Exhibit 10.19
AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (this "Lease"), dated as of
March, 1993, is entered into by WYSE TECHNOLOGY INVESTMENTS, INC., a California
corporation ("Landlord"), and WYSE TECHNOLOGY, INC., a Delaware corporation
("Tenant") in order to modify and amend that certain Lease Agreement, dated as
of May 27, 1992, entered into by Landlord as landlord, and Tenant, as Tenant,
Terms which are capitalized in this Lease (but which are not defined in the body
of this Lease) shall have the meanings set forth in the Basic Lease Information,
which is incorporated herein by this reference and appears immediately preceding
this page.
THIS LEASE IS ENTERED on the basis of the following facts, intentions
and understandings of the parties:
A. Landlord has acquired, or is in the process of acquiring from
Tenant pursuant to that certain Contract of Sale dated as of May 27, 1992,
between Landlord, as purchaser, and Tenant, as seller, (i) two separate legal
parcels comprising approximately thirty-two and six hundred nineteen thousandths
(32.619) acres of real property in San Jose, California more particularly
described in EXHIBIT A, attached hereto ("Real Property") and (ii) the
improvements located on the Real Property ("Improvements") which include: (a)
three office buildings ("Buildings"); (b) a cafeteria ("Cafeteria"); and (c) a
health club, including tennis courts and a swimming pool ("Health Club"). The
Improvements are generally shown in the Site Plan attached hereto as EXHIBIT A.
The Real Property and the Improvements are hereinafter collectively referred to
as the "Project".
B. The Buildings are commonly known as: (i) One River Oaks Place
("Building 1"); (ii) 0000 Xxxxx Xxxxx Xxxxxx ("Xxxxxxxx 0"); and (iii) 0000
Xxxxx Xxxxx Xxxxxx ("Building 3").
C. Landlord desires to lease to Tenant, and Tenant desires to
lease from Landlord, in accordance with the terms of this Lease the following
portions of the Project: (i) up to 88,818 rentable square feet in Building 2 to
the extent that Landlord shall make such space available to Tenant and Tenant
shall in fact occupy the same from time to time ("Building 2 Space"), (ii)
143,000 rentable square feet in Building 3 ("Building 3 Space"), and (iii)
subject to the rights of Pacific Xxxx, as tenant ("Pacific Xxxx"), under that
certain Lease Agreement dated as of October 31, 1991 between Landlord and
Pacific Xxxx (the "Pacific Xxxx Lease"), the Cafeteria and Health Club,
consisting in the aggregate of 24,100, square feet (the "Amenities Space"). As
of the date hereof, the amount of Building 2 Space being leased by Tenant is
88,818 square feet.
D. The portion of (i) the Operating Expenses of the applicable
Building ("Building 2 Operating Expenses" and "Building 3 Operating Expenses"
respectively) and (ii) the Operating Expenses of the Project ("Project Operating
Expenses"), for which Tenant will be responsible is set forth in Section
6.a(xiii). The portion of the Amenities Expenses for which Tenant will be
responsible is set forth in Section 6.d(ix).
E. The term (the "Term") of this Lease will be ten (10) years,
commencing on June 1, 1992 (the "Commencement Date").
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F. The premises ("Premises") subject to this Lease at any time
will be the Building 2 Space the Building 3 Space and the Amenities Space.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises
of the parties, the parties hereto agree as follows:
1. PREMISES.
(a) PREMISES. Landlord leases to Tenant, and Tenant leases from
Landlord. the Premises, together with the right in common to use the Common
Areas within the Project.
(i) AMENITIES SPACE. Tenant acknowledges and agrees that
Tenant's lease of the Amenities Space is subject to the rights of Pacific Xxxx
under the Pacific Xxxx Lease to use the Amenities Space and Tenant shall not use
or alter the Amenities Space in any manner which would adversely affect Pacific
Xxxx'x ability to use and enjoy the Amenities Space to the extent permitted
under the Pacific Xxxx Lease.
(ii) BUILDING 2 SPACE. Tenant acknowledges and agrees that
Tenant's lease of the Building 2 space is subject to the rights of Pacific Xxxx
to exercise certain expansion rights granted to Pacific Xxxx under the Pacific
Xxxx Lease with respect to the Building 2 Space. Tenant further agrees that
Landlord shall have the unconditional right at any time and from time to time
during the term of this Lease, upon 30 days prior written notice ("Pacific Xxxx
Expansion Notice") delivered to Tenant following Landlord's receipt of notice of
Pacific Xxxx'x exercise of its right to expand into any portion of the Building
2 Space, to terminate this Lease as to the portion of the Building 2 Space
described in such notice from Pacific Xxxx. The Pacific Xxxx Expansion Notice
will describe in reasonable detail the portion of the Building 2 Space to which
it applies (including the rentable square footage of such portion). Tenant shall
surrender such portion of the Building 2 Space to Landlord in accordance with,
and in the condition required under, Section 21 of this Lease on or before the
30th day following Tenant's receipt of the Pacific Xxxx Expansion Notice. Upon
the termination of this Lease as to any portion of the Building 2 Space pursuant
to this Section 1.a(ii), (A) Tenant's Share of Project Operating Expenses and
Tenant's Share of Building 2 Operating Expenses shall be adjusted to reflect
such termination and (B) the Monthly Base Rent (as hereinafter defined) shall be
partially reduced by an amount equal to the amount of basic rent Pacific Xxxx is
obligated to pay to Landlord for such portion of the Building 2 Space under the
Pacific Xxxx Lease; provided that at the end of the seventh Lease Year the
Monthly Base Rent shall be fully adjusted to reflect the termination of this
Lease as to such portion of the Building 2 Space and, following such full
adjustment, Landlord shall reimburse Tenant for any Monthly Base Rent Tenant has
paid to Landlord which Tenant would not have been obligated to pay had such full
adjustment to the Monthly Base Rent been made concurrently with such termination
of this Lease as to such portion of the Building 2 Space, plus interest on any
such amount at a rate equal to 6% per annum.
(b) COMMON AREAS. The "Common Areas" shall mean the areas and
facilities within the Project for the general use, convenience and benefit of
Tenant and other tenants and occupants of the Buildings (E.G., unreserved
parking areas; and, as to the Buildings not leased exclusively to Tenant or
other tenants, the restrooms, janitorial, telephone and electrical closets, and
elevators available for common use; PROVIDED, HOWEVER, that (i) Tenant's use of
space in the
2.
closets shall be limited to the percentage share thereof ("Tenants
Percentage Share") equal to the rentable square footage of the applicable
Building covered by this Lease as a percentage of the rentable square footage of
that entire building, (ii) any access thereto and use thereof shall be subject
to Landlord's reasonable rules and regulations in respect thereof and shall be
done in a manner and at times so as to minimize any interference with the
Building systems and with other tenants, and (iii) Tenant shall not use the
Common Areas in a manner that materially or unreasonably interferes with or
annoys other tenants). Subject to Section 1.c, Landlord shall not change the
Common Areas in any manner which materially or unreasonably interferes with
Tenant's use of the Premises.
(c) BUILDING AND PROJECT SQUARE FOOTAGES. The Usable Square
Footage of the Buildings, the Rentable Square Footage of the Buildings and the
Rentable Square Footage of the Project have been determined in accordance with
the latest applicable standards of the Building Owners and Managers Association
("BOMA"). Tenant understands that Landlord is contemplating the construction of
an additional building and other improvements on the parcel of land on which is
located Building 3 (to the north thereof) and may construct other improvements
on the Project. In the event of any such improvements which shall result in an
increase or decrease in the Rentable Square Footage of the Project, Tenant's
Percentage Share of the applicable Buildings and Tenant's Percentage Share of
the Project shall be adjusted based upon the rentable square feet in the
applicable Buildings and in the Project.
(d) SQUARE FOOTAGES. Landlord and Tenant acknowledge that the
rentable square footage of each of the Building 2 Space, the Building 3 Space
and the Amenities Space is accurate and shall be used for purposes of
calculating Base Rent payable by Tenant, Tenant's Share of Building 2 Operating
Expenses, Tenant's Share of Building 3 Operating Expenses, Tenant's Share of
Amenities Expenses and Tenant's Share of the Project Operating Expenses.
(e) TENANT'S PERCENTAGE SHARE OF BUILDINGS. As used in this Lease,
(i) the term "Tenant's Percentage Share of Building 2" shall be the percentage
determined by dividing (A) the rentable square footage of Building 2 Space by
(B) the total rentable square footage of Building 2, and (ii) "Tenant's
Percentage Share of Building 3" shall be the percentage determined by dividing
(A) the rentable square footage of the Building 3 Space by (B) the total
rentable square footage of Building 3.
(f) TENANT'S PERCENTAGE SHARE OF PROJECT. As used in this Lease,
the term "Tenant's Percentage Share of the Project" shall be the percentage
determined by dividing (i) the rentable square footage of the Premises by (ii)
the total rentable square footage of the Project.
2. TERM.
(a) LEASE TERM. The Term of this Lease shall commence on the
Commencement Date and, unless terminated on an earlier date in accordance with
the terms of this Lease, shall extend for the Term and shall expire on the date
that is ten (10) years from the Commencement Date (the "Expiration Date"),
unless sooner terminated pursuant to the terms of this Lease.
(b) LEASE YEARS. The first lease year ("First Lease Year") of the
Term shall be the period commencing on the Commencement Date and ending on
December 31, 1992. The
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subsequent lease years ("Lease Years") shall be the twelve (12) month periods
measured from the end of the First Lease Year.
(c) WAIVER. Tenant hereby waives its rights under California Civil
Code Section 1932(1), it being agreed that the terms under this Section 2 and
Section 3 hereof shall govern and replace any rights covered by said statute.
3. RENT. As used in this Lease, the term "Rent" shall mean (i) the Monthly
Base Rent; (ii) Tenant's Share of Building 2 Operating Expenses; (iii) Tenant's
Share of Building 3 Operating Expenses; (iv) Tenant's Share of the Project
Operating Expenses; (v) Tenant's Share of Amenities Expenses; and (vi) all other
amounts due from Tenant under this Lease.
4. MONTHLY BASE RENT.
(a) PAYMENT. The Monthly Base Rent shall be payable in equal
monthly installments. Tenant shall pay the Monthly Base Rent to Landlord in
advance upon the Commencement Date and, thereafter, upon the first day of each
calendar month of the Term. The Monthly Base Rent shall be paid at Landlord's
Address (or at such other place within the United States designated by Landlord
in a notice to Tenant) without prior demand or notice and without any deduction
or set-off whatsoever, except as expressly set forth in this Lease.
(b) MONTHLY BASE RENT. Subject to Section 2.a(ii), Tenant shall
pay Monthly Base Rent per rentable square foot of Building 2 Space actually
occupied by Tenant, Building 3 Space and Amenities Space ("Monthly Base Rent"),
in accordance with the following schedule:
----------------- -----------------------------------------
Monthly Rental Rate Per
Monthly Rentable Square Foot
----------------- -----------------------------------------
0-7 $ 0.82 Jun. `92-Dec `92
----------------- -----------------------------------------
8-19 1.20 Jan. '93-Dec. `93
----------------- -----------------------------------------
20-31 1.30 Jan. `94-Dec. `94
----------------- -----------------------------------------
32-43 1.25 Jan. `95-Dec `95
----------------- -----------------------------------------
44-55 1.20 1/26-12/96
----------------- -----------------------------------------
56-67 1.00 1/97-12/97
----------------- -----------------------------------------
68-79 0.95 1/98-12/98
----------------- -----------------------------------------
90-91 0.80 1/99-12/99
----------------- -----------------------------------------
92-120 0.00 1/00-6/02
----------------- -----------------------------------------
(c) LATE PAYMENT CHARGE. If Tenant fails to pay an increment of
Monthly Base Rent when due, Tenant shall pay a late payment charge of Five
Thousand Dollars ($5,000.00). Any late payment charge shall be payable on the
second day of the month in which such delinquent increment of Monthly Base Rent
was due.
5. PAYMENT OF ADDITIONAL CHARGES. Tenant's Share of Operating Expenses
shall be paid as provided in Section 6. All other charges required to be paid by
Tenant under this Lease (i.e., other than Base Rent, Operating Expenses and
Amenities Expenses) shall be paid by Tenant
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within thirty (30) days after receipt from Landlord of a xxxx evidencing
Landlord's payment thereof.
6. ADDITIONAL RENT-OPERATING EXPENSES.
(a) OPERATING EXPENSES.
(i) SUMMARY AND ESTIMATED OPERATING EXPENSES. Set
forth in EXHIBIT B-1 to this Lease are (A) a summary of the Project Operating
Expenses for the 1990 and 1991 calendar years; (B) an estimate of Project
Operating Expenses for the 1992 and 1993 Lease Years; (C) a summary of
Building Operating Expenses for the 1990 and 1991 calendar years (segregated
by Building 1. Building 2 and Building 3); and (D) an estimate of the
Building Operating Expenses (segregated by Xxxxxxxx 0, Xxxxxxxx 0 and
Building 3) for the 1992 and 1993 Lease Years.
(ii) PROJECT OPERATING EXPENSES. The term "Project
Operating Expenses" shall mean the reasonable and actual operating expenses
which are paid by Landlord in connection with only the Common Areas. The
Project Operating Expenses shall be directly attributable to the operations,
maintenance, management and repair of the Common Areas, as determined under
generally accepted accounting principles, consistently applied, for the
applicable period. Project Operating Expenses shall be the following: (A)
Real Estate Taxes, as defined in Section 6.b.; (B) premiums for insurance;
(C) wages, salaries and related expenses and benefits (including fringe
benefits, payroll taxes, workers' compensation and uniforms) of on-site
employees engaged in operation, maintenance and security; (D) the reasonable
costs of repairs, replacements (amortized, as provided below) and general
maintenance (excluding those which are the sole obligation of Landlord
expressly so provided herein, those paid for by proceeds of insurance or
other parties, and alterations attributable solely to tenants of the
Buildings other than Tenant); (E) reasonable charges for steam, heat,
ventilation, air conditioning, water, gas, electricity and other utilities
used or consumed in the Common Areas; (F) the cost of supplies and equipment
used in the operation and maintenance of the Project; (G) reasonable
professional fees (e.g., fees of attorneys, auditors and other professionals
and consultants) and association dues; (H) the cost of resurfacing and
restriping the parking areas and janitorial and other cleaning costs and
fees; (I) the cost of governmental licenses and permits, or renewals thereof,
necessary for the operation of the Project; (J) the cost of capital
improvements made to the Project either (1) for the intended purpose of
reducing Project Operating Expenses (but only to the extent of the lesser of
the amortized cost of the capital improvement or the actual cost savings
resulting from the capital improvement) or (2) pursuant to a requirement of
law, ordinance, order, rule or regulation of any governmental,
quasi-governmental or public authority (a "Law") or a requirement of any
insurance carrier or insurance rating organization or underwriting board,
provided the Law or requirement is amended, enacted or promulgated after the
Effective Date or (3) as set forth in Section 6.a(vi) hereof; and (K) all
other reasonable and actual expenses paid in connection with the operation,
maintenance, management and repair of the Common Areas. The costs of
replacements pursuant to Section 6.a(ii)(D), capital improvements pursuant to
Section 6.a(ii)(J), and resurfacing under Section 6.a(ii)(H) (if capital in
nature) shall be amortized on a straightline basis over the useful life of
the replacement, improvement or resurfacing using generally accepted
accounting principles, consistently applied. The cost of capital improvements
which are made to the Project pursuant to a Law which was in existence prior
to or on the Effective Date but only became applicable to the Project by
reason of any act or cause of Tenant (e.g.,any
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tenant improvements or any particular use by Tenant of the Premises) shall not
be included in Project Operating Expenses but shall be paid by Tenant.
(iii) BUILDING OPERATING EXPENSES. The term "Building
Operating Expenses" shall mean the reasonable actual operating expenses which
are paid by Landlord in connection with only the Buildings containing any
portion of the Premises. The Building Operating Expenses shall be directly
attributable to the operations, maintenance, management and repair of the
Buildings, as determined under generally accepted accounting principles,
consistently applied. Building Operating Expenses shall be the following: (A)
Real Estate Taxes, as defined in Section 6.b.; (B) premiums for insurance; (C)
wages, salaries and related expenses and benefits of on-site employees engaged
in operation, maintenance and security (including fringe benefits, payroll
taxes, workers' compensation and uniforms); (D) the reasonable costs of repairs,
replacements (amortized, as provided below) and general maintenance (excluding
those which are the sole obligation of Landlord expressly so provided herein,
those paid for by proceeds of insurance or other parties, and alterations
attributable solely to tenants of the Buildings other than Tenant); and (E)
reasonable charges for steam, heat, ventilation, air conditioning, water, gas,
electricity and other utilities used or consumed in the Buildings; (F) the cost
of supplies and equipment used in the operation and maintenance of the
Buildings; (G) reasonable professional fees (e.g., fees of attorneys, auditors
and other professionals and consultants) and association dues; (H) the cost of
resurfacing and restriping the parking areas and janitorial and other cleaning
costs and fees; (I) the cost of governmental licenses and permits, or renewals
thereof, necessary for the operation of the Buildings; (J) the cost of capital
improvements made to the Buildings either (1) for the intended purpose of
reducing Buildings Operating Expenses (but only to the extent of the lesser of
Tenant's pro rata share of the cost of any capital improvement or the actual
cost savings resulting from the capital improvement) or (2) pursuant to a
requirement of Law or a requirement of any insurance carrier or insurance rating
organization or underwriting board, provided the Law or requirement is amended,
enacted or promulgated after the Effective Date or (3) as set forth in Section
6.a(vi) hereof; and (K) all other reasonable, actual expenses paid in connection
with the operation, maintenance, management and repair of the Buildings. The
cost of replacements pursuant to Section 6.a(iii)(D), capital improvements
pursuant to Section 6.a(iii)(J) and resurfacing under Section 6.a(iii)(H) (if
capital in nature) shall be amortized on a straightline basis over the useful
life of the replacement, improvement or resurfacing, using generally accepted
accounting principles, consistently applied. The cost of capital improvements
which are made to the Buildings pursuant to a Law which was in existence prior
to or on the Effective Date but only became applicable by reason of any act or
cause of Tenant (e.g., any tenant improvements or any particular use by Tenant
of the Premises) shall not be included in Building Operating Expenses but shall
be paid by Tenant.
(iv) OPERATING EXPENSES. The term "Operating Expenses"
shall mean the sum of Project Operating Expenses and Building Operating
Expenses. The term "Operating Expense" shall mean any individual expense
included within the definition of Operating Expenses. All goods and services
comprising operating Expenses shall be obtained at competitive prices, but may
be obtained from related parties. Any item which is a Project Operating Expense
shall not be a Building Operating Expense.
(v) EXCLUSIONS. Operating Expenses shall not include the
following: (A) legal fees, brokerage commissions, advertising costs, or other
related expenses incurred in connection
6.
with the leasing of any portion of the Project; (B) repairs, alterations,
additions, improvements or replacements made to rectify or correct any defect in
the design, materials or workmanship of the Project (provided that the foregoing
shall not include repairs, alterations, additions, improvements or replacements
to non-defective items which are caused by Tenant's construction activities);
(C) except as provided in Section 6.a(ii)(J)(2) and Section 6.a(iii)(J)(2),
repairs, alterations, additions, improvements or replacements made to comply
with any requirements of Law in effect as of the Effective Date; (D) any
repairs, additions, improvements, alterations, replacements or expenditures of a
capital nature, except as specifically allowed and limited pursuant to Sections
6.a(ii)(J) and 6.a(iii)(J) and Section 6.a(vi); (E) depreciation or amortization
of the Buildings or any other improvements within the Project except as set
forth in (D) above; (F) the cost of damage and repairs attributable to fire or
other casualty (except for the deductible portion of insurance which shall be
included in Operating Expenses in the event of a casualty); (G) the cost of
damage and repairs covered under any insurance policy carried by, or required to
be carried by, Landlord in connection with the Project (except for the
deductible portion of insurance which shall be included in Operating Expenses in
the event of a casualty); (H) damage and repairs necessitated by the negligence
or willful misconduct of Landlord or Landlord's employees, contractors or
agents; (I) executive salaries (except for Landlord's Project or Building
Director of Facilities, Manager or Superintendent); (J) salaries of service
personnel to the extent that the service personnel perform services not solely
in connection with the management, operation, repair or maintenance of the
Project; (K) Landlord's general overhead expenses not related to the Buildings;
(L) payments of principal or interest on any mortgage or other encumbrance; (M)
legal fees, accountants' fees and other expenses incurred in connection with
disputes with Tenant, or other occupants or tenants under or with respect to
their leases or associated with the enforcement of any leases or defense of
Landlord's title to or interest in the Project or any part thereof; (N) costs
(including permit, license and inspection fees) incurred in renovating or
otherwise improving, decorating, painting or altering space for other tenants or
other occupants or of vacant rentable space in the Buildings or Project; (O)
costs incurred due to violation by Landlord or any other tenant in the Project
of the terms and conditions of any lease; (P) interest. penalties or other costs
arising out of Landlord's failure to make timely payment of its obligations; (Q)
the cost of any service provided to Tenant or other occupants of the Project for
which Landlord is entitled to be reimbursed (other than pursuant to provisions
similar to this Section 6); (R) overhead and profit paid to subsidiaries or
affiliates of Landlord for management or other services for the Buildings or
Project or for supplies or other materials to the extent that the costs of the
services, supplies or materials exceed the competitive costs of the services,
supplies or materials if they were not provided by a subsidiary or an affiliate;
(S) costs incurred to test, survey, clean up, contain, xxxxx, remove or
otherwise remedy Hazardous Materials (as defined in Section 20 hereof) from the
Project unless the Hazardous Materials were in or on the Project because of
Tenant's negligence or intentional acts; (T) costs incurred in connection with
any portion of the Project which is intentionally segregated from the parking
available for Tenant and other tenants of the Project or used solely for parking
by non-tenants of the Project and for which parking fees are charged; (U)
property management fees; (V) costs incurred in advertising and promotional
activities for the Project (including gifts and promotional services to tenants
or other parties); (W) imputed amounts for rent for space within the Project or
other locations which is unoccupied or occupied by property managers; (X) all
Amenities Expenses; and (Y) any other expense which, under generally accepted
accounting principles, consistently applied, are
7.
not reasonable, actual operating expenses which are directly attributable to the
operations, maintenance, management and repair of the Project or the Buildings,
as applicable.
(vi) RESTRICTIONS ON SPECIFIC OPERATING EXPENSES. The
costs of any major repair which is made to the roofs or the heating, ventilation
and air conditioning (HVAC) systems which is not caused solely by the negligence
of Tenant shall be amortized over the useful life of the repair, as determined
in accordance with generally accepted accounting principles, consistently
applied; provided that (A) Tenant shall not be responsible for any amortized
costs of repairs to the roofs during the term hereof and (B) Tenant shall not be
responsible for any amortized costs of repairs to the HVAC systems during the
first five (5) years of this Lease. Notwithstanding the provisions of clauses
(A) and (B) above. Tenant shall be solely responsible for any repairs to the
roofs or HVAC systems arising out of any acts or omissions of Tenant or its
agents, representatives, contractors, subcontractors or servants or anyone else
under the reasonable control of Tenant.
(vii) LIMITATION ON SPECIFIED PROJECT OPERATING EXPENSES.
Tenant shall not be responsible in the First Lease Year for the Project
Operating Expenses specified in EXHIBIT B-1 as "CAM & Landscaping" and
"Insurance" ("Specified Project operating Expenses") in excess of Four and
Fifty-Five Hundredths Cents ($0.0455) per rentable square foot of Building 2
Space actually occupied by Tenant, Building 3 Space and Amenities Space in the
First Lease Year. The limitation (and the Specified Project Operating Expenses)
shall be calculated on the basis of the annualized Project Operating Expenses
for the Building 2 Space actually occupied by Tenant, Building 3 Space and
Amenities Space. The limitation set forth in this Section 6.a(vii) shall not
apply to any other Operating Expenses.
(viii) LIMIT ON ANNUAL SPECIFIED PROJECT OPERATING EXPENSE
INCREASES. After the First Lease Year, Tenant shall not be liable for any
increase in the Specified Project Operating Expenses for any Lease Year during
the Term in excess of five percent (5%) (calculated on a per rentable square
footage basis) per Lease Year on a compounded basis (e.g., the maximum Specified
Project Operating Expense for which Tenant shall be responsible in the second
Lease Year shall be $0.047775 per rentable square foot and the maximum Specified
Project Operating Expenses for which Tenant shall be responsible in the third
Lease Year shall be $0.050164 per rentable square foot); provided, however, that
increases in the Specified Project Operating Expenses which directly result from
governmentally mandated costs or fees (e.g., penalties for excess water usage)
shall not be subject to the above limitation. For purposes of this Section
6.a(viii), Real Estate Taxes shall not be included in the Specified Project
Operating Expenses (as Real Estate Taxes shall be subject to the limitation set
forth in Section 6.b(iv)). The limitation set forth in this Section 6.a(viii)
shall not apply to any other Operating Expenses.
(ix) COLLECTION. Landlord shall use reasonable efforts to
keep the Operating Expenses at reasonable amounts while operating the Project as
a first-class office/research and development campus and there shall not be
included in Operating Expenses any costs in excess of those that would be
reasonably incurred by prudent owners who act as operators and managers of
similar first-class office/research and development campuses located in the
cities of Sunnyvale, Santa Xxxxx, Milpitas and the North San Xxxx area ("Similar
Facilities"), which owner operators and managers are not generally engaged in
the operation and management of Similar Facilities or other properties and do
not have access to the economies and resources available to
8.
operators and managers of Similar Facilities or other properties. Landlord
shall not collect in excess of one hundred percent (100%) of any Operating
Expense or any Operating Expense more than once. All Operating Expenses shall
be determined in accordance with generally accepted accounting principles and
practices, consistently applied. Landlord's statement of Operating Expenses
shall be certified by a certified public accountant or signed and certified
to be correct by Landlord.
(x) RIGHT TO CHALLENGE. Tenant shall have the right, by
giving written notice to Landlord at any time within one (1) year after receipt
of any statement of Operating Expense, to challenge the accuracy of any
Operating Expense set forth in the statement. Failure to timely notify Landlord
of a challenge shall be a waiver of Tenant's right to challenge the Operating
Expenses set forth in the applicable statement. If Tenant challenges any
operating Expenses, Landlord shall make Landlord's books and supporting
documents available at reasonable times during office hours and upon reasonable
prior notice for Tenant to audit. If requested by Tenant, Landlord shall provide
adequate work space within Landlord's offices for Tenant's authorized
representatives to review the books and supporting documents. Tenant shall pay
the cost and expenses of any audit unless the audit shows an overstatement of at
least five percent (5%) in the Operating Expenses, in which event Landlord shall
pay the costs and expenses of the audit. Landlord shall pay any overstated
amounts to Tenant, together with interest at the rate of ten percent (10%) per
annum from the date of overpayment to the date payment is made by Landlord (and,
if applicable, the cost of the audit), within thirty (30) days after the amount
of the overstatement is finally determined.
(xi) SURVIVAL. If the exact amount of any item payable by
Tenant under this Section 6 which would not otherwise be due until after the
Expiration Date or termination of this Lease is uncertain as of the Expiration
Date or termination of this Lease, the item shall be paid by Tenant to Landlord
within sixty (60) days after Landlord's notice to Tenant of Landlord's final
determination of the exact amount.
(xii) NOTICE OF OBLIGATION. Landlord shall provide Tenant
with at least two (2) months' prior notice ("Rent Adjustment Notice") of the
effective date of any adjustments in Rent which are to be made under this Lease.
If Landlord fails to give notice to Tenant at least two (2) months prior to the
date an adjustment is to be effective, (A) Tenant shall have the right, for a
period of two (2) months after the Rent Adjustment Notice. to pay Rent in an
amount equal to the Rent payable prior to the adjustment, and (B) within two (2)
months after Tenant receives the appropriate Rent Adjustment Notice, Tenant
shall pay, without any penalty or interest, any accrued increases in Rent during
the two (2) month period stated in the Rent Adjustment Notice.
(xiii) ESTIMATED PAYMENTS. Prior to the commencement of each
Lease Year during the Term, or as soon thereafter as is practicable, Landlord
shall estimate the Operating Expenses payable by Tenant pursuant to this Section
6.a and Tenant shall pay to Landlord on the first of each month, in advance,
one-twelfth (1/12) of Landlord's estimated amount of Tenant's Share ("Tenants
Share") of Building 2 Operating Expenses, Building 3 Operating Expenses and
Project Operating Expenses. Subject to the provisions of Section 6.a(xii), if
Landlord's estimate is given at any time after the beginning of a Lease Year,
the first payment after delivery of the estimate shall include the aggregate of
the underpayments for the prior months in the Lease Year as if the applicable
statement of estimated Operating Expenses been timely given prior to the
9.
beginning of the Lease Year and as if the adjusted amounts of Operating Expenses
had been due from the first month of the Lease Year. Landlord's estimate shall
include a comparison, by each category, of the prior Lease Year's Operating
Expenses (in terms of both dollars and percentages) and, if requested by Tenant,
shall include a reasonably detailed description of the reasons for increases to
support Landlord's estimate. If Landlord does not provide an estimate (and, if
requested by Tenant, a reasonably detailed description) to Tenant prior to the
commencement of a Lease Year, Tenant shall continue, until the month after
Tenant receives Landlord's estimate of the revised Operating Expenses (and, if
requested by Tenant, reasonable, detailed documentation), to pay the Operating
Expenses based on the prior Lease Year's estimate. After a Lease Year has
commenced, Landlord may revise its estimate of Operating Expenses; provided that
Landlord shall not revise its estimate more than twice during any Lease Year.
(xiv) ADJUSTMENT IN ESTIMATED PAYMENTS. Tenant's Share of
Building 2 Operating Expenses, Tenant's Share of Building 3 Operating Expenses
and Tenant's Share of the Project Operating Expenses shall be adjusted as
applicable every time during the Term that there is an increase or decrease in
either (A) the rentable square footage of the Premises leased by Tenant or (B)
the rentable square footage of the Project. The increases or decreases shall
result from Tenant leasing additional or less Building 2 Space or as a result of
Landlord making additional improvements to the Project.
(xv) ANNUAL ADJUSTMENT. Within ninety (90) days after the
end of each Lease Year, Landlord shall deliver to Tenant a final statement of
actual Operating Expenses for the Lease Year and there shall be an adjustment
made to account for (A) any difference between the actual and the estimated
Operating Expenses for the previous Lease Year and (B) any change in the actual
rentable square footage of the Premises Tenant leased during the previous Lease
Year. If Tenant has overpaid the amount of Operating Expenses owing pursuant to
this Section 6.a. Tenant shall subtract the amount of the overpayment from the
next payment of Rent; provided, that in the case of an overpayment for the final
Lease Year of the Term, Landlord shall refund the overpayment to Tenant within
sixty (60) days after Landlord's determination (which shall be made in a timely
manner) that there was an overpayment. If Tenant has overpaid the amount of
Operating Expenses by more than five percent (5%), Tenant shall be entitled to
interest, at the rate of ten percent (10%) per annum, on the amount of the
overpayment from the date of the overpayment to the date of application of the
overpayment to Rent (or refund by Landlord). If Tenant has underpaid the amount
owing pursuant to this Section. Tenant shall pay the amount of the underpayment
to Landlord within sixty (60) days after receipt of Landlord's written demand
accompanied by a final statement of the Operating Expenses.
(b) REAL ESTATE TAXES.
(i) GENERAL. Subject to Section 6.b(ii), "Real Estate
Taxes" shall mean the aggregate amount of real estate taxes, personal property
taxes and other similar charges on real property or improvements, assessments,
special assessments and all other charges levied or assessed upon the Project or
the Buildings, other then any water or sewer charges to the extent the same are
included in Operating Expenses for the applicable Lease Year. If because of any
change in the taxation of real estate, any other tax, assessment or surcharge of
any kind or nature (including any franchise, income, profit, sales, use,
occupancy, gross receipts or rental tax) is
10.
imposed upon, against or with respect to the Project, the Buildings, the
Common Areas (including the parking areas or the number of parking spaces) or
the occupancy, rents or income therefrom or the ownership or owners (direct
or indirect) thereof, either in lieu of, in substitution for or in addition
to any of the foregoing Real Estate Taxes, such other tax, assessment or
surcharge shall be deemed part of Real Estate Taxes. With respect to any
Lease Year, all reasonable expenses, including attorneys', accountants' and
experts' reasonable fees and expenses, incurred in contesting the validity or
amount of Real Estate Taxes, the assessed valuation of the Project or the
Buildings or in obtaining a refund of Real Estate Taxes shall be considered
as part of the Real Estate Taxes for that Lease Year to the extent that the
prudent owner of Similar Facilities (under similar circumstances) would
expend the fees and expenses.
(ii) EXCLUSIONS. The following shall not constitute Real
Estate Taxes for purposes of this Lease: (A) except as set forth in Section
6.b(i) above, any state, local, federal, personal or corporate income tax
measured by the income of Landlord; (B) except as set forth in Section 6.b(i)
above, any estate, inheritance, or gross rental receipts tax; (C) except as set
forth in Section 6.b(i) above, any franchise, succession or transfer taxes; (D)
interest on taxes or penalties resulting from Landlord's failure to pay taxes;
(E) any increases in taxes attributable to improvements constructed by or for
Tenant; (F) any increases in taxes attributable to change of ownership (e.g.,
sale) of all or any part of the Premises, Buildings or Project to any entity
which is not Tenant or an Affiliate (as defined in Section 19.9 hereof); (G) any
assessments which are levied as a result of Landlord's construction of
additional improvements to the Project; (H) real estate taxes resulting from
tenant improvements costing in excess of Eight Dollars ($8.00) per rentable
square foot ("Overstandard Tenant Improvements") made by other tenants of the
Project (which shall be treated in accordance with the provisions of Section
6.b(iii)); or (I) any entitlement fees or taxes which are essentially payments
to a governmental agency for the right to make improvements to the Buildings,
the Project, the surrounding area or other projects of Landlord.
(iii) OVERSTANDARD TENANT IMPROVEMENTS. Real Estate Taxes
resulting from (A) Overstandard Tenant Improvements by Tenant or (B) from any
other tenant improvements or Alterations made within the Premises shall not be
included in the Operating Expenses but instead shall be the obligation of
Tenant. Real Estate Taxes resulting from Overstandard Tenant Improvements made
to other portions of the Project (e.g., by other tenants of the Project) shall
not be included in the Operating Expenses and Tenant shall not have an
obligation for such Real Estate Taxes.
(iv) LIMIT ON ANNUAL INCREASE OF REAL ESTATE TAXES. The
Real Estate Taxes to be included in the Operating Expenses for the First
Lease Year shall be based on Forty-Three Million Dollars ($43,000,000.00)
(representing the reassessment of the Project based on the transaction
pursuant to which Landlord acquired the Project), subject to increase for the
first Eight Dollars ($8.00) per rentable square foot of tenant improvements
but shall not include Overstandard Tenant Improvements constructed for the
benefit of Tenant. Subject to the provisions of Section 6.b(v), the Real
Estate Taxes which shall be included in the Operating Expenses for any Lease
Year during the Term after the First Lease Year shall not be in excess of one
hundred and two percent (102%) of the Real Estate Taxes included in the
Operating Expenses for the immediately preceding Lease Year.
11.
(v) GOVERNMENTAL CHANCES. The limitation on increases of
Real Estate Taxes set forth in Section 6.b(iv) shall not apply to any increases
resulting from (1) governmental changes in the manner of determining the amount
of the Real Estate Taxes due (e.g., governmental changes resulting from (A)
determination that Proposition 13, and the applicable provisions of the
California Constitution (e.g., Article XIII), are unconstitutional or (B)
increases, above two percent (2%), in the permitted annual percentage rate of
increase in the "full cash value", as defined in Article XIII.A, Section 2 of
the California Constitution). (2) any change described in the second sentence of
Section 6.b(i) hereof, (3) any expenses described in the third sentence of
Section 6.b(i) hereof, and (4) as a result of any tenant improvements, but only
to the extent of Eight Dollars ($8.00) per rentable square foot of such
improvements.
(c) PERSONAL PROPERTY TAXES. Tenant shall pay or cause to be paid,
prior to delinquency, any and all taxes and assessments levied upon all
improvements, alterations, fixtures, trade fixtures, inventories and other
personal property placed in and upon the Premises by Tenant.
(d) LESS THAN FULL OCCUPANCY.
(i) BUILDINGS. If less than one hundred percent (100%) of
the rentable square footage of either Building 2 or Building 3 is occupied, the
Operating Expenses for the Building (i.e., Building 2 or Building 3) shall be
adjusted to equal Landlord's reasonable estimate of the Operating Expenses if
one hundred percent (100%) of the rentable square footage of the Building were
occupied.
(ii) PROJECT. If less than one hundred percent of the
rentable square footage of the Project is occupied, the Operating Expenses for
the Project shall be adjusted to equal Landlord's reasonable estimate of the
Operating Expenses for the Project if one hundred percent (100%) of the rentable
square footage of the Project were occupied.
(e) AMENITIES EXPENSES.
(i) SUMMARY AND ESTIMATED AMENITIES EXPENSES. Set forth
in Exhibit B-2 to this Lease are (A) a summary of the Amenities Expenses for the
1990 and 1991 calendar years; and (B) an estimate of the Amenities Expenses for
the 1992 and 1993 Lease Years.
(ii) AMENITIES COMMITTEE. The responsibility for
determining the Amenities Expenses for the period after the Commencement Date
shall be vested in an amenities committee ("Amenities Committee"). The Amenities
Committee shall at all times consist of two (2) members; one (1) member shall be
Landlord's Property Manager (or other individual appointed by Landlord) and the
other member shall be Pacific Xxxx'x Asset Manager (or other individual
appointed by Pacific Xxxx). The Amenities Committee shall meet at Landlord's
offices at the Project (or such other place as may be agreed upon by the
Amenities Committee) as frequently as the Amenities Committee may determine.
(iii) AMENITIES EXPENSES BUDGET. Not less than sixty (60)
days prior to the beginning of each Lease Year during the Term, the Amenities
Committee shall agree upon a budget ("Amenities Expenses Budget") stating an
estimate of the Amenities Expenses and Tenant's Share of Amenities Expenses
(determined in accordance with Section 6.e(ix) hereof)
12.
for the upcoming Lease Year. Each Amenities Expenses Budget shall only
include those costs and expenses which are reasonable and necessary to
operate and maintain the Project Amenities in a first-class manner,
consistent with comparable amenities within Similar Facilities operated by
prudent owners operating comparable amenities. If the Project Amenities are
being operated by an unaffiliated third party approved by the Amenities
Committee, its fees and expenses (if payable pursuant to a written contract)
and any costs that it advises should be incurred shall conclusively be deemed
to be reasonable and necessary. Notwithstanding anything to the contrary set
forth herein, Landlord shall not be obligated to provide any facility,
service or other amenity during a particular period if the cost therefore
will not be included in the Amenities Expense Budget.
(iv) CAPITAL IMPROVEMENTS. The Amenities Committee shall
approve any and all capital improvements, the cost of which are to be included
in Amenities Expenses.
(v) AMENITIES EXPENSES. The term "Amenities Expenses"
shall mean the reasonable, actual and necessary operating expenses, approved by
the Amenities Committee, which are paid by Landlord in connection with the
Project Amenities. Goods and services comprising the Amenities Expenses shall be
obtained at competitive prices. The Amenities Expenses shall be directly
attributable to the operations, maintenance, management and repair of the
Project Amenities, as determined under generally accepted accounting principles,
consistently applied, for the applicable period. Amenities Expenses shall be the
following to the extent incurred solely in connection with the Project
Amenities: (A) premiums for insurance; (B) fees, charges, expenses, wages,
salaries and related expenses and benefits (including, without limitation,
fringe benefits, payroll taxes, worker's compensation and uniforms) of employees
or other persons or entities (including, without limitation, those payable to a
third party operating or managing the Project Amenities or providing services
therefor) engaged in management, operation, maintenance and security; (C) the
reasonable cost of repairs and general maintenance (excluding those paid for by
proceeds of insurance or other parties); (D) reasonable charges for steam, heat,
ventilation, air conditioning, water, gas, electricity and other utilities used
or consumed in connection with the Project Amenities; (E) the cost of supplies
and equipment; (F) the cost of governmental licenses and permits, or renewals
thereof, necessary for the operation of the Project Amenities; and (G) the cost
of capital improvements approved by the Amenities Committee (as provided in
Section 6.e(iv)), amortized on a straightline basis over the useful life thereof
in accordance with generally accepted accounting principles, consistently
applied; and (H) all other reasonable, actual expenses approved by the Amenities
Committee, paid in connection with the operation, maintenance, management and
repair of the Project Amenities.
(vi) EXCESS USE OF PROJECT AMENITIES. Tenant shall pay to
Landlord the resulting increase in Amenities Expenses if (A) as a result of
Tenant's extended operating hours or increased employment of persons, Tenant's
use of the Project Amenities exceeds the use of the Project Amenities by other
tenants in the Project and (B) as a result of Tenant's increased use. Landlord
is required to extend the hours that the Project Amenities are available or the
services provided. The amount of the increase shall be reasonably determined by
the Amenities Committee.
(vii) COLLECTION. Landlord shall use reasonable efforts to
keep the Amenities Expenses at reasonable amounts while operating the Project
Amenities in a first class manner for
13.
comparable amenities within Similar Facilities. Landlord shall not collect in
excess of one hundred percent (100%) of any Amenities Expense or any
Amenities Expense more than once.
(viii) RIGHT TO CHALLENGE. Tenant shall have the right, by
notice in writing to Landlord given at any time within one (1) year after
receipt of any statement of Amenities Expense, to challenge the accuracy of any
Amenities Expenses. Failure to timely notify Landlord of a challenge shall be a
waiver of the right for the applicable statement. If Tenant challenges any
Amenities Expenses, Landlord shall make Landlord's books and supporting
documents available at reasonable times during office hours and upon reasonable
prior notice for Tenant to audit. If requested, Landlord shall provide adequate
work space within Landlord's offices for Tenant's authorized representatives to
review the books and supporting documents. Tenant shall pay the costs and
expenses of any audit unless the audit shows an overstatement of at least five
percent (5%) in the Amenities Expenses, in which event Landlord shall pay the
cost and expenses of the audit.
(ix) ESTIMATED PAYMENTS. Tenant shall pay to Landlord
Tenant's Percentage Share of Amenities Expenses for each Lease Year on an
estimated basis, in the same manner and subject to the same terms and conditions
as set forth for the payment of Operating Expenses pursuant to Section 6.a(xiii)
hereof. Tenant's Percentage Share of Amenities Expenses shall be the product of
(A) a fraction, the numerator of which shall be the rentable square footage of
the Premises actually occupied by Tenant at the commencement of the then current
Lease Year and the denominator of which shall be the total rentable square
footage of the Project, times (B) the estimated Amenities Expenses for the Lease
Year.
(x) ADJUSTMENT IN ESTIMATED PAYMENTS. Tenant's Percentage
Share of Amenities Expenses shall be adjusted every time during the Term that
there is an increase or decrease in either (A) the rentable square footage of
the Premises leased by Tenant or (B) the rentable square footage of the Project.
The increases or decreases shall result from Tenant leasing additional or less
Building 2 Space or as a result of Landlord making additional improvements to
the Project.
(xi) ANNUAL ADJUSTMENT PERIOD. Within ninety (90) days
after the end of each Lease Year, Landlord shall deliver a final statement to
Tenant of actual Amenities Expenses for the Lease Year and there shall be an
adjustment made to account for any difference between (A) the actual and the
estimated Amenities Expenses for the previous Lease Year and (B) the actual
rentable square footage of the Premises during the previous Lease Year, the
actual rentable square footage of the Project and the rentable square footage
used to calculate Tenant's Percentage Share of Amenities Expenses in the
estimated budget which may have been revised during the Lease Year, in
accordance with Section 6.e(x). If Tenant has overpaid the amount of the
Amenities Expenses owing pursuant to this Section, Tenant shall subtract the
amount of the overpayment from the next payment(s) of Rent; provided, that in
the case of an overpayment for the final Lease Year of the Term, Landlord shall
refund the overpayment to Tenant within sixty (60) days after the Amenities
Committee's determination (which shall be made in a timely manner) that there
was an overpayment. If Tenant has overpaid the amount of Amenities Expenses by
more than five percent (5%), Tenant shall be entitled to interest, at the rate
of ten percent (10%) per annum, on the amount of the overpayment from the date
of the overpayment to the date of application of the overpayment to Rent (or
refund by Landlord). If Tenant has
14.
underpaid the amount owing pursuant to this Section, Tenant shall pay the
amount of the underpayment to Landlord within sixty (60) days after receipt
of Landlord's written demand accompanied by a final statement of the
Amenities Expenses.
(f) RIGHT TO DISCONTINUE USE OF CAFETERIA. Tenant shall have the
right, in accordance with the terms of this Section 6.f., to discontinue its use
of the Cafeteria.
(i) NOTICE. Upon not less than one (1) year's prior
notice to Landlord, Tenant may elect to discontinue its use of the Cafeteria at
any time during the Term.
(ii) PAYMENT. Not later than the date designated by Tenant
that its use of the Cafeteria will cease (the "Cafeteria Termination Date"),
Tenant shall deliver to Landlord a termination payment (the "Cafeteria
Termination Payment"). The Cafeteria Termination Payment shall be an amount
equal to the unamortized portion of any additional capital expenditures
(including expenditures for fixtures and equipment) approved by the Amenities
Committee (pursuant to Section 6.e(iv)) made by Landlord which the Amenities
Committee reasonably determined (A) to be necessary to adequately provide food
and beverage service to Tenant's employees and (B) would not be necessary if
Tenant had not used the Cafeteria. If Tenant makes the Cafeteria Termination
Payment in a timely manner, Tenant shall have the right, within sixty (60) days
after the Cafeteria Termination Date, to remove the fixtures and equipment for
which the Cafeteria Termination Payment was paid (i.e., the fixtures and
equipment upon which the Cafeteria Termination Payment was calculated) but only
to the extent that such removal shall not result in any permanent damage to any
portion of the Project, and provided that Tenant shall repair any damage caused
by such removal.
(iii) REIMBURSEMENT EXPENDITURES. Landlord shall obtain the
Amenities Committee's approval (pursuant to Section 6.e(iv)) prior to Landlord
making any capital expenditures for fixtures or equipment for which Landlord
will desire any reimbursement as part of the Cafeteria Termination Payment.
(iv) METHOD OF AMORTIZATION. Any capital expenditure which
is to be part of the Cafeteria Termination Payment shall be amortized over the
useful life (as determined under generally accepted accounting principles,
consistently applied) of the item for which the capital expenditure was made.
(v) REDUCED AMENITIES EXPENSES. On the Cafeteria
Termination Date, any and all costs and expenses associated with the Cafeteria
shall be excluded from Amenities Expenses payable under this Lease.
(g) USE OF HEALTH CLUB.
(i) SUBJECT TO AMENITIES COMMITTEE. Use of the Health
Club by Tenant shall be limited to employees of Tenant who work at the Project
and their immediate families. Operations of the Health Club shall be subject to
the terms and conditions (e.g., rules) established by the Amenities Committee.
(ii) RULES OF TENANT. In addition to the terms and
conditions established by the Amenities Committee, Tenant may impose additional
restrictions on the use of the Health Club
15.
by its employees. For example, (A) Tenant may limit the use of the Health
Club to employees of Tenant who work at the Project, and (B) Tenant's
employees who desire to use the Health Club may be required to present proof
of their compliance with Tenant's required physical health and fitness
assessment program and sign participation waiver in the form provided by
Tenant, prior to being allowed to use the Health Club. Tenant shall pay the
costs of imposition of any additional restrictions which Tenant requests on
the use of the Health Club by its employees.
(iii) HEALTH CLUB MANAGEMENT. Tenant's Asset Manager (or
designee) shall meet with Landlord and/or Landlord's operator of the Health Club
as often as Tenant reasonably determines is necessary to (A) coordinate the
programs and activities provided at the Health Club and (B) agree on the terms
and conditions (e.g., rules) applicable to use of the Health Club.
7. PRORATION OF RENT.
(a) COMMENCEMENT DATE. If the Commencement Date is not the first
day of the month, or the end of the Term is not the last day of the month, Rent
shall be appropriately prorated on a monthly basis (based on the number of days
in the month) for the fractional month during the month which this Lease
commences or terminates.
(b) TERMINATION. The termination of this Lease with respect to all
or any portion of the Premises shall not affect the obligations of Landlord and
Tenant pursuant to Section 6 which are to be performed after the termination.
8. INSURANCE AND INDEMNITY.
(a) TENANT'S INSURANCE. Tenant shall obtain and keep in full force
and effect at all times at Tenant's sole cost and expense, the insurance
described on Exhibit F hereto. All such insurance shall (i) be written by an
insurance company licensed and qualified to do business in the State of
California which is reasonably acceptable to Landlord, (ii) shall name Landlord,
and any person firms or corporations (including any management agent, Lessor or
Mortgagee (each as hereinafter defined)) designated by Landlord as insureds and
(iii) shall contain a clause that the insurer will not cancel or change the
insurance without first giving Landlord 30 days' prior written notice. An
original copy of such policies or renewals thereof or certificates of insurance
therefor shall be delivered to Landlord upon execution and 30 days prior to
expiration of any then existing policies, as the case may be. Tenant shall not
carry separate or additional insurance, concurrent in form or contributing in
the event of any loss or damage, with any insurance required to be obtained by
Tenant under this Lease.
INDEMNITY AND NON-LIABILITY. (i) Neither Landlord nor Landlord's agents
nor any Lessor or Mortgagee, shall be liable to Tenant or Tenant's agents or any
other occupant of the Premises, and Tenant shall indemnify and hold harmless
Landlord, any Lessor and Mortgagee, their successors and assigns and their
respective agents from any loss, cost, liability, claim, damage, expense
(including reasonable attorney's fees and disbursements), penalty or fine
incurred in connection with or arising from any injury to Tenant or to any other
person or for any damage to, or loss (by theft or otherwise) of, any of Tenant's
property or the property of any other person, irrespective of the cause of such
injury, damage or loss (including the acts or negligence of any tenant or of any
owners or occupants of adjacent or neighboring property or
16.
caused by operations in construction of any private, public or quasi-public
work) unless due to the gross negligence or willful misconduct of Landlord or
Landlord's agents. However, even if such loss or damage is caused by the
gross negligence or willful misconduct of Landlord or its agents, Tenant
waives, to the full extent permitted by law, any claim for consequential
damages in connection therewith. To the extent of Tenant's insurance
coverage, Landlord and its agents shall not be liable for any loss or damage
to any person or property due to the gross negligence or willful misconduct
of Landlord or its agents.
(ii) Neither any (A) performance by Landlord, Tenant or
others of any repairs, improvements, alterations, additions, installations,
substitutions, betterments or decorations in or to the Project, the Buildings
equipment and systems or the Premises; (B) failure of Landlord or others to make
any such repairs or improvements, (C) damage to the Project, the Building
equipment or systems, the Premises or Tenant's property, (D) injury to any
persons caused by other tenants or persons in the Buildings, or by operations in
the construction of any private, public, or quasi-public work, or by any other
cause, (E) latent defect in the Buildings, the Building equipment or systems,
the Common Areas or the Premises, nor (F) inconvenience or annoyance to Tenant
or injury to or interruption of Tenant's business by reason of any of the events
or occurrences referred to in the foregoing subdivisions (A) through (E), shall
impose any liability on Landlord to Tenant other than, subject to Sections 31.k.
and 31.l. hereof, such liability as may be imposed upon Landlord by law for the
gross negligence of Landlord or Landlord's agents in the operation or
maintenance of the Project or the Building equipment or systems or for the
breach by Landlord of any express covenant of this Lease on Landlord's part to
be performed.
(iii) Tenant hereby indemnifies and holds harmless Landlord
and Landlord's agents and Lessors or Mortgagees from any loss, cost, liability,
claim, damage, expense (including reasonable attorney's fees and disbursements),
penalty or fine incurred in connection with or arising from (A) any default by
Tenant in the performance of any of the terms of this Lease on Tenant's part to
be performed, or (B) any acts, omissions or negligence of or the use or
occupancy or manner of use or occupancy of the Premises by Tenant, any assignee,
sublessee, invitee or other person claiming by, through or under Tenant or any
of their respective agents, or (C) any accident, injury or damage whatsoever
caused to any person or to the property of any person and occurring in or about
the Premises, or (D) any accident, injury or damage whatsoever caused to any
person or to the property of any person and occurring in or about the Project,
resulting or claimed to have resulted from an act or omission of Tenant, or any
of their respective agents. Tenant's obligations under this Section 8 shall
survive the expiration or earlier termination of this Lease.
(iv) Tenant shall pay to Landlord as Rent, within 5 days
after submission by Landlord to Tenant of bills or statements therefor, sums
equal to all losses, costs, liabilities, claims, damages, fines, penalties and
expenses referred to in this Section 8.b.
(b) WAIVER OF SUBROGATION. (I) Landlord and Tenant shall each
endeavor to procure an appropriate clause in or endorsement to, each of its
policies for fire and extended coverage insurance pursuant to which the
insurance company waives subrogation or consents to waiver of its right of
recovery against the other party, which, in the case of Tenant. shall be deemed
to include any subtenant in the Premises, and having obtained such clause or
endorsement of
17.
waiver of subrogation or consent to a waiver of the right of recovery, such
party hereby agrees that it will not make any claim against or seek to
recover from the other, and it waives all claims and recoveries to the extent
of any such waiver, for any loss or damage to its property or the property of
others covered by such fire or extended coverage insurance; provided,
however, that the release, discharge and covenant not to xxx herein contained
shall be limited by the terms and provisions of the waiver of subrogation
clause or endorsement, or the clause or endorsement consenting to a waiver of
right of recovery, and shall be co-extensive therewith.
(ii) If either party hereto shall not be able to obtain
such clause or endorsement on a particular policy or if the inclusion of such
clause or endorsement would result in an increase in premium, then that party
shall so notify the other party hereto at least 15 days prior to the date the
policy is to take effect. The other party shall be obligated to pay the amount
of any increase in premium resulting from the inclusion of such clause or
endorsement unless such other party notifies the party obtaining the insurance,
promptly following notice of the amount of such increase, that such other party
declines to pay such increase, in which event the party obtaining the insurance
may omit such clause or endorsement. If a party shall fail to give notice either
of inability to obtain such clause or endorsement or notice of an increase in
premium, then that party shall be deemed to have waived its right of recovery
from the other party with respect to any loss or damage insured against by the
policy with respect to which notice was not given as provided above.
9. LANDLORD INSURANCE.
(a) ALL RISK COVERAGE. Landlord shall procure and maintain during
the Term "all risk" property insurance with respect to the Buildings and the
Common Areas including coverage for earthquake damage. The coverage shall be in
an amount equal to one hundred percent (100%) (50% for earthquake) of the full
insurance replacement value (replacement cost new, including debris removal and
demolition but excluding footings, excavation and Tenant's improvements,
furniture, fixtures and equipment).
(b) COMMERCIAL GENERAL LIABILITY INSURANCE. Landlord shall procure
and maintain during the Term, at its sole cost and expense a policy or policies
of commercial general liability insurance, naming Tenant, and Tenant's directors
and employees, as additional insureds, on an "occurrence" basis against claims
for bodily injury, death, property damage or personal injury liability with a
combined single limit of not less than Five Million Dollars ($5,000,000.00) in
the event of injury to any number of persons or of damage to property, arising
out of any one occurrence, including contractual liability and personal injury
liability, with "employee" and "contractual" exclusions deleted.
(c) INSURANCE CERTIFICATES (OR ENDORSEMENTS). Landlord shall
furnish to Tenant prior to the Commencement Date, and thereafter within thirty
(30) days prior to the expiration of each such policy, a certificate of
insurance (or endorsement) issued by the insurance carrier of each policy of
insurance carried hereunder. The certificates (or endorsements) shall expressly
provide that the policies shall not be cancellable or subject to reduction of
coverage or otherwise be subject to modification except after thirty (30) days'
prior written notice to Tenant.
10. UTILITIES AND SERVICE.
18.
(a) LANDLORD'S DUTY TO PROVIDE.
(i) COMMON AREAS. Landlord shall provide levels of
utilities and services to the Common Areas which are consistent with the levels
provided to comparable facilities in the geographical area of the Project.
(ii) PREMISES. Landlord shall provide levels of utilities
and services to the Premises in accordance with Exhibit G hereto. Landlord shall
cause the electricity to Building 2 and Building 3 to be separately metered, and
the cost thereof shall be paid by Tenant. Tenant shall be charged for all of the
electricity supplied to the applicable Buildings (determined based on the
meters) to the extent Tenant is the sole occupant of Building 2 or Building 3
and otherwise shall be charged for the electricity supplied to the portion of
the applicable Building (determined based on the meters and otherwise equitably)
to the extent Tenant is not the sole occupant of Building 2 or Building 3.
(iii) ADDITIONAL SERVICES. Upon Tenant's request, Landlord
shall provide HVAC to the Premises requested by Tenant during hours other than
Landlord's customary and normal hours for operation of the HVAC system within
the Project (as those hours are stated in Exhibit D). The use by Tenant of the
HVAC system during hours other than those set forth in Exhibit D shall be
considered excess HVAC use ("Excess HVAC Use"). Tenant shall reimburse Landlord
the fair and reasonable cost to Landlord in providing the Excess HVAC Use,
determined in accordance with Exhibit D.
(b) INTERRUPTION IN SERVICES -- LANDLORD'S FAULT. If there shall
occur a failure, stoppage, interruption or reduction in the furnishing of any
utilities or services which Landlord is required to provide to the Premises or
to Tenant pursuant to the terms of this Lease, and if such failure, stoppage,
interruption or reduction renders any portion of the Premises untenantable for a
period of ten (10) consecutive business days, then, provided that Tenant shall
not use or occupy that portion of the Premises for the conduct of its business
during such period of ten (10) consecutive business days, the Rent payable with
respect to such portions of the Premises shall be abated or reduced, as the case
may be, in the proportion that the untenantable rentable area of the Premises
bears to the total rentable area of the Premises on a day-by-day basis, for each
day that Tenant shall not use or occupy the Premises, or such portion thereof,
for the conduct of Tenant's business during the period beginning on the eleventh
(11th) consecutive business day and terminating on the earlier of (i) the date
that such portion of the Premises shall become tenantable again, and (ii) the
date Tenant commences to use or occupy the Premises or such portion thereof for
the conduct of Tenant's business. The ten (10) business day period shall be
reduced to such shorter period of time as required for Landlord's rent abatement
insurance to accrue. Tenant shall have the right to terminate this Lease as to
any portion of the Premises for which any interruption in the utilities or
services continues for ninety (90) consecutive days.
11. REPAIRS AND MAINTENANCE.
(a) LANDLORD'S REPAIRS.
(i) OBLIGATIONS OF LANDLORD. The Project shall be
maintained and repaired to the standard of projects (and buildings) of similar
type and use in the geographical area of the
19.
Project and in compliance with all applicable Laws. Except for repairs
specifically required herein to be made by Tenant, Landlord, at all times,
shall keep, replace and maintain in first-class condition, order and repair:
(A) all portions of the Project which are not a part of the Premises; (B) all
portions of the roofs, roof structures and supports, and all structural
portions of the Project including, but not limited to, the foundation and
structural supports, exterior and load bearing walls, floors (but not floor
coverings), gutters and downspouts, but excluding exterior doors and exterior
glass; (C) all utilities to the Common Areas; (D) all Common Areas, including
all driveways, sidewalks, parking areas; and (E) all defects in the Project
as well as any damage to the Project. The cost of the foregoing shall be
included in Operating Expenses, subject to Section 6 hereof.
(ii) TENANT'S NOTICE TO LANDLORD. Tenant may give Landlord
a notice ("Tenant's Repair Notice") of any repairs that are required under the
terms of this Lease. Landlord promptly and diligently shall undertake the
repairs, with Landlord to commence the repairs not later than ten (10) business
days after receipt of a Tenant Repair Notice or such longer period as is
reasonably necessary to prepare plans, hire consultants and contractors, and
obtain the required materials, equipment and permits.
(iii) LANDLORD'S FAILURE TO MAINTAIN. If Landlord fails to
immediately and diligently undertake to repair the Project, upon not less than
five (5) business days' notice in writing to Landlord, Tenant may perform the
repairs or maintenance and, in addition to any other remedies Tenant may have at
law or in equity; Landlord shall reimburse Tenant for the reasonable costs of
the repairs. Tenant shall provide Landlord with reasonably appropriate
supporting documentation evidencing the costs incurred by Tenant.
(b) TENANT'S REPAIRS. Tenant shall, at Tenant's sole cost and
expense, keep and maintain the interior non-structural portions of the Premises,
and the exterior doors and exterior glass of the Premises, in good condition,
order and repair, excepting conditions covered under any warranties of
Landlord's contractors, damage by fire and other casualties. Tenant, at its sole
cost and expense, shall keep and maintain and take good care of all improvements
to the Premises and all fixtures, furniture and equipment therein, including
making repairs thereto under all circumstances, and Landlord shall have no
liability or responsibility therefor, except where due to the gross negligence
or willful misconduct of Landlord. In addition, Tenant shall reimburse Landlord
for all repairs to any portion of the Project the need for which arises out of
(i) the performance or existence of any alterations or modifications of the
Premises made by or for Tenant (including, without being limited to, the
generator and storage tanks), (ii) the installation, use or operation of
Tenant's property or fixtures, or (iii) the acts, omissions, negligence or
misuse by Tenant or those holding under Tenant or any of their respective
agents, or their use or occupancy or manner of use and occupancy of the Premises
or the Project.
12. ACCESS TO PREMISES.
(a) RIGHT OF LANDLORD. Landlord, at reasonable times and upon
reasonable notice, may enter the Premises (i) to complete construction
undertaken by Landlord on the Buildings; (ii) to inspect; (iii) to clean,
maintain or repair the Premises; (iv) to show the Premises to prospective
purchasers and lenders; and, (v) during the last twelve (12) months of the Term,
to show the Premises to prospective tenants.
20.
(b) RESTRICTIONS AN LANDLORD. Landlord shall enter and conduct
its activities in the Premises subject to Tenant's reasonable security
regulations and in the manner which will cause the least possible
inconvenience, annoyance, interference and disturbance to Tenant or Tenant's
business. Landlord shall not do any act under this Section which would
materially and unreasonably interfere with Tenant's access to the Premises or
use of the Premises.
13. ALTERATIONS AND SIGNS.
(a) PERMITTED ALTERATIONS. Consent of Landlord, which consent
shall not be unreasonably withheld or delayed, shall be required for any
structural work to be undertaken by Tenant or any work the cost of which
exceeds $20.00 per square foot. For purposes of this Section 13, structural
work shall be work which materially impacts load bearing walls, floors,
systems, utilities, services, foundations and footings or affecting or
visible outside of the Premises or reducing the value, utility or efficiency
of the Building. Tenant shall have the right, without Landlord's consent, to
make any other improvements, alterations and additions and to install
furniture and equipment upon or to the Premises (including both the interior
and exterior thereof). All improvements, alterations and additions are herein
referred to as "Alterations." Upon notice given by Landlord, Tenant shall
remove any Alterations (other than Alterations in connection with the initial
occupancy by Tenant of the Premises) upon the expiration or termination of
the Lease.
(b) SIGNS. Subject to compliance with applicable Laws, local
ordinances and private restrictions, Tenant shall have the right, with
Landlord's consent (which shall not be unreasonably withheld or delayed), to
erect any signs ("Signs") in, on, about, or outside the Premises as Tenant
desires.
(c) COMPLIANCE WITH CODES. All work undertaken by Tenant in
connection with the Alterations and Signs shall be done in a workmanlike
manner, in compliance with all Laws and applicable building and other codes
and the requirements of insurance carriers, insurance rating organizations
and underwriting boards affecting the Project, and without endangering the
structural integrity of the Premises or adversely affecting the value or
first-class appearance of the Project or the rentability to other tenants.
(d) OWNERSHIP OF ALTERATIONS AND SIGNS. Ownership of all
Tenant's Alterations and Signs (other than those paid for by Landlord, which
shall be owned by Landlord) shall remain in Tenant whether or not they are
affixed to or attached to the Premises. Tenant shall have the right, but not
the obligation, to remove all or any part of the Alterations and Signs made
or installed by Tenant from the Premises at any time (including expiration or
termination of this Lease). Tenant shall remove all furniture, fixtures and
equipment at the expiration or termination of this Lease and shall remove
(and restore the Premises) all Alterations if requested in writing by
Landlord in accordance with Section 13.a. hereof.
(e) MECHANICS' LIENS. Tenant shall (i) pay before delinquency
all costs and expenses of work done or caused to be done by Tenant in the
Premises; (ii) keep the title to the Project free and clear of any lien or
encumbrance in respect of such work; and (iii) indemnify and hold harmless
Landlord from and against any claim, loss, cost or demand (including
reasonable legal fees), whether in respect of liens or otherwise, arising out
of the supplying of material, services
21.
or labor for such work. Tenant shall immediately notify Landlord of any lien,
claim of lien or other action of which Tenant has or reasonably should have
knowledge and which affects the title to the Project or any part thereof, and
shall cause the same to be removed within 5 days (or such additional time as
Landlord may consent to in writing), by payment, filing of a bond permitted
by law or otherwise. If Tenant shall fail to remove any lien or action within
said time period, Landlord may take such action as Landlord deems necessary
to remove the same and the entire cost thereof shall be immediately due and
payable by Tenant to Landlord, and such amount shall bear interest until paid
at the rate of 10% per annum.
(f) GENERAL ALTERATION RULES. All Alterations shall be made
subject to, and in performing the work involved in making all Alterations
Tenant shall be bound by and observe, all of the following conditions:
(i) Tenant and Tenant's agents shall only utilize
contractors approved by Landlord (which approval, subject to the terms of
paragraph (ii) hereof, shall not be unreasonably withheld).
(ii) Tenant shall not, at any time prior to or during
the Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in or about the Premises, or permit any
materials to be delivered to or used in the Premises, whether in connection
with any Alterations or otherwise, if such employment, delivery or use would
interfere or cause any conflict with other contractors, mechanics or laborers
engaged in the construction, maintenance or operation of the Buildings or the
Project by Landlord, Tenant or others, or of any adjacent property owned by
Landlord. Landlord shall have the absolute right to disapprove any contractor
selected by Tenant which presents, in Landlord's judgment, potential
scheduling problems or the potential interference or conflict problems
described in the preceding sentence. In the event that after approval of any
contractor any such interference or conflict shall arise. Tenant, upon demand
of Landlord, shall cause all contractors causing such interference or
conflict to leave the Building immediately.
(iii) Prior to making any Alterations, Tenant shall, at
its expense, obtain all permits, approvals and certificates required by any
Governmental Authorities and, upon completion, certificates of final approval
thereof, and shall promptly deliver to Landlord duplicates of all such
permits, approvals and certificates.
(iv) Tenant and Tenant's agents shall carry, and shall
cause their agents to carry, the insurance described in Section 8.a. and such
other insurance as Landlord may reasonably require and shall deliver or cause
to be delivered to Landlord the certificates evidencing such insurance
promptly upon request therefor.
(v) Before proceeding with any Alterations, Tenant
shall submit to Landlord three (3) copies of detailed final plans and
specifications therefor for Landlord's review and prior consent. If such
Alterations require consent by or notice to any Lessor or Mortgagee,
Landlord, if Landlord consents to the Alterations, will request such consent
or give such notice and Tenant shall not proceed with the Alterations until
such consent has been received or such notice has been given and all
applicable conditions and provisions of the Superior Lease or Superior
Mortgage with respect to the proposed Alterations have been met or complied
with at Tenant's
22.
expense. No amendments or additions to the approved plans and specifications
shall be made without the prior consent of Landlord.
(vi) No Alterations costing more than $50,000 (as
reasonably estimated by Landlord's) shall be undertaken except under the
supervision of a licensed architect or licensed professional engineer
reasonably satisfactory to Landlord.
(vii) Any Alterations for which consent has been
received shall be promptly commenced and completed and shall be performed in
a good and workmanlike manner using new materials of first quality and shall
be performed in accordance with the approved plans and specifications and all
Laws and insurance requirements and so as not to interfere with the occupancy
of any other tenant or delay or impose any additional expense upon Landlord
in the construction, maintenance, cleaning, repair, safety, management,
security or operation of the Buildings or the Building equipment, and if any
such additional expense shall be incurred by Landlord as a result of Tenant's
making of any Alterations, Tenant shall pay such additional expense upon
demand.
(viii) Tenant shall reimburse Landlord upon demand for
all reasonable costs and expenses incurred by Landlord and each Lessor and
Mortgagee to review Tenant's plans and specifications, to inspect the
Alterations to confirm that they have been made in accordance with approved
plans and specifications and all Laws and insurance requirements and, if the
Alterations affect the structure of the Building or Building equipment, the
fees of any architects and engineers hired by Landlord to so review and
inspect such plans, specifications and Alterations.
(ix) Tenant shall not install any materials, fixtures,
furnishings or equipment, or make any other Alterations, which are subject to
liens, conditional sales contracts, chattel mortgages or security interests.
(x) Upon completion of any Alterations, Tenant shall
deliver to Landlord all plans and specifications for the Alteration submitted
for purposes of obtaining any necessary governmental permit, together with
all other drawings, schematics, field or margin notes, changes, revisions,
modifications, supplements and notations pertaining thereto.
(g) EXECUTION OF DOCUMENTS. Within an appropriate, reasonable
time after receipt, Landlord shall cooperate with Tenant in the execution of
building permit applications as may be reasonably necessary to effectuate the
intent of this Section 13, at Tenant's sole cost and expense.
14. USE AND COMPLIANCE WITH LAWS.
(a) USE. Tenant may use the Premises for any use permitted by
law and any restrictions of record applicable to the Project. No other Tenant
or person acting by, through or under Tenant (including, without being
limited to, any assignee or sublessee) shall have the right to use the
Premises for any purpose other than as set forth in the Basic Lease
Information, without Landlord's consent, not to be unreasonably withheld or
delayed. Landlord shall have the right to withhold consent to any proposed
use that could compete with any business that Landlord or its affiliates may
presently or prospectively be involved in.
23.
(b) COMPLIANCE WITH LAWS. Tenant shall comply with all Laws and
the requirements of municipal, county, state, federal and other applicable
governmental authorities, now in force, or which may hereafter be in force,
pertaining to the Premises or its use. The cost of any structural changes or
capital expenditures in or on the Premises, Building 2 or Building 3 made by
Landlord in order to comply with any law, ordinance, rule or regulation as a
result of Tenant's particular use of the Premises, shall be paid by Tenant.
15. DAMAGE OR DESTRUCTION.
(a) LANDLORD'S OBLIGATION TO REBUILD. If the Premises,
Buildings, or Project are damaged or destroyed, Landlord promptly and
diligently shall repair or rebuild the damage or destruction and rebuild the
Premises (other than Tenant's improvements and the furniture, fixtures and
equipment), Buildings and Project, in compliance with all applicable laws and
regulations, to substantially their condition immediately prior to the damage
or destruction; provided, however, that Landlord's obligation to repair or
rebuild under this Article 15 shall exist only to the extent that Landlord
receives insurance proceeds.
(b) RENT ABATEMENT. Rent otherwise due and payable under this
Lease shall be abated proportionately during any period in which, and to the
extent that, by reason of any damage or destruction, there is substantial
interference with the operation of Tenant's business in the Premises. The
abatement shall consider the nature and extent of interference to Tenant's
ability to conduct business in the Premises and the need for access to
essential services. The abatement shall continue for the period commencing
with the damage or destruction and ending with the date Landlord has
completed the work under Section 15.a above with respect to the Premises and
Tenant has been afforded such number of additional days following completion
of such work by Landlord as would be required to repair and restore any
tenant improvements damaged, with the exercise of due diligence and
continuity to the condition existing immediately prior to such damage or
destruction.
(c) EXCESSIVE DAMAGE OR DESTRUCTION. Landlord or Tenant may
terminate this Lease if the Premises, Building(s) or Project is damaged or
destroyed to the extent that the Premises, Building(s) or Project cannot,
with reasonable diligence, be fully repaired or restored by Landlord within
twelve (12) months after the date of the damage or destruction and Tenant
reasonably determines that it cannot engage in the normal conduct of its
business. Within forty-five (45) days after any damage or destruction,
Landlord shall notify Tenant whether the Premises, Building(s) or Project, as
the case may be, can be fully repaired or restored within the twelve (12)
month period and if such notice states a period greater than twelve (12)
months, Tenant must, within 10 days either terminate or waive, subject to
Section 15.d. hereof, its right to terminate. If the Premises, Building(s) or
Project, as the case may be, can be fully repaired or restored within the
twelve (12) month period, Landlord promptly shall commence the process of
obtaining necessary permits and approvals, shall commence repair of the
Premises, Building(s) or Project, as the case may be, as soon as practical,
and shall, subject to Section 15.a. hereof, prosecute the repair to
completion.
(d) ADDITIONAL RIGHT TO TERMINATE. In addition to Tenant's
right to terminate this Lease under Section 15.c., Tenant shall have the
right to terminate this Lease if (i) Landlord fails to proceed with
reasonable diligence to rebuild the Premises, Building(s) or Project, as the
case
24.
may be, or (ii) for whatever reason, the Premises, Building(s) or Project, as
the case may be, are not rebuilt within the later of (A) the period set forth
in Landlord's notice delivered pursuant to Section 15.c, hereof or (B) the
twelve (12) month period described in Section 15.c, hereof.
(e) INSURANCE PROCEEDS. If this Lease is terminated by reason
of damage or destruction, then Landlord shall be entitled to keep any
insurance proceeds, provided that any insurance proceeds awarded or paid by
reason of damage to or destruction of Tenant's signs, trade fixtures,
equipment or any, property owned by Tenant under this Lease shall be paid and
belong to Tenant.
16. EMINENT DOMAIN. If all or any portion of Xxxxxxxx 0, Xxxxxxxx 0, the
Premises or the Project is taken for public or quasi-public use by a
governmental authority under the power of eminent domain or is conveyed to a
governmental authority in lieu of such taking (a "Taking"), and Tenant
reasonably determines that the Taking causes the (remaining portion of the)
Premises to be untenantable and inadequate for use by Tenant for the purpose
or which they were leased, then Tenant, at its option and by giving notice
within thirty (30) days after the Taking, may terminate this Lease as of the
date the portion of Xxxxxxxx 0, Xxxxxxxx 0, the Premises, or the Project is
taken. If a portion of the Premises is Taken but Tenant reasonably determines
that the remaining portion is tenantable and adequate for Tenant's use, then
this lease shall be terminated as to the portion taken or conveyed as of the
date Tenant surrenders possession; Landlord immediately shall make such
repairs, alterations and improvements to the Premises (exclusive of any
improvements, furniture, fixtures and equipment), at no expense to Tenant, as
may be necessary to render the portion not taken or conveyed tenantable,
provided that Landlord shall have no obligation to make such repairs,
alterations and improvements to the extent that Landlord shall not receive
condemnation awards or proceeds for the cost thereof; and the Rent shall be
reduced in proportion to the portion of the Premises taken or conveyed.
Landlord shall perform the work to restore the Premises and Building 2 and
Building 3 as nearly as possible to their original condition (to the extent
set forth above) and with minimum interference to Tenant's normal business
operations. Notwithstanding the foregoing, Landlord shall have the right to
terminate this Lease in the event of any Taking which results in (i)
twenty-five percent (25%) or more of the Project being taken or conveyed or
(ii) any lender having the right to require all awards and proceeds to be
applied against the obligations under a loan held by such lender, by notice
in writing to Tenant. Tenant shall not be entitled to share in any award to
Landlord, but shall have the right to apply, in a separate proceeding, for an
award for the interruption of Tenant's business; Tenant's moving and
relocation expenses; the costs and expenses of removal of Tenant's
Alterations (other than those paid for by Landlord), trade fixtures and
personal property (or the award attributable to the Alterations, trade
fixtures or personal property to the extent Tenant does not remove them) and
the depreciation in value caused by the removal.
17. DEFAULT BY TENANT.
(a) EVENTS OF TENANT DEFAULT. Each of the following events
shall constitute an "Event of Default" on the part of Tenant following
written notice from Landlord:
(i) PAYMENT OF MONTHLY BASE RENT. Failure to pay any
installment of Rent pursuant to Sections 3(i) through (iv) hereof within
three (3) business days after notice from Landlord to Tenant that the
installment was not paid when due;
25.
(ii) PAYMENT OF OTHER MONETARY OBLIGATION. Failure to
pay any monetary obligation, other than Rent pursuant to Sections 3(i)
through (iv) hereof, due and payable hereunder within five (5) business days
after notice from Landlord to Tenant that the installment was not paid when
due;
(iii) PERFORMANCE. Failure to commence to cure a default
in the performance of any of Tenant's covenants, agreements or obligations
hereunder (except defaults described in Sections 17.a.(i) and 17.a(ii))
within thirty (30) days after written notice from Landlord and to diligently
and continuously prosecute to completion the cure of such default without
delay;
(iv) VOLUNTARY ASSIGNMENT OF ASSETS. Tenant's voluntary
assignment of its assets for the benefit of its creditors;
(v) ATTACHMENT. The sequestration of, attachment of,
or execution on, any substantial part of the property of Tenant located on
the Premises or on any property essential to the conduct of Tenant's business
in the Premises shall have occurred and, if done involuntarily and without
consent by Tenant, Tenant shall have failed to obtain a return or release of
property within ninety (90) days thereafter, or prior to sale pursuant to the
sequestration, attachment or levy, whichever is earlier;
(vi) REORGANIZATION. Tenant commencing any case,
proceeding or other action seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking appointment of a receiver, trustee, custodian, or other similar
official for it or for all or any substantial part of its property; or
(vii) BANKRUPTCY. The commencement of any case,
proceeding or other action against Tenant seeking to have an order for relief
entered against Tenant as debtor, or seeking reorganization, arrangements
adjustment, liquidation, dissolution or composition of Tenant or its debts
under any law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property,
and such case, proceeding or other action remains undismissed for a period of
forty-five (45) days.
(b) LANDLORD'S REMEDIES. Upon the occurrence of an Event of
Default, Landlord shall have the following remedies in addition to all other
rights and remedies provided by law, to which Landlord may resort
cumulatively, or in the alternative:
(i) RECOVERY OF RENT. Landlord shall be entitled to
keep this Lease in full force and effect (whether or not Tenant shall have
abandoned the Premises) and to enforce all of its rights and remedies under
this Lease, including the right to recover Rent and other sums as they become
due, plus interest at the rate of ten percent (10%) per annum from the due
date of each installment of Rent or other sum until paid. Without limiting
the foregoing, Landlord shall have the remedy described in California Civil
Code Section 1951.4, which provides that a lessor may continue a lease in
effect after the lessee's breach and abandonment and recover rent as it
becomes due, if the lessee has the right to sublet or assign, subject only to
reasonable limitations.
26.
(ii) TERMINATION. Landlord may terminate this Lease by
giving Tenant written notice of termination. On the giving of the notice all
of Tenant's rights in the Premises shall terminate. Upon the giving of the
notice of termination, Tenant shall surrender and vacate the Premises in the
condition required by Section 21, and Landlord may re-enter and take
possession of the Premises and all the remaining improvements and eject
Tenant or any of Tenant's subtenants, assignees or other person or persons
claiming any right under or through Tenant or eject some and not others or
eject none. This Lease may also be terminated by a judgment specifically
providing for termination. Any termination under this Section shall not
release Tenant from the payment of any sum then due Landlord or from any
claim for damages or Rent previously accrued or then accruing against Tenant.
In no event shall any one or more of the following actions by Landlord
constitute a termination of this Lease: (A) maintenance and preservation of
the Premises; (B) efforts to relet the Premises; (C) appointment of a
receiver in order to protect Landlord's interest hereunder; (D) consent to
any subletting of the Premises or assignment of this Lease by Tenant, whether
pursuant to provisions hereof concerning subletting and assignments or
otherwise; or (E) any other action by Landlord or Landlord's agents intended
to mitigate the adverse effects from any breach of this Lease by Tenant or
otherwise permitted by law.
(iii) DAMAGES. If this Lease is terminated pursuant to
Section 17.b(ii), Landlord shall be entitled to damages in the following
sums: (A) the worth at the time of award of the unpaid Rent which has been
earned at the time of termination; plus (B) the worth at the time of award of
the amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; plus (C) the worth at
the time of award of the amount by which the unpaid Rent for the balance of
the Term after the time of award of the amount exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided; plus (D) any
other amount necessary to compensate Landlord for all 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 reasonable amounts for the following: (1) expenses for cleaning,
repairing or restoring the Premises; (2) expenses for altering, remodeling,
subdividing, splitting, or otherwise improving the Premises for the purpose
of reletting, including installation of leasehold improvements (whether such
installation is funded by a reduction of Rent, direct payment or allowance to
the succeeding lessee, or otherwise); (3) real estate broker's fees,
advertising costs and other expenses of reletting the Premises; (4) costs of
carrying the premises such as taxes and insurance premiums thereon, utilities
and security precautions; (5) expenses in retaking possession of the
Premises; and (6) attorneys' fees and court costs. The "worth at the time of
award" of the amounts referred to in Sections 17.b(iii)(A) and (B) is
computed by allowing interest at the rate of ten percent (10%) per annum. The
"worth at the time of award" of the amounts referred to in Section
17.b(iii)(C) is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%).
(iv) OTHER RIGHTS AND REMEDIES.
(A) To the greatest extent permitted by law,
upon and after such entry into possession Landlord may, but shall have no
obligation to, relet the Premises or any part thereof for the account of
Tenant to any person, firm or corporation, other than Tenant, for such
27.
Rent for such time and upon such terms as Landlord, in Landlord's sole
discretion, shall determine, and Landlord shall not be required to accept any
tenant offered by Tenant or to observe any instruction given by Tenant about
such reletting.
(B) Suit or suits for the recovery of any and
all damages, or any installments thereof, provided for hereunder may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date
when the term of this Lease would have expired if it had not been terminated
under the provisions of this Article 17, or under provisions of any law, or
had Landlord not re-entered the Premises.
(C) Nothing herein contained shall be
construed as limiting or precluding the recovery by Landlord against Tenant
of any damages to which Landlord may lawfully be entitled in any case other
than those particularly provided for above.
(D) Should Landlord, following any breach or
default of this Lease by Tenant, elect to keep this Lease in full force and
effect, with Tenant retaining the right to possession of the Premises
(notwithstanding the fact Tenant may have abandoned the Premises), then
Landlord, besides all other rights and remedies Landlord may have at law or
equity, shall have the right to enforce all of Landlord's rights and remedies
under this Lease, including the right to recover the installments of Rent as
they become due under this Lease. During the period that Landlord elects to
keep this Lease in full force and effect with Tenant retaining the right to
possession of the Premises, Tenant shall have the right to assign and sublet
as set forth in Article 19 hereof. Notwithstanding any such election to have
this Lease remain in full force and effect. Landlord may at any time
thereafter elect to terminate Tenant's right to possession of the Premises
and thereby terminate this Lease for any previous breach or default which
remains uncured, or for any subsequent breach or default.
(E) Whether or not Landlord elects to
terminate this Lease on account of any default by Tenant, Landlord shall have
the right to terminate any and all subleases, licenses, concessions or other
consensual arrangements for possession entered into by Tenant and affecting
the Premises or may, in Landlord's sole discretion, succeed to Tenant's
interest in such subleases, licenses, concessions or arrangements. In the
event of Landlord's election to succeed to Tenant's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the
date of notice by Landlord of such election, have no further right to or
interest in the rent or other consideration receivable thereunder.
(F) No reference to nor exercise of any
specific right or remedy by Landlord shall prejudice or preclude Landlord
from exercising or invoking any other remedy in respect thereof, whether
allowed at law or in equity or expressly provided for herein. No such remedy
shall be exclusive or dependent upon any other such remedy, but Landlord may
from time to time exercise any one or more of such remedies independently or
in combination.
(G) In the event Landlord commences any
summary proceeding or action for non-payment of Rent. Tenant covenants and
agrees not to interpose, by consolidation of actions or otherwise, any
counterclaim in any such proceeding. To the extent permitted by law, the
parties hereto shall and they hereby do waive trial by jury in any action or
proceeding
28.
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Lease or the
interpretation thereof, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and/or any claim of injury or damage. The
provisions of this Section 17.b(iv)(G) shall survive the termination of this
Lease.
--------------- ----------------
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TENANT LANDLORD
INITIALS INITIALS
(H) No waiver by Landlord or Tenant of the
breach of any covenant, agreement, obligation or condition of this Lease
shall be construed to be a waiver of any future breach of the same or any
other covenant, agreement, obligation or condition hereof. The rights and
remedies hereby created are cumulative, and the use of one remedy shall not
be construed to exclude or waive the right to the use of another, or exclude
any other right or remedy allowed by law.
18. TENANT'S REMEDIES UPON LANDLORD'S DEFAULT.
(a) TENANT'S RIGHT. If Landlord fails to perform any of its
obligations under this Lease, Tenant shall notify Landlord (first orally then
followed up in writing). If, within ten (10) business days after Tenant's
written notification, Landlord has not commenced to cure the default in
accordance with Section 11.a(ii) hereof (or subsequently does not diligently
pursue the cure), Tenant may present Landlord with a request for
reimbursement of actual costs associated with Tenant's performance of
Landlord's obligations.
(b) NO WAIVER. No failure by Landlord or Tenant to insist upon
the strict performance of any term of this Lease, or to exercise any right or
remedy upon a breach by Tenant or Landlord, respectively, of this Lease,
shall constitute a waiver of any breach or of any term. Efforts by Landlord
or Tenant to mitigate the damages caused by the other party's breach of this
Lease shall not be construed to be a waiver of Landlord's or Tenant's right
to recover damages. Landlord's or Tenant's waiver of any covenant, term or
condition contained in this lease (which waiver must be in writing) shall not
be construed as a waiver of any subsequent breach by Tenant or Landlord,
respectively, of the same covenant, term or condition.
19. ASSIGNMENT AND SUBLETTING.
(a) CONSENT REQUIRED. Tenant shall not, voluntarily or
involuntarily, by operation of law or otherwise: (i) assign, mortgage,
pledge, encumber or in any manner transfer this Lease in whole or in part, or
(ii) sublet all or any part of the Premises, or allow any other person to
occupy all or any part thereof (any event described in clauses (i) and (ii)
being a "Transfer"), without the prior written consent of Landlord in each
instance, which shall not be unreasonably withheld or delayed, and any
attempt to do any of such acts without such consent shall be null and void
and of no effect. Anything contained in the foregoing to the contrary
notwithstanding, Tenant may assign this Lease or sublet all or any portion of
the Premises to an Affiliate without the consent
29.
of Landlord. As used herein, the term "Affiliate" means and includes (A)
Channel Overseas Corporation, Wyse Technology Investments, Inc., Wyse
Technology (Taiwan) Limited. (B) any entity that is a successor entity to
Tenant or any entity described in clause (A) above, whether by restructuring,
renaming, merger, consolidation, operation of law or otherwise, (C) any
direct or indirect individual shareholders of, or holders of a beneficial
interest in, any entity described in clauses (A) or (B) above, or (D) any
entity that is a direct or indirect parent or subsidiary of any person or
entity described in clauses (A), (B) or (C) above.
(b) CONSENTS. Any consent by Landlord that may hereafter be
given to any act of Transfer shall be held to apply only to the specific
transaction thereby approved. Such consent shall not be construed as a waiver
of the duty of Tenant or its successors or assigns to obtain from Landlord
consent to any other subsequent assignment, mortgage, pledge, encumbrance or
Subletting or as a modification or limitation of the rights of Landlord with
respect to any covenants by Tenant hereunder.
20. HAZARDOUS MATERIALS.
(a) LANDLORD'S WARRANTY. Landlord represents and warrants to
Tenant that (i) Landlord has delivered to Tenant all reports known by
Landlord regarding Hazardous Materials within the Project or Buildings which
have been prepared and of which Landlord is aware; and (ii) except as set
forth in said reports, Landlord knows of no Hazardous Materials located
within the Project, Common Areas, Buildings or Premises as of the
Commencement Date except for usual amounts of cleaning solvents and fluids
and reproduction fluids and other usual amounts for office operations.
Landlord shall indemnify, defend, protect and hold Tenant harmless from and
against any and all claims, loss, proceedings, damages, causes of action,
liability, costs or expenses (including attorneys' fees) arising as a result
of any Hazardous Materials which exist within the Project, Common Areas,
Buildings or Premises as of the Commencement Date and any Hazardous Materials
which are present within the Project, Common Areas, Buildings or Premises
after the Commencement Date which are not the result of the activities of
Tenant, or Tenant's agents, assignees, subtenants, invitees, contractors or
suppliers, or any machinery or equipment used by them or located in or
servicing the Premises.
(b) DEFINITION OF "HAZARDOUS MATERIALS". For purposes of this
Lease, the term "Hazardous Materials" shall include asbestos, any flammable,
corrosive or ignitable material, any explosives, or petroleum by products,
any radioactive materials, waste or substances or any toxic substances and
other substances defined as "hazardous substances", "hazardous wastes",
"extremely hazardous wastes", "hazardous materials" or "toxic substances" in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 USC Section 9601, et seq.; the Toxic Substances Control
Act, 15 USC Section 2601, et seq.; the Hazardous Materials Transportation
Act, 49 USC Section 1801 et seq.; the Resource Conservation and Recovery Act,
42 USC Section 6901 et seq.; and/or in similar federal, state or local law.
(c) TENANT'S RESPONSIBILITY. Unless specifically agreed to by
Landlord, Tenant shall not use or bring on the Premises any Hazardous
Materials other than usual and customary materials used in offices. Any
Hazardous Materials brought on the Premises by Tenant shall be used and
stored in accordance with applicable state and federal law. Tenant shall
indemnify,
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defend, protect and hold Landlord harmless from and against any [nb]and all
claims, losses, proceedings, damages, causes of action, liability, costs or
expenses (including attorneys' fees) arising an a result of Tenant breach of
this Section 20.c. or the existence, use, disposal or removal of any
Hazardous Materials on or affecting the Project as a result of the activities
of Tenant, or Tenant's agents, assignees, subtenants, invitees, contractors
or suppliers, or any machinery or equipment used by them in or servicing the
Premises.
(d) SCOPE OF INDEMNITY. The party indemnifying under this
Section 20 ("Indemnifying Party") shall employ counsel reasonably acceptable
to the party indemnified under this Section 20 ("Indemnified Party") to
prosecute, negotiate and defend any claims, actions or causes of action
brought under this Section 20. The Indemnified Party shall not have the right
to compromise or settle any such claim, action, or cause of action without
the Indemnifying Party's consent, except to the extent that such compromise
or settlement does not impose liability directly on the Indemnifying Party
without the Indemnifying Party's right to defend. The Indemnifying Party
shall pay any amounts arising under the indemnity to the Indemnified Party
immediately upon demand by the Indemnified Party, together with interest
thereon at a rate equal to one percent (1%) per annum in excess of the "Prime
Rate" of Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo") in effect at the time the
Indemnified Party advances funds for amounts covered by such indemnity (Xxxxx
Fargo's "Prime Rate" being the interest rate announced by Xxxxx Fargo, in San
Francisco, California, as the base rate of interest for loans or obligations
making reference thereto), but in no event more than the maximum rate
permitted by law. The Indemnifying Party's duty to indemnify the Indemnified
Party under this Section 20 shall survive the expiration or earlier
termination of this Lease.
21. SURRENDER OF PREMISES. On the expiration or early termination of
this Lease with respect to any portion of the Premises, Tenant shall
surrender the portion of the Premises to Landlord in its condition as of the
Commencement Date for the portion thereto, wear and tear, damage or
destruction, condemnation and Alterations which Tenant is not required to
remove pursuant to Section 13 hereof excepted. Tenant shall have the right to
remove from the Premises all of Tenant's personal property and trade
fixtures. In no event shall Tenant have any obligation to remove any cables
or wiring which Tenant (or Landlord) has installed in the Premises so long as
consistent with normal office installation. Tenant shall repair damage or
perform any restoration work required by its removal.
22. ESTOPPEL CERTIFICATE. At any time either party may request an
estoppel certificate, in the form attached hereto as Exhibit C, from the
other party. The estoppel certificate, which shall be provided at no cost or
expense to the requesting party, shall be delivered within twenty (20) days
after receipt of a request.
23. SUBORDINATION.
(a) SUBORDINATION. Subject to the provisions of Section 23.b.,
this Lease is and shall be subject and subordinate to all ground leases,
operating leases, superior leases and underlying leases now or hereafter in
effect (each, a "Superior Lease"), to all mortgages and deeds of trust which
now or hereafter affect the Project, the Buildings or any ground or
underlying leases thereof (each a "Superior Mortgage"), to all advances made
or to be made under any Superior Mortgage and to all renewals, modifications,
consolidations, replacements and extensions of any
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Superior Lease or Superior Mortgage. The provisions of this section shall be
automatic and shall not require any further action. In confirmation of such
subordination, Tenant will execute and deliver upon demand of Landlord any
and all instruments desired by Landlord subordinating this lease to such
Superior Lease or Superior Mortgage. Landlord is hereby irrevocably appointed
and authorized as agent and attorney-in-fact of Tenant to execute and deliver
all such subordination instruments in the event Tenant fails to execute and
deliver said instruments within 10 days after notice from Landlord requesting
the execution thereof.
(b) RECOGNITION OR ATTORNMENT AGREEMENT. The subordination of
this Lease to any Superior Mortgage or Lease shall be subject to the
fulfillment of the conditions precedent that, subject to the remaining
provisions of this Article 23, the Successor Lessor or Successor Mortgagee
shall have entered into a Non-Disturbance Agreement with Tenant.
(c) SUPERIOR LEASES; SUPERIOR MORTGAGES. (i) Tenant agrees
that, at the option of the landlord under any Superior Lease (each a
"Lessor"), Tenant shall attorn to said Lessor in the event of the termination
or cancellation of such Superior Lease or, if requested by said Lessor, enter
into a new lease with said Lessor (or a successor ground lessee designated by
said Lessor) (the Lessor and any designated ground lessee being a "Successor
Lessor") for the balance of the term then remaining hereunder upon the same
terms and conditions as those herein provided.
(ii) Tenant covenants and agrees that, if by reason of
default under any Superior Mortgage, the mortgagee or beneficiary thereunder
(each a "Mortgagee") or its designee or any other person or persons (each
Mortgagee or other person that becomes the owner of the mortgaged property
being a "Successor Mortgagee") enters into and becomes possessed of the said
mortgaged property thereunder either through possession, foreclosure action
or proceeding, deed-in-lieu of foreclosure or otherwise, or in the event of
the sale of the said mortgaged property as a result of any action or
proceeding to foreclose or otherwise to realize upon the security afforded by
such Superior Mortgage, Tenant will attorn to the Successor Mortgagee as its
landlord under this Lease, unless the Successor Mortgagee shall elect to
terminate this Lease and the rights of the tenant hereunder. Any Successor
Lessor and Successor Mortgagee is herein referred to as a "Successor".
(iii) The foregoing provisions of this Section 23.c.
shall inure to the benefit of any Successor, shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the termination of
the Superior Lease or foreclosure of the Superior Mortgage, as the case may
be, shall be self-operative upon the election of any Successor, and no
further instrument shall be required to give effect to said provisions.
Tenant agrees to execute and deliver, at any time and from time to time, upon
the request of any Successor, instruments, satisfactory to each Successor.
which may be necessary or appropriate to evidence and confirm the foregoing
provisions of this Section, acknowledging such attornment and setting forth
the terms and conditions of its tenancy. Tenant hereby appoints the Lessor,
Mortgagee or any Successor the attorney-in-fact, irrevocably, of Tenant to
execute and deliver for and on behalf of Tenant any such instrument. Tenant
further waives the provisions of any statute or rule of law now or hereafter
in effect which may give or purport to give Tenant any right of election to
terminate this Lease or to surrender possession of the Premises in the event
any proceeding is brought by any Mortgagee to foreclose under its Superior
Mortgage or by any Lessor to terminate the Superior Lease, and agrees that
unless and until the Successor, in connection with any such
32.
proceeding, shall elect to terminate this Lease and the rights of Tenant
hereunder, this Lease shall not be affected in any way whatsoever by any such
proceeding.
(d) DIRECT LEASE. Upon an attornment as set forth in Section
23.c. above, this Lease shall continue in full force and effect as a direct
lease between the Successor and Tenant upon all of the then executory terms
of this Lease except that such Successor shall not be (i) liable for any
previous act, omission or negligence of Landlord under this Lease; (ii)
subject to any counterclaim, defense or offset which therefore shall have
accrued to Tenant against Landlord; (iii) bound by any previous modification
or amendment of this Lease or by any previous prepayment of more than one
month's rent, unless such modification or prepayment shall have been approved
in writing by the Lessor or the Mortgagee through or by reason of which the
Successor shall have succeeded to the rights of Landlord under this Lease;
(iv) liable for any security deposited pursuant to this Lease unless such
security has actually been delivered to the Successor; (v) obligated to
repair the Premises or the Building or any part thereof in the event of total
or substantial damage or partial condemnation, beyond such repair as can
reasonably be accomplished from the net proceeds of insurance or condemnation
award actually made available to the Successor or (vi) obligated to perform
any Landlord's work or other Alterations.
(e) RIGHT TO CURE. If any act or omission by Landlord would
give Tenant the right, immediately or after lapse of time, to cancel or
terminate this Lease or to claim a partial or total eviction, abatement of
rent, setoff or counterclaim, Tenant will not exercise any such right until
(i) it has given written notice of such act or omission to each Lessor and
Mortgagee whose name and address shall have previously been furnished to
Tenant and (ii) a reasonable period for remedying such act or omission shall
have elapsed following such giving of notice and following the time when such
Lessor or Mortgagee shall have become entitled under the applicable Superior
Lease or Superior Mortgage as the case may be, to remedy the same (which
shall in no event be less than the period to which Landlord would be entitled
under this Lease to effect such remedy).
24. WARRANTIES OF LANDLORD; QUIET ENJOYMENT.
(a) WARRANTIES OF LANDLORD. Landlord represents and warrants to
Tenant that there are no agreements, restrictions, covenants, encumbrances or
easements which will increase any of Tenant's obligations under this Lease or
diminish any of Tenant's rights hereunder. In addition, Landlord warrants
that it shall not allow any portion of the real property within and adjoining
the Project (over which Landlord has any control) to be used for any purposes
which would detract from the desirability of the Project to Tenant.
(b) QUIET ENJOYMENT. Landlord covenants with Tenant that,
during the periods that no Events of Default on the part of Tenant are
outstanding, (i) Tenant shall and may peaceably and quietly have, hold and
enjoy the Premises and Common Areas for the Term; (ii) neither Landlord, nor
any party claiming under or through Landlord, shall disturb Tenant's quiet
enjoyment of the Premises or Common Areas; and (iii) Landlord shall defend
Tenant's right to such quiet enjoyment. Landlord shall defend, indemnify and
hold Tenant harmless from and against all losses and damages that arise as a
result of a breach of Landlord's covenant under this Section.
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25. HOLDING OVER. If Tenant holds over and retains and fails to deliver
possession of the Premises or any part thereof after the expiration or earlier
termination of this Lease, the parties agree that the damage to Landlord will be
substantial and impossible to measure accurately. Tenant therefor at the option
of Landlord; shall pay as monthly Rent a sum equal to 125% or the amount of all
Rent and any other charges hereunder payable during the last month of the Term,
computed on a daily basis for each day that Tenant remains in possession. In
addition thereto, Tenant shall be liable for and shall pay to Landlord all
damages, consequential as well as direct, sustained by reason of Tenant's
holding over and hereby indemnifies Landlord from and against liability
resulting from delay by Tenant in so surrendering the Premises, including (a)
any claims made by any succeeding tenant or prospective tenant founded upon such
delay, (b) any payment or rent concession which Landlord may be required to make
to any succeeding or prospective tenant for all or any part of the Premises in
order to induce such tenant not to terminate its lease or its negotiation
therefor by reason of Tenant's delay in so surrendering the Premises and (c) any
loss suffered if a succeeding or prospective tenant shall terminate its lease or
not proceed to execute and deliver its lease by reason of Tenant's delay in so
surrendering the Premises. Nothing herein contained shall be deemed to permit
Tenant to remain in possession of the Premises after the expiration or sooner
termination of the Term of this Lease.
26. RECORDING. Within thirty (30) days after the date hereof, a memorandum
of this Lease in the form attached hereto as Exhibit E shall be signed by
Landlord and Tenant (with their signatures notarized) and recorded in the
Official Records of Santa Xxxxx County.
27. ATTORNEYS' FEES. If either party shall bring any action or legal
proceeding for damages for an alleged breach of any provision of this Lease, to
enforce, protect or establish any term, condition or covenant of this Lease, or
otherwise to establish the rights of the parties, the prevailing party shall be
entitled to recover, as a part of the action or proceedings, or in a separate
action brought for that purpose, reasonable attorneys' fees and court costs as
may be fixed by the court or jury.
28. BROKERS. 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 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 or individual
for commissions or fees resulting from the actions of the indemnifying party in
connection with this Lease.
29. PARKING.
(a) TENANT'S RESERVED PARKING SPACES. Tenant, at no additional
cost (except to the extent covered in the operating Expenses), shall have the
exclusive use of the reserved parking spaces within the Project ("Reserved
Parking Spaces") which are at the locations shown on Exhibit A. At Tenant's
request and at no cost to Tenant, Landlord shall use best efforts to ensure
Tenant's exclusive use of the Reserved Parking Spaces and shall construct signs
or otherwise xxxx Tenant's Reserved Parking Spaces to state that they are for
Tenant's exclusive use.
34.
(b) UNRESERVED PARKING SPACES. Tenant, at no additional cost
(except to the extent covered in the Operating Expenses), shall have the use of
unreserved parking spaces within the Project ("Unreserved Parking Spaces") to
the extent that the total of all Reserved Parking Spaces and Unreserved Parking
Spaces shall afford Tenant use of parking spaces at an aggregate ratio of four
(4) parking spaces for each one thousand (1,000) rentable square feet of the
Premises. The Unreserved Parking Spaces shall be within the locations shown on
Exhibit A. Tenant shall have the use of the Unreserved Parking Spaces, in common
with other tenants of the Building, upon such reasonable terms and conditions as
may from time to time be established by Landlord.
(c) COMPLIANCE OF PARKING LAWS AND REGULATIONS. Landlord shall
maintain all parking areas in first class condition, including striping,
security, lighting, and repair. Landlord represents and warrants that throughout
the Term the parking spaces Landlord provides to Tenant shall comply with all
applicable laws and regulations and that they shall be sufficient in number to
meet all requirements under applicable parking laws and regulations. Tenant's
use of the parking spaces shall be in compliance with and Tenant agrees to
comply with all such laws and regulations and any rules and regulations
promulgated by Landlord, so long as such rules and regulations are applied in a
uniform and non-discriminatory manner.
(d) NO CHARGE. There shall be no charge (except to the extent
covered in the Operating Expenses) for any portion of the parking facilities
(e.g., there shall be no charge for either the Reserved Parking Spaces or the
Unreserved Parking Spaces), unless and to the extent of charges imposed by
applicable governmental authorities after the Commencement Date.
30. NOTICES. Any notice or demand required or desired to be given under
this Lease shall be in writing and shall be given by hand delivery, electronic
mail (e.g., facsimile) or the United States mail. Notices which are sent by
electronic mail shall be deemed to have been given upon receipt. Notices which
are mailed shall be deemed to have been given when seventy-two (72) hours have
elapsed after the notice was deposited in the United States mail, registered or
certified, the postage prepaid, addressed to the party to be served. As of the
date of execution of this Lease, the addresses of Landlord and Tenant are those
specified in the Basic Lease Information. Either party may change its address to
another location or locations within the United States by giving notice of the
change in accordance with this Section.
31. TRANSFER OF TITLE. Landlord shall deliver notice to Tenant within ten
(10) days after a transfer of title of all or any portion of the Project. Tenant
shall not be obligated to deliver the Rent or otherwise fulfill any other
obligations under this Lease to the transferee until Tenant has received a
(conformed) copy of the recorded deed transferring title to the Project to the
transferee.
32. GENERAL
(a) CAPTION. The captions and headings used in this Lease are for
the purpose of convenience only and shall not be construed to limit or extend
the meaning of any part of this Lease.
(b) TIME. Time is of the essence for the performance of each term,
condition and covenant of this Lease.
35.
(c) SEVERABILITY. If any provision of this Lease is held to be
invalid, illegal or unenforceable, the invalidity, illegality, or
unenforceability shall not affect any other provision of this Lease, but this
Lease shall be construed as if the invalid, illegal or unenforceable provision
had not be contained herein.
(d) CHOICE OF LAW; CONSTRUCTION. This Lease shall be construed and
enforced in accordance with the laws of the State of California. The language in
all parts of this Lease shall in all cases be construed as a whole according to
its fair meaning and not strictly for or against either Landlord or Tenant. For
the purposes of this Lease and all-agreements supplemental to this Lease, unless
the context otherwise requires:
(1) The terms "include", "including" and "such
as" shall be construed as if followed by the phrase "without being limited to".
The words "herein", "hereof", "hereby", "hereunder" and words of similar import
shall be construed to refer to this Lease as a whole and not to any particular
Article or Section unless expressly so stated.
(2) The term "law" or "legal requirements" shall
mean all laws, statutes, ordinances (including building codes and zoning
regulations and ordinances), orders, rules, regulations, directives and
requirements of, and the provisions of all licenses, permits (special or
otherwise), approvals and certificates issued by, all governmental authorities,
whether now or hereafter in force, and all requirements, obligations and
conditions of all instruments of record, in each case to the extent applicable
to the Project or the Premises or any part thereof or the sidewalks, curbs or
areas adjacent or appurtenant thereto. The term "law" or "legal requirements"
includes legal requirements relating to the environment.
(3) The term "governmental authorities" shall
mean all federal, state, county, city and municipal governments, all political
subdivisions thereof and all agencies, boards, bureaus, commissions,
departments, offices and instrumentalities of any of the foregoing, and any
officials thereof, and any other governmental, public or quasi-public
authorities, now existing or hereafter created, having jurisdiction or affecting
the Project or the Premises.
(4) The term "agents" of any person described in
this Lease shall include all agents, contractors, subcontractors, affiliates,
servants, employees, invitees and licensees of such person, and the agents of
such agents.
(5) The words "Tenant hereby indemnifies
Landlord against liability" and words of like import shall mean that Tenant
hereby agrees to and hereby does indemnify and hold and save harmless Landlord,
the Lessor, the Mortgagee and the irrespective agents, from and against any and
all loss, cost, liability, claim, damage, fine, penalty and expense, including
reasonable attorneys' fees and disbursements, but the same shall not be
construed as indemnifying any of the foregoing named persons for liability to
Tenant arising out of the negligence or tortious acts of such person.
(6) The necessary grammatical changes required
to make the provisions of this Lease apply in the plural sense where there is
more than one tenant and to either corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as though fully
expressed. If there is more than one person or entity who
36.
or which are Tenant under this Lease, the obligations imposed upon Tenant
under this Lease shall be joint and several. The relationship between
Landlord and Tenant created hereunder shall be that of lessor and lessee and
nothing herein shall be construed as creating any joint venture or
partnership.
(7) The rule of "ejusdem generis" shall not be
applicable to limit a general statement following or referrable to an
enumeration of specific matters to matters similar to the matters specifically
mentioned.
(8) Each of the terms of this Lease to be
performed shall be deemed and construed as a separate and independent covenant
of the person obligated to perform the same, not dependent upon any of the other
terms of this Lease. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
(9) The various terms which are defined in other
Articles of this Lease or are defined in Exhibits annexed hereto shall have the
meanings specified in such other Articles and such Exhibits for all purposes of
this Lease and all agreements supplemental hereto, unless the context clearly
indicates the contrary.
(10) The Article headings or other captions in
this Lease and the Table of Contents to this Lease are inserted only as a matter
of convenience or reference, and are not to be given any effect in construing
this Lease.
(e) GENDER; SINGULAR, PLURAL. When the context of this Lease
requires, the neuter gender includes the masculine, the feminine, a partnership,
a corporation, or a joint venture, and the singular includes the plural.
(f) BINDING EFFECT. The covenants and agreements contained in this
Lease shall be binding on the parties hereto and on their respective successors
and assigns.
(g) ENTIRE AGREEMENT. This Lease is the entire agreement between
the parties, and there are no agreements or representations between the parties
except as expressed herein. Except as otherwise provided herein, no subsequent
change-or addition to this Lease shall be binding unless in writing and signed
by the parties hereto.
(h) COUNTERPARTS. This Lease may be executed in counterparts, each
of which shall be an original, but all counterparts shall constitute one
instrument.
(i) EXHIBITS. The Basic Lease Information and all Exhibits
attached hereto are hereby incorporated herein and made an integral part hereof.
(j) DEFINITION OF LANDLORD. The term "Landlord" shall mean only
the owner at the time in question of the present landlord's interest in the
Project and the Buildings and in the event of a transfer or transfers (by
operation of law or otherwise) of the Project or the Buildings or a lease of all
or substantially all of the Project and the Buildings, or a transfer or
transfers (by operation of law or otherwise) of the leasehold estate under any
such lease, the transferor or lessor, as the case may be, shall be and hereby is
automatically and entirely released and
37.
discharged, from and after the date of such transfer or leasing, of all
liability in respect of any covenant and obligation under and the performance
of any of the terms of this Lease on the part of Landlord thereafter to be
performed; and the transferee or lessee shall be deemed to have assumed and
agreed to perform, subject to the limitations of this Section and Sections 23
and 32.k (and without further agreement), all of the terms of this Lease on
the part of Landlord to be performed during its period of ownership.
(k) EXCULPATORY CLAUSE. Tenant shall look solely to Landlord's
estate and interest in the Project and the Buildings for the satisfaction of any
right of Tenant for the collection of a judgment or other judicial process or
arbitration award requiring the payment of money by Landlord and no other
property or assets of Landlord or Landlord's agents shall be subject to levy,
lien, execution, attachment, or other enforcement procedure for the satisfaction
of Tenant's rights and remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or under law, or Tenant's use and
occupancy of the Premises or any other liability of Landlord to Tenant.
(l) FORCE MAJEURE. In the event Landlord shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of a like nature beyond the reasonable control
of Landlord ("Force Majeure"), then performance of such act shall be extended
for a period equivalent to the period of such delay.
IN WITNESS WHEREOF, the parties have executed this Lease, on the
date(s) set forth below.
"Landlord": "Tenant":
WYSE TECHNOLOGY INVESTMENTS, INC., WYSE TECHNOLOGY. INC.,
a California corporation a Delaware corporation
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxx Xxxx
Title: Vice President Title: Treasurer
Date: March 19, 1993 Date: March 19, 1993
------------------------------- --------------------------------
38.
EXHIBIT A
Legal Description of Real Property; Floor Plan for Buildings; Calculation of
Total Rentable and Useable Square Footage for each Building and the Project; and
Site Plan of the Project
39.
EXHIBIT B-1
SUMMARY OF OPERATING EXPENSE
To include:
(1) Summary of Project Operating Expenses for 1990 and 1991;
(2) Estimate of Project Operating Expenses for 1992 and 1993;
(3) Summary of Building Operating Expenses for 1990 and 1991,
segregated for Xxxxxxxx 0, Xxxxxxxx 0, and Building 3; and
(4) Estimate of Building Operating Expenses (and Tenant's
Percentage Share of the Building Operating Expenses) for 1992
and 1993, segregated for Xxxxxxxx 0, Xxxxxxxx 0, and Building
3.
40.
EXHIBIT B-2
SUMMARY OF AMENITIES EXPENSES
To include:
(1) Summary of Amenities Expenses for 1990 and 1991
(2) Estimate of Amenities Expenses for 1992 and 1993
41.
EXHIBIT C
ESTOPPEL CERTIFICATE
Re: Lease dated March - 1992 ("Lease") by and between
_____________ ("Landlord") and ("Tenant").
Gentlemen:
Reference is made to the above-described Lease in which the undersigned
is the Tenant. The undersigned hereby acknowledges that:
1. A true and correct copy of the Lease is attached hereto as
EXHIBIT 1.
2. There are no modifications, amendments, supplements,
arrangements or side letters modifying, amending, altering, supplementing or
changing the terms of the Lease except as follows: ___________________.
3. The Lease is in full force and effect, and the Lease has been
duly executed and delivered by the Tenant.
4. The undersigned acknowledges that (a) Rent on the Lease has
been paid up to and including 19__ (b) Monthly Base Rent during the ___________
(__) year of the term of the Lease is _________ Dollars _______ and (c) Rent has
not been paid for any period after 19___.
5. Tenant is not aware of any outstanding default under the Lease
except: _______________________.
Dated: ________ 19____ Very truly yours,
"Tenant"
------------------------------
a
----------------------------
By:
---------------------------
Its:
--------------------------
42.
EXHIBIT D
LANDLORD'S NORMAL BUSINESS HOURS FOR OPERATION OF HVAC
Supply fans provide air circulation for heating, cooling and outside
air according to the following schedule:
SITE DAYS SCHEDULED
Building 2
Monday-Friday 5:30am-7:30pm
Saturday 8:00am-5:00pm
Sunday Off
Cafeteria
Monday-Friday 5:30am-3:00pm
Saturday/Sunday Off
Health Club
Monday-Friday 10:00am-8:00pm
Saturday/Sunday Off
Boiler
On constantly Turned on 9/27/90
during winter
Chiller: Provides chilled water
for all Buildings: Monday-Friday 6:30am-9:00pm
Saturday 8:00am-7:00pm
Sunday 9:00am-7:00pm
[Building 3?]
43.
EXHIBIT E
MEMORANDUM OF LEASE
44.
EXHIBIT F
TENANT INSURANCE REQUIREMENTS
(a) Commercial General Liability Insurance to afford protection
against any liability for bodily injury, death or property damage occurring in,
upon, adjacent to or in connection with the Premises, in such amount as Landlord
may determine and in no event less than $5,000,000 with respect to bodily
injury, death or property damage arising out of any one occurrence and not less
than $5,000,000 from the aggregate of all such occurrences within each policy
year. This policy shall include (i) coverage for contractual liability
(including the matters set forth in Section 9 hereof), owner's protective
liability, independent contractor's liability and completed operations liability
and (ii) a provision that said aggregate limit shall apply separately at the
Premises and that said insurer will provide notice to Landlord if said aggregate
is reduced by either payments of a claim or the establishment of reserves for
claims if said payments or reserves exceed $250,000. Tenant agrees that if said
aggregate limit applied to the Premises is reduced by the payment of a claim or
the establishment of a reserve to take all practical immediate action to have
the aggregate limit restored by endorsement to the existing policy or the
purchase of an additional insurance policy complying with these requirements;
(b) Insurance upon the Premises (other than the basic Buildings
but including all Alterations thereto and all furniture, furnishings, fixtures
and equipment thereon) in an amount equal to the full replacement value thereof
(including an "agreed amount" endorsement), including any increase in value
resulting from increased costs, with coverage against such perils and casualties
as are commonly included in "all risk" insurance policies (including breakage of
glass within the Premises, sprinkler leakage and collapse);
(c) Broad Form Boiler and Machinery Insurance on all air
conditioning equipment, electrical apparatus, boilers and other pressure vessels
or systems, whether fired or unfired, installed by Tenant (or by Landlord, at
Tenant's expense) in or near the Premises, either as part of the extended
coverage insurance mentioned in clause (b) above or in amounts set by Landlord,
but in no event less than $1,000,000;
(d) During the course of construction of any Alterations
(including under the Exhibit C or in connection with the preparation of the
Premises for occupancy) by Tenant in the Premises, and until completion thereof,
Builder's Risk Insurance on an "all risk" basis (including collapse) on a
completed value (non-reporting) form for full replacement value covering the
interests of Landlord and Tenant (and their respective contractors and
subcontractors), and any Lessor or Mortgagee in all work incorporated in the
Building and all materials and equipment in or about the Premises;
(e) Workers' Compensation Insurance, as required by law;
(f) Loss of income and business interruption insurance in such
amounts as will reimburse Tenant for direct and indirect loss of earnings
attributable to all perils commonly insured against by prudent tenants or
attributable to prevention of access to the Premises or to the Building as a
result of such perils; and
45.
(g) Such other insurance in such amounts as Landlord or any Lessor
or Mortgagee may reasonably require from time to time.
46.
EXHIBIT G
SPECIFICATIONS FOR UTILITIES AND SERVICES
47.
EXHIBIT B
DRAWING OF PREMISES/PARKING
(attached)
48.
[FLOOR PLAN]
49.
EXHIBIT C
TENANT IMPROVEMENTS
TBD
50.
