EXHIBIT 10.11
BASIC LEASE INFORMATION
LEASE DATE: May 12,1997
TENANT: Wireless, Inc., a California corporation
ADDRESS OF TENANT: 0000 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000
LANDLORD: Xxxxxxx Properties, L.P. a California limited
partnership
ADDRESS OF LANDLORD: 0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, XX
00000
Project Description: One one-story building totaling 48,000 square feet
commonly known as 0000 - 0000 Xxxxx Xxxxxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx. The Project is shown
outlined in green on Exhibit A.
Building Description: A 48,000 square foot one-story building commonly
known as 0000 - 0000 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx. The building is shown outlined in blue
on Exhibit A.
Premises: Approximately 12,800 square feet of rentable area
at the western end of the one-story building
commonly known as 0000 Xxxxx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx. The demised Premises is shown
outlined in red on Exhibit A.
Permitted Use: A business engaged in the telecommunications/
electronics industry, including sales, marketing,
R&D, general office and light assembly, in
compliance with all laws and ordinances of the City
of Santa Xxxxx.
Occupant Density: One person per 333 square feet
Parking Density: One person per 333 square feet
Scheduled Term
Commencement Date: July 1, 1997 (See additional Paragraph 38)
Length of Term: Sixty (60) months
Rent:
Base Rent: See Addendum 2 $-------------------
--------------------
Estimated First Year
Basic Operating Costs: $1,664.00 per month
Security Deposit: See Addendum 4
Forty Thousand Dollars ($40,000.00)
Tenant's Proportionate Share:
Of Building: 26.67%
Of Project: 26.67%
The forgoing Basic Lease information is incorporated into and made part of this
Lease. Each reference in this lease to any Basic Lease information shall mean
the respective information above and shall be construed to incorporate all of
the terms provided under the particular Lease paragraph pertaining to such
information. In the event of any conflict between the Basic Lease Information
and the lease, the latter shall control.
-1-
TABLE OF CONTENTS
PAGE
Basic Lease Information ..................................................1
Table of Contents ........................................................2
1. Premises .................................................................3
2. Possession and Lease Commencement ........................................3
3. Term .....................................................................3
4. Use ......................................................................3
5. Rules and Regulations ....................................................3
6. Rent .....................................................................3
7. Basic Operating Cost .....................................................4
8. Insurance and Indemnification ............................................5
9. Waiver of Subrogation ....................................................5
10. Landlord's Repairs and Services ..........................................5
11. Tenant's Repairs .........................................................5
12 Alterations ..............................................................5
13. Signs ....................................................................6
14. Inspection/Posting Notices ...............................................6
15. Utilities ................................................................6
16. Subordination ............................................................6
17. Financial Statements .....................................................6
18. Estoppel Certificate .....................................................6
19. Security Deposit .........................................................6
20. Tenant's Remedies ........................................................6
21. Assignment and Subletting ................................................7
22. Quiet Enjoyment ..........................................................7
23. Condemnation .............................................................7
24. Casualty Damage ..........................................................7
25. Holding Over .............................................................8
26. Default ..................................................................8
27. Liens ....................................................................9
28. Substitution .............................................................9
29. Transfers by Landlord ....................................................9
30. Right of Landlord to Perform Tenant's Covenants ..........................9
31. Waiver ...................................................................9
32. Notices ..................................................................9
33. Attorneys' Fees ..........................................................9
34. Successors and Assigns ...................................................9
35. Force Majeure ............................................................9
36. Miscellaneous ............................................................9
37. Additional Provisions ...................................................10
EXHIBIT "A". ..................................Site Plan, Legal Description
EXHIBIT "B". ...........................................Existing Floor Plan
-2-
LEASE
THIS LEASE is made as of this 12TH day of MAY, 1997, between XXXXXXX
PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP (hereinafter called
"Landlord") and WIRELESS, INC., A CALIFORNIA CORPORATION (hereinafter called
"Tenant").
PREMISES
1. Landlord leases to Tenant and Tenant leases from Landlord, upon the terms
and conditions hereinafter set forth, those premises (the "Premises")
outlined in red on Exhibit "A" and described in the Basic Lease
Information. The Premises may be all or part of the building (the
"Building") or of the project (the "Project") which may consist of more
than one building. The Building and Project are outlined in blue and green
respectively on Exhibit "A".
POSSESSION AND LEASE COMMENCEMENT
See Addendum 1
2. A. In the event this Lease pertains to a Premises in which the interior
improvements have already been constructed (existing improvements) the
provisions of this subparagraph 2A shall apply and the Term Commencement
Date shall be the earlier of the date on which (1) Tenant takes
possession of some or all of the Premises or (2) Landlord delivers the
Premises to Tenant. If for any reason Landlord cannot deliver possession of
the Premises to Tenant on the Scheduled Term Commencement Date, Landlord
shall not be subject to any liability therefore, nor shall Landlord be in
default hereunder, and Xxxxxx agrees to accept possession of the Premises
at such time as Landlord is able to deliver the same, which date shall then
be deemed the Term Commencement Date. Tenant shall not be liable for any
Rent for any period prior to delivery of the Premises. Tenant acknowledges
that it has inspected and accepts the Premises in their present condition
as suitable for the purpose for which the Premises are leased. Xxxxxx
agrees that said Xxxxxxxx and other improvements are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the condition or repair of the
Premises nor promises to alter, remodel or improve the Premises have been
made by Landlord, unless such are expressly set forth in this Lease. Tenant
shall, upon demand, execute and deliver to Landlord a letter of acceptance
of delivery of the Premises.
TERM
3. The Term of this Lease shall commence on the Term Commencement Date and
continue in full force and effect for the number of months specified as the
Length of Term in the Basic Lease Information or until this Lease is
terminated as otherwise provided herein. If the Term Commencement Date is a
date other than the first day of the calendar month, the Term shall be the
number of months of the Length of Term in addition to the remainder of the
calendar month following the Term Commencement Date.
USE
4. A. Tenant shall use the Premises for the Permitted Use and for no other use
or purpose without prior written consent of Landlord. Tenant and its
employees, customers, visitors, and licensees shall have the nonexclusive
right to use, in common with other parties occupying the Buildings or
Project, the parking areas and driveways of the project, subject to such
reasonable rules and regulations as Landlord may from time to time
prescribe.
B. Tenant shall not permit any odors, smoke, dust, gas, substances, noise
or vibrations to emanate from the Premises, nor take any action which would
constitute a nuisance or would disturb, obstruct or endanger any other
tenants of the Building or Project in which the Premises are situated or
unreasonably interfere with their use of their respective premises. Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is toxic, harmful, explosive, highly inflammable or
combustible. Storage outside the Premises of materials, vehicles or any
other items Landlord deems objectionable is prohibited without Xxxxxxxx's
prior written consent. Tenant shall not use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer the commission of any waste in,
on or about the Premises. Tenant shall not allow any sale by auction upon
the Premises, or place any loads upon the floors, walls or ceilings which
endanger the structure, or place any harmful liquids in the drainage system
of the Building or Project. No waste, materials or refuse shall be dumped
upon or permitted to remain outside the Premises except in trash containers
placed inside exterior enclosures designated for that purpose by Landlord.
C. Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall at its sole cost and
expense obtain any and all licenses or permits necessary for Tenant's use
of the Premises. Tenant shall promptly comply with the requirements of any
board of fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or occupancy of the
Premises. The judgement of any court of competent jurisdiction or the
admission of Tenant in any actions against Tenant, whether Landlord be a
party thereto or not, that Tenant has so violated any such law, statute,
ordinance, rule, regulation or requirement, shall be conclusive of such
violation as between Landlord and Tenant. Tenant shall not do or permit
anything to be done in, on, or about the Premises or bring or keep anything
which will in any way increase the rate of any insurance upon the Premises,
Building or Project, or upon any contents therein or cause a cancellation
of said insurance or otherwise affect said insurance in any manner. Tenant
shall indemnify Landlord and hold Landlord harmless against any loss,
expense, damage, attorneys' fees or liability arising out of the failure of
Tenant to comply with any applicable law or comply with the requirements as
set forth herein.
RULES AND REGULATIONS
5. Tenant and Xxxxxx's agents, employees, and invitees shall faithfully
observe and comply with any rules and regulations Landlord may from time to
time prescribe in writing for the purpose of maintaining the proper care,
cleanliness, safety, traffic flow and general order of the Premises or
Project. Landlord shall not be responsible to Tenant for the non-compliance
by any other tenant or occupant of the Building or Project with any of the
rules and regulations.
RENT
See Addendum 2
6. Tenant shall pay to Landlord, without demand throughout the Term, Rent as
specified in the Basic Lease Information, payable in monthly installments
in advance on or before the first day of each calendar month, in lawful
money of the United States, without deduction or offset whatsoever to
Landlord at the address specified in the Basic Lease information or to such
other firm or to such other place as Landlord may from time to time
designate in writing. Rent for the first full month of the Term shall be
paid by Tenant upon Xxxxxx's execution of this Lease. If the obligation for
payment of Rent commences on other than the first day of a month, then Rent
shall be prorated and the prorated installment shall be paid on the first
day of the calendar month next succeeding the Term Commencement Date.
-3-
BASIC OPERATING COST
7. A. BASIC OPERATING COST. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as additional Rent, Xxxxxx's Proportionate
Share, as defined in the Basic Lease Information, of Basic Operating Cost
in the manner set forth below. Basic Operating Cost shall mean all expenses
and costs of every kind and nature which Landlord shall pay or become
obligated to pay, or would be required to pay if the Project were fully
occupied, because of or in connection with the management, maintenance,
preservation and operation of the Project and its supporting facilities
servicing the Project (determined in accordance with generally accepted
accounting principles, consistently applied) including but not limited to
the following:
(1) All real estate taxes, possessory interest taxes, business or license
taxes or fees, service payment in lieu of such taxes or fees, annual or
periodic license or use fees, excises, transit charges, housing fund
assessments, open space charge, assessments, levies, fees or charges,
general and special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind (including fees "in-lieu" of any such tax or
assessment) which are assessed, levied, charged, confirmed, or imposed by
any public authority upon the Project, its operations or the rent (or any
portion or component thereof), except (a) inheritance or estate taxes
imposed upon or assessed against the Project, or any part thereof or
interest therein, and (b) taxes computed upon the basis of the net income
of Landlord or the owner of any interest therein.
(2) All insurance premiums and costs, including but not limited to, any
deductible amounts, premiums and cost of fire, casualty and liability
coverage, rental abatement and special hazard insurance applicable to the
Project and Landlord's personal property used in connection therewith;
provided, however, that Landlord may, but shall not be obligated to, carry
special hazard insurance covering losses caused by casualty not insured
under standard fire and extended coverage insurance.
(3) Repairs, replacements and general maintenance for the Premises,
Building and Project (except for those repairs expressly the responsibility
of Landlord, those repairs paid for by proceeds of insurance or by Tenant
or other third parties, and alterations attributable solely to tenants of
the Project other than Tenant).
(4) All maintenance, janitorial and service agreements and used in
maintaining the Premises, Building and Project and the equipment therein
and the adjacent sidewalks, driveways, parking and service areas,
including, without limitation, alarm service, window cleaning, elevator
maintenance, Building exterior maintenance and landscaping.
(5) Utilities which benefit all or a portion of the Premises.
(6) A management and accounting cost recovery equal to three percent (3%) of
Base Rent.
In the event that the building is not fully occupied during any fiscal year
of the Term as determined by Landlord, an adjustment shall be made in
computing the Basic Operating Cost for such year so that Basic Operating
Cost shall be computed as though the building had been one hundred percent
(100%) occupied; provided, however, that in no event shall Landlord be
entitled to collect in excess of one hundred percent (100%) of the total
Basic Operating Cost from all of the tenants in the Building including
Tenant.
All costs and expenses shall be determined in accordance with generally
accepted accounting principles which shall be consistently applied. Basic
Operating Cost shall not include specific costs incurred for the account
of, separately billed to and paid by specific tenants. Notwithstanding
anything herein to the contrary, any instance wherein Landlord, at
Xxxxxxxx's sole discretion, deems Tenant to be responsible for any amounts
greater than its Proportionate Share, Landlord shall have the right to
allocate costs in any manner Landlord deems appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COST. "Estimated Basic Operating
Cost" for any particular year shall mean Landlord's estimate of the Basic
Operating Cost for such fiscal year made prior to commencement of such
fiscal year as hereinafter provided. Landlord shall have the right from
time to time to revise its fiscal year and interim accounting periods so
long as the periods as so revised are reconciled with prior periods in
accordance with generally accepted accounting principles applied in a
consistent manner. During the last month of each fiscal year during the
Term, or as soon thereafter as practicable, Landlord shall give Tenant
written notice of the Estimated Basic Operating Cost for the ensuing fiscal
year. Tenant shall pay Tenant's Proportionate Share of the Estimated Basic
Operating Costs with installments of Base Rent for the fiscal year to which
the Estimated Basic Operating Cost applies in monthly installments on the
first day of each calendar month during such year, in advance. If at any
time during the course of the fiscal year, Landlord determines that Basic
Operating Cost will apparently vary from the then Estimated Basic Operating
Cost by more than ten percent (10%), Landlord may, by written notice to
Xxxxxx, revise the Estimated Basic Operating Cost for the balance of such
fiscal year and Tenant shall pay Tenant's Proportionate Share of the
Estimated Basic Operating Cost as so revised for the balance of the then
current year on the first of each calendar month thereafter.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT. "Basic Operating Cost
Adjustment" shall mean the difference between Estimated Basic Operating
Cost and Basic Operating Cost for any fiscal year determined as hereinafter
provided. Within one hundred twenty (120) days after the end of each fiscal
year, as determined by Landlord, or as soon thereafter as practicable,
Landlord shall deliver to Tenant a statement of Basic Operating Cost for
the fiscal year just ended accompanied by a computation of Basic Operating
Cost Adjustment. If such statement shows that Xxxxxx's payment based upon
Estimated Basic Operating Cost is less than Tenant's Proportionate Share of
Basic Operating Cost, then Tenant shall pay to Landlord the difference
within twenty (20) days after receipt of such statement. If such statement
shows that Xxxxxx's payments of Estimated Basic Operating Cost exceed
Xxxxxx's Proportionate Share of Basic Operating costs, then (provided that
Tenant is not in default under this Lease), Landlord shall pay to Tenant
the difference within twenty (20) days of such statement. If this Lease has
been terminated or the Term hereof has expired prior to the date of such
statement, then the Basic Operating Cost Adjustment shall be paid by the
appropriate party within twenty (20) days after the date of delivery of the
statement. Should this Lease commence or terminate at any time other than
the first day of the fiscal year, Xxxxxx's Proportionate Share of the Basic
Operating Cost adjustment shall be prorated by reference to the exact
number of calendar days during such fiscal year for which Tenant is
obligated to pay Base Rent.
D. NET LEASE. This shall be a net Lease and Base Rent shall be paid to
Landlord absolutely net of all costs and expenses except as herein
provided. The provisions for payment of Basic Operating Cost and the Basic
Operating Cost Adjustment are intended to pass on to Tenant and reimburse
Landlord for all costs and expenses of the nature described in paragraph 7A
incurred in connection with ownership and operation of the Building or
Project and such additional facilities now and in subsequent years as may
be determined by Landlord to be necessary to the Building or Project.
E. TENANT AUDIT. Tenant shall have the right, at Xxxxxx's expense and upon
not less than five (5) days prior written notice to Landlord, to review at
reasonable times, in Landlord's office, Xxxxxxxx's books and records
applicable to Tenant's Lease for purposes of verifying Xxxxxxxx's
calculation of the Basic Operating Cost and Basic Operating Cost
Adjustment.
In the event that Tenant shall dispute the amount set forth in any
statement provided by Landlord under paragraph 7B or 7C above, Tenant shall
have the right, not later than twenty (20) days following the receipt of
such statement and upon condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Xxxxxxxx's books and records
with respect to such fiscal year to be audited by certified public
accountants selected by Xxxxxx and subject to Xxxxxxxx's reasonable right
of approval. The Basic Operating Cost Adjustment shall be appropriately
adjusted on the basis of such audit. If such audit discloses a liability
for a refund in excess of ten percent (10%) of Tenant's Proportionate Share
of the Basic Operating Cost Adjustment previously reported, the cost of
such audit shall be borne by Landlord; otherwise the cost of such audit
shall be paid by Xxxxxx. If Tenant shall not request an audit in accordance
with the provisions of this paragraph 7E within twenty (20) days of receipt
of Landlord's statement provided pursuant to paragraph 7B or 7C, such
statement shall be final and binding for all purposes hereof.
-4-
INSURANCE AND INDEMNIFICATION
8. A. CASUALTY INSURANCE. Xxxxxxxx agrees to maintain insurance insuring
the Buildings of the Project, of which the Premises are a part,
against fire, lightning, extended coverage, vandalism and malicious
mischief in an amount not less than eighty percent (80%) of the
replacement cost thereof. Such insurance shall be for the sole benefit
of Landlord and under its sole control. Landlord shall not be
obligated to insure any furniture, equipment, machinery, goods or
supplies not covered by this Lease which Tenant may keep or maintain
in the Premises or any leasehold improvements, additions or
alterations which Tenant may make upon the Premises.
B. LIABILITY INSURANCE. Tenant shall purchase at its own expense and keep
in force during this Lease a policy or policies of comprehensive liability
insurance, including personal injury and property damage, in the amount of
not less than Five Hundred Thousand Dollars ($500,000.00) for property
damage and Two Million Dollars ($2,000,000.00) per occurrence for personal
injuries or deaths of persons occurring in or about the Premises and
Project. Said policies shall (1) name Xxxxxxxx and, if applicable, its
agent, and any party holding an interest to which this Lease may be
subordinated as additional insureds, (2) be issued by an insurance company
acceptable to Landlord and licensed to do business in the State of
California, and (3) provide that said insurance shall not be cancelled
unless thirty (30) days prior written notice shall have been given to
Landlord. Said policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon commencement of the lease and upon
each renewal of said insurance.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant for any loss or
damage to person or property caused by theft, fire, act of God, acts of a
public enemy, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority or for any damage or inconvenience
which may arise through repair or alteration of any part of the Building or
Project or failure to make any such repair except as expressly otherwise
provided in Paragraphs 10 and 12. Tenant shall indemnify Landlord and hold
Landlord harmless from any and all loss, cost, damage, injury or expense
arising out of or related to (1) claims of injury to or death of persons or
damage to property occurring or resulting directly or indirectly from the
use or occupancy of the Premises, or from activities of Tenant, its agents,
servants, employees or anyone in or about the Premises or Project, or from
any cause whatsoever, (2) claims for work or labor performed, or for
materials or supplies furnished to or at the request of Tenant or in
connection with performance of any work done for the account of Tenant
within the Premises or Project, and (3) claims arising from any breach or
default on the part of Tenant in the performance of any covenant contained
in this Lease. Such indemnity shall include without limitation the
obligation to provide all costs of defense against any such claims
including any action or proceeding brought against Landlord. The foregoing
indemnity shall not be applicable to claims arising from the active
negligence or willful misconduct of Landlord. The provisions of this
paragraph shall survive the expiration or termination of this Lease with
respect to any claims or liability occurring prior to such expiration or
termination.
WAIVER OF SUBROGATION
9. To the extent permitted by law and without affecting the coverage provided
by insurance required to be maintained hereunder, Landlord and Xxxxxx each
waive any right to recover against the other (a) damages for injury to or
death of persons, (b) damages to property, (c) damages to the premises or
any part thereof, or (d) claims arising by reason of the foregoing. This
provision is intended to waive fully, and for the benefit of each party,
any rights and/or claims which might give rise to a right of subrogation on
any insurance carrier. The coverage obtained by each party pursuant to this
Lease shall include, without limitation, a waiver of subrogation by the
carrier which conforms to the revisions of this paragraph.
LANDLORD'S REPAIRS AND SERVICES
10. Landlord shall at Landlord's expense maintain the structural soundness of
the roof, foundations and exterior walls of the Building in good repair,
reasonable wear and tear excepted. The term walls as used herein shall not
include windows, glass or plate glass, doors, special store fronts or
office entries. The term roof as used herein shall not include skylights,
smoke hatches or roof vents. Landlord shall perform on behalf of Tenant and
other tenants of the Project the maintenance of the public and common areas
of the Project including but not limited to the landscaped areas, parking
areas, driveways, the truck staging areas, rail spur areas, fire sprinkler
systems, sanitary and storm sewer lines, utility services, electric and
telephone equipment servicing the Building(s), exterior lighting, and
anything which affects the operation and exterior appearance of the
Project, which determination shall be at Landlord's sole discretion. Tenant
shall reimburse Landlord for all such costs in accordance with Paragraph 7.
Any damage caused by or repairs necessitated by any act of Tenant may be
repaired by Landlord at Landlord's option and at Tenant's expense. Tenant
shall immediately give Landlord written notice of any defect or need of
repairs after which Landlord shall have reasonable opportunity to repair
same. Landlord's liability with respect to any defects, repairs, or
maintenance for which Landlord is responsible under any of the provisions
of this Lease shall be limited to the cost of such repairs or maintenance.
TENANT'S REPAIRS
11. Tenant shall at Tenant's expense maintain all parts of the Premises in a
good clean and secure condition promptly making all necessary repairs and
replacements including but not limited to all windows, glass, doors and any
special office entries, walls and wall finishes, floor covering, heating,
ventilating and air conditioning systems, truck doors, dock bumpers, dock
plates and levelers, roofing, plumbing work and fixtures, downspouts,
skylights, smoke hatches and roof vents. Tenant shall at Tenant's expense
also perform necessary pest extermination and regular removal of trash and
debris. If required by the railroad company, Xxxxxx agrees to sign a joint
maintenance agreement governing the use of the rail spur, if any. Tenant
shall, at its own expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing
all hot water, heating and air conditioning systems and equipment within or
serving the Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance
manual and must become effective and a copy thereof delivered to Landlord
within thirty (30) days of the Term Commencement Date. Tenant shall not
damage any demising wall or disturb the integrity and support provided by
any demising wall and shall, at its sole expense, immediately repair any
damage to any demising wall caused by Tenant or its employees, agents or
invitees.
ALTERATIONS
12. Tenant shall not make, or allow to be made, any alterations or physical
additions in, about or to the premises without obtaining the prior written
consent of Landlord which consent shall not be unreasonably withheld with
respect to proposed alterations and additions which (a) comply with all
applicable laws, ordinances, rules and regulations, (b) are in Landlord's
opinion compatible with the Project and its mechanical, plumbing,
electrical, and heating/ventilation/air conditioning systems, and (c) in
Landlord's opinion will not interfere with the use and occupancy of any
other portion of the Building or Project by any other tenant or its
invitees. Specifically, but without limiting the generality of the
foregoing, Landlord shall have the right of consent for all plans and
specifications for the proposed alterations or additions, construction
means and methods, any contractor or subcontractor to be employed on the
work of alteration or additions, and the time for performance of such work.
Tenant shall also supply to Landlord any documents and information
reasonably requested by Landlord in connection with its consideration of a
request for approval hereunder. Tenant must have Landlord's written
approval and all appropriate permits and licenses prior to the commencement
of said alterations and additions. All alterations and additions permitted
hereunder shall be made and performed by Tenant without cost or expense to
Landlord including any costs or expenses which Landlord may incur in
electing to have an outside agency review said plans and specifications.
Landlord shall have the right to require Tenant to remove any or all
alterations, additions, improvements and partitions made by Tenant and
restore the Premises to their original condition by the termination of this
Lease, by lapse of time or otherwise, all at Tenant's expense. All such
removals and restoration shall be accomplished in a good workmanlike manner
so as not to cause any damage to the Premises or Project whatsoever. If
Landlord so elects, such alterations, physical additions or improvements
shall become the property of Landlord and surrendered to Landlord upon the
termination of this Lease by lapse of time or otherwise; provided, however
that this clause shall not apply to trade fixtures or furniture owned by
Tenant. In addition to and wholly apart from its obligation to pay Tenant's
Proportionate Share of Basic Operating Costs, Tenant shall be responsible
for and shall
-5-
pay prior to delinquency any taxes or governmental service fees, possessory
interest taxes, fees or charges in lieu of any such taxes, capital levies,
or other charges imposed upon, levied with respect to or assessed against
its personal property, on the value of its alterations, additions or
improvements and on its interest pursuant to this Lease. To the extent that
any such taxes are not separately assessed or billed to Tenant, Tenant
shall pay the amount thereof as invoiced to Tenant by Landlord.
SIGNS
13. All signs, notices and graphics of every kind or character, visible in or
from public view or corridors, the common areas or the exterior of the
Premises, shall be subject to Landlord's prior written approval, which
Landlord shall have the right to withhold in its absolute and sole
discretion. Tenant shall not place or maintain any banners whatsover or any
window decor in or on any exterior window or window fronting upon any
common areas or service area or upon any truck doors or man doors without
Landlord's prior written approval which Landlord shall have the right to
grant or withhold in its absolute and sole discretion. Any installation of
signs or graphics on or about the Premises and Project shall be subject to
any applicable governmental laws, ordinances, regulations and to any other
requirements imposed by Landlord. Tenant shall remove all such signs and
graphics by the termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury to or defacement of the
Premises, Building or Project and any other improvements contained therein,
and Tenant shall repair any injury or defacement including without
limitation discoloration caused by such installation or removal.
INSPECTION/POSTING NOTICES
14. After reasonable notice, except in emergencies where no such notice shall
be required, Landlord, its agents and representatives, shall have the right
to enter the Premises to inspect the same, to clean, to perform such work
as may be permitted or required hereunder, to make repairs or alterations
to the Premises or Project or to other tenant spaces therein, to deal with
emergencies, to post such notices as may be permitted or required by law to
prevent the perfection of liens against Xxxxxxxx's interest in the Project
or to exhibit the Premises to prospective tenants, purchasers, encumbrances
or others, or for any other purpose as Landlord may deem necessary or
desirable; provided, however, that Landlord shall not unreasonably
interfere with Xxxxxx's business operations. Tenant shall not be entitled
to any abatement of Rent by reason of the exercise of any such right of
entry. Six months prior to the end of the lease, Landlord shall have the
right to erect on the Premises and/or Project a suitable sign indicating
that the Premises are available for lease. Tenant shall give written notice
to Landlord at least thirty (30) days prior to vacating the Premises and
shall meet with Landlord for a joint inspection of the Premises at the time
of vacating. In the event of Xxxxxx's failure to give such notice or
participate in such joint inspection, Landlord's inspection at or after
Xxxxxx's vacating the Premises shall conclusively be deemed correct for
purposes of determining Tenants responsibility for repairs and restoration.
UTILITIES
15. Tenant shall pay for all water, gas, heat, air conditioning, light, power,
telephone, sewer, sprinkler charges and other utilities and services used
on or from the Premises, together with any taxes, penalties, surcharges or
the like pertaining thereto, and maintenance charges for utilities and
shall furnish all electric light bulbs ballasts and tubes. If any such
services are not separately metered to Tenant, Tenant shall pay a
reasonable proportion, as determined by Landlord, of all charges jointly
serving other premises. Landlord shall not be liable for any damages
directly or indirectly resulting from nor shall the Rent or any monies owed
Landlord under this Lease herein reserved be abated by reason of (a) the
installation, use or interruption of use of any equipment used in
connection with the furnishing of any of the foregoing utilities and
services, (b) failure to furnish or delay in furnishing any such utilities
or services when such failure or delay is caused by acts of God or the
elements, labor disturbances of any character, any other accidents or other
conditions beyond the reasonable control of Landlord, or (c) the
limitation, curtailment, rationing or restriction on use of water,
electricity, gas or any other form of energy or any other service or
utility whatsoever serving the Premises or Project. Landlord shall be
entitled to cooperate voluntarily and in a reasonable manner with the
efforts of national, state or local governmental agencies or utility
suppliers in reducing energy or other resource consumption. The obligation
to make services available hereunder shall be subject to the limitations of
any such voluntary, reasonable program.
SUBORDINATION
16. Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Premises and/or
the land upon which the Premises and Project are situated, or both, and (b)
any mortgage or deed of trust which may now exist or be placed upon said
Project, land, ground leases or underlying leases, or Landlord's interest
or estate in any of said items, which is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or
any such liens to this Lease. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or deed of trust
is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, Tenant shall, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord at the option of
such successor in interest. Tenant shall execute and deliver, upon demand
by Xxxxxxxx and in the form requested by Landlord, any additional documents
evidencing the priority of subordination of this Lease with respect to any
such ground leases or underlying leases or any such mortgage or deed of
trust.
FINANCIAL STATEMENTS SEE
ADDENDUM 3
17. At the request of Landlord, Tenant shall provide to Landlord its current
financial statement or other information discussing financial worth which
Landlord shall use solely for purposes of this Lease and in connection with
the ownership, management and disposition of the property subject hereto.
ESTOPPEL
CERTIFICATE
18. Xxxxxx agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Xxxxxxxx's designee, an estoppel
certificate stating that this lease is in full force and effect, the date
to which Rent has been paid, the unexpired portion of this lease and such
other matters pertaining to this Lease as may be reasonably requested by
Landlord. Failure by Tenant to execute and deliver such certificate shall
constitute an acceptance of the Premises and acknowledgement by Tenant that
the statements included are true and correct without exception. Landlord
and Xxxxxx intend that any statement delivered pursuant to this paragraph
may be relied upon by any mortgagee, beneficiary, purchaser or prospective
purchaser of the Project or any interest therein. The parties agree that
Xxxxxx's obligation to furnish such estoppel certificates in a timely
fashion is a material inducement for Landlord's execution of the Lease.
SECURITY DEPOSIT
SEE ADDENDUM 4
19. Xxxxxx agrees to deposit with Landlord upon execution of this Lease, a
Security Deposit as stated in the Basic Lease Information which sum shall
be held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this Lease, it
being expressly understood and agreed that such deposit is not an advance
rental deposit or a measure of damages incurred by Landlord in case of
Xxxxxx's default. Upon the occurrence of any event of default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such fund to the extent necessary
to make good any arrears of Rent or other payments due to Landlord
hereunder, and any other damage, injury, expense or liability caused by
such event of default, and Tenant shall pay to Landlord, on demand, the
amount so applied in order to restore the Security Deposit to its original
amount.
TENANT'S REMEDIES
20. Tenant shall look solely to Xxxxxxxx's interest in the Project for recovery
of any judgement from Landlord. Landlord, or if Landlord is a partnership,
its partners whether general or limited, or if it is a corporation, its
directors, officers or shareholders, shall never be personally liable for
any such judgement. Any lien obtained to enforce any such judgement and any
levy of execution thereon shall be subject and subordinate to any lien,
mortgage or deed of trust on the Project.
-6-
ASSIGNMENT AND SUBLETTING
21. A. Tenant shall not assign or sublet the Premises or any part thereof
without Landlord's prior written approval except as provided herein. If
Tenant desires to assign this Lease or sublet any or all of the Premises,
Tenant shall give Landlord written notice ninety (90) days prior to the
anticipated effective date of the assignment or sublease. Landlord shall
then have a period of thirty (30) days following receipt of such notice to
notify Tenant in writing that Landlord elects either (1) to terminate this
Lease as to the space so affected as of the date so requested by Xxxxxx, or
(2) to permit Tenant to assign this Lease or sublet such space, subject,
however, to Landlord's prior written approval of the proposed assignee or
subtenant and of any related documents or agreements associated with the
assignment or sublease, such consent not to be unreasonably withheld so
long as the use of the Premises by such proposed assignee or subtenant
would be a Permitted Use and would not in Landlord's opinion increase
Occupant Density of the Project, the proposed assignee or subtenant is of
sound financial condition, and the proposed assignment or sublease would
not be likely to result in any decrease in Rent. If Landlord should fail to
notify Tenant in writing of such election within said period, Landlord
shall be deemed to have waived option (1) above, but written approval by
Landlord of the proposed assignee or subtenant shall be required. Failure
by Landlord to approve a proposed assignee or subtenant shall not cause a
termination of this Lease.
B. Any Rent or other consideration realized by Tenant under any such
sublease or assignment in excess of the Rent payable hereunder, after
amortization of (1) the reasonable cost of any improvements which Xxxxxx
has made for the purpose of assigning or subletting all or part of the
Premises and (2) reasonable subletting and assignment costs, shall be
divided and paid, ten percent (10%) to Tenant, ninety percent (90%) to
Landlord.
C. In any subletting or assignment undertaken by Tenant, Tenant shall
diligently seek to obtain the maximum rental amount available in the
marketplace for such subletting or assignment.
D. If Tenant is a corporation, a transfer of corporate shares by sale,
assignment, bequest, inheritance, operation of law or other disposition
(including such a transfer to or by a receiver or trustee in federal or
state bankruptcy, insolvency or other proceedings), so as to result in a
change in the present control of such corporation or any of its parent
corporations by the person or persons owning a majority of said corporate
shares, shall constitute an assignment for purposes of this paragraph.
E. If Tenant is a partnership, joint venture or other unincorporated
business form, a transfer of the interest of persons, firms or entities
responsible for managerial control of Tenant by sale, assignment, bequest,
inheritance, operation of law or other disposition, so as to result in a
change in the present control of said entity and/or a change in the
identity of the persons responsible for the general credit obligations of
said entity shall constitute an assignment for all purposes of this
paragraph.
F. No assignment or subletting by Tenant shall relieve Tenant of any
obligation under this Lease. Any assignment or subletting which conflicts
with the provisions hereof shall be void.
QUIET ENJOYMENT
22. Landlord represents that it has full right and authority to enter into this
Lease and that Tenant, upon paying the Rent and performing its other
covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the Term hereof without hindrance or
molestation from Landlord, subject to the terms and provisions of this
Lease.
CONDEMNATION
23. A. If the whole or any substantial portion of the Project of which the
Premises are a part should be taken or condemned for any public use under
governmental law ordinance or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, and the taking would prevent or
materially interfere with the Permitted Use of the Premises, this lease
shall terminate and the Rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said Premises shall
have occured.
B. If a portion of the Project of which the Premises are a part should be
taken or condemned for any public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or by private
purchase in lieu thereof, and this Lease is not terminated as provided in
the subparagraph 23A above, this Lease shall not terminate, but the Rent
payable hereunder during the unexpired portion of the Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances.
C. Landlord shall be entitled to any and all payment, income, rent, award,
or any interest therein whatsoever which may be paid or made in connection
with such taking or conveyance and Tenant shall have no claim against
Landlord or otherwise for the value of any unexpired portion of this Lease.
Notwithstanding the foregoing paragraph, any compensation specifically
awarded Tenant for loss of business, Xxxxxx's personal property, moving
cost or loss of goodwill, shall be and remain the property of Tenant.
CASUALTY DAMAGE
24. A. If the Premises should be damaged or destroyed by fire, tornado or other
casualty, Tenant shall give immediate written notice thereof to Landlord.
Within thirty (30) days of such notice, Landlord shall notify Tenant
whether in Landlord's opinion such repairs can be made either (1) within
ninety (90) days, (2) in more than ninety (90) days but in less than one
hundred eighty (180) days, or (3) in more than one hundred eighty (180)
days from the date of such notice; Landlord's determination shall be
binding on Tenant.
B. If the Premises should be damaged by fire, tornado or other casualty but
only to such extent that rebuilding or repairs can in Landlord's estimation
be completed within ninety (90) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall not terminate, and
Landlord shall at its sole cost and expense thereupon proceed with
reasonable diligence to rebuild and repair the Premises to substantially
the condition in which they existed prior to such damage, except that
Landlord shall not be required to rebuild, repair or replace any part of
the partitions, fixtures, additions and other improvements which may have
been placed in, on or about the Premises by Tenant. If the Premises are
untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable shall be reduced
to such extent as may be fair and reasonable under all of the
circumstances.
C. If the Premises should be damaged by fire, tornado or other casualty but
only to such extent that rebuilding or repairs can in Landlord's estimation
be completed in more than ninety (90) days but in less than one hundred
eighty (180) days, then Landlord shall have the option of either (1)
terminating the Lease effective upon the date of the occurrence of such
damage, in which event the Rent shall be abated during the unexpired
portion of the Lease, or (2) electing to rebuild or repair the Premises to
substantially the condition in which they existed prior to such damage
except that Landlord shall not be required to rebuild, repair or replace
any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Premises by Tenant. If the
Premises are untenantable in whole or in part following such damage, the
Rent payable hereunder during the period in which they are untenantable
shall be reduced to such extent as may be fair and reasonable under all of
the circumstances. In the event that Landlord should fall to complete such
repairs and rebuilding within one hundred eighty (180) days after the date
upon which Landlord is notified by Tenant of such damage, such period of
time to be extended for delays caused by the fault or neglect of Tenant or
because of acts of God, acts of public agencies, labor disputes, strikes,
fires, freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, or delay of the contractors or subcontractors
due to such causes or other contingencies beyond the reasonable control of
Landlord, Tenant may at its option terminate this Lease by delivering
thirty (30) days prior written notice of termination to Landlord as
Xxxxxx's exclusive remedy, whereupon all rights and obligations hereunder
shall cease and terminate.
D. If the Premises should be so damaged by fire, tornado, or other casualty
that rebuilding or repairs cannot in Landlord's estimation be completed
within one hundred eighty (180) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease, effective upon
the date of the occurrence of such damage.
E. Notwithstanding anything herein to the contrary, in the event that
holder of any indebtedness secured by a mortgage or deed of trust covering
the Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate.
-7-
F. The provisions of Section 1942, Subdivision 2, and Section 1933,
Subdivision 4, of the Civil Code of California is superseded by the
foregoing.
HOLDING OVER
25. If Tenant shall retain possession of the Premises or any portion thereof
without Landlord's consent following the expiration of the Lease or sooner
termination for any reason, then Tenant shall pay to Landlord for each day
of such retention triple the amount of the daily rental for the last month
prior to the date of expiration or termination. Tenant shall also indemnify
and hold Landlord harmless from any loss or liability resulting from delay
by Xxxxxx in surrendering the Premises, including, without limitation, any
claims made by any succeeding tenant founded on such delay. Alternatively,
if Landlord gives notice of Xxxxxxxx's consent to Xxxxxx's holding over,
such holding over shall constitute renewal of the Lease on whatever terms
are specified in such notice. Acceptance of Rent by Landlord following
expiration or termination shall not constitute a renewal of this Lease, and
nothing contained in this paragraph shall waive Landlord's right of reentry
or any other right. Unless Landlord exercises the option hereby given to
it, Tenant shall be only a Tenant at sufferance, whether or not Landlord
accepts any Rent from Tenant while Tenant is holding over without
Xxxxxxxx's written consent. Additionally, in the event that upon
termination of the Lease, Tenant has not fulfilled its obligation with
respect to repairs and cleanup of the Premises or any other Tenant
obligations as set forth in this Lease, then Landlord shall have the right
to perform any such obligations as it deems necessary at Tenant's sole cost
and expense, and any time required by Landlord to complete such obligations
shall be considered a period of holding over and the terms of this
paragraph shall apply.
DEFAULT
26. A. EVENTS OF DEFAULT: The occurrence of any of the following shall
constitute an event of default on the part of Tenant:
(1) ABANDONMENT. Vacation or abandonment of the Premises for a continuous
period in excess of five (5) days. Tenant waives any right to notice Tenant
may have under Section 1951.3 of the Civil Code of the State of California,
the terms of this subparagraph 26A being deemed such notice to Tenant as
required by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment of Rent or any other
amount due and payable hereunder upon the date when said payment is due,
such failure continuing without cure by payment of the delinquent Rent and
late charge or other obligations for a period of five (5) days after
written notice and demand; provided, however, that except as expressly
otherwise provided herein, Landlord shall not be required to provide such
notice more than twice during the Term, the third such non-payment
constituting default for all purposes hereof without requirements of
notice.
(3) OTHER OBLIGATIONS. Failure to perform any obligations, agreement or
covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this subparagraph 26A, such failure continuing
for fifteen (15) days after written notice of such failure, or such longer
period as Landlord determines to be necessary to remedy such default,
provided that Tenant shall continuously and diligently pursue such remedy
at all times until such default is cured.
(4) GENERAL ASSIGNMENT. A general assignment by Tenant for the Benefit of
creditors.
(5) BANKRUPTCY. The filing of any voluntary petition in bankruptcy by
Xxxxxx, or the filing of an involuntary petition by Xxxxxx's creditors,
which involuntary petition remains undischarged for a period of thirty (30)
days. In the event that under applicable law the trustee in bankruptcy or
Tenant has the right to affirm this Lease and continue to perform the
obligation of Tenant hereunder, such trustee or Tenant shall, in such time
period as may be permitted by the bankruptcy court having jurisdiction,
cure all defaults of Tenant hereunder outstanding as of the date of the
affirmance of this Lease and provide to Landlord such adequate assurances
as may be necessary to ensure Landlord of the continued performance of
Tenant's obligations under this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take possession of
substantially all of Tenant's assets or the premises, if such attachment or
other seizure remains undismissed or undischarged for a period of ten (10)
days after the levy thereof.
(7) ATTACHMENT. The attachment, execution or other judicial seizure of all
or substantially all of Tenant's assets of the Premises, if such attachment
or other seizure remains undismissed or undischarged for a period of ten
(10) days after the levy thereof.
B. REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation to be paid by Tenant
under this Lease shall be construed as obligations for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any event of default,
Landlord shall have the right, with or without notice or demand, to
immediately terminate this Lease, and at any time thereafter recover
possession of the Premises or any part thereof and expel and remove
therefrom Tenant and any other person occupying the same, by any lawful
means, and again repossess and enjoy the Premises without prejudice to any
of the remedies that Landlord may have under this Lease, or at law or
equity by reason of Tenant's default or of such termination.
(3) CONTINUATION AFTER DEFAULT. Even though Xxxxxx has breached this Lease
and/or abandoned the Premises, this Lease shall continue in effect for so
long as Landlord does not terminate Tenant's right to possession under
paragraph 26B (2) hereof, and Landlord may enforce all its rights and
remedies under this Lease, including but without limitation, the right to
recover Rent as it becomes due, and Landlord, without terminating this
Lease, may exercise all of the rights and remedies of a Landlord under
Section 1951.4 of the Civil Code of the State of California or any
successor code section. Acts of maintenance preservation or efforts to
lease the Premises or the appointment of a receiver upon application of
Landlord to protect Xxxxxxxx's interest under this Lease shall not
constitute an election to terminate Tenant's right to possession.
C. DAMAGES UPON TERMINATION. Should Landlord terminate this Lease pursuant
to the provisions of paragraph 26B (2) hereof, Landlord shall have all the
rights and remedies of a Landlord provided by Section 1951.2 of the Civil
Code of the State of California, or successor code sections. Upon such
termination, in addition to any other rights and remedies to which Landlord
may be entitled under applicable law, Landlord shall be entitled to recover
from Tenant: (1) the worth at the time of award of the unpaid Rent and
other amounts which had been earned at the time of termination, (2) 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 Rent loss that the Tenant proves could have been
reasonably avoided, (3) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such Rent loss that the Tenant proves could be
reasonably avoided, and (4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Xxxxxx's failure to
perform its obligations under this Lease or which, in the ordinary course
of things, would be likely to result therefrom. The "worth at the time of
award" of the amounts referred to in (1) and (2), above shall be computed
with interest at the maximum rate allowed by law. The "worth at the time of
award" of the amount referred to in (3) above shall be computed by
discounting such amount at the Federal Discount Rate of the Federal Reserve
Bank of San Francisco at the time of the award plus one percent (1%).
D. LATE CHARGE. In addition to its other remedies, Landlord shall have the
right without notice or demand to add to the amount of any payment required
to be made by Tenant hereunder, and which is not paid on or before the date
the same is due, an amount equal to five percent (5%) of the delinquency
for each month or portion thereof that the delinquency remains outstanding
to compensate Landlord for the loss of the use of the amount not paid and
the administrative costs caused by the delinquency, the parties agreeing
that Landlord's damage by virtue of such delinquencies would be difficult
to compute and the amount stated herein represents a reasonable estimate
thereof.
-8-
E. REMEDIES CUMULATIVE. All rights, privileges and elections or remedies of
the parties are cumulative and not alternative to the extent permitted by
law and except as otherwise provided herein.
LIENS
27. Tenant shall keep the Premises free from liens arising out of or related to
work performed, materials or supplies furnished or obligations incurred by
Tenant or in connection with work made, suffered or done by Tenant in or on
the Premises or Project. In the event that Tenant shall not, within ten
(10) days following the imposition of any such lien, cause the same to be
released of record by payment or posting of a proper bond, Landlord shall
have, in addition to all other remedies provided herein and by law, the
right, but not the obligation, to cause the same to be released by such
means as it shall deem proper, including payment of the claim giving rise
to such lien. All sums paid by Xxxxxxxx on behalf of Xxxxxx and all
expenses incurred by Landlord in connection therefore shall be payable to
Landlord by Tenant on demand with interest at the maximum rate allowable by
law. Landlord shall have the right at all times to post and keep posted on
the Premises any notices permitted or required by law, or which Landlord
shall deem proper, for the protection of Landlord, the Premises, the
Project and any other party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not less than ten (10)
business days prior written notice of the commencement of any work in the
Premises or Project which could lawfully give rise to a claim for
mechanics' or materialmen's lien.
SUBSTITUTION
28. At any time after execution of this Lease, Landlord may substitute for the
Premises other premises in the Project (the "New Premises") upon not less
than sixty (60) days prior written notice, in which event the New Premises
shall be deemed to be the Premises for all purposes hereunder, provided
however, that:
(A) The area of the Premises is less than twenty-five (25%) of the area of
the Project;
(B) The New Premises shall be similar in area and in appropriateness for
Tenant's purposes;
(C) Any such substitution is effected for the purpose of accommodating a
Tenant who will occupy all or a substantial portion of the Project area;
and
(D) If Tenant is occupying the Premises at the time of such substitution,
Landlord shall pay the expense of physically moving Tenant, its property
and equipment to the new premises and shall, at its sole cost, improve the
new Premises with improvements substantially similar to those Landlord has
committed to provide or has provided in the Premises.
TRANSFERS BY LANDLORD
29. In the event of a sale or conveyance by Landlord of the Building, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Xxxxxx, and in such event Tenant agrees to look solely to the
responsibility of the successor in interests of Landlord in and to this
Lease. This Lease shall not be affected by any such sale and Xxxxxx agrees
to attorn to the purchaser or assignee.
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
30. All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent. If Tenant shall fail to pay any
sum of money, other than Rent, required to be paid by it hereunder or shall
fail to perform any other act on its part to be performed hereunder, and
such failure shall continue for five (5) days after notice thereof by
Landlord, Landlord may, but shall not be obligated to do so, and without
waiving or releasing Tenant from any obligations of the Tenant, make any
such payment or perform any such act on the Tenant's part to be made or
performed. All sums so paid by Xxxxxxxx and all necessary incidental costs
together with interest thereon at the maximum rate permitted by law from
the date of such payment by the Landlord shall be payable to Landlord on
demand, and Tenant covenants to pay such sums, and Landlord shall have, in
addition to any other right or remedy of Landlord, the same right and
remedies in the event of the non-payment thereof by Tenant as in the case
of default by Tenant in the payment of the Rent.
WAIVER
31. If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be
a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant
or condition of this Lease, regardless of Landlord's knowledge of such
preceding breach at the time Landlord accepted such Rent. Failure by
Landlord to enforce any of the terms, covenants or conditions of this Lease
for any length of time shall not be deemed to waive or to decrease the
right of Landlord to insist thereafter upon strict performance by Xxxxxx.
Waiver by Landlord of any term, covenant or condition contained in this
Lease may only be made by a written document signed by Landlord.
NOTICES
32. Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to the
sending, mailing or delivery of any notice or the making of any payment by
Landlord or Tenant to the other shall be deemed to be complied with when
and if the following steps are taken:
A. All Rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address set forth in the
Basic Lease Information, or at such other address as Landlord may specify
from time to time by written notice delivered in accordance herewith.
Tenant's obligation to pay Rent and any other amounts to Landlord under the
terms of this Lease shall not be deemed satisfied until such Rent and other
amounts have been actually received by Landlord.
B. All notices, demands, consents and approvals which may or are required
to be given by either party to the other hereunder shall be in writing and
shall be deemed to have been fully given when deposited in the United
States mail, certified or registered, postage prepaid, and addressed to the
party to be notified at the address for such party specified in the Basic
Lease Information or to such other place as the party to be notified may
from time to time designate by at least fifteen (15) days notice to the
notifying party. Tenant appoints as its agent to receive the service of all
default notices and notice of commencement of unlawful detainer proceedings
the person in charge of or apparently in charge of or occupying the
Premises at the time, and, if there is no such person, then such service
may be made by attaching the same on the main entrance of the Premises.
ATTORNEYS' FEES
33. In the event either party places the enforcement of this Lease, or any part
thereof, or the collection of any Rent due, or to become due hereunder, or
recovery of the possession of the Premises in the hands of an attorney or
files suit upon the same, the prevailing party shall recover its reasonable
attorneys' fees and court costs.
SUCCESSORS AND ASSIGNS
34. This Lease shall be binding upon and inure to the benefit of Landlord, its
successors and assigns, and shall be binding upon and inure to the benefit
of Tenant, its successors, and to the extent assignment may be approved by
Landlord hereunder, Xxxxxx's assigns.
FORCE MAJEURE
35. Whenever a period of time is herein prescribed for action to be taken by
Landlord, Landlord shall not be liable or responsible for, and there shall
be excluded from the computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other causes of any
kind whatsoever which are beyond the control of Landlord.
MISCELLANEOUS
36. A. The term "Tenant" or any pronoun used in place thereof shall indicate
and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their and each of their respective
successors, executors, administrators and permitted assigns, according to
the context hereof.
B. Time is of the essence regarding this Lease and all of its provisions.
-9-
C. This Lease shall in all respects be governed by the laws of the State of
California.
D. This Lease, together with its exhibits, contains all the agreements of
the parties hereto and supersedes any previous negotiations.
E. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this
Lease and its exhibits.
F. This Lease may not be modified except by a written instrument by the
parties hereto.
G. If, for any reason whatsoever, any of the provisions hereof shall be
unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
ADDITIONAL PROVISIONS
37. Additional paragraphs 38, 39, Addenda 1, 2, 3, 4, Exhibits A and B, are
attached hereto and made a part hereof.
38. CONTINGENCY
The Lease shall be contingent upon full execution of a Termination
Agreement with the tenant currently in possession of the Premises, Marubeni
International Electronics Corporation ("Marubeni"), within fifteen (15)
days of Tenant's execution of Xxxxx. Landlord shall promptly upon execution
of the Lease endeavor to terminate its lease of the Premises with Marubeni
in a form and substance acceptable to Landlord and to be effective on or
before June 30, 1997. In the event Landlord and Marubeni do not reach an
agreement acceptable to Landlord, this Lease shall be null and void and
neither party shall have any obligation to the other.
39. SURRENDER
Tenant shall, upon expiration or sooner termination of this Lease,
surrender the Premises to Landlord in the same condition as existed on the
date Tenant originally took possession thereof (reasonable wear and tear
and damage due to causes beyond reasonable control of Tenant excepted) with
all interior walls cleaned, all holes in walls repaired, all carpets
shampooed and cleaned, all HVAC equipment in operating order and in good
repair, and all floors cleaned and waxed, all to the reasonable
satisfaction of Landlord. Tenant shall at such time also surrender to
Landlord such alterations as Landlord does not require Tenant to remove.
Tenant, on or before the expiration of sooner termination of this Lease,
shall remove all of its personal property and trade fixtures from the
Premises, and all property not so removed shall be deemed abandoned by
Tenant. Tenant shall be liable to Landlord for costs of removal of any such
abandoned trade fixtures or equipment of Tenant, or of any alterations
Tenant fails to remove if so required by landlord, together with the cost
of returning the Premises to its condition as of the date Tenant originally
took possession thereof, and the transportation and storage costs of such
items. If the Premises are not so surrendered at the expiration or sooner
termination of this Lease, Tenant shall indemnify Landlord against loss or
liability resulting from delay by Xxxxxx in so surrendering the Premises,
including without limitation, any claims made by any succeeding tenant
founded on such delay, losses to Landlord due to lost opportunities to
lease to succeeding tenants, and attorneys' fees and costs. All keys to the
Premises or any part thereof shall be surrendered to Landlord upon
expiration or sooner termination of the Lease term.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
"LANDLORD"
XXXXXXX PROPERTIES, L.P., a California
limited partnership
By: Xxxxxxx Properties, Inc., a Maryland
corporation
Its: General Partner
Date: By:
---------------- ---------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Its: SENIOR VICE PRESIDENT
--------------------------------------
"TENANT"
WIRELESS, INC., a California corporation
Date: MAY 17, 1997 By:/S/ XXXXXXX XXX XXXXXXX XXX
---------------- ---------------------------------------
Its: CFO
--------------------------------------
-10-
EXHIBIT "A"
SITE PLAN, LEGAL DESCRIPTION
REAL PROPERTY SITUATED IN THE CITY OF SANTA XXXXX, COUNTY OF SANTA XXXXX, STATE
OF CALIFORNIA, DESCRIBED AS FOLLOWS:
All of Parcel "A", as shown on that certain Map entitled, "Parcel Map of
Xxxx-Xxxxxxx #19, pt'n Sec. 28, T. 6 S., R. 1W., M.D.B. & M. in the City of
Santa Clara, Calif.", which Map was filed for record in the Office of the
Recorder of the County, of Santa Xxxxx, State of California, on April 16, 1975
in Book 354 of Maps at Page 23.
[Site Plan]
ADDENDA TO LEASE AGREEMENT DATED MAY 12, 1997, BETWEEN XXXXXXX PROPERTIES, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, AND WIRELESS, INC., A CALIFORNIA
CORPORATION, AS TENANT ADDENDUM 1, PARAGRAPH 2, POSSESSION AND LEASE
COMMENCEMENT
The Premises are to be delivered and to be accepted in "as is" condition except
as provided below:
Provided that Tenant has not been in default prior to the thirtieth (30th) month
of the Lease Term, the Landlord shall provide the Tenant with a one-time
reimbursement in an amount up to Sixteen Thousand Dollars ($16,000.00), to cover
the cost of installing new carpet in the Premises. Carpet shall be subject to
Landlord's minimum standards (32 oz. loop minimum). Xxxxxx must request said
reimbursement from Landlord in writing, along with applicable receipts, no
sooner than the thirtieth (30th) month of the Lease and not later than the
thirty-sixth (36th) month of the Lease term.
ADDENDUM 2, PARAGRAPH 6, RENT
Base Rent for the Premises shall be as follows:
PERIOD: BASE RENT:
Months 1- 12: Base Rent shall be $18,560.00 per month. Tenant
shall also pay Tenant's Proportionate Share of
Basic Operating Costs as set forth in Paragraph 7.
Operating expenses for the first year of occupancy
are estimated to be $1,664.00 per month. Basic
Operating Costs are estimated a year in advance and
collected on a monthly basis. Any adjustment
necessary (up or down) will be made at the end of
each operating year.
Months 13 - 24: Base Rent of $18,560.00 shall be adjusted as set
forth in Paragraph 6.A. In addition to Base Rent,
Tenant shall also pay Tenant's Proportionate
Share of Basic Operating Costs as set forth in
Paragraph 7.
Months 25 - 36: Base Rent as calculated for the months 13 - 24
shall be adjusted as set forth in Paragraph 6.A. In
addition to Base Rent, Tenant shall also pay
Tenant's Proportionate Share of Basic Operating
Costs as set forth in Paragraph 7.
Months 37 - 48: Base Rent as calculated for the months 25 - 36
shall be adjusted as set forth in Paragraph 6.A. In
addition to Base Rent, Tenant shall also pay
Tenant's Proportionate Share of Basic Operating
Costs as set forth in Paragraph 7.
Months 49 - 60: Base Rent as calculated for the months 37 - 48
shall be adjusted as set forth in Paragraph 6.A. In
addition to Base Rent, Tenant shall also pay
Tenant's Proportionate Share of Basic Operating
Costs as set forth in Paragraph 7.
6.A. ADJUSTMENT OF BASE RENT
(1) ANNIVERSARY DATE. If the Term Commencement Date is the first day of the
calendar month, then the Anniversary Date shall be that day and month of
the calendar year. If the Term Commencement Date is any day other than the
first day of the calendar month, then the Anniversary Date shall be the
first day of the calendar month next succeeding the Term Commencement Date.
(2) ADJUSTMENT. Commencing with the Anniversary Date of the thirteenth (13th)
month of the Lease Term, and each and every Anniversary Date thereafter,
the Base Rent shall be adjusted by any increase in the Consumer Price Index
(CPI) as determined by the U.S. Bureau of Labor Statistics. All Urban
Consumers, for the Metropolitan Area of San Francisco, Oakland, San Xxxx,
base reference period: 1982-1984 = 100, over the previous twelve (12)
months. Such adjustment will not represent an increase in Base Rent of less
than four percent (4%) or greater than eight percent (8%) in any twelve
(12) month adjustment period. It is recognized by both parties that the CPI
for any month is not published for approximately two (2) months. Tenant
shall, therefore, continue to pay monthly Base Rent at the same amount as
the previous month until such time as the new adjusted Base Rent is
calculated and, at that time, Tenant shall pay the new Base Rent plus any
arrearages.
ADDENDA TO LEASE AGREEMENT DATED MAY 12, 1997, BETWEEN XXXXXXX PROPERTIES, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, AND WIRELESS, INC., A CALIFORNIA
CORPORATION, AS TENANT.
ADDENDUM 3, PARAGRAPH 17, FINANCIAL STATEMENTS
Tenant shall provide financial statements on a quarterly basis within thirty
(30) days of the end of each quarter, for Landlord's review.
ADDENDUM 4, PARAGRAPH 19, SECURITY DEPOSIT
19.A. CASH. Upon Xxxxxx's execution of this Lease Agreement, Tenant shall
provide Landlord with a check from a United States bank payable to
Landlord, in an amount equal to Forty Thousand Dollars ($40,000.00).
19.B. LETTER OF CREDIT. Upon Xxxxxx's execution of this Lease Agreement, Tenant
shall provide Landlord with a Letter of Credit from a United States bank
acceptable to Landlord, naming Landlord as beneficiary in an amount equal
to Eighty Thousand Dollars ($80,000.00) and in the form and substance
satisfactory to Landlord. The Letter of Credit shall be payable at sight
when accompanied by Xxxxxxxx's signed statement that Xxxxxx has failed to
pay any rents or other amount due under the Lease and evidence of notice
from Landlord to Tenant per the terms of this Lease.
19.C. SECURITY DEPOSIT. Although security deposit is the property of Landlord,
provided that Tenant is not then in default under the Lease, Landlord
shall return the Security Deposit to Tenant within sixty (60) days of the
expiration or earlier termination of the Lease.
