Exhibit 10.1
LEASE AGREEMENT
This Lease, dated for reference purposes as of May 11, 1998, is made by and
between SOUTH BAY/XXXXXX JOINT VENTURE, a California general partnership,
("Landlord"), and PSW TECHNOLOGIES, INC., a Delaware corporation, ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
upon the terms and conditions hereinafter set forth, those certain premises (the
"Premises") situated in the City of Mountain View, County of Santa Xxxxx, State
of California, described as follows: approximately ten thousand six hundred
seventy (10,670) square feet of rentable floor space commonly known 0000 Xxxxx
Xxxxxx, located in the building (the "Building"), as shown cross-hatched on the
site plan (the "Site Plan") attached hereto as Exhibit "A". The Building is
located on a larger parcel (the "Parcel") containing other buildings as shown on
the Site Plan (the Building and such other buildings are hereinafter referred to
as the "Buildings"), which Parcel is described in Exhibit "B" attached hereto.
In the event Landlord subdivides the Parcel in the future into two (2) or more
legal parcels, the term "Parcel" shall thereafter refer to the legal parcel on
which the Premises are located. Except as specifically provided in Exhibit "C"
attached hereto, Landlord shall not be required to make any alterations,
additions or improvements to the Premises and the Premises shall be leased to
Tenant in an "as-is" condition.
The term of this Lease ("Lease Term") shall be for five (5) years,
commencing on June 1, 1998 (the "Commencement Date") and ending on May 31, 2003
unless sooner terminated pursuant to any provision hereof. Notwithstanding said
scheduled Commencement Date, if for any reason Landlord cannot deliver
possession of the Premises to Tenant on said date, Landlord shall not be subject
to any liability therefor, nor shall such failure affect the validity of this
Lease or the obligations of Tenant hereunder, but in such case Tenant shall not
be obligated to pay rent until possession of the Premises is tendered to Tenant
and the commencement and termination dates of this Lease shall be revised to
conform to the date of Landlord's delivery of possession. In the event Landlord
shall permit Tenant to occupy the Premises prior to the Commencement Date, such
occupancy shall be subject to all the provisions of this Lease, including the
obligation to pay the Monthly Installment of rent, and Common Area Charges.
Rent
Tenant shall pay to Landlord as rent for the Premises the sum specified in
Subparagraph 4.B below (the "Monthly Installment") each month in advance on the
first day of each calendar month, without deduction or offset, prior notice or
demand, commencing on the Commencement Date and continuing through the term of
this Lease, together with such additional rents as are payable by Tenant to
Landlord under the terms of this Lease. The Monthly Installment for any period
during the Lease Term which period is less than one (1) full month shall be a
pro rata portion of the Monthly Installment based upon a thirty (30) day month.
The Monthly Installment of rent payable each month during the Lease Term
shall be the following respective amounts during the following respective time
periods:
TIME PERIOD MONTHLY INSTALLMENT
6/1/98 thru 5/31/99 $24,008.00
6/1/99 thru 5/31/00 25,208.00
6/1/00 thru 5/31/01 26,468.00
6/1/01 thru 5/31/02 27,792.00
6/1/02 thru 5/31/03 29,181.00
Tenant acknowledges that late payment by Tenant to Landlord of rent and
other sums due hereunder will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Landlord by the terms of any mortgage
or deed of trust covering the Premises. Accordingly, if any installment of rent
or any other sum due from Tenant shall not be received by Landlord within ten
(10) days after such amount shall be due, Tenant shall pay to Landlord, as
additional rent, a late charge equal to six percent (6%) of such overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of its other rights and remedies granted hereunder.
All taxes, insurance premiums, Common Area Charges, late charges, costs and
expenses which Tenant is required to pay hereunder, together with all interest
and penalties that may accrue thereon in the event of Tenant's failure to pay
such amounts, and all reasonable damages, costs, and attorneys' fees and
expenses which Landlord may incur by reason of any default of Tenant or failure
on Tenant's part to comply with the terms of this Lease, shall be deemed to be
additional rent ("Additional Rent") and shall be paid in addition to the Monthly
Installment of rent, and, in the event of nonpayment by Tenant, Landlord shall
have all of the rights and remedies with respect thereto as Landlord has for the
nonpayment of the Monthly Installment of rent.
Rent shall be payable in lawful money of the United States of America to
Landlord at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 or to such other
person(s) or at such other place(s) as Landlord may designate in writing.
Concurrently with the execution of this Lease, Tenant shall pay to Landlord
the sum of Twenty-Four Thousand Eight Dollars ($24,008.00) to be applied to the
Monthly Installment of rent first accruing under this Lease.
Tenant shall deposit the sum of Twenty-Nine Thousand, One Hundred
Eighty-One Dollars ($29,181.00) (the "Security Deposit") upon execution of this
Lease, to secure the faithful performance by Tenant of each term, covenant and
condition of this Lease. If Tenant shall at any time fail to make any payment or
fail to keep or perform any term, covenant or condition on its part to be made
or performed or kept under this Lease, Landlord may, but shall not be obligated
to and without waiving or releasing Tenant from any obligation under this Lease,
use, apply or retain the whole or any part of the Security Deposit (A) to the
extent of any sum due to Landlord; (B) to make any required payment on Tenant's
behalf; or (C) to compensate Landlord for any loss, damages, attorneys' fees or
expense sustained by Landlord due to Tenant's default. In such event, Tenant
shall, within five (5) days of written demand by Landlord, remit to Landlord
sufficient funds to restore the Security Deposit to its original sum. No
interest shall accrue on the Security Deposit. Landlord shall not be required to
keep the Security Deposit separate from its general funds. Should Tenant comply
with all the terms, covenants, and conditions of this Lease and at the end of
the term of this Lease leave the Premises in the condition required by this
Lease, then said Security Deposit, less any sums owing to Landlord or which
Landlord is otherwise entitled to retain, shall be returned to Tenant within
thirty (30) days after the termination of this Lease and vacancy of the Premises
by Tenant.
Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of general
office and for no other purpose. Tenant shall indemnify, protect, defend, 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. Tenant shall not commit or suffer to be committed, any waste upon the
Premises, or any nuisance, or other acts or things which may disturb the quiet
enjoyment of any other tenant in the buildings adjacent to the Premises, or
allow any sale by auction upon the Premises, or allow the Premises to be used
for any unlawful purpose, or place any loads upon the floor, walls or ceiling
which endanger the structure, or place any harmful liquids in the drainage
system of the Building. No waste materials or refuse shall be dumped upon or
permitted to remain upon any part of the Parcel outside of the Building, except
in trash containers placed inside exterior enclosures designated for that
purpose by Landlord. No materials, supplies, equipment, finished products or
semifinished products, raw materials or articles of any nature shall be stored
upon or permitted to remain on any portion of the Parcel outside of the
Building. Tenant shall strictly comply with the provisions of Paragraph 39
below.
Taxes and Assessments
Tenant shall pay before delinquency any and all taxes and assessments,
license fees and public charges levied, assessed or imposed upon or against
Tenant's fixtures, equipment, furnishings, furniture, appliances and personal
property installed or located on or within the Premises. Tenant shall cause said
fixtures, equipment, furnishings, furniture, appliances and personal property to
be assessed and billed separately from the real property of Landlord. If any of
Tenant's said personal property shall be assessed with Landlord's real property,
Tenant shall pay Landlord the taxes attributable to Tenant within ten (10) days
after receipt of a written statement from Landlord setting forth the taxes
applicable to Tenant's property.
Tenant shall pay, as Additional Rent, Tenant's Pro Rata Share (as defined
below) of all Property Taxes levied or assessed with respect to the land
comprising the Parcel and with respect to all buildings and improvements located
on the Parcel which become due or accrue during the term of this Lease. Tenant
shall pay such Property Taxes to Landlord on or before the later of the
following dates: (1) ten (10) days prior to the delinquency date; or (2) twenty
(20) days after receipt of billing. If Tenant fails to do so, Tenant shall
reimburse Landlord, on demand, for all interest, late fees and penalties that
the taxing authority charges Landlord. In the event Landlord's mortgagee
requires an impound for Property Taxes, then on the first day of each month
during the Lease Term, Tenant shall pay Landlord one twelfth (1/12) of its
annual share of such Property Taxes. Tenant's liability hereunder shall be
prorated to reflect the Commencement and termination dates of this Lease.
For the purpose of this Lease, "Property Taxes" means and includes all
taxes, assessments (including, but not limited to, assessments for public
improvements or benefits), taxes based on vehicles utilizing parking areas,
taxes based or measured by the rent paid, payable or received under this Lease,
taxes on the value, use, or occupancy of the Premises, the Buildings and/or the
Parcel, Environmental Surcharges, and all other governmental impositions and
charges of every kind and nature whatsoever, whether or not customary or within
the contemplation of the parties hereto and regardless of whether the same shall
be extraordinary or ordinary, general or special, unforeseen or foreseen, or
similar or dissimilar to any of the foregoing which, at any time during the
Lease Term, shall be applicable to the Premises, the Buildings and/or the Parcel
or assessed, levied or imposed upon the Premises, the Buildings and/or the
Parcel, or become due and payable and a lien or charge upon the Premises, the
Buildings and/or the Parcel, or any part thereof, under or by virtue of any
present or future laws, statutes, ordinances, regulations or other requirements
of any governmental authority whatsoever. The term "Environmental Surcharges"
shall mean and include any and all expenses, taxes, charges or penalties imposed
by the Federal Department of Energy, the Federal Environmental Protection
Agency, the Federal Clean Air Act, or any regulations promulgated thereunder or
any other local, state or federal governmental agency or entity now or hereafter
vested with the power to impose taxes, assessments, or other types of surcharges
as a means of controlling or abating environmental pollution or the use of
energy. The term "Property Taxes" shall not include any federal, state or local
net income, estate, or inheritance tax imposed on Landlord.
Tenant shall, as Additional Rent, pay or reimburse Landlord for any tax
based upon, allocable to, or measured by the area of the Premises or the
Buildings or the Parcel; or by the rent paid, payable or received under this
Lease; any tax upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy of the Premises or
any portion thereof; any privilege tax, excise tax, business and occupation tax,
gross receipts tax, sales and/or use tax, water tax, sewer tax, employee tax,
occupational license tax imposed upon Landlord or Tenant with respect to the
Premises; any tax upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises.
Insurance
Tenant agrees to indemnify, protect and defend Landlord against and hold
Landlord harmless from any and all claims, causes of action, judgments,
obligations or liabilities, and all reasonable expenses incurred in
investigating or resisting the same (including reasonable attorneys' fees), on
account of, or arising out of, the operation, maintenance, use or occupancy of
the Premises and the Parcel and all areas appurtenant thereto. This Lease is
made on the express understanding that Landlord shall not be liable for, nor
suffer loss by reason of, injury to person or property, from whatever cause
(except for the active negligence or willful misconduct of Landlord), which in
any way may be connected with the operation, use or occupancy of the Premises
specifically including, without limitation, any liability for injury to the
person or property of Tenant, its agents, officers, employees, licensees and
invitees.
Tenant shall, at Tenant's expense, obtain and keep in force during the term
of this Lease a policy of comprehensive public liability insurance insuring
Landlord and Tenant against claims and liabilities arising out of the operation,
use, or occupancy of the Premises and all areas appurtenant thereto, including
parking areas. Such insurance shall be in an amount of not less than Three
Million Dollars ($3,000,000.00) for bodily injury or death as a result of any
one occurrence and Five Hundred Thousand Dollars ($500,000.00) for damage to
property as a result of any one occurrence. The insurance shall be with
companies approved by Landlord, which approval Landlord agrees not to withhold
unreasonably. Tenant shall deliver to Landlord, prior to possession, and at
least thirty (30) days prior to the expiration thereof, a certificate of
insurance evidencing the existence of the policy required hereunder and such
certificate shall certify that the policy (1) names Landlord as an additional
insured, (2) shall not be canceled or altered without thirty (30) days prior
written notice to Landlord, (3) insures performance of the indemnity set forth
in Subparagraph 8.A above, (4) the coverage is primary and any coverage by
Landlord is in excess thereto and (5) contains a cross-liability endorsement.
Landlord may maintain a policy or policies of comprehensive general
liability insurance insuring Landlord (and such others as are designated by
Landlord), against liability for personal injury, bodily injury, death and
damage to property occurring or resulting from an occurrence in, on or about the
Premises or the Common Area, with such limits of coverage as Landlord may from
time to time determine are reasonably necessary for its protection. The cost of
any such liability insurance maintained by Landlord shall be a Common Area
Charge and Tenant shall pay, as Additional Rent, Tenant's Pro Rata Share of such
cost to Landlord as provided in Paragraph 12 below.
Landlord shall obtain and keep in force during the term of this Lease a
policy or policies of insurance covering loss or damage to the Premises and the
Buildings, in the amount of the full replacement value thereof, providing
protection against those perils included within the classification of "all risk"
insurance, plus a policy of rental income insurance in the amount of one hundred
percent (100%) of twelve (12) months rent (including, without limitation, sums
payable as Additional Rent), plus, at Landlord's option, flood insurance and
earthquake insurance, and any other coverages which Landlord may from time to
time elect to maintain or which may be required from time to time by Landlord's
mortgagee. Tenant shall have no interest in nor any right to the proceeds of any
insurance procured by Landlord on the Premises. Tenant shall, within twenty (20)
days after receipt of billing, pay to Landlord as Additional Rent, Tenant's Pro
Rata Share of such insurance procured and maintained by Landlord. Tenant
acknowledges that such insurance procured by Landlord shall contain a deductible
which reduces Tenant's cost for such insurance and, in the event of loss or
damage, Tenant shall be required to pay to Landlord Tenant's Pro Rata Share of
the amount of such deductible.
Tenant acknowledges that the insurance to be maintained by Landlord on the
Premises pursuant to Subparagraph 8.C above will not insure any of Tenant's
property. Accordingly, Tenant, at Tenant's own expense, shall maintain in full
force and effect on all of its fixtures, equipment, leasehold improvements and
personal property in the Premises, a policy of "All Risk" coverage insurance to
the extent of at least ninety percent (90%) of their insurable value. Tenant
hereby releases Landlord, and its partners, officers, agents, employees, and
servants, from any and all claims, demands, losses, expenses or injuries to the
Premises or to the furnishings, fixtures, equipment, inventory or other personal
property of Tenant in, about, or upon the Premises, which are caused by perils,
events or happenings where the same are covered by the insurance required by
this Lease or which are the subject of insurance carried by Tenant and in force
at the time of such loss.
Tenant and Landlord hereby mutually waive their respective rights for
recovery against each other for any loss of or damage to the property of either
party, to the extent such loss or damage is insured by any insurance policy
required to be maintained by this Lease or otherwise in force at the time of
such loss or damage. Each party shall obtain any special endorsements, if
required by the insurer, whereby the insurer waives its right of subrogation
against the other party hereto. The provisions of this Subparagraph E shall not
apply in those instances in which waiver of subrogation would cause either
party's insurance coverage to be voided or otherwise made uncollectible.
Tenant shall pay for all water, gas, light, heat, power, electricity,
telephone, trash pick-up, sewer charges, and all other services supplied to or
consumed on the Premises, and all taxes and surcharges thereon. In addition, the
cost of any utility services supplied to the Common Area or not separately
metered to the Premises shall be a Common Area Charge and Tenant shall pay
Tenant's Pro Rata Share of such costs to Landlord as provided in Paragraph 12
below.
Repairs and Maintenance
Subject to the provisions of Xxxxxxxxx 00, Xxxxxxxx shall keep and maintain
the structural elements, exterior roof and exterior walls of the Building in
good order and repair. Landlord shall not, however, be required to maintain,
repair or replace the interior surface of exterior walls, nor shall Landlord be
required to maintain, repair or replace the windows, doors or plate glass.
Landlord shall have no obligation to make repairs under this Subparagraph until
a reasonable time after receipt of written notice from Tenant of the need for
such repairs. Tenant shall reimburse Landlord, as Additional Rent, within
fifteen (15) days after receipt of billing, for the cost of such repairs and
maintenance which are the obligation of Landlord hereunder (including the cost
of repairs and maintenance of the roofing, roof membrane, skylights, gutters and
down spouts), provided however, that Tenant shall not be required to reimburse
Landlord for the cost of maintenance and repairs of the structural elements of
the Building unless such maintenance or repair is required because of the
negligence or willful misconduct of Tenant or its employees, agents, or
invitees. As used herein, the term "structural elements of the Building" shall
mean and be limited to the foundation, footings, floor slab (but not flooring),
structural walls, and roof structure (but not roofing or roof membrane).
Except as expressly provided in Subparagraph 10.A above, Tenant shall, at
its sole cost, keep and maintain the entire Premises and every part thereof,
including without limitation, the windows, window frames, plate glass, glazing,
skylights, truck doors, doors and all door hardware, the walls and partitions,
and the electrical, plumbing, lighting, heating, ventilating and air
conditioning systems and equipment in good order, condition and repair. The term
"repair" shall include replacements, restorations and/or renewals when necessary
as well as painting. Tenant's obligation shall extend to all alterations,
additions and improvements to the Premises, and all fixtures and appurtenances
therein and thereto. Tenant shall, at all times during the Lease Term, have in
effect a service contract for the maintenance of the heating, ventilating and
air conditioning ("HVAC") equipment with an HVAC repair and maintenance
contractor approved by Landlord. The HVAC service contract shall provide for
periodic inspection and servicing at least once every three (3) months during
the term hereof, and Tenant shall provide Landlord with a copy of such contract
and all periodic service reports.
Should Tenant fail to make repairs required of Tenant hereunder forthwith
upon five (5) days notice from Landlord or should Tenant fail thereafter to
diligently complete the repairs, Landlord, in addition to all other remedies
available hereunder or by law and without waiving any alternative remedies, may
make the same, and in that event, Tenant shall reimburse Landlord as Additional
Rent for the cost of such maintenance or repairs within five (5) days of written
demand by Landlord.
Landlord shall have no maintenance or repair obligations whatsoever with
respect to the Premises except as expressly provided in Subparagraph 10.A and
Paragraph 11 and 16. Tenant hereby expressly waives the provisions of Subsection
1 of Section 1932 and Sections 1941 and 1942 of the Civil Code of California and
all rights to make repairs at the expense of Landlord as provided in Section
1942 of said Civil Code. There shall be no allowance to Tenant for diminution of
rental value, and no liability on the part of Landlord, by reason of
inconvenience, annoyance or injury to business arising from the making of, or
the failure to make, any repairs, alterations, decorations, additions or
improvements in or to any portion of the Premises or the Building or Common Area
(or any of the areas used in connection with the operation thereof, or in or to
any fixtures, appurtenances or equipment), or by reason of the negligence of
Tenant or any other tenant or occupant of the Parcel. In no event shall Landlord
be responsible for any consequential damages arising or alleged to have arisen
from any of the foregoing matters. Tenant hereby agrees that Landlord shall not
be liable for injury to Tenant's business or any loss of income therefrom or for
damage to the goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers, or any other person in or about the Premises,
the Building, or the Common Area, nor, except in the case of Landlord's gross
negligence or wilful misconduct, shall Landlord be liable for injury to the
person of Tenant, Tenant's employees, agents or contractors whether such damage
or injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether the said damage or injury results from
conditions arising upon the Premises or upon other portions of the Building, or
from other sources or places and regardless of whether the cause of such damage
or injury or the means of repairing the same is inaccessible to Tenant. Landlord
shall not be liable for any damages arising from any act or neglect of any other
tenant, if any, of the Building or the Parcel.
Subject to the terms and conditions of this Lease and such rules and
regulations as Landlord may from time to time prescribe, Tenant and Tenant's
employees, invitees and customers shall, in common with other occupants of the
Parcel, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the access
roads, parking areas and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Parcel, which areas and
facilities are referred to herein as "Common Area." This right shall terminate
upon the termination of this Lease. Landlord reserves the right from time to
time to make changes in the shape, size, location, amount and extent of the
Common Area. Landlord further reserves the right to promulgate such reasonable
rules and regulations relating to the use of the Common Area, and any part or
parts thereof, as Landlord may deem appropriate for the best interest of the
occupants of the Parcel. The rules and regulations shall be binding upon Tenant
upon delivery of a copy of them to Tenant, and Tenant shall abide by them and
cooperate in their observance. Such rules and regulations may be amended by
Landlord from time to time, with or without advance notice, and all amendments
shall be effective upon delivery of a copy of them to Tenant. Tenant shall have
the non-exclusive use of no more than forty (40) of the parking spaces in the
Common Area as designated from time to time by Landlord. Tenant shall not at any
time park or permit the parking of Tenant's trucks or other vehicles, or the
trucks or other vehicles of others, adjacent to loading areas so as to interfere
in any way with the use of such areas, nor shall Tenant at any time park or
permit the parking of Tenant's vehicles or trucks, or the vehicles or trucks of
Tenant's suppliers or others, in any portion of the Common Area not designated
by Landlord for such use by Tenant. Tenant shall not abandon any inoperative
vehicles or equipment on any portion of the Common Area. Tenant shall make no
alterations, improvements or additions to the Common Area.
Landlord shall operate, manage, insure, maintain and repair the Common Area
in good order, condition and repair similar to the manner the Common Area is
currently being maintained. The manner in which the Common Area shall be
maintained and the expenditures for such maintenance shall be at the discretion
of Landlord. The cost of such repair, maintenance, operation, insurance and
management, including without limitation, maintenance and repair of landscaping,
irrigation systems, paving, sidewalks, fences, and lighting, shall be a Common
Area Charge and Tenant shall pay to Landlord Tenant's Pro Rata Share of such
costs as provided in Paragraph 12 below.
Tenant shall pay to Landlord, as Additional Rent, upon demand but not more
often than once each calendar month, an amount equal to Tenant's Pro Rata Share
of the Common Area Charges as defined in Subparagraph 8.B and Paragraphs 9, 11,
13 and 36 of this Lease. Tenant acknowledges and agrees that the Common Area
Charges shall include an additional five percent (5%) of the actual expenditures
in order to compensate Landlord for accounting, management and processing
services.
Tenant shall not make, or suffer to be made, any alterations, improvements
or additions in, on, about or to the Premises or any part thereof, without the
prior written consent of Landlord and without a valid building permit issued by
the appropriate governmental authority. As a condition to giving such consent,
Landlord may require that Tenant agree to remove any such alterations,
improvements or additions at the termination of this Lease, and to restore the
Premises to their prior condition. Unless Landlord requires that Tenant remove
any such alteration, improvement or addition, any alteration, addition or
improvement to the Premises, except movable furniture and trade fixtures not
affixed to the Premises, shall become the property of Landlord upon termination
of the Lease and shall remain upon and be surrendered with the Premises at the
termination of this Lease. Without limiting the generality of the foregoing, all
heating, lighting, electrical (including all wiring, conduit, outlets, drops,
xxxx ducts, main and subpanels), air conditioning, partitioning, drapery, and
carpet installations made by Tenant regardless of how affixed to the Premises,
together with all other additions, alterations and improvements that have become
an integral part of the Building, shall be and become the property of the
Landlord upon termination of the Lease, and shall not be deemed trade fixtures,
and shall remain upon and be surrendered with the Premises at the termination of
this Lease.
If, during the Term hereof, any alteration, addition or change of any sort
to all or any portion of the Premises is required by law, regulation, ordinance
or order of any public agency, Tenant shall promptly make the same at its sole
cost and expense. If during the Lease Term, any alteration, addition, or change
to the Common Area is required by law, regulation, ordinance or order of any
public agency, Landlord shall make the same and the cost of such alteration,
addition or change shall be a Common Area Charge and Tenant shall pay Tenant's
Pro Rata Share of said cost to Landlord as provided in Paragraph 12 above.
By entry and taking possession of the Premises pursuant to this Lease,
Tenant accepts the Premises as being in good and sanitary order, condition and
repair and accepts the Premises in their condition existing as of the date of
such entry, and Tenant further accepts the tenant improvements to be constructed
by Landlord, if any, as being completed in accordance with the plans and
specifications for such improvements, except for punch list items. Tenant
acknowledges that neither Landlord nor Landlord's agents has made any
representation or warranty as to the suitability of the Premises to the conduct
of Tenant's business. Any agreements, warranties or representations not
expressly contained herein shall in no way bind either Landlord or Tenant, and
Landlord and Tenant expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any, not contained
in this Lease. This Lease constitutes the entire understanding between the
parties hereto and no addition to, or modification of, any term or provision of
this Lease shall be effective until set forth in a writing signed by both
Landlord and Tenant.
Default
A breach of this Lease by Tenant shall exist if any of the following events
(hereinafter referred to as "Event of Default") shall occur:
(1) Default in the payment when due of any installment of rent or other
payment required to be made by Tenant hereunder, where such default shall not
have been cured within three (3) days after written notice of such default is
given to Tenant. If Landlord serves Tenant with a Notice to Pay or Quit pursuant
to the applicable unlawful detainer statutes, such Notice to Pay or Quit shall
also constitute the written notice required by this clause;
(2) Tenant's breach or violation of any of the provisions of Paragraph 25
below;
(3) Tenant's breach or violation of any of the provisions of Paragraph 39
below;
(4) Tenant's failure to perform any other term, covenant or condition
contained in this Lease where such failure shall have continued for ten (10)
days after written notice of such failure is given to Tenant;
(5) Tenant's vacating or abandonment of the Premises;
(6) Tenant's assignment of its assets for the benefit of its creditors;
(7) The sequestration of, attachment of, or execution on, any substantial
part of the property of Tenant or on any property essential to the conduct of
Tenant's business, shall have occurred and Tenant shall have failed to obtain a
return or release of such property within thirty (30) days thereafter, or prior
to sale pursuant to such sequestration, attachment or levy, whichever is
earlier;
(8) Tenant or any guarantor of Tenant's obligations hereunder shall
commence 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, or seek appointment of a receiver, trustee, custodian, or other
similar official for it or for all or any substantial part of its property;
(9) Tenant or any such guarantor shall take any corporate action to
authorize any of the actions set forth in Clause 8 above; or
(10) Any case, proceeding or other action against Tenant or any guarantor
of Tenant's obligations hereunder shall be commenced seeking to have an order
for relief entered against it as debtor, or 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, 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 (i) results in the entry of an order for relief
against it which is not fully stayed within seven (7) business days after the
entry thereof or (ii) remains undismissed for a period of forty-five (45) days.
Upon any 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:
(1) 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
Permitted Rate (as defined in Paragraph 33 below) from the due date of each
installment of rent or other sum until paid.
(2) 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 and the Building and Parcel shall terminate. Upon the giving of the
notice of termination, Tenant shall surrender and vacate the Premises in the
condition required by Paragraph 34, and Landlord may re-enter and take
possession of the Premises and all the remaining improvements or property 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 paragraph 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
assignment 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.
(3) Damages. In the event this Lease is terminated pursuant to Subparagraph
15.B.2 above, or otherwise, 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 exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided; and
(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, without limitation, the following: (i) expenses for
cleaning, repairing or restoring the Premises; (ii) expenses for altering,
remodeling or otherwise improving the Premises for the purpose of reletting,
including installation of leasehold improvements (whether such installation be
funded by a reduction of rent, direct payment or allowance to the succeeding
lessee, or otherwise); (iii) real estate broker's fees, advertising costs and
other expenses of reletting the Premises; (iv) costs of carrying the Premises
such as taxes and insurance premiums thereon, utilities and security
precautions; (v)expenses in retaking possession of the Premises; (vi)
attorneys' fees and court costs; and (vii) any unamortized real estate brokerage
commission paid in connection with this Lease.
(e) The "worth at the time of award" of the amounts referred to in
Subparagraphs (a) and (b) of this Paragraph 15.B(3) is computed by allowing
interest at the Permitted Rate. The "worth at the time of award" of the amounts
referred to in Subparagraph (c) of this Paragraph 15.B(3) is computed by
discounting such amount at the discount rate of the Federal Reserve Board of San
Francisco at the time of award plus one percent (1%). The term "rent" as used in
this Paragraph 15 shall include all sums required to be paid by Tenant to
Landlord pursuant to the terms of this Lease.
In the event that any portion of the Premises are destroyed or damaged by
an uninsured peril, Landlord or Tenant may, upon written notice to the other,
given within thirty (30) days after the occurrence of such damage or
destruction, elect to terminate this Lease; provided, however, that either party
may, within thirty (30) days after receipt of such notice, elect to make any
required repairs and/or restoration at such party's sole cost and expense, in
which event this Lease shall remain in full force and effect, and the party
having made such election to restore or repair shall thereafter diligently
proceed with such repairs and/or restoration.
In the event the Premises are damaged or destroyed from any insured peril
to the extent of fifty percent (50%) or more of the then replacement cost of the
Premises, Landlord may, upon written notice to Tenant, given within thirty (30)
days after the occurrence of such damage or destruction, elect to terminate this
Lease. If Landlord does not give such notice in writing within such period,
Landlord shall be deemed to have elected to rebuild or restore the Premises, in
which event Landlord shall, at its expense, promptly rebuild or restore the
Premises to their condition prior to the damage or destruction and Tenant shall
pay to Landlord upon commencement of reconstruction the amount of any deductible
from the insurance policy.
In the event the Premises are damaged or destroyed from any insured peril
to the extent of less than fifty percent (50%) of the then replacement cost of
the Premises, Landlord shall, at Landlord's expense, promptly rebuild or restore
the Premises to their condition prior to the damage or destruction and Tenant
shall pay to Landlord upon commencement of reconstruction the amount of any
deductible from the insurance policy.
In the event that, pursuant to the foregoing provisions, Landlord is to
rebuild or restore the Premises, Landlord shall, within thirty (30) days after
the occurrence of such damage or destruction, provide Tenant with written notice
of the time required for such repair or restoration. If such period is longer
than two hundred seventy (270) days from the issuance of a building permit,
Tenant may, within thirty (30) days after receipt of Landlord's notice, elect to
terminate the Lease by giving written notice to Landlord of such election,
whereupon the Lease shall immediately terminate. The period of time for Landlord
to complete the repair or restoration shall 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, acts of contractors or
subcontractors, or delay of contractors or subcontractors due to such causes, or
other contingencies beyond the control of Landlord. Landlord's obligation to
repair or restore the Premises shall not include restoration of Tenant's trade
fixtures, equipment, merchandise, or any improvements, alterations or additions
made by Tenant to the Premises.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect; provided, however, that during any
period of repairs or restoration, rent and all other amounts to be paid by
Tenant on account of the Premises and this Lease shall be abated in proportion
to the area of the Premises rendered not reasonably suitable for the conduct of
Tenant's business thereon. Tenant hereby expressly waives the provisions of
Section 1932, Subdivision 2 and Section 1933, Subdivision 4 of the California
Civil Code.
Condemnation
For the purposes of this Lease, the term (1) "Taking" means a taking of the
Premises or damage to the Premises related to the exercise of the power of
eminent domain and includes a voluntary conveyance, in lieu of court
proceedings, to any agency, authority, public utility, person or corporate
entity empowered to condemn property; (2) "Total Taking" means the taking of the
entire Premises or so much of the Premises as to prevent or substantially impair
the use thereof by Tenant for the uses herein specified; provided, however, in
no event shall a Taking of less than ten percent (10%) of the Premises be deemed
a Total Taking; (3) "Partial Taking" means the taking of only a portion of the
Premises which does not constitute a Total Taking; (4) "Date of Taking" means
the date upon which the title to the Premises, or a portion thereof, passes to
and vests in the condemnor or the effective date of any order for possession if
issued prior to the date title vests in the condemnor; and (5) "Award" means the
amount of any award made, consideration paid, or damages ordered as a result of
a Taking.
The parties agree that in the event of a Taking all rights between them or
in and to an Award shall be as set forth herein and Tenant shall have no right
to any Award except as set forth herein.
In the event of a Total Taking during the term hereof (1) the rights of
Tenant under the Lease and the leasehold estate of Tenant in and to the Premises
shall cease and terminate as of the Date of Taking; (2) Landlord shall refund to
Tenant any prepaid rent; (3) Tenant shall pay Landlord any rent or charges due
Landlord under the Lease, each prorated as of the Date of Taking; (4) Tenant
shall receive from Landlord those portions of the Award attributable to trade
fixtures of Tenant and for moving expenses of Tenant; and (5) the remainder of
the Award shall be paid to and be the property of Landlord.
In the event of a Partial Taking during the term hereof (1) the rights of
Tenant under the Lease and the leasehold estate of Tenant in and to the portion
of the Premises taken shall cease and terminate as of the Date of Taking; (2)
from and after the Date of Taking the Monthly Installment of rent shall be an
amount equal to the product obtained by multiplying the Monthly Installment of
rent immediately prior to the Taking by a fraction, the numerator of which is
the number of square feet contained in the Premises after the Taking and the
denominator of which is the number of square feet contained in the Premises
prior to the Taking; (3) Tenant shall receive from the Award the portions of the
Award attributable to trade fixtures of Tenant; and (4) the remainder of the
Award shall be paid to and be the property of Landlord.
Tenant shall (A) pay for all labor and services performed for, materials
used by or furnished to, Tenant or any contractor employed by Tenant with
respect to the Premises; (B) indemnify, defend, protect and hold Landlord and
the Premises harmless and free from any liens, claims, liabilities, demands,
encumbrances, or judgments created or suffered by reason of any labor or
services performed for, materials used by or furnished to, Tenant or any
contractor employed by Tenant with respect to the Premises; (C) give notice to
Landlord in writing five (5) days prior to employing any laborer or contractor
to perform services related to, or receiving materials for use upon the
Premises; and (D) permit Landlord to post a notice of nonresponsibility in
accordance with the statutory requirements of California Civil Code Section 3094
or any amendment thereof. In the event Tenant is required to post an improvement
bond with a public agency in connection with the above, Tenant agrees to include
Landlord as an additional obligee.
Tenant shall permit Landlord and its agents to enter the Premises at any
reasonable time for the purpose of inspecting the same, performing Landlord's
maintenance and repair responsibilities, posting a notice of non-responsibility
for alterations, additions or repairs and at any time within one hundred eighty
(180) days prior to expiration of this Lease, to place upon the Premises,
ordinary "For Lease" or "For Sale" signs.
Tenant shall, at its own cost, comply with all of the requirements of all
municipal, county, state and federal authorities now in force, or which may
hereafter be in force, pertaining to the use and occupancy of the Premises, and
shall faithfully observe all municipal, county, state and federal law, statutes
or ordinances now in force or which may hereafter be in force. The judgment of
any court of competent jurisdiction or the admission of Tenant in any action or
proceeding against Tenant, whether Landlord be a party thereto or not, that
Tenant has violated any such ordinance or statute in the use and occupancy of
the Premises shall be conclusive of the fact that such violation by Tenant has
occurred.
The following provisions shall govern the relationship of this Lease to any
underlying lease, mortgage or deed of trust which now or hereafter affects the
Premises, the Building and/or the Parcel, or Landlord's interest or estate
therein (the "Project") and any renewal, modification, consolidation,
replacement, or extension thereof (a "Security Instrument").
This Lease is subject and subordinate to all Security Instruments existing
as of the Commencement Date. However, if any Lender so requires, this Lease
shall become prior and superior to any such Security Instrument.
At Landlord's election, this Lease shall become subject and subordinate to
any Security Instrument created after the Commencement Date. Notwithstanding
such subordination, Tenant's right to quiet possession of the Premises shall not
be disturbed so long as Tenant is not in default and performs all of its
obligations under this Lease, unless this Lease is otherwise terminated pursuant
to its terms.
Tenant shall execute any reasonable document or instrument required by
Landlord or any Lender to make this Lease either prior or subordinate to a
Security Instrument, which may include such other matters as the Lender
customarily requires in connection with such agreements, including provisions
that the Lender, if it succeeds to the interest of Landlord under this Lease,
shall not be (i) liable for any act or omission of any prior landlord (including
Landlord), (ii) subject to any offsets or defenses which Tenant may have against
any prior landlord (including Landlord), (iii) bound by any rent or Additional
Rent paid more than one (1) month in advance of its date due under this Lease
unless the Lender receives it from Landlord, (iv) liable for any defaults on the
part of Landlord occurring prior to the time that the Lender takes possession of
the Premises in connection with the enforcement of its Security Instrument, (v)
liable for the return of any Security Deposit unless such deposit has been
delivered to Lender, or (vi) bound by any agreement or modification of the Lease
made without the prior written consent of Lender. Tenant's failure to execute
any such document or instrument with ten (10) days after written demand therefor
shall constitute a default by Tenant.
Tenant shall attorn (1) to any purchaser of the Premises at any foreclosure
sale or private sale conducted pursuant to any Security Instrument encumbering
the Project; (2) to any grantee or transferee designated in any deed given in
lieu of foreclosure; or (3) to the lessor under any underlying ground lease
should such ground lease be terminated.
As used in this Lease, the term "Lender" shall mean (1) any beneficiary,
mortgagee, secured party, or other holder of any deed of trust, mortgage, or
other written security device or agreement affecting the Project; and (2) any
lessor under any underlying lease under which Landlord holds its interest in the
Project.
This Lease shall terminate without further notice at the expiration of the
Lease Term. Any holding over by Tenant after expiration shall not constitute a
renewal or extension or give Tenant any rights in or to the Premises except as
expressly provided in this Lease. Any holding over after the expiration with the
consent of Landlord shall be construed to be a tenancy from month to month, at
one hundred fifty percent (150%) of the monthly rent for the last month of the
Lease Term, and shall otherwise be on the terms and conditions herein specified
insofar as applicable.
Any notice required or desired to be given under this Lease shall be in
writing with copies directed as indicated below and shall be personally served
or given by mail. Any notice given by mail shall be deemed to have been given
when forty-eight (48) hours have elapsed from the time such notice was deposited
in the United States mails, certified and postage prepaid, addressed to the
party to be served with a copy as indicated herein at the last address given by
that party to the other party under the provisions of this Paragraph 23. At the
date of execution of this Lease, the address of Landlord is:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
and the address of Tenant is:
Xxxxxxxx 0, Xxxxx 000
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, CFO
In the event either party shall bring any action or legal proceeding for
damages for any alleged breach of any provision of this Lease, to recover rent
or possession of the Premises, to terminate this Lease, or to enforce, protect
or establish any term or covenant of this Lease or right or remedy of either
party, the prevailing party shall be entitled to recover as a part of such
action or proceeding, reasonable attorneys' fees and court costs, including
attorneys' fees and costs for appeal, as may be fixed by the court or jury. The
term "prevailing party" shall mean the party who received substantially the
relief requested, whether by settlement, dismissal, summary judgment, judgment,
or otherwise.
Nonassignment
Tenant's interest in this Lease is not assignable, by operation of law or
otherwise, nor shall Tenant have the right to sublet the Premises, transfer any
interest of Tenant therein or permit any use of the Premises by another party,
without the prior written consent of Landlord to such assignment, subletting,
transfer or use, which consent Landlord agrees not to withhold unreasonably
subject to the provisions of Subparagraph 25.B below. A consent to one
assignment, subletting, occupancy or use by another party shall not be deemed to
be a consent to any subsequent assignment, subletting, occupancy or use by
another party. Any assignment or subletting without such consent shall be void
and shall, at the option of Landlord, terminate this Lease.
Landlord's waiver or consent to any assignment or subletting hereunder
shall not relieve Tenant from any obligation under this Lease unless the consent
shall so provide.
If Tenant desires to assign its interest in this Lease or sublet the
Premises, or transfer any interest of Tenant therein, or permit the use of the
Premises by another party (hereinafter collectively referred to as a
"Transfer"), Tenant shall give Landlord at least thirty (30) days prior written
notice of the proposed Transfer and of the terms of such proposed Transfer,
including, but not limited to, the name and legal composition of the proposed
transferee, a financial statement of the proposed transferee, the nature of the
proposed transferee's business to be carried on in the Premises, the payment to
be made or other consideration to be given to Tenant on account of the Transfer,
and such other pertinent information as may be requested by Landlord, all in
sufficient detail to enable Landlord to evaluate the proposed Transfer and the
prospective transferee. It is the intent of the parties hereto that this Lease
shall confer upon Tenant only the right to use and occupy the Premises, and to
exercise such other rights as are conferred upon Tenant by this Lease. The
parties agree that this Lease is not intended to have a bonus value nor to serve
as a vehicle whereby Tenant may profit by a future Transfer of this Lease or the
right to use or occupy the Premises as a result of any favorable terms contained
herein, or future changes in the market for leased space. It is the intent of
the parties that any such bonus value that may attach to this Lease shall be and
remain the exclusive property of Landlord. Accordingly, in the event Tenant
seeks to Transfer its interest in this Lease or the Premises, Landlord shall
have the following options, which may be exercised at its sole choice without
limiting Landlord in the exercise of any other right or remedy which Landlord
may have by reason of such proposed Transfer:
(1) Landlord may elect to terminate this Lease effective as of the proposed
effective date of the proposed Transfer and release Tenant from any further
liability hereunder accruing after such termination date by giving Tenant
written notice of such termination within twenty (20) days after receipt by
Landlord of Tenant's notice of intent to transfer as provided above. If Landlord
makes such election to terminate this Lease, Tenant shall surrender the
Premises, in accordance with Paragraph 34, on or before the effective
termination date; or
(2) Landlord may consent to the proposed Transfer on the condition that
Tenant agrees to pay to Landlord, as Additional Rent, forty percent (40%) of the
positive difference, if any, between (i) any and all rents or other
consideration (including key money) received by Tenant from the transferee by
reason of such Transfer less (ii) the sum of the rent payable by Tenant to
Landlord under this Lease and any brokerage commissions or advertising expenses
incurred by Tenant in connection with the Transfer. Tenant expressly agrees that
the foregoing is a reasonable condition for obtaining Landlord's consent to any
Transfer; or
(3) Landlord may reasonably withhold its consent to the proposed Transfer.
The covenants and agreements contained in this Lease shall be binding on
the parties hereto and on their respective heirs, successors and assigns (to the
extent the Lease is assignable).
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgagee of a mortgage encumbering the Premises, whose address shall have been
furnished to Tenant, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or judicial foreclosure, if such should prove
necessary to effect a cure.
Tenant agrees promptly following request by Landlord to (A) execute and
deliver to Landlord any documents, including estoppel certificates presented to
Tenant by Landlord, (1) certifying that this Lease is unmodified and in full
force and effect (or, if modified, specifying such modification and certifying
that the Lease as so modified is in full force and effect) and the date to which
the rent and other charges are paid in advance, if any, and (2) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder (or specifying such defaults, if any, that are claimed), and
(3) evidencing the status of the Lease as may be required either by a lender
making a loan to Landlord to be secured by a deed of trust or mortgage covering
the Premises or a purchaser of the Premises from Landlord and (B) to deliver to
Landlord the financial statement of Tenant with an opinion of a certified public
accountant, including a balance sheet and profit and loss statement, for the
last completed fiscal year all prepared in accordance with generally accepted
accounting principles consistently applied. Tenant's failure to deliver an
estoppel certificate promptly following such request shall be an Event of
Default under this Lease.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger and shall, at the option of
Landlord, terminate all or any existing subleases or subtenants, or operate as
an assignment to Landlord of any or all such subleases or subtenants.
The waiver by Landlord or Tenant of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained.
General
The captions and paragraph headings used in this Lease are for the purposes
of convenience only. They shall not be construed to limit or extend the meaning
of any part of this Lease, or be used to interpret specific sections. The
word(s) enclosed in quotation marks shall be construed as defined terms for
purposes of this Lease. As used in this Lease, the masculine, feminine and
neuter and the singular or plural number shall each be deemed to include the
other whenever the context so requires.
The term Landlord as used in this Lease, so far as the covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner at the time in question of the fee title of the Premises,
and in the event of any transfer or transfers of the title of such fee, the
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor) shall after the date of such transfer or conveyance be
automatically freed and relieved of all liability with respect to performance of
any covenants or obligations on the part of Landlord contained in this Lease,
thereafter to be performed; provided that any funds in the hands of Landlord or
the then grantor at the time of such transfer, in which Tenant has an interest,
shall be turned over to the grantee. It is intended that the covenants and
obligations contained in this Lease on the part of Landlord shall, subject as
aforesaid, be binding upon each Landlord, its heirs, personal representatives,
successors and assigns only during its respective period of ownership.
Time is of the essence for the performance of each term, covenant and
condition of this Lease.
In case any one or more of the provisions contained herein, except for the
payment of rent, shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Lease, but this Lease shall be
construed as if such invalid, illegal or unenforceable provision had not been
contained herein. This Lease shall be construed and enforced in accordance with
the laws of the State of California.
If Tenant is more than one person or entity, each such person or entity
shall be jointly and severally liable for the obligations of Tenant hereunder.
As used in this Lease, the term "Law(s)" or "law(s)" shall mean any
judicial decision, statute, constitution, ordinance, resolution, regulation,
rule, administrative order, or other requirement of any government agency or
authority having jurisdiction over the parties to this Lease or the Premises or
both, in effect at the Commencement Date of this Lease or any time during the
Lease Term, including, without limitation, any regulation, order, or policy of
any quasi-official entity or body (e.g., board of fire examiners, public utility
or special district).
As used in this Lease, the term "Agent" shall mean, with respect to either
Landlord or Tenant, its respective agents, employees, contractors (and their
subcontractors), and invitees (and in the case of Tenant, its subtenants).
WAIVER OF JURY TRIAL
LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY
CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION,
PROCEEDING AND/OR HEARING BROUGHT BY EITHER LANDLORD AGAINST TENANT OR TENANT
AGAINST LANDLORD ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, OR REGULATION, EMERGENCY OR
OTHERWISE, NOW OR HEREAFTER IN EFFECT.
INITIALS: ______ (Landlord) ______ (Tenant)
Tenant shall not place or permit to be placed any sign or decoration on the
Parcel or the exterior of the Building without the prior written consent of
Landlord. Tenant, upon written notice by Landlord, shall immediately remove any
sign or decoration that Tenant has placed or permitted to be placed on the
Parcel or the exterior of the Building without the prior written consent of
Landlord, and if Tenant fails to so remove such sign or decoration within five
(5) days after Landlord's written notice, Landlord may enter upon the Premises
and remove said sign or decoration and Tenant agrees to pay Landlord, as
Additional Rent upon demand, the cost of such removal. At the termination of
this Lease, Tenant shall remove any sign which it has placed on the Parcel or
Building and shall repair any damage caused by the installation or removal of
such sign.
Any Monthly Installment of rent or any other sum due from Tenant under this
Lease which is received by Landlord after the date the same is due shall bear
interest from said due date until paid, at an annual rate equal to the greater
of (the "Permitted Rate"): (1) ten percent (10%); or (2) five percent (5%) plus
the rate established by the Federal Reserve Bank of San Francisco, as of the
twenty-fifth (25th) day of the month immediately preceding the due date, on
advances to member banks under Sections 13 and 13(a) of the Federal Reserve Act,
as now in effect or hereafter from time to time amended. Payment of such
interest shall not excuse or cure any default by Tenant. In addition, Tenant
shall pay all costs and attorneys' fees incurred by Landlord in collection of
such amounts.
On the last day of the Lease Term, or on the sooner termination of this
Lease, Tenant shall surrender the Premises to Landlord in their condition
existing as of the Commencement Date of this Lease, ordinary wear and tear
excepted, with all originally painted interior walls washed, and other interior
walls cleaned, and repaired or replaced, all carpets shampooed and cleaned, the
air conditioning and heating equipment serviced and repaired by a reputable and
licensed service firm, all floors cleaned and waxed, all to the reasonable
satisfaction of Landlord. Tenant shall remove all of Tenant's personal property
and trade fixtures from the Premises, and all property not so removed shall be
deemed abandoned by Tenant. Tenant, at its sole cost, shall repair any damage to
the Premises caused by the removal of Tenant's personal property, machinery and
equipment, which repair shall include, without limitation, the patching and
filling of holes and repair of structural damage. If the Premises are not so
surrendered at the termination of this Lease, Tenant shall indemnify, defend,
protect and hold Landlord harmless from and against loss or liability resulting
from delay by Tenant in so surrendering the Premises including without
limitation, any claims made by any succeeding tenant or losses to Landlord due
to lost opportunities to lease to succeeding tenants.
The undersigned parties hereby warrant that they have proper authority and
are empowered to execute this Lease on behalf of Landlord and Tenant,
respectively.
This Lease is made subject to all matters of public record affecting title
to the property of which the Premises are a part. Tenant shall abide by and
comply with all private conditions, covenants and restrictions of public record
now or hereafter affecting the Premises and any amendment thereof.
All assessments and charges which are imposed, levied or assessed against
the Parcel and Buildings pursuant to the above-described covenants, conditions
and restrictions shall be a Common Area Charge and Tenant shall pay its share of
such assessments and charges to Landlord as provided in Paragraph 12 above.
Tenant represents and warrants to Landlord that it has not dealt with any
broker respecting this transaction (other than CB/Xxxxxxx Xxxxx) and hereby
agrees to indemnify and hold Landlord harmless from and against any brokerage
commission or fee, obligation, claim or damage (including attorneys' fees) paid
or incurred respecting any broker (other than CB/Xxxxxxx Xxxxx) claiming through
Tenant or with which/whom Tenant has dealt.
Tenant, for itself and its successors and assigns (to the extent this Lease
is assignable), hereby agrees that in the event of any actual, or alleged,
breach or default by Landlord under this Lease that:
A. Tenant's sole and exclusive remedy against Landlord shall be as against
Landlord's interest in the Buildings and Parcel;
B. No partner of Landlord shall be sued or named in a party in a suit or
action (except as may be necessary to secure jurisdiction of the partnership);
C. No service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
D. No partner of Landlord shall be required to answer or otherwise plead to
any service of process;
E. No judgment will be taken against any partner of Landlord;
F. Any judgment taken against any partner of Landlord may be vacated
and set aside at any time nunc pro tunc;
G. No writ of execution will ever be levied against the assets of any
partner of Landlord;
H. The covenants and agreements of Tenant set forth in this Paragraph
38 shall be enforceable by Landlord and any partner of Landlord.
Hazardous Material
As used herein, the term "Hazardous Material" shall mean any
substance: (i) the presence of which requires investigation or remediation
under any federal, state or local statute, regulation, ordinance, order,
action, policy or common law; (ii) which is or becomes defined as a
"hazardous waste," "hazardous substance," pollutant or contaminant under
any federal, state or local statute, regulation, rule or ordinance or
amendments thereto including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section
9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.); (iii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous and is or becomes regulated by any governmental authority,
agency, department, commission, board, agency or instrumentality of the
United States, the State of California or any political subdivision
thereof; (iv) the presence of which on the Premises causes or threatens to
cause a nuisance upon the Premises or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about
the Premises; (v) the presence of which on adjacent properties could
constitute a trespass by Landlord or Tenant; (vi) without limitation which
contains gasoline, diesel fuel or other petroleum hydrocarbons; (vii)
without limitation which contains polychlorinated biphenyls (PCBs),
asbestos or urea formaldehyde foam insulation; or (viii) without limitation
radon gas.
Subject to the compliance by Tenant with the provisions of
Subparagraphs C, D, E, F, G, H, and I below, Tenant shall be permitted to
use and store on the Premises those Hazardous Materials listed in Exhibit
"D" attached hereto, in the quantities set forth in Exhibit "D".
Hazardous Materials Management Plan
(i) Prior to Tenant using, handling, transporting or storing any
Hazardous Material at or about the Premises (including, without limitation,
those listed in Exhibit "D"), Tenant shall submit to Landlord a Hazardous
Materials Management Plan ("HMMP") for Landlord's review and approval,
which approval shall not be unreasonably withheld. The HMMP shall describe:
(aa) the quantities of each material to be used, (bb) the purpose for which
each material is to be used, (cc) the method of storage of each material,
(dd) the method of transporting each material to and from the Premises and
within the Premises, (ee) the methods Tenant will employ to monitor the use
of the material and to detect any leaks or potential hazards, and (ff) any
other information any department of any governmental entity (city, state or
federal) requires prior to the issuance of any required permit for the
Premises or during Tenant's occupancy of the Premises. Landlord may, but
shall have no obligation to review and approve the foregoing information
and HMMP, and such review and approval or failure to review and approve
shall not act as an estoppel or otherwise waive Landlord's rights under
this Lease or relieve Tenant of its obligations under this Lease. If
Landlord determines in good faith by inspection of the Premises or review
of the HMMP that the methods in use or described by Tenant are not adequate
in Landlord's good faith judgment to prevent or eliminate the existence of
environmental hazards, then Tenant shall not use, handle, transport, or
store such Hazardous Materials at or about the Premises unless and until
such methods are approved by Landlord in good faith and added to an
approved HMMP. Once approved by Landlord, Tenant shall strictly comply with
the HMMP and shall not change its use, operations or procedures with
respect to Hazardous Materials without submitting an amended HMMP for
Landlord's review and approval as provided above.
(ii) Tenant shall pay to Landlord when Tenant submits an HMMP (or
amended HMMP) the amount reasonably determined by Landlord to cover all
Landlord's costs and expenses reasonably incurred in connection with
Landlord's review of the HMMP which costs and expenses shall include, among
other things, all reasonable out-of-pocket fees of attorneys, architects,
or other consultants incurred by Landlord in connection with Landlord's
review of the HMMP. Landlord shall have no obligation to consider a request
for consent to a proposed HMMP unless and until Tenant has paid all such
costs and expenses to Landlord, and Tenant shall pay all such costs and
expenses to Landlord irrespective of whether Landlord consents to such
proposed HMMP. Tenant shall pay to Landlord on demand the excess, if any,
of such costs and expenses actually incurred by Landlord over the amount of
such costs and expenses actually paid by Tenant, and Landlord shall
promptly refund to Tenant the excess, if any, of such costs and expenses
actually paid by Tenant over the amount of such costs and expenses actually
incurred by Landlord.
Except as specifically allowed in Subparagraph B above, Tenant shall
not cause or permit any Hazardous Material to be used, stored, generated,
discharged, transported to or from, or disposed of in or about the
Premises, Building or Parcel or any other land or improvements in the
vicinity of the Premises, Building or Parcel. Without limiting the
generality of the foregoing, Tenant, at its sole cost, shall comply with
all Laws relating to the storage, use, generation, transport, discharge and
disposal by Tenant or its Agents of any Hazardous Material. If the presence
of any Hazardous Material on the Premises, Building or Parcel caused or
permitted by Tenant or its Agents results in contamination of the Premises,
Building or Parcel or any soil, air, ground or surface waters under,
through, over, on, in or about the Premises, Building or Parcel, Tenant, at
its expense, shall promptly take all actions necessary to return the
Premises, Building or Parcel and/or the surrounding real property to the
condition existing prior to the appearance of such Hazardous Material. In
the event there is a release, discharge or disposal of or contamination of
the Premises, Building or Parcel by a Hazardous Material which is of the
type that has been stored, handled, transported or otherwise used or
permitted by Tenant or its Agents on or about the Premises, Building or
Parcel, Tenant shall have the burden of proving that such release,
discharge, disposal or contamination is not the result of the acts or
omissions of Tenant or its Agents.
Tenant shall defend, protect, hold harmless and indemnify Landlord and
its Agents and Lenders with respect to all actions, claims, losses
(including, diminution in value of the Premises), fines, penalties, fees
(including, but not limited to, attorneys' and consultants' fees) costs,
damages, liabilities, remediation costs, investigation costs, response
costs and other expenses arising out of, resulting from, or caused by (i)
any Hazardous Material used, generated, discharged, transported to or from,
stored, or disposed of by Tenant or its Agents in, on, under, over, through
or about the Premises, Building or Parcel and/or the surrounding real
property or (ii) any disposal or release of any Hazardous Material on the
surface of the Premises occurring after the Commencement Date and prior to
the termination of this Lease. Tenant shall not suffer any lien to be
recorded against the Premises, Building or Parcel as a consequence of the
disposal of any Hazardous Material on the Premises by Tenant or its Agents,
including any so called state, federal or local "super fund" lien related
to the "clean up" of any Hazardous Material in, over, on, under, through,
or about the Premises.
Tenant shall immediately notify Landlord of any inquiry, test,
investigation, enforcement proceeding by or against Tenant or the Premises
concerning any Hazardous Material. Any remediation plan prepared by or on
behalf of Tenant must be submitted to Landlord prior to conducting any work
pursuant to such plan and prior to submittal to any applicable government
authority and shall be subject to Landlord's consent. Tenant acknowledges
that Landlord, as the owner of the Premises, at its election, shall have
the sole right to negotiate, defend, approve and appeal any action taken or
order issued with regard to any Hazardous Material by any applicable
governmental authority.
It shall not be unreasonable for Landlord to withhold its consent to
any proposed assignment or subletting if (i)the proposed assignee's or
subtenant's anticipated use of the Premises involves the storage,
generation, discharge, transport, use or disposal of any Hazardous
Material; (ii) if the proposed assignee or subtenant has been required by
any prior landlord, lender or governmental authority to "clean up" or
remediate any Hazardous Material; (iii) if the proposed assignee or
subtenant is subject to investigation or enforcement order or proceeding by
any governmental authority in connection with the use, generation,
discharge, transport, disposal or storage of any Hazardous Material.
Upon the expiration or earlier termination of the Lease, Tenant, at
its sole cost, shall remove all Hazardous Materials from the Premises,
Building or Parcel that Tenant or its Agents introduced to the Premises,
Building or Parcel. If Tenant fails to so surrender the Premises, Tenant
shall indemnify, protect, defend and hold Landlord harmless from and
against all damages resulting from Tenant's failure to surrender the
Premises as required by this Paragraph, including, without limitation, any
actions, claims, losses, liabilities, fees (including, but not limited to,
attorneys' and consultants' fees), fines, costs, penalties, or damages in
connection with the condition of the Premises including, without
limitation, damages occasioned by the inability to relet the Premises or a
reduction in the fair market and/or rental value of the Premises by reason
of the existence of any Hazardous Material in, on, over, under, through or
around the Premises.
Landlord shall have the right to appoint a consultant to conduct an
investigation to determine whether any Hazardous Material is being used,
generated, discharged, transported to or from, stored or disposed of in,
on, over, through, or about the Premises, in an appropriate and lawful
manner. If Tenant has violated any Law or covenant in this Lease regarding
the use, storage or disposal of Hazardous Materials on or about the
Premises, Tenant shall reimburse Landlord for the cost of such
investigation. Tenant, at its expense, shall comply with all reasonable
recommendations of the consultant required to conform Tenant's use, storage
or disposal of Hazardous Materials to the requirements of applicable Law or
to fulfill the obligations of Tenant hereunder.
If any action of any kind is required or requested to be taken by any
governmental authority to clean-up, remove, remediate or monitor any
Hazardous Material (the presence of which is the result of the acts or
omissions of Tenant or its Agents) and such action is not completed prior
to the expiration or earlier termination of the Lease, Tenant shall be
deemed to have impermissibly held over until such time as such required
action is completed, and Landlord shall be entitled to all damages directly
or indirectly incurred in connection with such holding over, including
without limitation, damages occasioned by the inability to re-let the
Premises or a reduction of the fair market and/or rental value of the
Premises.
The provisions of this Paragraph 39 shall survive the expiration or
termination of this Lease.
The provisions of this Paragraph 39 are intended to govern the rights
and liabilities of the Landlord and Tenant hereunder respecting Hazardous
Materials to the exclusion of any other provisions in this Lease that might
otherwise be deemed applicable. The provisions of this Paragraph 39 shall
be controlling with respect to any provisions in this Lease that are
inconsistent with this Paragraph 39.
Third Opportunity to Lease 0000 Xxxxx Xxxxxx.
A. Tenant acknowledges that Landlord has previously granted to
Xxxxxxxx Publishing Company ("Xxxxxxxx") and to Neuron Data ("Neuron")
rights to lease the premises containing approximately six thousand three
hundred twenty-eight (6,328) square feet known as 0000 Xxxxx Xxxxxx (the
"Expansion Space") which rights are prior to the rights hereinafter granted
to Tenant with respect to the Expansion Space.
X. Xxxxx of Third Opportunity to Lease. If (i) Tenant is not in
default under this Lease; (ii) this Lease is in full force and effect;
(iii) Tenant has not assigned this Lease and is in physical occupancy of at
least fifty percent (50%) of the area of the Premises; and (iv) no existing
tenant of the Expansion Space has elected to continue to Lease the
Expansion Space after the expiration of such existing tenant's current
lease; and (iv) neither Xxxxxxxx nor Neuron has exercised their respective
prior rights to lease the Expansion Space, then, and only then, when the
Expansion Space becomes available for lease, Landlord shall notify Tenant
in writing ("Landlord's Notice") of the form of lease Landlord intends to
use and the following basic business terms upon which Landlord is willing
to lease such space (the "Basic Business Terms"): (i) the term of the
lease; (ii) the tenant improvements, if any, Landlord is willing to
construct or the contribution Landlord is willing to make to pay for such
tenant improvements, if any, (iii) the rent for the term or the formula to
be used to determine such rent; (iv) the commencement date of the lease
term and (iv) any other business terms Landlord elects to specify.
C. Second Lease. If Tenant, within five (5) days after receipt of
Landlord's Notice notifies Landlord in writing of Tenant's agreement to
lease the Expansion Space on the Basic Business Terms stated in Landlord's
Notice (the "Second Lease"), and, within five (5) days after Tenant's
receipt of the Second Lease from Landlord, Tenant executes and returns to
Landlord the Second Lease, then Landlord shall lease to Tenant and Tenant
shall lease from Landlord the Expansion Space on the terms and conditions
contained in the Second Lease; provided, however, that this Lease shall be
modified to include, and the Second Lease shall include, a cross-default
provision providing that Tenant will be in default under both the Second
Lease and this Lease if Tenant is in default under either lease.
D. Failure to Exercise. If Tenant does not notify Landlord in writing
of Tenant's agreement to lease the Expansion Space on the terms contained
in Landlord's Notice within the five (5) day time period, or if Tenant does
not execute and return to Landlord the Second Lease within five (5) days
after Tenant's receipt thereof, then Landlord shall thereafter have the
unfettered right to lease the Expansion Space to a third party on any terms
as Landlord may determine.
IN WITNESS WHEREOF, the parties have executed this Lease on the dates set forth
below.
TENANT:
PSW TECHNOLOGIES, INC.
a Delaware corporation
DATED: __________________ By: \s\ W. Xxxxx Xxxx
Name: Dr. W. Xxxxx Xxxx
Title: Cheif Executive Officer
DATED: __________________ By: \s\ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President, Human Resources
LANDLORD:
SOUTH BAY/XXXXXX JOINT VENTURE,
a California general partnership
By: Metropolitan Life Insurance Company
on behalf of its Developmental
Properties Account General Partner
By: AEW Real Estate Advisor, Inc.,
a Massachusetts corporation,
its duly authorized asset
manager and advisor
DATED: ____________________ By:
Name:
Title:
EXHIBIT "A"
Site Plan
(showing Premises as cross-hatched)
EXHIBIT "B"
Legal Description of Parcel
EXHIBIT "C"
Tenant Improvements to be
Constructed by Landlord, if any
Landlord shall carpet and paint the Premises with Landlord's standard
paint and carpet. Landlord's standard carpet is 26 oz. level loop or cut
pile (not to exceed $14.50 per square yard, installed). Landlord's standard
paint shall be one color, exclusive of any accent colors.
EXHIBIT "D"
List of Hazardous Materials Tenant will use on Premises
(if none, write "none")
TYPE OF MATERIAL QUANTITY
LEASE AGREEMENT
by and between
SOUTH BAY/XXXXXX JOINT VENTURE,
a California general partnership,
as LANDLORD
and
PSW TECHNOLOGIES
a Delaware corporation,
as TENANT
for Premises located at
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx
1. Parties...................................................................................................1
2. Demise of Premises........................................................................................1
3. Term......................................................................................................1
4. Rent......................................................................................................1
A. Time of Payment...................................................................................1
B. Monthly Installment...............................................................................2
C. Late Charge.......................................................................................2
D. Additional Rent...................................................................................2
E. Place of Payment..................................................................................2
F. Advance Payment...................................................................................2
5. Security Deposit..........................................................................................2
6. Use of Premises...........................................................................................3
7. Taxes and Assessments.....................................................................................3
A. Tenant's Property.................................................................................3
B. Property Taxes....................................................................................3
C. Other Taxes.......................................................................................4
8. Insurance.................................................................................................4
A. Indemnity.........................................................................................4
B. Liability Insurance...............................................................................4
C. Property Insurance................................................................................5
D. Tenant's Insurance; Release of Landlord...........................................................5
E. Mutual Waiver of Subrogation......................................................................5
9. Utilities.................................................................................................5
10. Repairs and Maintenance...................................................................................6
A. Landlord's Repairs................................................................................6
B. Tenant's Repairs..................................................................................6
11. Common Area...............................................................................................7
12. Common Area Charges.......................................................................................7
13. Alterations...............................................................................................8
14. Acceptance of the Premises................................................................................8
15. Default...................................................................................................8
A. Events of Default.................................................................................8
B. Remedies..........................................................................................9
16. Destruction..............................................................................................11
17. Condemnation.............................................................................................11
A. Definition of Terms..............................................................................11
B. Rights...........................................................................................12
C. Total Taking.....................................................................................12
D. Partial Taking...................................................................................12
18. Mechanics' Lien..........................................................................................12
19. Inspection of the Premises...............................................................................12
20. Compliance with Laws.....................................................................................12
21. Subordination............................................................................................13
A. Priority.........................................................................................13
B. Subsequent Security Instruments..................................................................13
C. Documents........................................................................................13
D. Tenant's Attornment..............................................................................13
E. Lender...........................................................................................13
22. Holding Over.............................................................................................13
23. Notices..................................................................................................14
24. Attorneys' Fees..........................................................................................14
25. Nonassignment............................................................................................14
A. Landlord's Consent Required......................................................................14
B. Transferee Information Required..................................................................14
26. Successors...............................................................................................15
27. Mortgagee Protection.....................................................................................15
28. Landlord Loan or Sale....................................................................................15
29. Surrender of Lease Not Merger............................................................................16
30. Waiver...................................................................................................16
31. General..................................................................................................16
A. Captions.........................................................................................16
B. Definition of Landlord...........................................................................16
C. Time of Essence..................................................................................16
D. Severability.....................................................................................16
E. Joint and Several Liability......................................................................16
F. Law..............................................................................................16
G. Agent............................................................................................16
H. WAIVER OF JURY TRIAL.............................................................................17
32. Sign.....................................................................................................17
33. Interest on Past Due Obligations.........................................................................17
34. Surrender of the Premises................................................................................17
35. Authority................................................................................................18
36. Public Record............................................................................................18
37. Brokers..................................................................................................18
38. Limitation on Landlord's Liability.......................................................................18
39. Hazardous Material.......................................................................................18
A. Definitions......................................................................................18
B. Permitted Use....................................................................................19
C. Hazardous Materials Management Plan..............................................................19
D. Use Restriction..................................................................................20
E. Tenant Indemnity.................................................................................20
F. Compliance.......................................................................................20
G. Assignment and Subletting........................................................................20
H. Surrender........................................................................................20
I. Right to Appoint Consultant......................................................................21
J. Holding Over.....................................................................................21
K Provisions Survive Termination...................................................................21
L. Controlling Provisions...........................................................................21
40. Third Opportunity to Lease 1389 Villa Street.............................................................21
