Tenant from compliance therewith,
provided, however, that Landlord shall not enforce such Rules and Regulations in
a manner which unreasonably interferes with Tenant's use of the Premises.
7. CERTAIN RIGHTS RESERVED TO LANDLORD
Landlord reserves the following rights, each of which Landlord may exercise
without notice to Tenant and without liability to Tenant, and the exercise of
any such rights shall not be deemed to constitute an eviction or disturbance of
Tenant's use or possession of the Premises and shall not give rise to any claim
for set-off or abatement of rent or any other claim: a. to change the name or
street address of the Building or the suite number of the Premises; b. to
install, affix and maintain any and all signs on the exterior or interior of the
Building; c. to make repairs, decorations, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building, and
for such purposes to enter upon the Premises, temporarily close doors, corridors
and other areas in the Building and interrupt or temporarily suspend services or
use of common areas, and Tenant agrees to pay Landlord for overtime and similar
expenses incurred if such work is done other than during ordinary business hours
at Tenant's request; d. to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises; e. to grant to any
person or to reserve unto itself the exclusive right to conduct any business or
render any service in the Building; f. to show or inspect the Premises at
reasonable times and, if vacated, to prepare the Premises for reoccupancy; g. to
install, use and maintain in and through the Premises pipes, conduits, wires and
ducts serving the Building, provided that such installation, use and maintenance
does not unreasonably interfere with Tenant's use of the Premises; and h. to
take any other action which Landlord deems reasonable in connection with the
operation, maintenance, marketing, or preservation of the Building. In the case
of any of the actions described in subsections a, c, f and g, Landlord will
provide tenant with reasonable advance written notice of the occurrence or
scheduling of the relevant event.
8. MAINTENANCE AND REPAIRS
a. Tenant's Obligation. Except as provided in subsection b, below Tenant, at
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all times during the Term and at Tenant's sole cost and expense, shall keep the
interior, non-structural portions of the Premises and every part thereof,
including, without limitation, the Heating, Ventilation and Air Conditioning
("HVAC") and other systems serving the Premises unless Landlord shall elect to
maintain the HVAC pursuant to Section 8.b hereof and Building in good condition
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and repair, ordinary wear and tear and items that are the obligation of Landlord
under this Lease excepted. However, in no event shall Tenant's obligation to
repair under this subsection extend to (i) damage and repairs covered under any
insurance policy carried by Landlord in connection with the Building; (ii)
damage caused by any defects in the design, construction or materials of the
Building, including the Premises and improvements installed therein by Landlord;
(iii) damage caused in whole or in part by the negligence or willful misconduct
of Landlord or Landlord's agents, employees, invitees or licensees, except to
the extent such repairs would be covered by a policy of insurance required to be
maintained by Tenant under this Lease, (iv) repairs covered under Expenses; (v)
reasonable wear and tear; (vi) conditions covered under any warranties of
Landlord's contractors; or (vii) damage by fire and other casualties, or acts of
governmental authorities, or acts of God and the elements. Tenant shall, when
and if needed, make all repairs to the interior, non-structural portions of the
Premises, including, but not limited to; painting of the interior ceiling and
floors, painting of the interior, windows, doors, plate glass and all plumbing
electrical and sewage located in the Premises. Tenant hereby waives all right to
make repairs at the expense of Landlord or in lieu thereof to vacate the
Premises as provided in California Civil Code Section 1942 or any other law,
statute or ordinance now or hereafter in effect.
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b. Landlord's Obligations. Landlord, at Landlord's expense, shall repair and
----------------------
maintain the roof, foundations and structural exterior walls of the Building
except for repairs are caused in whole or in part by the negligence or willful
misconduct of Tenant, its agents, servants, employees or invitees, except to the
extent any such repairs would be covered by a policy of insurance required to be
maintained by Landlord pursuant to this Lease, in which case Tenant shall pay to
Landlord the cost of the maintenance and repairs caused in whole or in part by
Tenant and not covered or potentially covered by insurance. Landlord may, at its
option, elect to contract for the maintenance of the HVAC and charge the
allocable costs thereof to Tenant. There shall be no abatement of Rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to the fixtures, appurtenances and equipment therein caused by the gross
negligence or willful misconduct of Landlord or its agents, and provided further
that in no event shall Landlord be liable for any consequential damages related
to any such activities. Landlord shall maintain the Common Areas subject to
reimbursement of its expenses pursuant to Section 2. Notwithstanding the
foregoing, Tenant shall be solely responsible, at Tenant's sole expense, to
perform any alterations which are required due to Tenant's particular use or
configuration of the Premises (as opposed to office or industrial uses
generally) or because of any alterations voluntarily made to the Premises by
Tenant. Landlord shall be responsible, at Landlord's sole expense, for making,
maintaining and repairing any other alterations to the Premises or Building
required by law.
9. ALTERATIONS
a. Requirements. Tenant shall not make any replacement, alteration, improvement
------------
or addition to or removal from the Premises (collectively an "Alteration") that
shall either (a) cost in excess of $10,000 or (b) affect a Building system, or
the Building structure or external appearance without the prior written consent
of Landlord, which consent shall not be unreasonably withheld unless such
Alteration affects the structure or systems of the Building, the exterior
appearance of the Building or affects any other tenant's premises, in which case
Landlord may withhold its consent of any reason. Alterations permitted hereunder
without the consent of Landlord will be referred to as "Permitted Alterations."
In the event Tenant proposes to make any Alteration that is not a Permitted
Alteration, Tenant shall, prior to commencing such Alteration, submit to
Landlord for prior written approval: i. detailed plans and specifications; ii.
the names, addresses and copies of contracts for all contractors; iii. all
necessary permits evidencing compliance with all applicable governmental rules,
regulations and requirements; iv. certificates of insurance in form and amounts
required by Landlord, naming Landlord, its managing agent, and any other parties
designated by Landlord as additional insureds; and v. all other documents and
information as Landlord may reasonably request in connection with such
Alteration. Tenant agrees to pay Landlord's reasonable charges for review of all
such items and supervision of any Permitted Alteration. Neither approval of the
plans and specifications nor supervision of the Alteration by Landlord shall
constitute a representation or warranty by Landlord as to the accuracy,
adequacy, sufficiency or propriety of such plans and specifications or the
quality of workmanship or the compliance of such Alteration with applicable law.
Tenant shall pay the entire cost of the Alteration. Each Alteration shall be
performed in a good and workmanlike manner, in accordance with the plans and
specifications approved by Landlord, and shall meet or exceed the standards for
construction and quality of materials established by Landlord for the Building.
In addition, each Alteration shall be performed in compliance with all
applicable governmental laws and regulations and insurance company requirements.
Each Permitted Alteration shall, at the option of Tenant, be performed by
Landlord or under Landlord's supervision, and all Alterations shall be made in
harmony with Landlord's employees, contractors and other tenants. Each
Alteration, whether temporary or permanent in character, made by Landlord or
Tenant in or upon the Premises (excepting only Tenant's furniture, personal
property, equipment and trade fixtures) shall become Landlord's property and
shall remain upon the Premises at the expiration or termination of this Lease
without compensation to Tenant; provided, however, that Landlord shall have the
right to require Tenant to remove such Alteration at Tenant's sole cost and
expense in accordance with the provisions of Section 14 of this Lease, which
required removal shall be specified by Landlord when Landlord consents to
Tenant's requested Alterations.
b. Liens. In the case of any alteration performed by Tenant, upon completion of
-----
any alteration, Tenant shall promptly furnish Landlord with sworn owner's and
contractors' statements and full and final waivers of lien covering all labor
and materials included in such alteration. Tenant shall not permit any
11
mechanic's lien to be filed against the Building, in connection with any work
conducted by Tenant, or any part thereof, arising out of any alteration
performed, or alleged to have been performed, by or on behalf of Tenant. If any
such lien is filed, Tenant shall within ten (10) days thereafter have such lien
released of record or diligently contest and deliver to Landlord a bond in form,
amount, and issued by a surety satisfactory to Landlord, indemnifying Landlord
against all costs and liabilities resulting from such lien and the foreclosure
or attempted foreclosure thereof. If Tenant fails to have such lien so released
or to contest and deliver such bond to Landlord, Landlord, without investigating
the validity of such lien, may pay or discharge the same; and Tenant shall
reimburse Landlord upon demand for the amount so paid by Landlord, including
Landlord's expenses and attorneys' fees.
c. Americans With Disabilities Act. Tenant shall perform, at Tenant's sole
expense, any alterations to the Premises or Building required by Title III of
the Americans with Disabilities Act of 1990 and the regulations promulgated
thereunder (collectively, the "ADA") as a result of either (i) Tenant's use of
the Premises as a "public accommodation" (as defined by the ADA), (ii)
alterations voluntarily made to the Premises by Tenant or (iii) the employment
by Tenant at the Premises of persons entitled to make a claim under the ADA.
10. INSURANCE AND INDEMNIFICATION
In consideration of the leasing of the Premises at the Rent stated herein,
Landlord and Tenant agree to provide insurance and allocate the risks of loss as
follows:
a. Tenant's Insurance. Tenant, at its sole cost and expense but for the mutual
------------------
benefit of itself and Landlord, agrees to purchase and keep in force and effect
during the Term hereof, insurance which is available at commercially reasonable
rates and otherwise commonly carried by tenants in the area, under policies
issued by insurers licensed to do business in the state in which the Building is
located with a Best's rating of A-, class VIII or higher on all alterations,
additions, and improvements owned by Tenant, and on all personal property owned
by Tenant located in the Premises, protecting Landlord and Tenant from damage or
other loss caused by perils covered under such property coverage as may be
maintained by prudent an Tenants in the market area of the Project in amounts
not less than the full insurable replacement value of such property. Such
insurance shall provide that it is specific and not contributory and shall name
the Landlord and its management agent as additional insureds and shall contain
an agreed amount endorsement.
Tenant also agrees to maintain commercial general liability insurance covering
Tenant as the insured party, and naming Landlord and its managing agent as an
additional insured, against claims for bodily injury and death and property
damage occurring in or about the Premises, with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars
($2,000,000.00) general aggregate.
Tenant shall, prior to commencement of the Term, furnish to Landlord
certificates evidencing such coverage, which certificates shall state that such
insurance coverage may not be changed or canceled without at least thirty (30)
days prior written notice to Landlord and Tenant. In the event Tenant shall fail
to procure such insurance, Landlord may at its option, after giving Tenant no
less than fourteen (14) days prior written notice of its election to do so,
procure the same for the account of Tenant and the cost thereof shall be paid to
Landlord as additional Rent upon receipt by Tenant of bills therefor. When used
in this Section 10. A the term "Landlord" shall include Landlord's partners,
officers, property managers, and employees and the employees and officers of
Landlord's property managers and the term "Tenant" shall include Tenant's
partners, beneficiaries, officers, agents, servants and employees.
b. Landlord's Insurance. Landlord agrees to purchase and keep in force and
--------------------
effect commercial general liability insurance in an amount not less than Three
Million Dollars ($3,000,000.00) per occurrence and Five Million Dollars
($5,000,000.00) general aggregate, and All Risk property insurance with an
agreed amount endorsement, on the Building and Common Areas, subject to the
reimbursement of the full amount thereof as Expenses.
c. Risk of Loss. By this Section 10, Landlord and Tenant intend that the risk
------------
of loss or damage as described above be borne by responsible insurance carriers
to the extent above provided, and Landlord and Tenant hereby agree to look
solely to, and to seek recovery only from, their respective insurance
12
carriers in the event of a loss of a type described above to the extent that
such coverage is agreed to be provided hereunder. For this purpose, any
applicable deductible amount shall be treated as though it were recoverable
under such policies. Landlord and Tenant agree that applicable portions of all
monies collected from such insurance shall be used toward the full compliance
with the obligations of Landlord and Tenant under this Lease in connection with
damage resulting from fire or other casualty, unless this Lease is terminated in
connection with such casualty pursuant to the provisions hereof. Landlord and
Tenant shall both obtain from their respective property insurance carriers
endorsements waiving any rights of subrogation such carrier may have as a result
of a claim by the insured.
d. Indemnification of Landlord. Tenant shall indemnify and defend Landlord, its
---------------------------
employees and agents and save them harmless from and against any and all loss
and against all claims, actions, damages, liability and expenses, in connection
with loss of life, bodily and personal injury, or property damage arising from
any occurrence in, upon or at the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees or invitees or by anyone permitted to be on the Premises by Tenant,
except to the extent caused by the sole negligence or willful misconduct of
Landlord, its employees or agents. Landlord shall indemnify and defend Tenant,
its employees and agents and save them harmless from and against any and all
loss and against all claims, actions, damages, liability and expenses, in
connection with loss of life, bodily and personal injury, or property damage
arising from the negligence or willful misconduct of Landlord or Landlord's
agents, employees or contractors. In case an indemnified party hereunder shall
be made a party to any litigation commenced by or against it, the indemnifying
party shall pay all costs, expenses, and reasonable attorneys' fees incurred or
paid by them in connection with such litigation. The obligations assumed herein
shall survive the expiration or sooner termination of this Lease, unless
specifically provided to the contrary hereunder.
11. FIRE OR OTHER CASUALTY
a. Destruction of the Building. If fifty percent (50%) of the area of the
---------------------------
Building should be substantially destroyed by fire or other casualty, either
party hereto may, at its option, terminate this Lease by giving written notice
thereof to the other party within thirty (30) days of such casualty.
Notwithstanding the foregoing, if the Premises is not affected by such casualty,
Landlord may not terminate this Lease unless the leases of any other the tenants
in the Building are also terminated. In such event, Rent shall be apportioned to
and shall cease as of the date of such casualty. In the event neither party
exercises this option, then the Premises shall be reconstructed and restored as
set forth below.
b. Destruction of the Premises. If the Premises should be rendered untenantable
for the purpose for which they were leased, by fire or other casualty, but the
Building is not substantially destroyed as provided above, then the parties
hereto shall have the following options:
i. If, in Landlord's reasonable judgment, the Premises cannot be reconstructed
or restored within one hundred eighty (180) days of such casualty to
substantially the same condition as they were prior to such casualty, Landlord
shall so notify Tenant within thirty (30) days of the casualty and either
Landlord or Tenant may elect, within fifteen (15) days thereafter, to terminate
this Lease. If Tenant makes no election within such fifteen (15) day period,
Landlord shall then have the right, to be exercised within fifteen (15) days
following the expiration of Tenant's election period, by giving written notice
to Tenant, to reconstruct and restore the Premises to substantially the same
condition as they were prior to the casualty. In such event this Lease shall
continue in full force and effect to the balance of the term, upon the same
terms, conditions and covenants as are contained herein; provided, however, that
the Rent shall be abated in the proportion which the approximate area of the
damaged portion bears to the total area in the Premises from the date of the
casualty until substantial completion of the reconstruction of the Premises. If
Landlord fails to exercise such right, this Lease shall be terminated as of the
date of the casualty, to which date Rent shall be apportioned and shall
thereafter cease.
Notwithstanding the above, if the casualty occurs during the last twelve (12)
months of the Term of this Lease, and the relevant restoration cannot be
completed in thirty (30) days, either party hereto shall have the right to
terminate this Lease as of the date of the casualty, which right shall be
exercised by written notice to be given by either party to the other party
within thirty (30) days therefrom. If this right is exercised, Rent shall be
apportioned to and shall cease as of the date of the casualty. If a casualty
occurs during the last twelve (12) months of the term of the Lease, Tenant may
not exercise any
13
extension options without first obtaining Landlord's written consent.
ii. If, in Landlord's reasonable judgment, the Premises are able to be restored
within one hundred eighty (180) days to substantially the same condition as they
were prior to such casualty, Landlord shall so notify Tenant within fifteen (15)
days of the casualty, and Landlord shall then proceed to reconstruct and restore
the damaged portion of the Premises, at Landlord's expense, to substantially the
same condition as it was prior to the casualty; Rent shall be abated in the
proportion which the approximate area of the damaged portion bears to the total
area in the Premises from the date of the casualty until substantial completion
of the reconstruction repairs, and this Lease shall continue in full force and
effect for the balance of the Term.
iii. In the event Landlord undertakes reconstruction or restoration of the
Premises pursuant to subparagraph (i) or (ii) above, Landlord shall use
reasonable diligence in completing such reconstruction repairs, but in the event
Landlord fails to substantially complete the same within two hundred forty (240)
days from the date of the casualty, except as a result of any of the occurrences
set forth in subparagraph 25 (j) below, Tenant may, at its option, terminate
this Lease upon giving Landlord written notice to that effect, whereupon both
parties shall be released from all further obligations and liability hereunder.
12. CONDEMNATION
If the Premises or the Building is rendered untenantable by reason of a
condemnation (or by a deed given in lieu thereof), then either party may
terminate this Lease by giving written notice of termination to the other party
within thirty (30) days after such condemnation, in which event this Lease shall
terminate effective as of the date that possession of such property is required
to be delivered to the condemning authority. If this Lease so terminates, Rent
shall be paid through and apportioned as of the date of such condemnation. If
such condemnation does not render the Premises or the Building untenantable,
this Lease shall continue in effect and Landlord shall promptly restore the
portion not condemned to the extent reasonably possible to the condition
existing prior to the condemnation. In such event, however, Landlord shall not
be required to expend an amount in excess of the proceeds received by Landlord
from the condemning authority. Landlord reserves all rights to compensation for
any condemnation. Tenant hereby assigns to Landlord any right Tenant may have to
such compensation, and Tenant shall make no claim against Landlord or the
condemning authority for compensation for termination of Tenant's leasehold
interest under this Lease or interference with Tenant's business.
13. ASSIGNMENT AND SUBLETTING
a. Landlord's Consent. Tenant shall not, without the prior written consent of
------------------
Landlord, which shall not be unreasonably withheld or delayed: i. assign,
convey, mortgage or otherwise transfer this Lease or any interest hereunder, or
sublease the Premises, or any part thereof, whether voluntarily or by operation
of law; or ii. permit the use of the Premises by any person other than Tenant
and its employees. Any such transfer, sublease or use described in the preceding
sentence (a "Transfer") occurring without the prior written consent of Landlord
shall be void and of no effect. Landlord's consent to any Transfer shall not
constitute a waiver of Landlord's right to withhold its consent to any future
Transfer. Landlord's consent to any Transfer or acceptance of rent from any
party other than Tenant shall not release Tenant from any covenant or obligation
under this Lease. Landlord may require as a condition to its consent to any
assignment of this Lease that the assignee execute an instrument in which such
assignee assumes the obligations of Tenant hereunder. For the purposes of this
paragraph, the transfer (whether direct or indirect) of all or a majority of the
capital stock in a corporate Tenant (other than the shares of the capital stock
of a corporate Tenant whose stock is publicly traded) or the merger,
consolidation or reorganization of such Tenant and the transfer of all or any
general partnership interest in any partnership Tenant shall be considered a
Transfer.
b. Standards for Consent. If Tenant desires the consent of Landlord to a
---------------------
Transfer, Tenant shall submit to Landlord, at least thirty (30) days prior to
the proposed effective date of the Transfer, a written notice which includes
such information as Landlord may reasonably require about the proposed Transfer
and the transferee, together with a non-refundable processing fee in the amount
of five hundred dollars ($500.00). Tenant shall also pay all reasonable
attorneys' or other fees and expenses incurred by
14
Landlord in connection with any proposed Transfer and paid to any third party,
whether or not Landlord consents to such Transfer. Landlord's consent or lack
thereof shall be provided within thirty (30) days of receipt of Tenant's notice.
Landlord shall not be deemed to have unreasonably withheld its consent if, in
the judgment of Landlord: i. the transferee is of a character or engaged in a
business which is not in keeping with the standards or criteria used by Landlord
in leasing the Building; ii. the financial condition of the transferee is such
that it may not be able to perform its obligations in connection with this
Lease; iii. the transferee is a tenant of or negotiating for space in the
Building; iv. the transferee is a governmental unit; v. Tenant is in Default
under this Lease; vi. in the judgment of Landlord, such a Transfer would violate
any term, condition, covenant, or agreement of the Landlord involving the
Building or any other tenant's lease within it; or vii. any other basis which
Landlord reasonably deems appropriate. If Landlord wrongfully withholds its
consent to any Transfer, Tenant's sole and exclusive remedy therefor shall be to
seek specific performance of Landlord's obligation to consent to such Transfer.
c. Recapture. Landlord shall have the right to terminate this Lease as to that
---------
portion of the Premises covered by a Transfer. Landlord may exercise such right
to terminate by giving notice to Tenant at any time within thirty (30) days
after the date on which Tenant has furnished to Landlord all of the items
required under Section 13.b above. If Landlord exercises such right to
terminate, Landlord shall be entitled to recover possession of, and Tenant shall
surrender such portion of, the Premises (with appropriate demising partitions
erected at the expense of Tenant) on the effective date of the proposed Transfer
(the "Termination Date"). In the event of a recapture in response to Tenant's
request to sublet a portion of the Premises, all liability or responsibility of
Tenant with respect to such space shall terminate as of the Termination Date,
except for liabilities that are expressly provided in this Lease to continue
beyond the termination date hereof, and, on or before the Termination Date,
Landlord and Tenant shall enter into an amendment to this Lease re-establishing
the Base Rent and Tenant's Share as a result of such recapture. If Landlord
exercises such right to terminate, Landlord shall have the right to enter into a
lease with the proposed transferee without incurring any liability to Tenant on
account thereof. If Landlord consents to any Transfer, Tenant shall pay to
Landlord 50% of all rent and other consideration received by Tenant in excess of
the Rent paid by Tenant hereunder for the portion of the Premises so
transferred. Such rent shall be paid as and when received by Tenant. Tenant
shall have the right to deduct from such excess rent, on a pro-rata basis,
Tenant's reasonable costs and expenses directly related to the Transfer
including, but not limited to, broker's commissions, tenant improvements, and
legal fees.
14. SURRENDER
Upon expiration or sooner termination of the Term or Tenant's right to
possession of the Premises, Tenant shall return the Premises to Landlord in the
condition delivered to Tenant, ordinary wear and damage by fire or other
casualty or other cause beyond the control of Tenant excepted, provided Tenant
shall remove the initial improvements constructed pursuant to Exhibit B hereto,
if Landlord elects to have such improvements removed pursuant to Exhibit B
requested by Landlord, at Tenant's sole cost and expense, prior to the surrender
of the Premises, and restore any portions of the Premises damaged by such
removal to the condition required under this paragraph. If Landlord requires
Tenant to remove any alterations pursuant to Section 9, then such removal shall
be done in a good and workmanlike manner; and upon such removal Tenant shall
restore the Premises to its condition prior to the installation of such
alterations, ordinary wear and damage by fire or other casualty or other cause
beyond the control of Tenant excepted. If Tenant does not remove such
alterations after request to do so by Landlord, Landlord may remove the same and
restore the Premises; and Tenant shall pay the cost of such removal and
restoration to Landlord upon demand. Tenant shall also remove its furniture,
equipment, trade fixtures and all other items of personal property from the
Premises prior to termination of the Term or Tenant's right to possession of the
Premises. If Tenant does not remove such items, Tenant shall be conclusively
presumed to have conveyed the same to Landlord without further payment or credit
by Landlord to Tenant; or at Landlord's sole option such items shall be deemed
abandoned, in which event Landlord may cause such items to be removed and
disposed of at Tenant's expense, which shall be 115% of Landlord's actual cost
of removal, without notice to Tenant and without obligation to compensate
Tenant.
15. DEFAULTS AND REMEDIES
a. Default. The occurrence of any of the following shall constitute a
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default (a "Default") by
15
Tenant under this Lease: (i) Tenant fails to pay any Rent when due, including,
without limitation, Adjustment Rent and such failure is not cured within five
(5) days after Tenant's receipt of written notice from Landlord (which notice
may be in the form of a statutory notice to pay rent or quit); (ii) Tenant fails
to perform any other provision of this Lease and such failure is not cured
within thirty (30) days (or immediately if the failure involves a hazardous
condition) after notice from Landlord, provided that Tenant shall not be deemed
to be in default under this Section 15.a.(ii) if such default is incapable of
cure within said period and Tenant has commenced to complete the cure of such
default within said thirty (30) day period and proceeds diligently throughout
the period to effect a cure; (iii) the leasehold interest of Tenant is levied
upon or attached under process of law; (iv) Tenant vacates the Premises for more
than forty-five (45) days without notice to Landlord; or (v) any voluntary or
involuntary proceedings are filed by or against Tenant or any guarantor of this
Lease under any bankruptcy, insolvency or similar laws and, in the case of any
involuntary proceedings, are not dismissed within sixty (60) days after filing.
b. Remedies Upon Tenant's Default. Upon a Default, Landlord shall have
------------------------------
the following remedies, in addition to all other rights and remedies provided by
law, equity, statute or otherwise provided in this Lease, to which Landlord may
resort cumulatively or in the alternative:
Landlord may continue this Lease in full force and effect, and this Lease shall
continue in full force and effect as long as Landlord does not terminate
Tenant's right to possession, and Landlord shall have the right to collect Rent
when due. During the period Tenant is in default, Landlord may enter the
Premises and relet it, or any part of it, to third parties for Tenant's account,
provided that any Rent in excess of the Rent due hereunder shall be payable to
Landlord. Tenant shall be liable immediately to Landlord for all costs Landlord
incurs in reletting the Premises, including, without limitation, brokers'
commissions, expenses of cleaning and redecorating the Premises required by the
reletting and like costs. Reletting may be for a period shorter or longer than
the remaining Term of this Lease. Tenant shall pay to Landlord the Rent and
other sums due under this Lease on the dates the Rent is due, less the Rent and
other sums Landlord receives from any reletting. No act by Landlord allowed by
this Section 15.b shall terminate this Lease unless Landlord notifies Tenant in
writing that Landlord elects to terminate this Lease.
"The lessor has the remedy described in Civil Code Section 1951.4 (lessor
may continue the lease in effect after lessee's breach or abandonment and
recover rent as it becomes due, if lessee has the right to sublet or assign
subject only to reasonable limitations)."
Landlord may terminate Tenant's right to possession of the Premises at any time
by giving written notice to that effect. No act by Landlord other than giving
written notice to Tenant shall terminate this Lease. Acts of maintenance,
efforts to relet the Premises or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall not constitute
a termination of Tenant's right to possession. On termination, Landlord shall
have the right to remove all personal property of Tenant and store it at
Tenant's cost and to recover from Tenant as damages: (1) the worth at the time
of award of unpaid Rent and other sums due and payable which had been earned at
the time of termination; plus (2) the worth at the time of award of the amount
by which the unpaid Rent and other sums due and payable which would have been
payable after termination until the time of award exceeds the amount of the Rent
loss that Tenant proves could have been reasonably avoided; plus (3) the worth
at the time of award of the amount by which the unpaid Rent and other sums due
and payable for the balance of the Term after the time of award exceeds the
amount of the Rent loss that Tenant proves could be reasonably avoided; plus (4)
any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform Tenant's obligations under
this Lease, or which, in the ordinary course of things, would be likely to
result therefrom, including, without limitation, any costs or expenses incurred
by Landlord: (a)in retaking possession of the Premises, including reasonable
attorneys' fees and costs therefor; (b) maintaining or preserving the Premises
for reletting to a new tenant, including repairs or alterations to the Premises
for the reletting; (c)leasing commissions; (d) any other costs necessary or
appropriate to relet the Premises; and (e) at Landlord's election, such other
amounts in addition to or in lieu of the foregoing as may be permitted from time
to time by the laws of the State of California.
The "worth at the time of award" of the amounts referred to in Sections 15.b (1)
---
and (2) is computed by allowing interest at the lesser of twelve percent (12%)
----
per annum or the maximum rate permitted by law, on the unpaid Rent and other
sums due and payable from the termination date through the date of award. The
"worth at the time of award" of the amount referred to in Section 15.b.3 is
computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award, plus
16
one percent (1%). Tenant waives redemption or relief from forfeiture under
California Code of Civil Procedure Sections 1174 and 1179, or under any other
present or future law, if Tenant is evicted or Landlord takes possession of the
Premises by reason of any default of Tenant hereunder.
c. Other Remedies. Landlord may but shall not be obligated to perform any
--------------
obligation of Tenant under this Lease and if Landlord so elects, all costs and
expenses paid by Landlord in performing such obligation, together with interest
at the Default Rate, shall be reimbursed by Tenant to Landlord on demand. Any
and all remedies set forth in this Lease: (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity, (ii) shall be
cumulative, and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
d. Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee shall
----------
not have the right to assume or assign this Lease unless the trustee complies
with all requirements of the United States Bankruptcy Code; and Landlord
expressly reserves all of its rights, claims, and remedies thereunder.
e. Waiver of Trial by Jury. Landlord and Tenant waive trial by jury in the
-----------------------
event of any action, proceeding or counterclaim brought by either Landlord or
Tenant against the other in connection with this Lease.
f. Counterclaims. Tenant hereby waives the right to interpose any
-------------
counterclaim other than a mandatory counterclaim, in any proceeding instituted
by Landlord against Tenant to terminate the Lease, to obtain possession of the
Premises, or to recover Rent.
g. Venue. If either Landlord or Tenant desires to bring an action against
-----
the other in connection with this Lease, such action shall be brought in the
federal or state courts located in the state in which the Building in located.
Landlord and Tenant consent to the jurisdiction of such courts and waive any
right to have such action transferred from such courts on the grounds of
improper venue or inconvenient forum.
16. HOLDING OVER
If Tenant retains possession of the Premises after the expiration or termination
of the Term or Tenant's right to possession of the Premises, Tenant shall pay
Base Rent during such holding over at one hundred twenty five percent (125%) the
Base Rent in effect immediately preceding such holding over, together with
Additional Rent and all other amounts payable under this Lease, computed on a
monthly basis for each month or partial month that Tenant remains in possession.
Tenant shall also pay, indemnify and defend Landlord from and against all claims
and damages, consequential as well as direct, sustained by reason of Tenant's
holding over. The provisions of this Section do not waive Landlord's right of
re-entry or right to regain possession by actions at law or in equity or any
other rights hereunder, and any receipt of payment by Landlord shall not be
deemed a consent by Landlord to Tenant's remaining in possession or be construed
as creating or renewing any lease or right of tenancy between Landlord and
Tenant.
17. SECURITY DEPOSIT
a. On or before the Commencement Date, Tenant shall deliver to Landlord i.
cash in the amount of $36,302.40 and ii. at Tenant's election as to the form of
security, cash or a letter of credit having a term of at least one year (the
"Letter of Credit") in an amount equal to the amounts expended by Landlord for
leasing commissions and the amount reimbursed to Tenant for Tenant Improvements
to be made pursuant to Exhibit B hereto, which amount is estimated by Landlord
to be approximately $165,136.00 (the Additional Security Deposit). As of the
second anniversary of the Commencement Date Landlord shall consider Tenant's
financial condition and provided there shall have been no Default under the
Lease during the preceding year and Tenant's financial condition shall be
satisfactory to Landlord in its reasonable discretion, Landlord may agree to
reduce the Additional Security Deposit by 20% each year for the remainder of the
term. Notwithstanding anything to the contrary contained in this Lease, at no
time shall the amount held by Landlord as security for the Tenant's performance
under the Lease be less than $36,302.40 (the "Minimum Balance"). While any
Letter of Credit is outstanding: 1. Tenant shall replace the letter of credit at
least thirty (30) days before the due date thereof, and if Tenant does not do so
within
17
five (5) business days of Landlord's written request for replacement, Landlord
shall be entitled to draw on the Letter of Credit for the full amount thereof
and shall hold the proceeds thereof until applied as provided herein, or until
Tenant delivers to Landlord a substitute Letter of Credit; 2. the issuing bank
and the form of the Letter of Credit shall be satisfactory to Landlord in its
sole discretion; 3. if Landlord shall transfer the property, Tenant shall cause
its bank to issue a replacement letter of credit or amendment to any existing
Letter of Credit naming the new owner as beneficiary, and if it fails to do so
within ten (10) business days after Landlord's written request therefor,
Landlord is authorized to cash the Letter of Credit and deliver the proceeds
thereof to any successor owner; and 4) the Letter of Credit shall be security
for Tenant's timely performance of its obligations hereunder, and if a Default
shall occur under the Lease, Landlord may cash the Letter of Credit and apply
the proceeds thereof as described in the next succeeding subsection of this
Paragraph.
b The Letter of Credit and any cash held by Landlord pursuant to the
preceding subsection of this Paragraph (the "Security Deposit") shall be
security for the performance of Tenant's obligations under this Lease. Upon the
occurrence of a Default, Landlord may use all or any part of the Security
Deposit for the payment of any Rent or for the payment of any amount which
Landlord may pay or become obligated to pay by reason of such Default, or to
compensate Landlord for any loss or damage which Landlord may suffer by reason
of such Default. If any portion of the Security Deposit is used, Tenant shall
within five (5) business days after written demand therefor deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its original
amount. Landlord shall not be required to keep the Security Deposit separate
from its general funds, and Tenant shall not be entitled to interest on the
Security Deposit, except to the extent required by law. In no event shall the
Security Deposit be considered an advanced payment of Rent, and in no event
shall Tenant be entitled to use the Security Deposit for the payment of Rent. If
no default by Tenant exists hereunder, the Security Deposit or any balance
thereof shall be returned to Tenant within thirty (30) days after the expiration
of the Term and vacation of the Premises by Tenant. Landlord shall have the
right to transfer the Security Deposit to any purchaser of the Building. Upon
such transfer, Tenant shall look solely to such purchaser for return of the
Security Deposit; and Landlord shall be relieved of any liability with respect
to the Security Deposit.
18. [INTENTIONALLY DELETED]
19. ESTOPPEL CERTIFICATE
Tenant agrees that, from time to time upon not less than twenty (20) days' prior
request by Landlord, Tenant shall execute and deliver to Landlord a written
certificate certifying: (i) that this Lease is unmodified and in full force and
effect (or if there have been modifications, a description of such modifications
and that this Lease as modified is in full force and effect); (ii) the dates to
which Rent has been paid; (iii) that Tenant is in possession of the Premises, if
that is the case; (iv) that to the best of Tenant's knowledge, Landlord is not
in default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); (vi) that
the Premises have been completed in accordance with the terms and provisions
hereof and that Tenant has accepted the Premises and the condition thereof and
of all improvements thereto and has no claims against Landlord or any other
party with respect thereto; and (vii) such additional matters as may reasonably
be requested by Landlord, it being agreed that such certificate may be relied
upon by any prospective purchaser, mortgagee, or other person having or
acquiring an interest in the Building.
20. SUBORDINATION
This Lease is and shall be expressly subject and subordinate at all times to (i)
any ground or underlying lease of the Building, now or hereafter existing, and
all amendments, renewals and modifications to any such lease, and (ii) the lien
of any mortgage or trust deed now or hereafter encumbering fee title to the
Building and/or the leasehold estate thereunder, and all amendments, renewals,
modifications and extensions thereof unless such ground lease or ground lessor,
mortgage or mortgagee, or trust deed or trustee or beneficiary, expressly
provides or elects that the Lease shall be superior to such lease, mortgage, or
trust deed. Without limiting the foregoing, such subordination may be effected
by notice by any ground lessor, mortgagee, trustee or beneficiary to Tenant, or
by a unilateral instrument of subordination executed by such mortgagee, trustee,
or ground lessor and recorded in the records of the
18
county in which the Building is located, without the necessity of written notice
to or further agreement of Tenant. If any such mortgage or trust deed is
foreclosed, or if any such ground lease is terminated, upon request of the
mortgagee, holder or lessor, as the case may be and regardless of whether such
mortgagee or lessee shall have subordinated its interest to the interest of
Tenant under this Lease, Tenant will attorn to the purchaser at the foreclosure
sale or to the lessor under such lease, as the case may be on the terms and
conditions contained in this Lease, or shall execute a new lease with such
purchaser at the foreclosure sale or to the lessor under such lease, as the case
may be, on all of the terms and conditions contained in this Lease. The
foregoing provisions are declared to be self-operative and no further
instruments shall be required to effect such subordination and/or attornment;
provided, however, that Tenant agrees upon request by any such mortgagee,
holder, lessor or purchaser at foreclosure, to execute and deliver such
subordination and/or attornment instruments as may be reasonably required by
such person to confirm such subordination and/or attornment, or any other
documents required to evidence superiority of the ground lease or mortgage,
should ground lessor or mortgagee elect such superiority. Notwithstanding the
foregoing, the effective subordination of this Lease to any existing or future
mortgages, deeds of trust, other security interest or leases shall be subject to
the fulfillment of the conditions precedent that (i) the holder of such mortgage
or other lien on the Building or Premises shall agree that so long as Tenant is
not in Default, the Lease shall not be terminated by foreclosure or sale
pursuant to the terms of such mortgage or lien; and (ii) such subordination
shall not otherwise materially restrict or limit the rights or increase the
obligations of Tenant under this Lease. Landlord represents and warrants to
Tenant as of the date of this Lease that it has not created nor to its knowledge
is it obligated under any mortgage, deed of trust or ground lease affecting the
Premises.
21. QUIET ENJOYMENT
Landlord represents that it has the authority to enter into this Lease. As long
as no Default exists, Tenant shall peacefully and quietly have and enjoy the
Premises for the Term, free from interference by Landlord, subject, however, to
the provisions of this Lease. The loss or reduction of Tenant's light, air or
view will not be deemed a disturbance of Tenant's occupancy of the Premises nor
will it affect Tenant's obligations under this Lease or create any liability of
Landlord to Tenant.
22. BROKER
Landlord and Tenant each warrants and represents for the benefit of the other
that it has had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, except for any Brokers specified in Item 7
of the Schedule, and that it knows of no other real estate broker or agent who
is or might be entitled to a real estate brokerage commission or finder's fee in
connection with this Lease.
Each party shall indemnify and hold harmless the other from and against any
and all liabilities or expenses arising out of claims made by any broker (other
than the Brokers stated in Item 7 of the Schedule) or individual for commissions
or fees resulting from the actions of the indemnifying party in connection with
this Lease. Landlord shall indemnify and hold harmless Tenant from and against
any and all liabilities or expense arising out of claims made by the Brokers
stated in Item 7 of the Schedule for commissions or fees in connection with this
Lease. Landlord agrees to pay the Brokers stated in Item 7 of the Schedule a
commission in accordance with a separate agreement between Landlord and such
Brokers.
23. NOTICES
All notices and demands to be given by one party to the other party under this
Lease shall be given in writing, mailed or delivered to Landlord or Tenant, as
the case may be, at the address set forth in the Schedule or at such other
address as either party may hereafter designate. Notices shall be delivered by
hand or by United States certified or registered mail, postage prepaid, return
receipt requested, or by a nationally recognized overnight air courier service.
Notices shall be considered to have been given upon the earlier to occur of
actual receipt or two (2) business days after posting in the United States mail.
19
24. MISCELLANEOUS
a. Successors and Assigns. Subject to Section 14 of this Lease, each provision
----------------------
of this Lease shall extend to, bind and inure to the benefit of Landlord and
Tenant and their respective legal representatives, successors and assigns; and
all references herein to Landlord and Tenant shall be deemed to include all such
parties. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean only
the owner or owners of the Building at the time in question.
b. Entire Agreement. This Lease, and the riders and exhibits, if any, attached
----------------
hereto which are hereby made a part of this Lease, represent the complete
agreement between Landlord and Tenant; and Landlord has made no representations
or warranties except as expressly set forth in this Lease. No modification or
amendment of or waiver under this Lease shall be binding upon Landlord or Tenant
unless in writing signed by Landlord and Tenant.
c. Time of Essence. Time is of the essence of this Lease and each and all of
---------------
its provisions.
d. Execution and Delivery. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of space or an option for
lease, and it is not effective until execution and delivery by both Landlord and
Tenant. Execution and delivery of this Lease by Tenant to Landlord shall
constitute an irrevocable offer by Tenant to lease the Premises on the terms and
conditions set forth herein, which offer may not be revoked for fifteen (15)
days after such delivery.
e. Severability. The invalidity or unenforceability of any provision of this
------------
Lease shall not affect or impair any other provisions.
f. Governing Law. This Lease shall be governed by and construed in accordance
-------------
with the laws of the state in which the Building is located.
g. Attorneys' Fees. In any action or proceeding which Landlord or Tenant brings
---------------
to enforce its respective rights hereunder or to enforce any judgment granted in
connection therewith, the unsuccessful party shall pay all costs incurred by the
prevailing party (whether or not the action or proceeding is pursued to
judgment), including reasonable attorneys' fees, and said costs and attorneys'
fees shall be a part of the judgment in said action, if a final judgment is
entered in any such action.
x. Xxxxx in Possession. In no event shall Landlord be liable to Tenant if
-------------------
Landlord is unable to deliver possession of the Premises to Tenant on the
Commencement Date for causes outside Landlord's reasonable control. If Landlord
is unable to deliver possession of the Premises to Tenant by the Commencement
Date, the Commencement Date shall be deferred until Landlord can deliver
possession to Tenant.
i. Joint and Several Liability. If Tenant is comprised of more than one party,
---------------------------
each such party shall be jointly and severally liable for Tenant's obligations
under this Lease.
j. Force Majeure. Neither Landlord nor Tenant shall be in default hereunder,
-------------
and neither party shall be excused from performing its obligations hereunder
(except the obligation to pay Rent) due to any accident, breakage, strike,
shortage of materials, acts of God or other causes beyond its reasonable control
("Force Majeure"), provided if a party is prevented from performing due to its
financial condition, in no event shall this eventuality be deemed "beyond the
reasonable control" of such party.
k. Captions. The headings and titles in this Lease are for convenience only and
--------
shall have no effect upon the construction or interpretation of this Lease.
l. No Waiver. No receipt of money by Landlord from Tenant after termination of
---------
this Lease or after the service of any notice or after the commencing of any
suit or after final judgment for possession of the Premises shall renew,
reinstate, continue or extend the Term or affect any such notice or suit. No
waiver of any default of Tenant shall be implied from any omission by Landlord
to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other
20
than the default specified in the express waiver and then only for the time and
to the extent therein stated.
m. Limitation of Liability. Any liability of Landlord under this Lease shall be
-----------------------
limited solely to its interest in the Building and the current income and
insurance proceeds thereof, and in no event shall any personal liability be
asserted against Landlord in connection with this Lease nor shall any recourse
be had to any other property or assets of Landlord.
25. PARKING
Tenant shall have the right to park in the Building's parking facilities in
common with other tenants of the Building upon terms and conditions as may from
time to time be established by Landlord, provided Tenant shall have at least 3.8
spaces per 1,000 rentable sq. ft of space occupied by Tenant allocated to it.
Tenant acknowledges that parking is currently on a first-come, first-served
basis. Tenant agrees not to use in excess of its proportionate share of parking
facilities and agrees to cooperate with Landlord and other tenants in the use of
the parking facilities. Landlord reserves the right, in its absolute discretion,
to determine whether the parking facilities are becoming crowded and to allocate
and assign parking spaces among Tenant and the other tenants. Landlord shall not
be liable to Tenant, nor shall this Lease be affected, if any parking is
impaired by moratorium, initiative, referendum, law, ordinance, regulation or
order passed, issued or made by any governmental or quasi-governmental body.
26. SIGNAGE
Tenant shall be entitled to a monument sign identifying its Premises of a
size and configuration consistent with the character of the Project and any
other signs in the Project, provided the sign shall be reasonably visible from
Highway 101 and provided further that the final plans relating to any such
monument sign shall be approved by Landlord in its reasonable discretion.
27. REPAIR OF DAMAGE
On or before the Commencement Date of the Lease, Landlord shall repair to a
condition comparable to the condition of areas of the Building not affected by
such damage, certain water damage that exists to certain of the concrete in
Tenant's Building.
28. SATELLITE DISH
Landlord shall not unreasonably withhold its consent to Tenant's
installation of a satellite dish on the roof of the Building, provided (a)
Landlord shall approve the plans and specifications relating to any such
satellite dish, and the construction methods to be used in connection with any
penetration of the roof membrane; (b) such dish shall be constructed in
compliance with all applicable laws, rules, regulations and ordinances; (c)
Tenant shall indemnify, defend and hold harmless Landlord against any and all
losses, costs, damages or causes of action arising out of the installation or
operation of the satellite dish; and (d) Tenant shall execute an agreement in
the form customarily required by Landlord of its tenants setting forth the
rights and obligations of Landlord and Tenant in connection with any such
satellite dish
29. RIGHT OF FIRST OFFER
21
If at any time prior to nine (9) months before the expiration of the Term,
Landlord shall seek to offer to lease the space covered by this Lease to third
parties, Landlord shall provide Tenant with written notice of its intent to do
so, and shall include in the notice a good faith summary of the terms on which
it proposes to offer the space, including, without limitations, any terms that
shall vary materially from the terms of this Lease. Provided there shall have
been no Default under this Lease that shall remain uncured at the time that
Tenant receives this notice, Tenant shall have ten (10) calendar days to accept
or decline the terms set forth in Landlord's written notice by written notice by
Tenant to Landlord. If Tenant fails to accept Landlord's offer within such ten
(10) day period, it shall be deemed to have declined to lease the space. If
Tenant accepts Landlord's offer, then the parties shall enter into a new lease
or an amendment of this Lease that shall incorporate the terms of Landlord's
written offer to lease, within ten (10) business days after Tenant's acceptance.
If Tenant declines or is deemed to have declined to Lease the space, or if
Landlord's offer is not delivered nine (9) months prior to the expiration of the
Term, Landlord may market the space at any time after Tenant declines the space
or after the period beginning nine (9) months prior to the expiration of the
Term, on such terms as Landlord shall deem appropriate in its discretion,
without any further obligation to Tenant under this paragraph.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in manner
sufficient to bind them as of the day and year first above written.
LANDLORD:
--------
XXXX MANAGEMENT COMPANY, L.P., Managing
Agent for THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey Corporation
By: /s/ Xxxx Xxxxx
---------------------------------------
Its: Vice President
---------------------------------------
TENANT:
------
MPATH INTERACTIVE, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------
Title: Xxxx Xxxxxxxxx, Pres, CEO
-------------------------------------
22
EXHIBIT A
TO LEASE DATED
December __, 1996
Between Prudential
and Mpath Interactive, Inc.
FLOOR PLAN
EXHIBIT B
TO LEASE DATED
December __, 1996
Between Prudential
and Mpath Interactive, Inc.
TENANT IMPROVEMENTS CONSTRUCTION AGREEMENT
------------------------------------------
(Tenant Designs and Constructs with Landlord Supervision)
This Tenant Improvements Construction Agreement("Agreement")is part of the Lease
dated December --, 1996 between Prudential Insurance Company of America and
MPath Interactive Inc. ("Lease") relating to certain premises ("Premises") which
are more particularly described in Exhibit A of this Lease. Landlord and Tenant
agree as follows with respect to the Tenant Improvements to be installed in the
Premises:
1. PLANS AND SPECIFICATIONS. Plans and specifications and Working Drawings
------------------------
sufficient for the construction of the Tenant Improvements to be installed
in the Premises (the "Drawings") shall be prepared by Tenant's Architect
("Architect") and submitted to Landlord. Within ten (10) business days
after Drawings have been delivered to Landlord, Landlord shall reasonably
approve or disapprove the preliminary plans and specifications, provided
Landlord shall specify in writing any objections it shall have to the
Drawings. If Landlord fails to disapprove the Drawings, within fifteen (15)
business days after delivery thereof to Landlord, the Drawings shall be
deemed approved. If Landlord reasonably disapproves the Drawings, Landlord
shall, in its notice of disapproval, provide sufficient information to
Architect so that revised Drawings can be prepared. If Landlord and Tenant
shall disagree on any aspect of the Drawings, Landlord and Tenant will meet
and promptly attempt to resolve any differences. Architect shall revise the
Drawings based on Landlord's suggested changes or the changes agreed
between Landlord and Tenant, and resubmit the revised Drawings until the
parties are able to agree on the final form of Drawings. The parties will
agree on the final form of Drawings within twenty (20) business days of the
date of Architect's initial submittal, provided in any and all events
Landlord shall have at least three (3) business days to review and respond
to the final version of the Drawings. The working drawings and
specifications which have been approved by Landlord and Tenant are
hereinafter referred to as the "Approved Working Drawings." At the time of
final approval of the Working Drawings, Landlord shall specify which of the
improvements shown on the Working Drawings shall be required to be removed
by Tenant at Tenant's sole cost, upon the expiration of the Term and/or
surrender of the Premises.
2. CONSTRUCTION OF TENANT IMPROVEMENTS.
-----------------------------------
A. Tenant Improvement Allowance. Tenant shall be granted an allowance in
----------------------------
the amount of $100,800.00 ($3.50/rsf) to be applied for the purposes
provided in this Agreement (the "Tenant Improvement Allowance").
B. Construction by Tenant. Tenant shall cause construction of the Tenant
----------------------
Improvements to be completed in a good and workmanlike manner, in
compliance with all laws, including, without limitation, any provisions
of the Americans with Disabilities Act that may apply to the Tenant
Improvements, and at Tenant's sole cost and expense (except for the
items to be completed by Landlord hereunder), subject to the payment of
the Tenant Improvement Allowance. Tenant shall competitively bid the
work to be completed hereunder to at least two (2) general contractors
satisfactory to Landlord, and shall select the lowest bid, after
adjusting the assumptions of each bid to provide an "apples to apples"
comparison of cost. The final Construction Contract, including, without
limitation, the schedule of progress payments and the amount of
retention provided therein shall be subject to the approval of
Landlord. The Tenant Improvements cost ("Tenant Improvements Cost") to
be paid by Landlord, up to the Tenant Improvement Allowance shall
include, but not be limited to:
(i) Costs to demolish the existing Tenant Improvements and
fixtures on each floor;
(ii) [Intentionally Deleted];
(iii) All costs of preliminary and final architectural and
engineering plans, drawings and specifications for the Tenant
Improvements, and engineering costs and calculations;
(iv) All costs of obtaining building permits and other necessary
authorizations from the applicable governmental authority
(e.g., the City in which the Building is located);
(v) All costs of interior design and finish schedule plans,
drawings and specifications including as-built drawings;
(vi) All direct and indirect costs of procuring and installing
Tenant Improvements in the Premises, including the contractor's
fee for overhead and profit, the cost of all of contractor's
on-site supervisory and administrative staff, office, equipment
and temporary services provided in connection with construction
of the Tenant Improvements;
(vii) Costs of reinforcing floors, installing telecommunications and
electrical facilities, equipment and wiring necessary for
Tenant's use;
(viii) Sewer connection fees, if any;
(ix) A supervision Fee payable to Landlord in the amount of two
percent (2%) of the total construction cost;
(x) Fire and Builder's Risk insurance and public liability
insurance premiums and fees maintained by Tenant's contractor
during construction with respect to the work; and
(xi) Tenant's moving costs and the costs to cable the Premises for
telephone and electrical service.
3. PAYMENT OF TENANT IMPROVEMENT COSTS. Tenant shall on or after the date of
-----------------------------------
substantial completion of the work, present Landlord with a request for
payment in an amount not to exceed the Tenant Improvement Allowance.
Together with such request for payment, Tenant shall provide (a) a
certificate of the Architect certifying the completion of the Tenant
Improvements in accordance with the Approved Working Drawings; (b) invoices
covering all items for which payment is requested; (c) unconditional, final
waivers of lien from the Contractor and each subcontractor or materials
supplier to be paid in connection with the work, covering the work
performed by such contractor subcontractor or materials supplier (d)
reasonably detailed working drawings showing the final improvements
constructed by Tenant and (e) a conditional certificate of occupancy
authorizing Tenant to occupy the Premises. If Tenant shall fail to provide
full and final unconditional waivers of lien for the contractor and all
subcontractors and material suppliers performing work or supplying
materials in connection with the work, Landlord may withhold payment of the
Tenant allowance until such time as the period for the filing of any liens
in connection with the work has expired. Otherwise, Landlord shall pay the
amount requested within twenty (20) days after Tenant's submittal of its
request for payment, together with all supporting information. If Tenant
prepares final "as-built" plans and specifications, it shall cause a copy
thereof to be prepared for Landlord and shall deliver such copy to Landlord
promptly after Tenant's receipt thereof. If the amount of the Tenant
Improvement Allowance shall not be disbursed within sixty (60) days after
the execution of the Commencement Date Memorandum, Landlord shall have no
further obligation to fund or credit any remaining Tenant Improvement
Allowance to Tenant
4. [INTENTIONALLY DELETED]
5. CHANGE REQUESTS. No material changes to the Approved Working Drawings shall
---------------
be made without Landlord's prior approval, which approval shall not be
unreasonably withheld or delayed beyond seven (7) business days; provided,
however, that no change request shall affect the structure of the Building
and provided further if such change request is not disapproved by Landlord
within said seven (7) business day period, it will be deemed approved. Any
changes to the Approved Working Drawings shall be in writing and shall be
signed by both Landlord and Tenant prior to the change being made.
6. COOPERATION. Landlord and Tenant shall cooperate and diligently assist the
-----------
architect, engineer or space planner in completing the Approved Working
Drawings and specifications and the Contractor in completing construction
of the Tenant Improvements. Tenant shall comply with Landlord's reasonable
requirements in connection with the scheduling and conduct of the work in
order to minimize an disruption to the operation of the Building.
7. RENT COMMENCEMENT DATE. The "Commencement Date" of this Lease shall be
----------------------
February 1, 1997. Notwithstanding the foregoing, Landlord shall deliver
possession of the Premises to Tenant upon execution of this Lease by all
parties, for the purposes of constructing its improvements thereon, subject
to all of the terms and conditions of the Lease other than the obligation
to pay Rent. The Commencement Date with respect to any portion of the
Premises covered under this paragraph shall be deferred for one (1) day for
each day of Landlord Delay. The parties shall execute a Commencement Date
Memorandum in the form of Exhibit C to this Lease to confirm the
Commencement Date of the Lease.
8. LANDLORD DELAY. The term "Landlord Delay" as used in this Lease shall mean
--------------
any delay in the completion of work which is due to any act or omission of
Landlord (wrongful, negligent or otherwise), its employees, agents or
contractors (including acts or omissions while acting as agent or contractor for
Tenant). The term Landlord Delay shall include, but shall not be limited to, any
of the following, to the extent that such act or omission of Landlord actually
delays Tenant in the completion of the Tenant Improvements: (i) delay in the
giving of authorizations or approvals by Landlord beyond any period specified in
the Lease; (ii) delay attributable to the acts or failure to act, whether
willful, negligent or otherwise, of Landlord, its agents or contractors, where
such acts or failures to act delay the completion of the Tenant Improvements; or
(iii) delay attributable to the interference of Landlord, its agents or
contractors with the completion of the Tenant Improvements or the failure or
refusal of any such part to permit Tenant, its agents or contractors, access to
and use of the Building or any Building facilities or services, including
loading docks, which access and use are required for the orderly and continuous
performance of the work necessary to complete the Tenant Improvements. Tenant
shall give Landlord written notice of any alleged Landlord Delay. If the actions
giving rise to such Landlord Delay are not cured within one (1) business day of
the date of receipt of such notice, and Tenant is, in fact, delayed in its
completion of the Improvements by the alleged event, such event shall be deemed
a "Landlord Delay" for the purposes of this Lease and the Commencement Date
shall be delayed one (1) day for each day of Landlord Delay.
9. [INTENTIONALLY DELETED]
10. INDEMNITY. Tenant shall at all times after delivery of the Premises to
Tenant, during construction and prior to the Commencement Date, comply with any
and all provisions of the Lease, except the obligation to pay Rent. Tenant shall
indemnify defend and hold harmless Landlord and its agents, managers, employees,
affiliates, subsidiaries, successors and assigns from and against any and all
losses, claims (liquidated or unliquidated), damages, or expenses (including
without limitation, attorney's fees and costs), arising out of or in connection
with the work contemplated by this Agreement. The indemnity of Landlord by
Tenant contained herein will survive termination of the Lease.
EXHIBIT C
TO LEASE DATED
December __, 1996
Between Prudential
and Mpath Interactive, Inc.
COMMENCEMENT DATE MEMORANDUM
----------------------------
LANDLORD: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
TENANT: MPATH INTERACTIVE, INC., a California corporation
LEASE DATE: December __ ,1996
PREMISES: 000 Xxxxx Xxx Xxxxxxxx Xxxx, XX
Pursuant to Exhibit B of the above-referenced Lease, the Commencement Date
---------
hereby is established as ________________,19__, and the Expiration Date is
hereby established as______________________
20__.
Landlord
XXXX MANAGEMENT COMPANY, L.P.,
Managing Agent for THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New
Jersey Corporation
By: ___________________________________
Its: __________________________________
TENANT
MPATH INTERACTIVE, INC., a Delaware
corporation
By: ___________________________________
Title: ________________________________
EXHIBIT D
TO LEASE DATED
December __, 1996
Between Prudential
and Mpath Interactive, Inc.
EXHIBIT D
---------
RULES AND REGULATIONS
---------------------
1. Except as provided in the Lease, no sign, placard, picture, advertisement,
name or notice shall be installed or displayed on any part of the outside
or inside of the Building without the prior written consent of Landlord.
Landlord shall have the right to remove, at Tenant's expense and with prior
notice, any sign installed or displayed in violation of this rule.
2. Except as consented to in writing by Landlord or in accordance with
Building standard improvements, no draperies, curtains, blinds, shades,
screens or other devices shall be hung at or used in connection with any
window or exterior door or doors of the Premises. No awning shall be
permitted on any part of the Premises. Tenant shall not place anything
against or near glass partitions or doors or windows which may appear
unsightly from outside the Premises.
3. No tenant and no employee or invitee of any tenant shall go upon the roof
of the Building or make any roof or terrace penetrations. Except for HVAC
and maintenance personnel.
4. If Tenant requires a burglar alarm or similar services, it shall first
obtain, and comply with, Landlord's instructions for their installation.
5. Tenant shall not place a load upon any floor of the Premises which exceeds
the maximum load per square foot which the floor was designed to carry (500
Ibs./xx.xx.) and which is allowed by law. Tenant's business machines and
mechanical equipment which cause noise or vibration which may be
transmitted to any other tenant's premises, and which is objectionable to
any reasonable tenants of the Project, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration.
6. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Project by reason of noise, odors or vibrations. No animal, except
seeing eye dogs when in the company of their masters, may be brought into
or kept in the Building.
7. Tenant shall close and lock the doors of its Premises, shut off all water
faucets or other water apparatus and turn off all lights and other
equipment which is not required to be continuously run. Tenant shall be
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or Landlord for noncompliance with this Rule.
8. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever shall be
placed therein. The expense of any breakage, stoppage or damage resulting
from any violation of this rule shall be borne by the tenant if its
employees or invitees, shall have caused it.
9. Tenant shall not, without the prior written consent of Landlord, install
any radio or television antenna, loudspeaker or other device on the roof or
exterior walls of the Building. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Building or
elsewhere.
10. Following completion of the initial Tenant Improvements, Tenant shall not
affix any floor covering to the floor of the Premises in any manner except
as approved by Landlord unless Landlord's approval is not required under
the Lease. Tenant shall repair, or be responsible for the cost of repair of
any damage resulting from noncompliance with this Rule.
11. Tenant shall store all its trash and garbage in a separate designated area.
Tenant shall not place in any trash box or receptacle any material which
cannot be disposed of in the ordinary and customary manner of trash and
garbage disposal in a separate designated area.
12. Use by Tenant of Underwriters' Laboratory approved equipment for brewing
coffee, tea, hot chocolate and similar beverages and microwaving food shall
be permitted, provided that the equipment and use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules
and regulations.
13. Tenant shall not use the name of the Project in connection with or in
promoting or advertising the business of Tenant, except as Tenant's
address, without the written consent of Landlord.
14. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency. Tenant shall be responsible for any increased insurance premiums
attributable to Tenant's use of the Premises, Building or Property.
15. Tenant assumes any and all responsibility for protecting its Premises from
theft and robbery, which responsibility includes keeping doors locked and
other means of entry to the Premises closed.
16. Tenant shall not use the Premises, or suffer or permit anything to be done
on, in or about the Premises, which may result in an increase to Landlord
in the cost of insurance maintained by Landlord on the Building and Common
Areas.
17. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building or other reserved
parking spaces. Tenant shall not leave vehicles in the Building parking
areas overnight, except for medical vans, nor park any vehicles in the
Building parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks. Tenant, its agents,
employees and invitees shall not park any one (1) vehicle in more than one
(1) parking space.
18. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no waiver by Landlord shall be
construed as a waiver of the Rules and Regulations in favor of Tenant or
any other tenant, nor prevent Landlord from thereafter enforcing the Rules
and Regulations against any or all of the tenants of the Building.
19. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building.
20. Landlord reserves the right to make other reasonable Rules and Regulations
as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation
of good order therein. Tenant agrees to abide by all Rules and Regulations
herein above stated and any additional rules and regulations which are
adopted.
21. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
EXHIBIT C
TO LEASE DATED
December 24, 1996
--
Between Prudential
and Mpath Interactive, Inc.
COMMENCEMENT DATE MEMORANDUM
----------------------------
LANDLORD: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
TENANT: MPATH INTERACTIVE, INC., a California corporation
LEASE DATE: December 24 ,1996
--
PREMISES: 000 Xxxxx Xxx Xxxxxxxx Xxxx, XX
Pursuant to Exhibit B of the above-referenced Lease, the Commencement Date
---------
hereby is established as February 01, ,1997, and the Expiration Date is
---------------- --
hereby established as January 31
----------
2002.
--
Landlord
XXXX MANAGEMENT COMPANY, L.P.,
Managing Agent for THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New
Jersey Corporation
By: Xxxx Xxxxx
-----------------------------------
Its: Vice President
----------------------------------
TENANT
MPATH INTERACTIVE, INC., a Delaware
corporation
By: Xxxxxxx Xxxxxx
-----------------------------------
Title: Corporate Controller
--------------------------------
EXHIBIT C
TO LEASE DATED
December 24, 1996
--
Between Prudential
and Mpath Interactive, Inc.
COMMENCEMENT DATE MEMORANDUM
----------------------------
LANDLORD: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
TENANT: MPATH INTERACTIVE, INC., a California corporation
LEASE DATE: December 24 ,1996
--
PREMISES: 000 Xxxxx Xxx Xxxxxxxx Xxxx, XX
Pursuant to Exhibit B of the above-referenced Lease, the Commencement Date
---------
hereby is established as February 01, ,1997, and the Expiration Date is
---------------- --
hereby established as January 31
----------
2002.
--
Landlord
XXXX MANAGEMENT COMPANY, L.P.,
Managing Agent for THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New
Jersey Corporation
By: Xxxx Xxxxx
-----------------------------------
Its: Vice President
----------------------------------
TENANT
MPATH INTERACTIVE, INC., a Delaware
corporation
By: Xxxxxxx Xxxxxx
-----------------------------------
Title: Corporate Controller
--------------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Fremont Investment & Loan
000 X. Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Commercial Real Estate
Loan No.: 950113206
--------------------------------------------------------------------------------
NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS NONDISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement") is made as of
February 25, 1998, by and among XXXXXX CBP ASSOCIATES, L.P., a Delaware limited
partnership ("Landlord"), whose address is 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, MPATH INTERACTIVE, INC., a Delaware corporation
("Tenant"), whose address is 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000,
and FREMONT INVESTMENT & LOAN, a California industrial loan association
("Lender"), whose address is 000 X. Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attn' Commercial Real Estate Department, Loan No. 950113206, with respect to the
following Recitals:
RECITALS
--------
A. Landlord is the owner of the real property described on Exhibit A attached
----------
hereto, together with the improvements now or hereafter located thereon
(collectively, the "Project").
B. Landlord and Lender are the parties to that certain Loan and Security
Agreement of even date herewith (the "Loan Agreement"), pursuant to the terms of
which Lender has agreed to make a loan of up to Thirteen Million Six Hundred
Thousand Dollars ($13,600,000) (the "Loan") to Landlord. The Loan is evidenced
by that certain Secured Promissory Note of even date herewith, in the original
principal amount of the Loan, executed by Landlord in favor of Lender (the
"Note"). The Note is secured, inter alia, by that certain Deed of Trust and
----------
Fixture Filing of even date herewith executed by Landlord, as trustor, to the
trustee named therein, in favor of Lender, as beneficiary (the "Deed of Trust")
encumbering the Project, recorded concurrently herewith in the Official Records
of Santa Xxxxx County, California (the "Official Records"), and by that certain
Assignment of Rents and Leases of even date herewith executed by Landlord in
favor of Lender (the "Assignment of Rents") encumbering the Project, recorded
concurrently herewith in the Official Records. The Loan Agreement, the Note, the
Deed of Trust, the Assignment of Rents and all other documents securing, or
executed in connection with, the Loan, together with all renewals,
substitutions, extensions, modifications or replacements thereof, are
collectively referred to herein as the "Loan Documents."
C. Tenant and Landlord have entered into that certain lease dated December
__, 1996 (the "Lease"), pursuant to which Landlord leased to Tenant a portion of
the Project more particularly described in the Lease (the "Leased Premises").
D. Lender has required the execution and delivery of this Agreement as a
condition precedent to the closing of the Loan.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Loan Disbursements,
-------------------
Tenant agrees and acknowledges that in making disbursements of the Loan,
Lender is under no obligation or duty to, nor has Lender represented that it
will, see to the application of the Loan proceeds by the person or persons to
whom Lender disburses the Loan proceeds, and any application or use of the Loan
proceeds for purposes other than those provided for in the Loan Documents shall
not defeat in whole or in part the agreements set forth herein.
2. Nondisturbance and Attornment.
------------------------------
If the interest of Landlord under the Lease is transferred by reason of any
foreclosure of the Deed of Trust or by deed in lieu or in aid thereof, Purchaser
(as hereinafter defined) shall be bound to Tenant, and Tenant shall be bound to
Purchaser, under all of the terms, covenants and conditions of the Lease (except
as provided in Section 5 hereof) for the balance of the term thereof, with the
----------
same force and effect as if Purchaser were the original landlord under the
Lease. Tenant does hereby attorn to Purchaser as the landlord under the Lease,
which attornment shall be effective and self-operative without the execution of
any further instruments upon Purchaser's succeeding to the interest of the
landlord under the Lease. Tenant expressly acknowledges and agrees that a
default by Tenant under the Lease, after the expiration of any applicable notice
and cure periods specifically provided for under the Lease, (a) shall terminate
Lender's nondisturbance agreements set forth herein only at Lender's election in
its sole discretion, and (b) shall not terminate Tenant's attornment agreement
or any other agreements by Tenant set forth herein. Without limiting the
generality of this Section 2, within ten (10) business days after the request of
Landlord, Lender or any Purchaser, Tenant shall execute and deliver such
documents as are reasonably requested by such party to reflect such attornment.
Within twenty (20) business days after the request of any Purchaser, Tenant
shall enter into a new lease of the Leased Premises with such Purchaser for the
balance of the then remaining term of the Lease and upon the same terms and
conditions as are then contained in the Lease. As used herein, "Purchaser" shall
mean a transferee (including, without limitation, Lender and its affiliates and
subsidiaries) which acquires the interest of Landlord in the Leased Premises
through a foreclosure of the Deed of Trust or a deed in lieu or in aid thereof,
and its successors and assigns.
3. Tenant Agreements.
------------------
Tenant agrees that:
A. Tenant shall send a copy of any notice of a default by Landlord under the
Lease to Lender at the same time such notice is sent to Landlord; and
B. without Lender's prior written consent, Tenant shall not (i) pay any rent
(however denominated) or other charges under the Lease more than one (1) month
in advance, (ii) cancel, terminate or surrender the Lease, except at the normal
expiration of the Lease term or as expressly provided in the Lease or pursuant
to applicable law, or (iii) enter into any amendment or modification of the
Lease. Lender's consent to any amendment or modification of the Lease shall not
be unreasonably withheld or delayed. Any amendment or modification entered into
without Lender's consent shall not be valid; and
- 2 -
C. Upon the occurrence of any event of default by Landlord under the Loan
Documents and the expiration of any applicable cure periods expressly provided
for under the Loan Documents, Lender, at all times, independent of Landlord,
shall have the standing and right to enforce, by injunction or otherwise, all or
any provisions in the Lease as though Lender originally was a party thereto.
4. Assignment of Rents.
--------------------
Tenant agrees to recognize the assignment from Landlord to Lender of the
Lease and the amounts payable thereunder pursuant to the Assignment of Rents
and, in the event of any default by Landlord under the Loan Documents and the
expiration of any applicable cure period expressly set forth therein, Tenant
shall pay to Lender, as such assignee, the rents and other amounts which are or
become due under the Lease from and after the date on which Lender gives Tenant
notice that such rent and other amounts are to be paid to Lender pursuant to the
Assignment of Rents. In complying with the provisions of this Section 4, Tenant
---------
shall be entitled to rely solely upon the notices given by Lender pursuant to
the Assignment of Rents. Tenant shall be entitled to full credit under the Lease
for any rents paid to Lender in accordance with the provisions hereof. Any
dispute between Lender (or any other Purchaser) and Landlord as to the existence
or nature of a default by Landlord under the terms of the Loan Documents or with
respect to the foreclosure of the Deed of Trust, shall be dealt with and
adjusted solely between Lender (or such other Purchaser) and Landlord, and
Tenant shall not be made a party thereto (unless joinder is required by law).
5. Lender's Obligations.
---------------------
Nothing in this Agreement and no action taken by Lender to enforce any
provision in the Lease shall be deemed or construed to constitute an agreement
by Lender to perform or assume any covenant of Landlord as landlord under the
Lease unless and until Lender obtains title to the Leased Premises by
foreclosure of the Deed of Trust or a deed in lieu or in aid thereof. Without
limiting any of Tenant's rights against Landlord under the Lease, in the event
Lender acquires title to the Leased Premises, Lender shall:
A. only be liable for any damage or other relief attributable to any act
or omission accruing during Lender's period of ownership of the Leased Premises,
regardless of whether such acts or omissions commenced prior to such period of
ownership. For example, if the Lease provides that the failure of the Landlord
to repair a hole in the roof entitles the Tenant to offset rent for the number
of days that the roof is not repaired, and if the hole in the roof occurred 60
days prior to Lender's acquisition of title and was not repaired for another 30
days thereafter, Tenant would only be entitled to offset against its rental
obligations owed to Lender 30 days rental and would retain a claim against
Landlord for 60 days rental;
B. only be responsible for representations, warranties and covenants of
Landlord to the extent that such representations, warranties and covenants apply
to the Project and relate to the operation of the Project during Lender's period
of ownership of the Leased Premises;
C. be liable only for any security deposit actually delivered to Lender;
and
D. have its obligations and liabilities limited to the then interest, if
any, of Lender in the Project, without consideration of any mortgage liens
placed on the Project by Lender. Tenant shall look exclusively to such interest
of Lender, if any, in the Project for the payment and discharge of any
obligations imposed upon Lender hereunder or under the Lease and Tenant releases
Lender from any other liability hereunder and under the Lease.
- 3 -
Nothing contained in this Section shall be deemed to limit or affect Tenant's
claims against Landlord for any breaches of the Landlord's obligations under the
Lease, or for any breaches of Landlord's representations, warranties and
covenants under the Lease, or for return of any security deposit under the
Lease, and no transfer of the Project to Lender shall release Landlord from any
of its Lease obligations, notwithstanding anything to the contrary in the Lease.
6. Estoppel Certificate.
---------------------
Tenant agrees, from time to time, within ten (10) business days after
Lender's request, to execute and deliver to Lender or Lender's designee, any
estoppel certificate reasonably requested by Lender, stating that the Lease is
in full force and effect, the date to which rent has been paid, that Landlord is
not in default under the Lease (or specifying in detail the nature of Landlord's
default), and such other matters relating to the Lease as may be reasonably
requested by Lender.
7. No Merqer.
----------
The parties agree that, without Lender's prior written consent, Landlord's
estate in and to the Project and the leasehold estate created by the Lease shall
not merge but shall remain separate and distinct, notwithstanding the union of
such estates in Landlord, Tenant or any third party by purchase, assignment or
otherwise.
8. Entire Agreement.
-----------------
This Agreement shall be the whole and only agreement with regard to the
matters set forth herein, and shall supersede and cancel any prior agreements
with respect thereto, including, without limitation, any provisions contained in
the Lease relating thereto.
9. Counterparts.
-------------
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. Signature and acknowledgment pages may be detached from the
counterparts and attached to a single copy of this Agreement to physically form
one document, which may be recorded.
10. Modifications, Successors and Assigns.
--------------------------------------
This Agreement may only be modified in writing signed by all of the parties
hereto or their respective successors in interest. This Agreement, including
without limitation, the provisions of Section 5, shall inure to the benefit of,
-----------
and be binding upon, the parties hereto and their respective successors and
assigns.
11. Attorneys' Fees.
----------------
If any lawsuit or other proceeding is commenced which arises out of, or
which relates to this Agreement, including any alleged tort action, the
prevailing party shall be entitled to recover from each other party such sums as
the court or other party presiding over such action or proceeding may adjudge to
be reasonable attorneys' fees and costs in the action or proceeding, in addition
to costs and expenses otherwise allowed by law. Any such attorneys' fees and
costs incurred by any party in enforcing a judgment in its favor under this
Agreement shall be recoverable separately from and in
- 4 -
addition to any other amount included in such judgment and shall survive and not
be merged into any such judgment. The obligation to pay such attorneys' fees and
costs is intended to be severable from the other provisions of this Agreement.
12. Governing Law.
--------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
13. Notices.
--------
Any notice, or other document or demand required or permitted under this
Agreement shall be in writing addressed to the appropriate address set forth
above and shall be deemed delivered on the earliest of (a) actual receipt, (b)
the next business day after the date when sent by recognized overnight courier,
or (c) the second business day after the date when sent by registered or
certified mail, postage prepaid. Any party may, from time to time, change the
address at which such written notices or other documents or demands are to be
sent, by giving the other parties written notice of such change in the manner
hereinabove provided.
- 5 -
Nothing contained in this Section shall be deemed to limit or affect Tenant's
claims against Landlord for any breaches of the Landlord's obligations under the
Lease, or for any breaches of Landlord's representations, warranties and
covenants under the Lease, or for return of any security deposit under the
Lease, and no transfer of the Project to Lender shall release Landlord from any
of its Lease obligations, notwithstanding anything to the contrary in the Lease.
6. Estoppel Certificate.
---------------------
Tenant agrees, from time to time, within ten (10) business days after
Lender's request, to execute and deliver to Lender or Lender's designee, any
estoppel certificate reasonably requested by Lender, stating that the Lease is
in full force and effect, the date to which rent has been paid, that Landlord is
not in default under the Lease (or specifying in detail the nature of Landlord's
default), and such other matters relating to the Lease as may be reasonably
requested by Lender.
7. No Merger.
----------
The parties agree that, without Lender's prior written consent, Landlord's
estate in and to the Project and the leasehold estate created by the Lease shall
not merge but shall remain separate and distinct, notwithstanding the union of
such estates in Landlord, Tenant or any third party by purchase, assignment or
otherwise.
8. Entire Agreement.
-----------------
This Agreement shall be the whole and only agreement with regard to the
matters set forth herein, and shall supersede and cancel any prior agreements
with respect thereto, including, without limitation, any provisions contained in
the Lease relating thereto.
9. Counterparts.
-------------
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. Signature and acknowledgment pages may be detached from the
counterparts and attached to a single copy of this Agreement to physically form
one document, which may be recorded.
10. Modifications, Successors and Assigns.
--------------------------------------
This Agreement may only be modified in writing signed by all of the parties
hereto or their respective successors in interest. This Agreement, including
without limitation, the provisions of Section 5, shall inure to the benefit of,
-----------
and be binding upon, the parties hereto and their respective successors and
assigns.
11. Attorneys' Fees.
----------------
If any lawsuit or other proceeding is commenced which arises out of, or
which relates to this Agreement, including any alleged tort action, the
prevailing party shall be entitled to recover from each other party such sums as
the court or other party presiding over such action or proceeding may adjudge to
be reasonable attorneys' fees and costs in the action or proceeding, in addition
to costs and expenses otherwise allowed by law. Any such attorneys' fees and
costs incurred by any party in enforcing a judgment in its favor under this
Agreement shall be recoverable separately from and in
-4-
addition to any other amount included in such judgment and shall survive and not
be merged into any such judgment. The obligation to pay such attorneys' fees and
costs is intended to be severable from the other provisions of this Agreement.
12. Governing Law.
--------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
13. Notices.
--------
Any notice, or other document or demand required or permitted under this
Agreement shall be in writing addressed to the appropriate address set forth
above and shall be deemed delivered on the earliest of (a) actual receipt, (b)
the next business day after the date when sent by recognized overnight courier,
or (c) the second business day after the date when sent by registered or
certified mail, postage prepaid. Any party may, from time to time, change the
address at which such written notices or other documents or demands are to be
sent, by giving the other parties written notice of such change in the manner
hereinabove provided.
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Lender"
FREMONT INVESTMENT & LOAN, a California
industrial loan association
By:_______________________________________
Its:_________________________________
"Tenant"'
MPATH INTERACTIVE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Its: GM
------------------------------------
By:________________________________________
Its:____________________________________
"Landlord"
XXXXXX CBP ASSOCIATES, L.P.,
a Delaware limited partnership
By: XXXXXX/CYPRESS, LLC,
a California limited liability company,
general partner
By: THE XXXXXX GROUP OF
COMPANIES, INC., a California
corporation, managing member
By:________________________________
Its:_________________________
By:________________________________
Its:_________________________
S-1
[LANDLORD NOTARY]
STATE OF CALIFORNIA )
) SS.
COUNTY OF ____________ )
On __________, before me, _________, a Notary Public, personally
appeared ______________, and ____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________
Notary Public
[TENANT NOTARY]
STATE OF CALIFORNIA )
) SS.
COUNTY OF Santa Xxxxx )
-----------
On February 26, 1998, before me, Xxxxxxx X. Xxxxx, a Notary Public,
----------------- ----------------
personally appeared Xxxx Xxxx Xxxxxxxx, and ______________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person, or the entity upon 'behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxx X. Xxxxx
__________________________
Notary Public
[LENDER NOTARY]
STATE OF CALIFORNIA )
) SS.
COUNTY OF ___________ )
On ___________, before me, _________, a Notary Public, personally
appeared ______________, and _____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon 'behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________
Notary Public
EXHIBIT A
Legal Description of the Project
--------------------------------
That certain real property located in the City of Mountain View, County of Santa
Xxxxx, State of California, having a street address of 000-000 Xxxxx Xxxxxx,
more particularly described as follows:
[Attached]
A-1
LEGAL DESCRIPTION
Order No.: 39253899
The land referred to herein is situated in the State of California, County of
Santa Xxxxx, City of Mountain View described as follows:
All that certain real property situate in the City of Mountain View, County of
Santa Xxxxx, State of California, which property is described as Parcel "A", as
said Parcel "A" is shown on that certain Parcel Map entitled, "A portion of Lot
6 as shown on that certain Map entitled Map of the partition of that part of the
Rancho Pastoria De Las Borregas patented to Xxxxxx Xxxxxx Xx. City of Mountain
View California", which Parcel Map was filed for record in Book 270 of Maps, at
Page 56, on July 28, 1970, Official Records of Santa Xxxxx County, California,
said Parcel "A" being more fully described as follows:
Beginning at the most Easterly corner of Parcel "A" as said Parcel "A" is shown
on the above described Parcel Map; thence from said point of beginning South 16
deg. 25' 55" West 429.98 feet; thence South 15 deg. 10' 20" West 13.95 feet to a
point on the Northerly right-of-way line of Xxxxx Avenue, which point is on a
curve and tangent to the course North 11 deg. 15' 06" West; thence along said
right-of way line of Xxxxx Avenue in a general Northwesterly direction along the
arc of a curve to the left with a radius of 335.00 feet, through a central angle
of 62 deg. 26' 54" for an arc distance of 365.13 feet; thence North 73 deg. 42'
00" West 227.15 feet; thence along the arc of a curve to the right with a radius
of 265.00 feet, through a central angle of 990 deg. 00' 00" for an arc distance
of 416.26 feet; thence North 16 deg. 18' 00" East 384.76 feet; thence along the
arc of a curve to the left with a radius of 70.00 feet, through a central angle
of 88 deg. 20' 18" for an arc distance of 107.93 feet; to the point of a cups,
which point is on the Southerly right-of-way line of Bayshore Freeway; thence
along said Southerly line of Bayshore Freeway South 80 deg. 16' 53" East 71.44
feet; thence South 76 deg. 45' 31" East 296.68 feet; thence South 67 deg. 42'
30" East 76.64 feet to a point; thence leaving said Southerly right-of-way line
of Bayshore Freeway South 16 deg. 25' 55" West 478.98 feet; thence South 74 deg.
40' 35" East 415.56 feet to the point of beginning ;said described Parcel "A".
APN: 000-00-000
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
[FORM]
