EXHIBIT 10.17
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is dated as of the 2nd day of
February, 1999, by and between ELECTRONICS FOR IMAGING, INC., a Delaware
corporation ("Sublessor"), and E-STAMP CORPORATION, a Delaware corporation
("Sublessee").
A. Sublessor, as Tenant, and The Xxxxxx and Xxx Xxxx Revocable Trust, as
Landlord ("Master Landlord"), previously entered into that certain Agreement of
Lease, dated July 30, 1992 ("Original Lease"), which has been amended by that
certain First Addendum to Lease dated July 30, 1992 ("First Addendum"), that
certain Second Addendum to Lease dated April 1, 1993 ("Second Addendum"), that
certain Third Addendum to Lease dated May 20, 1993 ("Third Addendum"), that
certain Fourth Addendum to Lease dated May 25, 1993 ("Fourth Addendum"), that
certain Fifth Addendum to Lease dated July 12, 1994 ("Fifth Addendum"), that
certain Sixth Addendum to Lease dated January 19, 1995 ("Sixth Addendum"), and
that certain Seventh Addendum to Lease dated December 4, 1996 ("Seventh
Addendum"), (collectively, the "Master Lease"). Under the Master Lease,
Sublessor leases from Master Landlord approximately forty-nine thousand seven
hundred seventy-nine (49, 779) rentable square feet ("Master Premises") on the
first and second floors of the building located at 0000 Xxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx ("Building"). A copy of the Master Lease is attached hereto as
Exhibit A. Capitalized terms used but not defined herein shall have the meanings
---------
given them under the Master Lease.
B. Sublessor desires to sublease a portion of the Master Premises to
Sublessee, and Sublessee desires to sublease a portion of the Master Premises
from Sublessor, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree as
follows:
1. Sublease Premises. Upon and subject to the terms and conditions of
-----------------
this Sublease, Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor that portion of the Master Premises identified on the
floor plan attached hereto as Exhibit B ("Sublease Premises") and incorporated
---------
herein by this reference. The Sublease Premises are located on the first floor
of the Building. Sublessor and Sublessee hereby stipulate that the Sublease
Premises contain
-1-
twenty-four thousand eight hundred ninety (24,890) rentable square feet ("RSF"),
which is approximately fifty percent (50%) of the Master Premises.
1.1 AS-IS. The Sublease Premises shall be delivered to Sublessee in
-----
"AS-IS AND WITH ALL FAULTS" condition and without any representations or
warranties, express or implied, with respect thereto by Sublessor or any of
Sublessor's directors, officers, shareholders, employees, agents or
representatives ("Sublessor's Representatives"). Specifically, neither Sublessor
nor any of Sublessor's Representatives has made, or hereby makes, any
representation or warranty concerning the compliance of the Sublease Premises or
the Building with the American with Disabilities Act, 42 U.S.C. Section 12101
et. seq. ("ADA"), Title 24 of the California Administrative Code ("Title 24") or
any other similar federal, state or local laws, statutes, ordinances, codes,
regulations, rules, orders, actions, policies or decrees pertaining to the
accessibility of business establishments to persons with disabilities.
2. Term. The term of the Sublease shall commence upon April 1, 1999
----
("Commencement Date"). The Sublease term shall end on June 30, 2000 ("Expiration
Date") unless sooner terminated pursuant to this Sublease.
2.1 Possession. Sublessee represents to Sublessor that: (i) Sublessee
----------
is currently leasing approximately thirteen thousand four hundred sixty-three
square feet (13,463 sf) located at 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
("Miranda Premises") at a monthly base rental rate (triple net) of Forty-Eight
Thousand Four Hundred Sixty-Six and 80/100 ($48,466.80) ("Miranda Property Base
Rent"), (ii) the term of the lease for the Miranda Premises expires on April 30,
1999, (iii) if Sublessee does not vacate the Miranda Premises prior to May 1,
1999, Sublessee shall be legally obligated under the lease for the Miranda
Premises to pay to the landlord thereunder base rent in an amount equal to one
hundred fifty percent (150%) of the Miranda Property Base Rent regardless of
whether Sublessee vacates the Miranda Premises prior to June 1, 1999, and
Sublessee shall not be entitled to receive any credit, refund, rebate or other
return of any portion of such amount if Sublessee vacates the Miranda Premises
prior to June 1, 1999. Based on the foregoing representations and
notwithstanding any provision of this Sublease, if for any reason Sublessor
cannot deliver possession of the Sublease Premises to Sublessee on the
Commencement Date, such failure shall not affect the validity of this Sublease
or the obligations of Sublessee hereunder or extend the term hereof, but in such
case Sublessee shall not be obligated to pay rent until possession of the
Sublease Premises is delivered to Sublessee and Sublessee shall be entitled to
the
-2-
following remedies: (a) if Sublessor delivers possession of the Sublease
Premises after April 15, 1999 but on or prior to April 30, 1999, then for the
period from May 1, 1999 through May 31, 1999, inclusive, Sublessee shall be
entitled to a credit against any Rent (defined under Section 4.2 below) due to
Sublessor under this Sublease in an amount equal to the lesser of One Thousand
One Hundred Seventy-Three Dollars ($1173) per day or fifty percent (50%) of the
amount actually paid by Sublessee to the landlord under the Miranda Premises
lease as base rent for such period; (b) if Sublessor delivers possession of the
Sublease Premises after April 30, 1999, then for the period from the date on
which Sublessee delivers possession of the Sublease Premises to Sublesee through
May 31, 1999, inclusive, Sublessee shall be entitled to a credit against any
Rent due to Sublessor under this Sublease in an amount equal to the lesser of
One Thousand One Hundred Seventy-Three Dollars ($1173) per day or fifty percent
(50%) of the amount actually paid by Sublessee to the landlord under the Miranda
Premises lease as base rent for such period; and (c) if Sublessor has not
delivered possession of the Sublease Premises to Sublessee within thirty (30)
days after the Commencement Date, Sublessee may, at its election, by notice in
writing to Sublessor within ten (10) days after such thirty (30) day period,
cancel this Sublease, in which event Sublessor shall return all sums actually
deposited by Sublessee with Sublessor, and neither party shall have any further
liability to the other and both parties shall be discharged from all obligations
hereunder. Sublessee shall have no other rights or remedies against Sublessor,
at law, in equity, or otherwise, for any failure of Sublessor to deliver
possession of the Sublease Premises to Sublessee on or before the Commencement
Date. Sublessee and Sublessor agree that the damages to Sublessee resulting from
Sublessor's failure to timely deliver possession are impractical and extremely
difficult to fix or ascertain and that the foregoing credits and termination
right are a fair and reasonable estimate and represent the agreed upon amount of
and remedies for said damages. It is the parties' intention to create by this
Section 2.1 a valid and enforceable liquidated damages provision consistent with
the pertinent provisions of the California Civil Code, or any amendments thereof
or successors thereto.
SUBLESSEE AND SUBLESSOR HEREBY ACKNOWLEDGE AND AGREE THAT THE CREDITS AND
TERMINATION RIGHT SET FORTH UNDER THIS SECTION 2.1 HAVE BEEN AGREED UPON AS
THE PARTIES' REASONABLE ESTIMATE OF SUBLESSEE'S DAMAGES AND AS SUBLESSEE'S
SOLE REMEDIES AGAINST SUBLESSOR, AT LAW, IN EQUITY OR OTHERWISE, IN THE
EVENT SUBLESSOR DOES NOT
-3-
TIMELY DELIVER POSSESSION OF PREMISES TO SUBLESSEE PURSUANT TO THIS
SUBLEASE.
SUBLESSOR: /s/ signature illegible SUBLESSEE: /s/ signature illegible
If Sublessee occupies the Sublease Premises prior to the Commencement Date, such
occupancy shall be subject to this Sublease, and Sublessee shall commence paying
Rent upon such occupancy pursuant to Section 4 below. Any such early occupancy
shall not advance the Expiration Date.
2.2 No Renewal, Extension or Expansion Rights. To the extent that
-----------------------------------------
Sublessor has not previously exercised such rights, Sublessor and Sublessee
shall not exercise any renewal, extension or expansion rights pertaining to the
Sublease Premises under the Master Lease.
3. Use. The Sublease Premises shall be used and occupied by Sublessee
---
solely in a manner and for the uses permitted under the Master Lease and for no
other purpose. Sublessee, at its sole cost and expense, shall promptly comply
with all federal, state and local laws, statutes, ordinances, codes,
regulations, rules, orders, actions, policies or decrees now or hereinafter in
effect ("Laws"), including, without limitation, the ADA, Title 24 and similar
Laws pertaining to the accessibility of business establishments to persons with
disabilities. Sublessee shall not do or permit to be done in or about the
Sublease Premises or Building, nor bring or keep anything therein, which will in
any way increase the existing rate of or affect any fire or other insurance upon
the Building or the Sublease Premises or any of its contents, or cause
cancellation of any insurance policy covering the Building or the Sublease
Premises or any part thereof. Sublessee shall not use, store, or dispose of any
Hazardous Materials (defined below) on any portion of the Sublease Premises in
violation of the Environmental Laws (defined below). As used in this Section,
Hazardous Materials shall mean any substance or material which is regulated as a
hazardous, toxic or dangerous waste, substance or material or is defined as a
"hazardous waste" or "hazardous substance" in (or for purposes of) the
Comprehensive Environmental Response, Compensation and Liability Act, the
Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation
and Recovery Act, the Clean Water Act, the Clean Air Act, the Toxic Substance
Control Act or any so-called "Superfund" or "Superlien" law or any other
Environmental Law, as now or hereinafter in effect. "Environmental Law" shall
mean any federal, state or local Laws pertaining to or imposing liability or
standards of conduct concerning any environmental matters, including, but not
limited to, matters relating to air pollution, water pollution, noise
-4-
control or Hazardous Materials. Sublessee shall not use or permit the use of the
Sublease Premises in any manner that will tend to create waste or a nuisance or
which will tend to disturb other tenants of the Building.
4. Rent.
----
4.1 Base Rent. Beginning on the Commencement Date and continuing
---------
thereafter during the term of this Sublease, Sublessee shall pay to Sublessor a
base rent of Sixty-Five Thousand Two Hundred Eleven and 80/100 Dollars per month
($65,211.80/month) ("Base Rent").
4.2 Additional Rent. In addition to Base Rent, beginning on the
---------------
Commencement Date and continuing thereafter during the term of this Sublease,
Sublessee shall pay to Sublessor an amount equal to Six Thousand Four Hundred
Seventy-One and 40/100 Dollars per month ($6,471.40/month) ("Additional Rent")
as Sublessee's contribution towards any Project Taxes and Operating Expenses in
excess of Base Year Project Taxes and Operating Expenses (as those terms are
defined under the Master Lease) payable by Sublessor under the Master Lease and
any over-standard electrical charges payable by Sublessor under Section 4 of the
Seventh Addendum. In addition, Sublessee shall reimburse Sublessor for any late
fees, charges or penalties, after-hour services fees or charges, or other fees,
charges or penalties imposed under the Master Lease with respect to the Sublease
Premises (other than excess Project Taxes and Operating Expenses and over-
standard electrical charges imposed under Section 4 of the Seventh Addendum),
except to the extent such are due solely to the fault of Sublessor, and any
electrical service charges due to after-hours services. Except as provided in
Section 4.4 below, Additional Rent shall be payable monthly. Base Rent and any
Additional Rent payable under this Sublease are collectively referred to herein
as "Rent".
4.3 Prorations. The Rent for any period during the term of this
----------
Sublease which is less than one month shall be a prorata portion of the Rent for
such month.
4.4 Payment of Rent. Except as otherwise specifically provided in
---------------
this Sublease, Rent shall be payable in lawful money without demand, offset,
deduction, counterclaim or setoff, in monthly installments, in advance, on the
first day of each month during the term of this Sublease. All Rent is to be paid
to Sublessor at its office at the address set forth in Section 19.1 herein, or
at such other place as Sublessor may designate by notice to Sublessee; provided,
however, that upon any default by Sublessor under this Sublease, Sublessee shall
be entitled to pay the Rent directly to Master Landlord upon written notice to
-5-
Sublessor. To the extent any Additional Rent or any other amounts due under this
Sublease are payable on account of items which are not payable monthly by
Sublessor to Master Landlord under the Master Lease, such amounts shall be paid
to Sublessor as and when such items are payable by Sublessor to Master Landlord
under the Master Lease unless otherwise provided herein. Upon written request by
Sublessee, Sublessor agrees to provide Sublessee with copies of any statements
or invoices received by Sublessor from Master Landlord pursuant to the terms of
the Master Lease.
4.5 Advance Rent. Concurrently with the execution of this Sublease,
------------
Sublessee shall pay to Sublessor the sum of Seventy-One Thousand Six Hundred
Eighty-Three and 20/100 Dollars ($71,683.20) ("Advance Rent"), which Advance
Rent shall be applied by Sublessor toward the Rent for the first month of the
Sublease.
5. Security Deposit. In addition to the Advance Rent and within seven (7)
----------------
days of the execution of this Sublease, Sublessee shall deliver to Sublessor an
unconditional and irrevocable letter of credit in favor of Sublessor, in a form
and drawn upon a financial institution reasonably acceptable to Sublessor, for
the principal sum of One Hundred Forty-Three Thousand Three Hundred Sixty-Six
Dollars ($143,366) ("Deposit") as security for Sublessee's faithful performance
of Sublessee's obligations hereunder. If the term of any letter of credit held
by Sublessor will expire prior to the Expiration Date, and it is not extended or
a new letter of credit for the foregoing principal sum and for an extended
period of time is not substituted within thirty (30) days prior to the
expiration date of the letter of credit then held by Sublessor, then Sublessor
shall be entitled to draw the entire amount of the letter of credit then held by
Sublessor and hold such funds in accordance with this Section 5 until the
Expiration Date. At any time that Sublessee fails to pay Rent or any other
amounts due hereunder, or otherwise defaults with respect to any provision of
this Sublease or the Master Lease, Sublessor shall be entitled to draw the
entire amount of any letter of credit then held by Sublessor and use, apply or
retain all or any portion of the Deposit for the payment of such amounts or for
the payment of any other amount to which Sublessor may become obligated by
reason of Sublessee's default, or to compensate Sublessor for any loss or damage
which Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of the Deposit, Sublessee shall within ten (10) days after written
demand therefor deposit cash with Sublessor in an amount sufficient to restore
the Deposit to the full amount hereinabove stated and Sublessee's failure to do
so shall be a material breach of this Sublease. Sublessor shall not be required
to keep the Deposit separate from its general
-6-
accounts. If Sublessee performs all of Sublessee's obligations hereunder, any
letter of credit then held by Sublessor pursuant to this Section 5 or, if
Sublessor has drawn upon such letter of credit pursuant to this Section 5, the
Deposit, or so much thereof as has not been previously applied by Sublessor,
shall be returned, without payment of interest or other increment for its use to
Sublessee at the expiration of the term hereof and after Sublessee has vacated
the Sublease Premises. No trust relationship is created herein between Sublessor
and Sublessee with respect to said letter of credit or Deposit.
6. Parking. Sublessee shall have the non-exclusive right to use fifty
-------
percent (50%) of the reserved and non-reserved parking spaces available for use
by Sublessor under the Master Lease.
7. Signs. To the extent Sublessee desires to erect, install or utilize
-----
any signs, it shall do so only in accordance with the Master Lease and at its
sole cost and expense. Further, to the extent that any exterior or public area
signage available under the Master Lease is of a limited nature, such signage
shall be shared equally between the Sublease Premises and the remainder of the
Master Premises; provided, however, that under no circumstances shall Sublessor
be obligated to remove or modify Sublessor's existing monument signage located
at the intersection of the driveway to the Building and Campus Drive prior to
Sublessor vacating all of the Master Premises.
8. Master Lease.
------------
8.1 Incorporation of Master Lease. To the extent applicable to the
-----------------------------
Sublease Premises, the Master Lease is incorporated into this Sublease in its
entirety as if fully set forth herein, except that the following provisions
thereto are expressly excluded in their entirety from the Sublease: (i) Section
31 of, and Exhibit B to, the Original Lease; (ii) Sections 20, 21, 22, 23 and 24
of the First Addendum; (iii) Section 22 of, and Exhibit B to, the Third
Addendum; (iv) Section 22 of, and Exhibit B to, the Fourth Addendum; (v) Section
22 of the Fifth Addendum; and (vi) Section 22 of the Sixth Addendum. If any
provision of this Sublease expressly conflicts with any provision of the Master
Lease as incorporated herein, the terms of this Sublease shall govern. Sublessee
shall assume and perform for the benefit of Sublessor and Master Landlord the
Tenant's obligations under the Master Lease provisions incorporated herein to
the extent that the provisions are applicable to the Sublease Premises. Whenever
the Master Lease requires the approval or consent of Master Landlord, Sublessee
shall be required to obtain the approval or consent of both Sublessor and Master
Landlord. Whenever the Master Lease
-7-
requires Tenant to submit, exhibit to, supply or provide Master Landlord with
evidence, certificates, or any other matter or thing, Sublessee shall submit,
exhibit to, supply or provide, as the case may be, the same to both Master
Landlord and Sublessor. In any such instance, Sublessor shall reasonably
determine if such evidence, certificate or other matter or thing shall be
satisfactory; provided, that Sublessor agrees that it shall not unreasonably
withhold consent to any item which is consented to by Master Landlord. Sublessee
acknowledges that it has reviewed the Master Lease and is familiar with the
terms and conditions thereof. Sublessee shall not do or permit to be done
anything which would constitute a violation or breach of any of the terms or
conditions of the Master Lease, or which would cause the Master Lease to be
terminated or forfeited.
8.2 Direct Performance. At any time and on reasonable prior notice to
------------------
Sublessee, Sublessor may elect to require Sublessee to perform its obligations
under this Sublease directly to Master Landlord, in which event Sublessee shall
promptly send to Sublessor copies of all notices and other communications
between Sublessee and Master Landlord.
9. Performance by Sublessor/Status of Master Landlord. Notwithstanding
--------------------------------------------------
any other provision of the Master Lease or this Sublease, Sublessee acknowledges
and agrees that performance by Sublessor is conditioned in all cases upon Master
Landlord's performance of its corresponding obligations under the Master Lease,
and performance by Master Landlord shall be deemed performance by Sublessor.
Sublessor does not assume the obligations of the Master Landlord under the
Master Lease. Sublessor shall not be liable to Sublessee for any default or
other failure of the Master Landlord under the Master Lease. Despite any default
or other failure by Master Landlord under the Master Lease, this Sublease shall
remain in full force and effect, and Sublessee shall pay all Rent and other
amounts due under this Sublease without any abatement, deduction, counterclaim
or offset; provided, however, that in the event Sublessor obtains a final
judgment in its favor releasing Sublessor from paying rent under the Master
Lease, then Sublessor shall rebate to Sublessee an amount equal to the portion
of such released rent due to the Sublease Premises less a proportionate share of
all costs and expenses related to obtaining such final judgment. With respect to
work, services, repairs, repainting, restoration, the provision of utilities,
elevator or HVAC services, or the performance of other obligations required of
Master Landlord under the Master Lease, Sublessor's sole obligation with respect
thereto shall be to request the same from Master Landlord, upon written request
by Sublessee. Sublessee shall contact Master Landlord first to obtain the
desired service
-8-
or item and shall only contact Sublessor if Master Landlord fails to perform
pursuant to the Master Lease.
10. Furniture. As further consideration for and as a condition precedent
---------
to this Sublease, Sublessee agrees to purchase from Sublessor, and Sublessor
agrees to sell to Sublessee, Eighty-Five (85) cubicles currently located in the
Sublease Premises and the in-place wiring therefor (collectively, the
"Cubicles") for the amount of Forty-Two Thousand Five Hundred Dollars ($42,500)
(85 cubicles * $500 per cubicle), which amount shall be due and payable one (1)
day prior to the Commencement Date. The Cubicles are part of a Harpers cubicle
system, a typical cubicle of which is comprised of two (2) corner sections and
one (1) straight section, a chair, a pencil drawer and two overhead files, and
is wired for four CAT 5 (data) and one split CAT 3 (voice) connections.
Sublessee shall accept the Cubicles "As-Is And With All Faults" so long as they
are in substantially the condition as existed on February 2, 1999. Sublessee
acknowledges that neither Sublessor nor Sublessor's Representatives has made, or
hereby makes, any representation, warranty or covenant, written or oral,
statutory, express or implied, as to any matter whatsoever, with respect to the
Cubicles, including, without limitation, the design, quality, capacity,
material, workmanship, operation, condition, merchantability or fitness for a
particular purpose.
11. Alterations. Sublessee shall be solely responsible for all costs and
-----------
expenses associated with any improvements and alterations to the Sublease
Premises (collectively, "Alterations"). All Alterations shall be subject to
Sublessor's prior written approval, which approval shall not be unreasonably
withheld. Sublessee shall give Master Landlord at least ten (10) days prior
written notice before undertaking any Alterations to enable Master Landlord, in
its sole discretion, to post and record notices of nonresponsibility. Sublessee
shall, at all times, keep the Sublease Premises and the Building free and clear
of all mechanic's or materialman's liens relating to or arising from any
Sublessee Alterations. If any mechanic's or materialman's lien arising from
Sublessee's Alterations is filed and/or recorded against the Sublease Premises
or the Building, Sublessee shall cause such claim or lien to be released and
removed within ten (10) days of such filing and/or recording, either by
satisfaction or by the posting of a release bond in the amount required by
statute, and if Sublessee fails to do so, then Master Landlord or Sublessor may
do so at Sublessee's sole cost and expense. Sublessee acknowledges that it is
not authorized to undertake any Alterations in or to the Sublease Premises
except as permitted under this Sublease and the Master Lease and that it must
deliver the Sublease Premises to Sublessor on the Expiration Date in the
condition required under the Master Lease.
-9-
12. Assignment and Subletting. Sublessee shall not assign the Sublease or
-------------------------
sublease all or any portion of the Sublease Premises without the prior written
consent of Sublessor, which consent shall not be unreasonably withheld.
Sublessor may grant its consent on reasonable conditions, including, without
limitation, those set forth in Section 5 of the Master Lease. Any such
assignment or subletting without Sublessor's reasonable consent shall be void
and, at the option of Sublessor, Sublessor may terminate the Sublease. No
assignment or sublease shall release Sublessee from any of its obligations
hereunder. If the consent of the Sublessor to an assignment or subletting is
obtained, Sublessor shall promptly contact the Master Landlord to request the
Master Landlord's consent pursuant to the Master Lease.
13. Indemnification.
---------------
13.1 Indemnification of Sublessor. Sublessee agrees to defend,
----------------------------
indemnify and hold Master Landlord, Sublessor and their respective trustees,
directors, officers, shareholders, employees, agents and representatives
(collectively, the "Sublessor Indemnified Parties") harmless from and against
all claims, damages, liabilities, losses, actions, causes of action, judgments,
costs and expenses, including, without limitation, reasonable attorneys' fees
(collectively, "Claims"), arising out of or relating to (i) any breach by
Sublessee under this Sublease, (ii) Sublessee's use of the Sublease Premises,
the Building, the Cubicles or any common areas, (iii) the conduct of Sublessee's
business therein, or (iv) any act or omission of Sublessee or Sublessee's
directors, officers, employees, agents, representatives, licensees, contractors
or invitees in or about the Sublease Premises or the Building; provided,
however, that Sublessee shall not be required to so indemnify, defend or hold
harmless (a) any of the Sublessor Indemnified Parties to the extent such Claims
are directly caused by the negligence or willful misconduct of such Sublessor
Indemnified Parties, (b) the Sublessor Indemnified Parties to the extent that
such Claims are directly caused by a breach of the Master Lease by Sublessor, or
(c) Master Landlord to the extent such Claims are directly caused by the
negligence or willful misconduct of Master Landlord or Sublessor. The foregoing
indemnification and defense obligations shall survive the expiration or earlier
termination of this Sublease.
13.2 Indemnification of Sublessee. Sublessor agrees to defend,
----------------------------
indemnify and hold Sublessee and its directors, officers, shareholders,
employees, agents and representatives (collectively, the "Sublessee Indemnified
Parties") harmless from and against all Claims arising out of or relating to any
default by Sublessor under the Master Lease (except to the extent such default
of the Master
-10-
Lease is caused by Sublessee's breach of this Sublease); provided, however, that
Sublessor shall not be required to so indemnify, defend or hold harmless any of
the Sublessee Indemnified Parties to the extent such Claims are directly caused
by the negligence or willful misconduct of such Sublessee Indemnified Parties.
The foregoing indemnification and defense obligations shall survive the
expiration or earlier termination of this Sublease.
14. Insurance. During the entire term of this Sublease, Sublessee shall,
---------
at its sole cost and expense, procure and maintain all insurance required under
Section 9 of the Original Lease; provided, however, that comprehensive general
liability insurance described in Section 9 of the Original Lease shall have a
combined single limit for bodily injury and/or property damage liability of not
less than Two Million Dollars ($2,000,000) per occurrence. Sublessee shall name
Sublessor and Master Landlord as additional insureds under all such insurance
policies.
14.1 Waiver of Subrogation. Sublessee shall obtain from its insurer a
---------------------
waiver of all rights of subrogation that the insurer of Sublessee might have
against Sublessor under all policies of insurance maintained by Sublessee at any
time during the Sublease term insuring or covering the Sublease Premises or the
Building or any improvements, fixtures, equipment, furnishings or other
property, including, without limitation, salable goods, merchandise, and
inventory, if any, in, on or about the Sublease Premises or Building.
15. Consent of Landlord. The Master Lease requires Sublessor to obtain the
-------------------
written consent of Master Landlord to this Sublease. Sublessor shall solicit
Master Landlord's consent to this Sublease promptly following the execution and
delivery of this Sublease by Sublessor and Sublessee. In the event Master
Landlord's written consent to this Sublease has not been obtained within thirty
(30) days after the execution thereof on terms reasonably acceptable to
Sublessee, then this Sublease may be terminated by either party hereto upon
notice to the other, and upon such termination all documents and deposits
delivered hereunder shall be promptly returned and neither party hereto shall
have any further rights against or obligations or liabilities to the other party
hereto.
16. Default by Sublessee. Upon any default by Sublessee under this
--------------------
Sublease, Sublessor shall have all rights and remedies available to Master
Landlord under the Master Lease in the event of a similar default on the part of
Sublessor thereunder, and all rights and remedies at law or in equity.
Notwithstanding any other provision of this Sublease, Sublessee shall, with
respect to the Sublease Premises, cure any default by Sublessee under this
Sublease within the period allowed to Tenant under the Master Lease
-11-
even if such time period is shorter than the period otherwise allowed under this
Sublease due to the fact that notice of default from Sublessor to Sublessee is
given after the corresponding notice of default from Master Landlord to
Sublessor.
17. Termination of the Lease. Except as provided in Section 17.1 below, if
------------------------
for any reason the term of the Master Lease shall terminate prior to the
Expiration Date, this Sublease shall automatically be terminated and Sublessor
shall not be liable to Sublessee by reason thereof unless said termination shall
have been caused by the default of Sublessor under the Master Lease.
17.1 Attornment. Master Landlord, by executing this document, agrees
----------
that until a default shall occur in the performance of Sublessor's obligations
under the Master Lease, that Sublessor may receive, collect and enjoy the Rent
accruing under this Sublease. However, if Sublessor shall default in the
performance of its obligations to Master Landlord then Master Landlord may at
its option, receive and collect, directly from Sublessee, all Rent owing and to
be owed under this Sublease. Master Landlord shall not, by reason of the
collection of the Rent from Sublessee, be deemed liable to Sublessee for any
failure of the Sublessor to perform and comply with Sublessor's remaining
obligations.
Sublessor hereby irrevocably authorizes and directs Sublessee upon
receipt of any written notice from the Master Landlord stating that a default
exists in the performance of Sublessor's obligations under the Master Lease to
pay to Master Landlord the Rent due and to become due under this Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request from Master Landlord, and that Sublessee shall pay such
Rent to Master Landlord without any obligations or right to inquire as to
whether such default exists and notwithstanding any notice from or claim from
Sublessor to the contrary and Sublessor shall have no right or claim against
Sublessee for any such Rent so paid by Sublessee.
In the event that Sublessor shall default in its obligations under the
Master Lease, then Master Landlord, at its option and without being obligated to
do so, may require Sublessee to attorn to Master Landlord in which event Master
Landlord shall undertake the obligations of Sublessor under this Sublease from
the time of the exercise of said option to termination of this Sublease but
Master Landlord shall not be liable for any prepaid Rent nor any Deposit paid by
Sublessee, nor shall Master Landlord be liable for any other defaults of the
Sublessor under the Sublease.
-12-
In the event that Sublessor defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Landlord agrees to deliver
to Sublessee a copy of any such notice of default. Sublessee shall have the
right to cure any default of Sublessor described in any notice of default within
ten (10) days after service of such notice of default on Sublessee. If such
default is cured by Sublessee, then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
18. Brokers. Sublessor and Sublessee represent and warrant to each other
-------
that no brokers were involved in connection with the negotiation or consummation
of this Sublease other than Catalyst Real Estate ("Catalyst"), as Sublessee's
representative, and Colliers Xxxxxxx International ("Colliers"), as Sublessor's
representative. Except as to Colliers and Catalyst, each party agrees to defend,
indemnify, and hold the other harmless from and against any and all claims,
damages, liabilities, losses, actions, causes of action, judgments, costs and
expenses, including, without limitation, reasonable attorneys' fees arising out
of or relating to the claims of any broker, agent, finder or other such person
or entity claiming by, through or under the acts or agreements of such
indemnifying party. Sublessor shall pay to Colliers a commission due pursuant to
Sublessor's separate written agreement with Colliers. Colliers shall pay fifty
percent (50%) of such commission to Catalyst.
19. Miscellaneous Provisions.
------------------------
19.1 Notices. Any notice, demand or request which may be permitted,
-------
required or desired to be given in connection with this Sublease shall be given
in writing and directed to Sublessor and Sublessee as follows:
If to Sublessor: Electronics for Imaging, Inc.
000 Xxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxx LLP
Spear Street Tower
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
-13-
If to Sublessee: E-Stamp Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Prime
Vice-President Finance
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx Coie, LLP
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxx, Jr.
Facsimile No.: (000) 000-0000
Notices shall be either (i) personally delivered (including delivery by Federal
Express or other courier service) to the offices set forth above, in which case
they shall be deemed delivered on the date of delivery to said offices; (ii)
sent by facsimile, in which case they shall be deemed delivered on the date
sent, provided, however, that any notices sent by facsimile shall also be sent
by overnight courier on the same day; or (iii) sent by certified mail, return
receipt requested, in which case they shall be deemed delivered on the date
shown on the receipt unless delivery is refused or delayed by the addressee, in
which event they shall be deemed delivered on the date of refusal or delay of
delivery by the addressee. The addresses and addressees may be changed by giving
notice of such change in the manner provided for above.
19.2 Entire Agreement. This Sublease (including all exhibits attached
----------------
hereto, except those sections of the Master Lease excluded under Section 8.1
above) constitutes the entire understanding between the parties with respect to
the transaction contemplated herein, and all prior or contemporaneous
agreements, understandings, representations and statements, whether oral or
written, are superceded by this Sublease.
19.3 Time of Essence. Time is of the essence in this Sublease.
---------------
19.4 Applicable Law. This Sublease shall be governed by and construed
--------------
pursuant to the laws of the State of California.
19.5 Attorneys' Fees. In the event of any litigation (including,
---------------
without limitation, any litigation in a bankruptcy proceeding) between the
parties with respect to the Sublease Premises, this Sublease, the performance of
the parties' obligations hereunder or the effect of a termination of this
Sublease, or any other matter related thereto, the prevailing
-14-
party shall be entitled to its reasonable costs and expenses incurred in
connection with such litigation, including reasonable attorneys' fees.
19.6 Recording. Neither Sublessor or Sublessee shall record this
---------
Sublease or a memorandum hereof without the consent of the other.
19.7 Examination of Sublease. SUBMISSION OF THIS INSTRUMENT FOR
-----------------------
EXAMINATION OR SIGNATURE BY SUBLESSEE DOES NOT CONSTITUTE A RESERVATION OF OR
OPTION FOR SUBLEASE, AND IT IS NOT EFFECTIVE AS A SUBLEASE OR OTHERWISE UNTIL
EXECUTION BY AND DELIVERY TO BOTH SUBLESSOR AND SUBLESSEE AND CONSENTED TO BY
MASTER LANDLORD IN ACCORDANCE WITH THE TERMS OF THE MASTER LEASE.
19.8 Counterparts. This Sublease may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as
of the date first written above.
SUBLESSOR: ELECTRONICS FOR IMAGING, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice-President
SUBLESSEE: E-STAMP CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
President and C.E.O.
[Consent of Master Landlord On Next Page]
-15-
Master Landlord hereby consents to the foregoing Sublease, upon the
following express terms and conditions:
1. The Sublease is subject and subordinate to the Master Lease and
to all of the terms, covenants, conditions, provisions and agreements contained
in the Master Lease.
2. Pursuant to Section 5 of the Master Lease, (a) Sublessor shall
pay to Master Landlord, throughout the term of the Sublease, fifty percent (50%)
of all amounts collected by Sublessor under the Sublease which are in excess of
the amounts required to be paid by Sublessor under the Master Lease with respect
to the Sublease Premises; and (b) Sublessor shall promptly reimburse Master
Landlord for the actual costs incurred by Master Landlord in connection with the
review and processing of the Sublease, including, without limitation, Master
Landlord's reasonable attorneys' fees.
3. Any improvements or alternations to the Sublease Premises shall
require the prior written approval of Master Landlord pursuant to the terms of
the Master Lease.
MASTER LANDLORD: THE XXXXXX AND XXX XXXX
REVOCABLE TRUST
By: /s/ Signature Illegible
Its: _______________________
-16-
LIST OF EXHIBITS
Exhibit A Master Lease
Exhibit B Floor Plan
-17-
EXHIBIT A
TO
SUBLEASE AGREEMENT
MASTER LEASE
A copy of the Master Lease is attached hereto.
AGREEMENT OF LEASE
THIS LEASE is made on the 30th day of July, 1992, between The Xxxxxx and Xxx
Xxxx Revocable Trust ("LANDLORD") and Electronics For Imaging, a California
corporation ("TENANT").
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, upon the terms and conditions hereinafter set forth, those
premises (hereinafter "premises") constituting approximately 32,863 rentable
square feet and 31,254 useable square feet as shown on Exhibit "A" attached
hereto, of which 25,000 rentable square feet and 24,264 useable square feet are
located on the first floor and 7,863 rentable square feet and 6,990 useable
square feet on the second floor of that building commonly known as 0000 Xxxxxx
Xxxxx (hereinafter "the building"). The building is located on that real
property commonly known as 0000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx (hereinafter
"the Project"), which includes the building, parking area, arcade, landscaping
and related improvements.
2. TERM. The term of this lease shall be fifty (50) months and shall
commence on the 1st day of November, 1992, and end on the 31st day of December,
1996, inclusive; provided, however that in the event Landlord is unable to
deliver possession of the premises to Tenant upon the date above specified for
the commencement of the term of this lease, neither Landlord nor its agents
shall be liable for any damage caused thereby, nor shall this lease thereby
become void or voidable, and the term herein specified shall in such case
commence upon the date of delivery of possession of the premises to Tenant and
shall terminate fifty (50) months thereafter.
In such event Tenant shall not be liable for any rent until such time as
Landlord shall deliver possession of said premises to Tenant.
3. RENT. Tenant agrees to pay to Landlord as rent for the premises the
sum of Forty-Seven Thousand Three Hundred Twenty-Two Dollars ($47,322.00) per
month in advance on the 1st day of the term of this lease (subject to Paragraph
36 hereof) and on the 1st day of each calendar month thereafter during the term,
except that if the 1st day of the term shall not be the 1st day of the month,
the rental for the portion of the term occurring in the first and last calendar
months of the term shall be appropriately prorated. All installments of rent
shall be paid at the office of Landlord, or at such other place as may be
designated in writing from time to time by Landlord, in lawful money of the
United States and without deduction or offset for any cause whatsoever except as
otherwise specifically provided herein. The rental for which provision is
hereinabove made shall be subject to adjustment as provided in Paragraph 20
hereof; or other covenants and conditions hereinafter set forth. Notwithstanding
the foregoing, no such rent shall be due for the first five (5) months of the
lease term.
All other sums which are to be paid to Landlord by Tenant pursuant to the
terms of this lease shall be deemed additional rent, and shall be paid by Tenant
to Landlord within ten (10) days after receipt by Tenant of a billing therefor
or at such other time as is specifically provided in this lease.
4. USE. The premises are to be used for general office purposes and for
no other business or purpose. No use shall be made or permitted to be made of
the premises, nor acts done in or about the premises, which will in any way
conflict with any law, ordinance, rule or regulation, permit, occupancy
certificate, or other entitlement affecting the use or occupancy of the
premises,
-1-
now or hereafter in effect, or which will increase the existing rate of
insurance upon the Project or cause a cancellation of any insurance policy
covering the building or any part thereof, nor shall Tenant sell, or permit to
be kept, used or sold in or about the premises any article which may be
prohibited by the standard form of fire insurance policy. Tenant shall at its
own expense comply with all present and future laws, ordinances, orders, rules,
regulations, and/or requirements of all governmental authorities pertaining to
Tenant's particular use or occupancy of the premises, or Tenant's activities
therein. Tenant shall not commit, or suffer to be committed, any waste upon the
premises, or any public or private nuisance, or other act or thing which may
obstruct or disturb the quiet enjoyment of any other tenant in the Project, nor
shall Tenant, without the written consent of Landlord, use any apparatus,
machinery or device in or about the premises which shall cause any substantial
noise or vibration, or which shall substantially increase the amount of
electricity or water, if any, agreed to be furnished or supplied under this
lease. Tenant shall not install or use heat-generating machines, excess
lighting, or other equipment which may affect the temperature otherwise
maintained by the air conditioning equipment, without the prior written consent
of Landlord. Tenant may install the usual office machines and equipment, such as
electrical typewriters, adding machines, teletypewriters and similar equipment.
Notwithstanding the foregoing, Tenant may install and operate at the premises
computers and related equipment, subject to the provisions of this lease
respecting use of the premises and installation of alterations and trade
fixtures.
5. ASSIGNMENT. Tenant shall not directly or indirectly sell, assign,
mortgage, encumber or transfer this lease, sublet the premises or any part
thereof or allow any other person (excepting Tenant's agents and employees) to
occupy the premises or any portion thereof, without the prior written consent of
Landlord; provided that Tenant shall not be required to obtain Landlord's
consent to use of the Premises by Tenant's invitees and customers so long as
such invitees and customers are not subtenants or assignees of Tenant. Any such
proposed, attempted or consummated sale, assignment, mortgage, encumbrance,
transfer, subletting, occupancy or other prohibited act described in the
preceding sentences is herein collectively called a "transfer" and the person or
entity who or which is the proposed or actual recipient of a "transfer" is
herein collectively called a "transferee." This prohibition against transfers
does not include the transfer of the Tenant's stock through any public exchange.
As used herein, a "transfer" shall not include a transfer of this lease in
connection with a merger, consolidation or nonbankruptcy reorganization of
Tenant's business, or a transfer to a subsidiary, affiliate, division or
corporation controlled by or under common control with Tenant or a purchaser of
substantially all of the assets of Tenant located at the premises, so long as
the transferee agrees in writing to be bound by all of the terms of this lease
and has a net worth equal to or greater than that of Tenant at the time of the
proposed transfer (with Tenant's net worth measured as of the commencement date
of this lease), the use proposed by the transferee is permitted pursuant to
Paragraph 4 above and is otherwise consistent with the first class office nature
of the building; and no such transfer shall result in Tenant being released or
discharged from any liability under this lease. Tenant shall give Landlord
written notice of any proposed transfer. Said notice shall state the proposed
commencement date of the desired transfer, all material terms of the proposed
transfer, the name and address of the proposed transferee, and Tenant shall
deliver to Landlord with said notice a true and complete copy of all agreements
relating to the proposed transfer together with current complete financial
statements of the proposed transferee. Thereafter, Tenant shall immediately
furnish Landlord with any
-2-
other information concerning the proposed transferee as Landlord shall
reasonably request.
Landlord shall not unreasonably refuse or delay its consent to Tenant's
transfer of the premises. Landlord may grant its consent on reasonable
conditions, including but not limited to (i) Landlord's approval of the proposed
transferee's financial status; (ii) Landlord's approval of the proposed tenant
improvement plan, including any modifications affecting the HVAC system; (iii) a
condition that the proposed tenant improvements are to be made in a manner
reasonably satisfactory to Landlord, and (iv) a condition that Landlord shall be
entitled to receive fifty percent (50%) of the amount by which the rent received
by Tenant from a transferee exceeds the rental required hereunder.
Any transfer hereunder by Tenant shall not result in Tenant being released
or discharged from any liability under this lease other than as specifically set
forth above. As a condition to Landlord's prior written consent as provided for
in this paragraph, the transferee(s) shall agree in writing to comply with and
be bound by all of the terms, covenants, conditions, provisions and agreements
of this lease, and Tenant shall deliver to Landlord, promptly after execution,
an executed copy of each sublease and an agreement of said compliance by each
transferee. Tenant shall not agree to any modification of such sublease,
including any further transfer, without Landlord's prior written consent.
If Landlord consents to any such subletting or assignment, Tenant shall pay
to Landlord the amount of all Landlord's actual costs of processing such
proposed transfer (including, without limitation, reasonable attorney's fees).
Consent to any transfer shall not constitute consent to any subsequent
transfer. If Tenant makes any transfer without the prior written consent of
Landlord, Landlord may collect rent from the transferee and apply such rent
against amounts owing hereunder without waiving its rights hereunder, and
consent of Landlord shall not be deemed or presumed from such conduct. Landlord
may, at its option, terminate this lease in the event of any transfer of this
lease which does not comply with the provisions of this paragraph.
6. REPAIRS AND ALTERATIONS. Subject to any punchlist items prepared in
accordance with Exhibit B and to any latent defects discovered within one year
after delivery (provided that nothing herein shall be construed to require
Landlord to correct any item in the premises damaged by Tenant's misuse
thereof), Tenant agrees by taking possession of the premises as herein set forth
that such premises are then in a tenantable and good condition and conform with
the requirements of this lease, that Tenant will take good care of the premises,
and that the same will not be altered or changed without the written consent of
the Landlord. Tenant shall promptly notify Landlord of any, damage to or defect
in any part of the premises, or in any equipment or utility system serving the
premises, of which Tenant becomes aware and which may cause or result in death
or injury to any person or damage to property notwithstanding that Landlord may
have no obligation with respect thereto. As part of the consideration for rental
hereunder, Tenant agrees that all alterations, improvements, repairs or
maintenance of the premises shall, except as otherwise herein agreed, be made by
contractors reasonably acceptable to Landlord, at Tenant's expense, and Tenant
hereby waives the provisions of Subdivision (1) of Section 1932 and of Sections
1941 and 1941.1 of the Civil Code of California, and all rights to make repairs
at Landlord's expense under the provisions of Section 1942 and 1942.1 of said
Civil Code or any other provision of law. Unless otherwise provided by written
agreement, all alterations, improvements and changes that may be permitted by
Landlord shall at the termination of the lease become the property of Landlord,
and
-3-
shall remain upon and be surrendered with the premises, provided however, that
at Landlord's option Tenant shall, at Tenant's expense, when surrendering the
premises, remove the same and restore the premises to their original condition
at the commencement of this lease, provided that Landlord shall have so notified
Tenant at the time Landlord consented to such alterations, improvements or
changes. All damage or injury done to the premises by Tenant, or by any persons
who may be in or around the premises with the consent of Tenant, shall be paid
for by Tenant. Tenant shall, at the termination of this lease by the expiration
of time or otherwise, surrender and deliver up the premises to Landlord in as
good condition as when received by Tenant from Landlord, reasonable wear and
tear excepted. Tenant shall pay for all damage to the building, the Project, or
appurtenant areas or equipment, as well as all damage to tenants or occupants
thereof or their property caused by Tenant or by Tenant's agents, contractors,
invitees or representatives. Subject to Tenant's express repair obligations set
forth herein, Landlord shall maintain and keep the Project in good condition,
provided that Landlord shall be entitled to treat the costs thereof as
"Operating Expenses" to the extent permitted under Paragraph 20(e)(2) of this
lease. Landlord agrees to reasonably cooperate with Tenant in enforcing any
warranties applicable to systems and equipment Tenant is obligated to repair and
maintain hereunder.
7. TRADE FIXTURES. Subject to the provisions of Paragraphs 4 and 6
hereof, Tenant may install and maintain its trade fixtures on the premises,
provided that such fixtures, by reason of the manner in which they are affixed,
do not become an integral part of the building or premises. Tenant, if not in
default hereunder, may at any time or from time to time during the term hereof,
or upon the expiration or termination of this lease, alter or remove any such
trade fixtures so installed by Tenant. If not so removed by Tenant on or before
the expiration or termination of this lease, Tenant, upon the request of
Landlord, shall remove the same. Any damage to the premises caused by any such
installation, alteration or removal of such trade fixtures shall be promptly
repaired at the expense of the Tenant.
8. SERVICES. Landlord shall furnish the premises with a reasonable amount
of water and electricity suitable for general office uses including a normal
complement of electrical office equipment, daily janitor service except on
Saturdays, Sundays and public holidays, window washing with reasonable
frequency, replacement of fluorescent tubes and light bulbs, toilet room
supplies, and elevator service consisting of non-attended automatic elevators.
Such heat and air-conditioning as may be required for the comfortable occupation
of the premises will be provided during the hours of 7:30 AM to 6:00 PM daily
except Saturdays, Sundays and public holidays. During other hours, Landlord
shall provide reasonable heat and air-conditioning upon twenty-four (24) hours'
notice by Tenant to Landlord, and Tenant, upon presentation of a xxxx therefor,
shall pay Landlord for such service on an hourly basis at the then prevailing
rate as established by Landlord. The current hourly rate is Thirty Dollars
($30.00) per hour. This rate shall be reviewed and may be subject to adjustment
annually.
If in the reasonable judgment of Landlord any equipment or device used on
the premises (other than the usual office machines permitted pursuant to
Paragraph 4 hereof) will result in unusual electrical (e.g., 24-hour, on-line
computer functions) or water use, Landlord may either (i) estimate the amount of
Tenant's excess usage and charge Tenant a surcharge based on the current actual
utility rates for the building, or (ii) cause a special meter to be installed on
the premises to measure the amount of electric current or water consumed for
such equipment or device. Tenant shall pay all expenses directly related to any
such meters, including without limitation, the expense of such meters and of
installation,
-4-
maintenance and repair thereof, for all such electric current or water so
consumed (at the rates then in effect by the utility furnishing same utilizing
the average rate for the building), and for the expense of keeping account of
the electric current or water so consumed. If Landlord does not install such
separate meter until after the use of such equipment or device has commenced,
Tenant shall pay the actual expense of electric current or water consumed prior
to installation of the meter as reasonably estimated by Landlord on the basis of
actual use determined after installation of the meter. Landlord may install
supplemental air conditioning units in the premises or otherwise provide
supplemental air conditioning if any heat-generating equipment or devices are
installed or used on the premises, and all expenses of such supplemental air
conditioning (including without limitation installation, operation, repair and
maintenance, separate metering, if any, and accounting for such expenses),
determined in the reasonable judgment of Landlord, shall be paid by Tenant.
Landlord shall not be liable for direct or indirect or consequential damage or
damages for (i) personal discomfort, inconvenience, illness, injury or death of
Tenant, its employees, agents, invitees, clients, licensees, guests, customers
or any other persons whatsoever, nor (ii) injury or damage to property, by
reason of the operation or non-operation of any of the above-referenced
equipment or systems, or for any interruption, reduction, or cessation of the
supply, quality or character of any utility or other service, unless caused by
the gross negligence or willful misconduct of Landlord. Tenant shall be solely
responsible for providing appropriate protections (including data storage back-
up devices) against loss of its computer data or other electronic data.
Landlord's obligations hereunder are subject to adoption by Landlord of
energy conservation measures required by any governmental entity, and Tenant
shall cooperate in effectuating such energy conservation measures upon request
of Landlord including without limitation those measures specified in the Project
Rules and Regulations.
9. INSURANCE. Notwithstanding any other provision of this lease, Tenant
at its expense shall maintain the following insurance coverages: (a) worker's
compensation insurance as may be required by law; (b) comprehensive general
liability insurance issued by an insurer reasonably satisfactory to Landlord,
with a combined single liability limit for bodily injury and property damage of
not less than One Million Dollars ($1,000,000) per occurrence, or such greater
amount as an institutional mortgagee of Landlord may reasonably require from
time to time, insuring against all liability of Tenant and its authorized
representatives arising out of and in connection with Tenant's use or occupancy
of the premises; and (c) "all risk" property insurance on Tenant's personal
property and fixtures and all Tenant's improvements to the premises. Tenant's
property policies shall not provide for deductible amounts in excess of $1,000
without the prior written consent of Landlord. At the request of Landlord, the
liability insurance shall include products liability coverage. All such
insurance shall insure performance by Tenant of the indemnity and hold harmless
provisions of Paragraph 10 hereof. Landlord shall be named as an additional
insured with Tenant on such liability policy, and such policy shall include
cross-liability endorsements. Tenant's liability policy of insurance shall be
primary and noncontributory to any insurance carried by Landlord. At the
commencement of the lease term, and annually on renewal of such insurance,
Tenant shall deliver to Landlord an original certificate of such insurance from
the insurer, which certificate shall show the coverages required by this lease
(including, without limitation, that Tenant's insurance is primary and
noncontributory with respect to any insurance of Landlord), that Landlord shall
be an additional insured, and shall provide that such policy shall not be
cancelled or modified without thirty (30) days prior written
-5-
notice by the insurer to Landlord. If Tenant fails to obtain such insurance or
to furnish such certificate as required in this lease, Landlord may, but shall
not be obligated to, obtain such insurance at the expense of Tenant, and Tenant
shall promptly pay such expense to Landlord.
Landlord may, without diminishing or affecting in any way Tenant's
obligations to maintain insurance as herein provided, maintain any insurance
coverage on the building, the Project, or the premises deemed appropriate by
Landlord in its sole discretion, including without limitation lessor's risk or
comprehensive general liability insurance, worker's compensation insurance,
extended coverage, fire or casualty insurance, with replacement cost riders,
flood or earthquake insurance, rental or business interruption insurance, and
such insurance may provide for such deductible amounts in amounts deemed
appropriate by Landlord. Except as otherwise expressly provided herein or
required by law, Landlord shall have no obligation to maintain such insurance.
Notwithstanding any contribution by Tenant to Landlord for insurance premiums as
part of the operating expenses as may be required in this lease, no insurable
interest is conferred upon Tenant under any policies carried by Landlord, and
Tenant shall have no right to receive any proceeds of insurance from policies
carried by Landlord. If Tenant desires to receive indemnity by way of insurance
for any property, work or thing whatever, Tenant shall insure same for its own
account and shall not look to Landlord for reimbursement or recovery in the
event of loss or damage from any cause, whether or not Landlord has insured same
and recovered therefor.
Each party hereby waives its right of recovery against the other for any
losses which are or are required to be insured against under this Paragraph,
regardless of cause or origin, including negligence of the other party hereto,
and covenants that no insurer shall hold any right of subrogation against such
other party. Each party shall advise insurers of the foregoing, and such waiver
shall be a part of each policy maintained by each party which applies to the
premises or Tenant's use and occupancy of any part thereof.
10. HOLD HARMLESS AND NONLIABILITY OF LANDLORD. Inasmuch as Tenant has
agreed to carry the insurance-specified in Paragraph 9, the parties agree that
Landlord shall not be liable for, and Tenant hereby waives all claims against
Landlord with respect to or arising out of, any death or injury or damage that
may result to any person or property in or about the premises, or the Project,
from any cause whatsoever, including but not limited to injury or damage
resulting from any defects in the Project or any equipment located therein, or
from the acts or omissions of any persons, including cotenants, or any acts or
omissions of Landlord, except insofar as such injury or damage may result from
the negligence or willful misconduct of Landlord or its employees, agents,
contractors, licensees or invitees. In addition, Landlord shall not be liable
for any loss or damage for which Tenant is required to insure pursuant to
Paragraph 9, nor for any loss or damage resulting from any construction,
alterations or repairs performed by Tenant or its contractors, agents or
employees.
Tenant agrees to indemnify and hold Landlord harmless against all claims,
and the expense of defending against such claims, for death or for injury or
damage to persons or property occurring in or about the premises or occurring
outside the premises to the extent such death, injury or damage results from the
act, failure to act, negligence or other fault of Tenant or its agents,
employees, contractors, licensees or invitees. Tenant further agrees to
indemnify and hold harmless Landlord against any and all claims by or on behalf
of any person, firm or corporation, arising from the conduct of any work done by
or for Tenant in or
-6-
about or from transactions of Tenant concerning the premises, and will further
indemnify and hold Landlord harmless against and from any and all claims arising
from any breach or default on the part of the Tenant to be performed pursuant to
the terms of this lease. Tenant shall also indemnify and hold harmless Landlord
against all costs, reasonable counsel fees, expenses and liabilities incurred in
connection with any such claims or actions or proceedings brought thereon. If
any action or proceeding is brought against Landlord by reason of any such
claims or liability, Tenant agrees to defend such action or proceeding at
Tenant's sole expense by counsel reasonably satisfactory to Landlord. The
provisions of this Paragraph 10 shall survive the expiration or termination of
this lease.
Should Landlord, without fault on Landlord's part, be made a party to any
litigation instituted by or against Tenant, or by or against any person holding
under or using the premises by license of Tenant, or for the foreclosure of any
lien for labor or material furnished to or for Tenant or any such other person
or otherwise arising out of or resulting from any act or transaction of Tenant
or of any such other person, Tenant shall pay to Landlord the amount of any
judgment rendered against Landlord or the premises or any part thereof, and all
costs and expenses, including reasonable attorneys' fees, incurred by Landlord
in or in connection with such litigation.
11. DESTRUCTION. If the premises or the building wherein the same are
situated shall be destroyed by fire or other casualty, or be so damaged thereby
that they are untenantable and cannot be rendered tenantable within one hundred
eighty (180) days from the date of such destruction or damage in the reasonable
opinion of the Landlord, Landlord shall so notify Tenant in writing within
thirty (30) days after the date of such destruction or damage, and either
Landlord or Tenant may terminate this lease by giving written notice to the
other within thirty (30) days after the date of the first notice. If neither
party elects to terminate this lease, or if the damage or destruction shall not
be such as to permit termination of the lease as above provided, Landlord shall
with due diligence, to the extent of any insurance proceeds received by
Landlord, or to the extent of insurance proceeds which would have been received
by Landlord but for Landlord's failure to maintain the insurance required of
Landlord pursuant to this Lease, repair said premises, and a proportionate
reduction shall be made in the rent herein corresponding to the time during
which and to the portion of the premises of which Tenant shall be deprived of
possession, as reasonably determined by Landlord. The provisions of Subdivision
2 of Section 1932 of the California Civil Code, and of Subdivision 4 of Section
1933 of that Code, shall not apply to this lease, and Tenant waives the benefits
of such provisions. In repairing the premises, Landlord may use designs, plans
and specifications other than those used in the original construction, and may
alter or relocate any or all of the building, including the premises, provided
that the premises as altered or relocated shall be in all material respects
reasonably comparable to the premises as defined herein. Leasehold improvements
installed in the premises by Landlord at its expense shall be repaired and
rebuilt by Landlord, subject to the same requirements applicable to the premises
under this paragraph.
12. NOTICES. All notices, demands, requests, consents, or approvals
("notices" hereafter) which are required or authorized to be given by Landlord
or Tenant pursuant to this lease or by law, or which Landlord or Tenant may
desire to give to the other, shall be in writing. All notices to Landlord shall
be addressed to Pell Development Company, 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxx
Xxxxxx, Xxxxxxxxxx 00000 or such other address as Landlord may from time to time
request, and shall be personally delivered to an employee of Landlord or served
by mail. All notices to Tenant shall be
-7-
addressed to Tenant at the premises, and shall be delivered to the premises,
personally or by messenger or air courier, or served by mail addressed to the
premises, whether or not Tenant has departed from, abandoned, or vacated the
premises, or to such other address as Tenant may from time to time designate in
writing. Tenant waives the provisions of Section 1162 of the California Code of
Civil Procedure, provided that any notice to Tenant under Section 1161 of the
California Code of Civil Procedure is given in compliance with this Paragraph.
All notices served by mail shall be deposited in the United States mail, first
class postage prepaid (or, at the option of the party giving the notice, may be
by certified or registered mail, postage prepaid), addressed as herein provided,
and shall be effective (a) on the third day after being deposited in the mail,
as determined by the postmark, or if there is no postmark then by other
competent evidence, or (b) when received if earlier or if otherwise served.
13. INSOLVENCY OR RECEIVERSHIP. Either (a) the appointment of a receiver
to take possession of all, or substantially all, of the assets of Tenant, which
appointment is not dissolved for a period of thirty (30) days thereafter, (b) a
general assignment by Tenant for the benefit of creditors, (c) any action taken
or suffered by Tenant under any insolvency or bankruptcy or reorganization act,
which action remains undischarged for a period of thirty (30) days, (d) the
attachment, execution or other judicial seizure of Tenant's interest in this
lease or in any substantial amount of Tenant's assets located on the premises,
which such seizure is not discharged for a period of thirty (30) days
thereafter; or (e) an admission by Tenant in writing of its inability to pay its
debts as they become due, shall constitute a breach of this lease by Tenant.
14. DEFAULT.
(a) Events of Default. The occurrence of any of the following shall
-----------------
constitute an event of default on the part of Tenant: (1) failure of Tenant to
pay rent or other payments when due hereunder, such failure continuing for a
period of five (5) days after Landlord gives Tenant written notice of such
failure; provided, however, that Landlord shall not be required to provide such
notice more than twice in any 12-month period during the term of this lease, the
third such nonpayment constituting default without requirement of notice; (2)
vacation or abandonment by Tenant of the premises; (3) transfer of Tenant's
interest in this lease, or any part thereof without the consent of Landlord as
provided in Paragraph 5 hereof; (4) occurrence of a breach of this lease under
Paragraph 13 hereof, relating to the financial condition of Tenant; (5) failure
of Tenant to cure a breach of an obligation under this lease which results in a
nuisance to other tenants in the Project or to Landlord, or presents a hazard to
persons or property, within 48 hours after notice of such breach; (6) failure of
Tenant to perform any other obligation, covenant, or agreement under this lease,
other than those matters specified above, such failure continuing for thirty
(30) days after notice of such failure (or such longer period as is reasonably
necessary to remedy such default, provided that Tenant shall, within such thirty
(30) day period commence and thereafter continuously and diligently pursue such
remedy at all times until such default is cured). Any notice by Landlord under
this Paragraph shall be sufficient if it informs Tenant of the general nature of
Tenant's failure to perform Tenant's obligations hereunder. If Tenant fails to
perform any obligation hereunder at a time when Tenant is entitled to no cure
periods, Landlord shall be entitled to exercise the remedies herein provided for
default without written notice to Tenant or an opportunity to Tenant to cure
such default.
(B) REMEDIES. Upon the occurrence of an event of default under
--------
Paragraph 14(a) of this lease, Landlord shall have
-8-
the following rights and remedies, which shall be cumulative, and any other
remedies provided by law:
Without prejudice to any of the remedies that Landlord may have under
this lease, or at law or equity by reason of Tenant's default, Landlord may (i)
terminate this lease and avail itself of all the rights and remedies of the
Landlord provided by section 1951.2 of the Civil Code of the State of
California, or successor Code section; (ii) elect to have the lease continue in
effect for so long as Landlord does not terminate Tenant's right to possession,
in which case Landlord may enforce all of its rights and remedies under this
lease, including (but without limitation) the right to recover all unpaid
rental, including adjustments pursuant to paragraph 20 hereof, as it becomes
due, and Landlord, without terminating this lease, may exercise all of the
rights and remedies of a Landlord under section 1951.4 of the Civil Code of the
State of California or any successor Code section; (iii) enter the premises and
remove therefrom all persons and property, store such property in a public
warehouse or elsewhere at the cost of and for the account of Tenant, and sell
such property and apply the proceeds therefrom pursuant to applicable California
law, and (iv) have a receiver appointed for Tenant, upon application by
Landlord, to take possession of the premises and to apply any rental collected
from the premises and to exercise all other rights and remedies granted to
Landlord pursuant to subparagraph (iii) above. Acts of maintenance and
preservation or efforts to lease the premises or the appointment of a receiver
upon application of Landlord to protect its interest under the lease shall not
be construed as a termination of Tenant's right to possession of the premises
under Section 1951.4 of the California Civil Code, or any successor law thereto,
nor shall any such act be construed as an election on Landlord's part to
terminate this lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction.
If Landlord elects to terminate this lease after Tenant's default, Landlord
may recover all amounts provided in 1951.2 of the California Civil Code
(including, without limitation, the costs and expenses of recovering the
premises, the reasonable costs and expenses of subletting or re-letting the
premises including reasonable attorneys' fees and any real estate commissions
actually paid or incurred, provided that any commission paid to a company owned
by Landlord shall not exceed the prevailing market rate for such commission, and
any costs and expenses of repairs or alterations for such sub-letting or re-
letting) with interest thereon at the rate herein provided, and any additional
amounts which may now or hereafter be authorized by law.
If Landlord subleases the premises, then upon each such subletting, Tenant
shall immediately pay to Landlord (in addition to any other amounts due
hereunder) all reasonable costs and expenses of such subletting, including
without Limitation reasonable attorneys' fees and any real estate commissions
actually paid or incurred (provided that any commission paid to a company owned
by Landlord shall not exceed the prevailing market rate for such commissions)
and any costs and expenses of such alterations and repairs, and the present
worth of the amount, if any, by which the unpaid rentals and other amounts due
hereunder for any portion of the balance of the term of this lease included in
the period of such subletting exceed the rentals reserved in such sublease
(computing present worth by assuming the legal rate of interest), less the
amount, if any, of said rental loss which Tenant proves could have been
reasonably avoided, with interest on all such sums at the rate herein provided.
Rents received by Landlord from such re-letting shall be applied; first, to the
payment of any unpaid sums due to Landlord from Tenant under the preceding
sentence hereof; second, to the payment of any indebtedness, other than
-9-
monthly rent, due hereunder from Tenant to Landlord (including interest on
defaulted payments hereunder); third, to the payment of rent due and unpaid
hereunder and the residue, if any, shall be held by Landlord and applied in
payment of future rent or other obligations as the same may become due and
payable hereunder. If rentals received from such a subletting during any month
are less than rentals and other payments to be paid during or prior to that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Any
such deficiency shall be calculated and paid monthly.
Landlord shall have the right to cure any default of Tenant at Tenant's
expense. Tenant shall pay to Landlord immediately upon demand all costs incurred
by Landlord in curing any such default. No such cure by Landlord shall
constitute a waiver by Landlord of the default of Tenant or prevent Landlord
from exercising the other remedies herein provided for default by Tenant.
(c) Late charges. Tenant acknowledges that late payment by Tenant to
------------
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this lease, including without limitation processing and
accounting charges, administrative expense, and additional interest expense or
late charges to Landlord resulting from late payment by Landlord of payments due
on obligations of Landlord, whether or not secured by an encumbrance on the
premises. Tenant acknowledges that the exact amount of such damages would be
extremely difficult and impractical to ascertain, and that the expense of
attempting to ascertain the exact amount of such damages would be an additional
cost not contemplated by this lease. Accordingly, in the event that Tenant shall
fail to pay any installment of rent or any sum due hereunder within ten (10)
days after the later of the date such amount is due or the effective date of any
notice required to be given by Landlord in connection therewith, and without
regard to whether Landlord exercises any remedy herein provided for default by
Tenant, Tenant shall pay to Landlord as additional rent a late charge equal to
four percent (4%) of each such installment or other sum. Landlord and Tenant
agree that the late charge herein provided is a reasonable estimate of the
damages which Landlord shall incur by reason of late payment by Tenant.
Landlord's acceptance of any late charge shall not constitute a waiver of
Tenant's default with respect to the overdue amount if Tenant fails to pay such
amount within any applicable grace period provided in this lease, nor shall such
acceptance prevent Landlord from exercising any rights or remedies herein
provided for default by Tenant.
(d) Other. In addition to the foregoing, and regardless of whether
-----
Landlord has exercised any remedies for default hereunder, if an event of
default has occurred under Paragraph 14(a) hereof and is continuing at the time
Tenant purports to exercise a right or option granted hereunder, Tenant shall
have no right to exercise any right of first refusal, option to extend the term
of this lease or option to expand the premises granted to Tenant hereunder or in
any other agreement relating to the premises, the building or the Project, and
any attempt to exercise such a right or option shall be void and of no effect
whatsoever, provided, however, that Tenant's right to possession of the
premises, and Tenant's rights to sublet the premises or assign its lease
pursuant to the provisions of Paragraph 5 hereof, shall not be deemed terminated
unless Landlord terminates the lease by written notice as herein provided. Any
period provided herein for the exercise by Tenant of any such right or option
hereunder shall not be tolled, extended, or otherwise affected to the benefit of
Tenant by reason of any such disability of Tenant hereunder regardless of any
attempt by Tenant to exercise such right or option hereunder while such an event
of default exists hereunder. Any defaulted payments hereunder shall bear
interest at 3% per
-10-
annum plus the greater of (i) the Federal Reserve Bank rate, specified in
Article 15, Section 1 of the California Constitution, prevailing on the 25th day
of the month preceding execution of this lease (it being understood that this
lease is not a contract to make a loan or forbearance), or (ii) such Federal
Reserve Bank rate prevailing on the 25th day of the month preceding the date
such defaulted payment was due hereunder, regardless of whether Landlord
exercises any remedies hereunder.
Tenant hereby waives all claims for damages that may be caused by
Landlord's re-entering and taking possession of the premises or removing and
storing the property of Tenant as authorized in this paragraph, and will hold
Landlord harmless against all loss, costs or damages occasioned thereby, and no
such re-entry shall be considered or construed to be a forcible entry.
15. REMOVAL OF PROPERTY. [Intentionally deleted].
16. WAIVER. No provision of this lease shall be deemed waived by Landlord
or Tenant except by a writing signed by Landlord or Tenant. 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 of any subsequent breach of the same or any other term, covenant,
or condition herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant, or condition of this lease, other than the failure of Tenant
to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent. No endorsement on
any check or other form of payment or statement in any communication
accompanying any payment shall be deemed an accord or satisfaction, and Landlord
or Tenant may accept any payment without prejudice to any rights Landlord or
Tenant may have at law or under this lease. Any consent by Landlord or Tenant to
any act or omission by Tenant or Landlord for which Landlord's or Tenant's
consent is required hereunder shall not be deemed to be a consent to any
subsequent act or omission of the same or different nature, nor shall any such
consent be deemed to be a waiver of the requirement of Landlord's or Tenant's
consent for any subsequent act or omission of the same or different nature.
17. ATTORNEYS' FEES. If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of this lease or
Tenant's occupancy of the premises, including any suit by Landlord for the
recovery of rent or possession of the premises, the losing party shall pay to
the prevailing party a reasonable sum for attorneys' fees incurred in bringing
such suit, and/or enforcing any judgment granted therein, all of which shall be
deemed to have accrued upon the commencement of such action and shall be paid
whether or not such action is prosecuted to judgment. Any judgment or order
entered in such action shall contain a specific provision providing for the
recovery of attorneys' fees and costs incurred in enforcing such judgment. For
the purposes of this section, attorneys' fees shall include, without limitation,
fees incurred in the following: (1) postjudgment motions; (2) contempt
proceedings; (3) garnishment, levy, and debtor and third party examinations; (4)
discovery; and (5) bankruptcy litigation.
18. TAXES PAYABLE BY TENANT. Tenant shall pay, before delinquency, all
taxes levied against, imposed upon, measured by, or resulting from or with
respect to (a) any personal property or trade fixtures placed by Tenant in or
about the premises; (b) any improvements ("Special Improvements") to the
premises in excess of building standard improvements, whether owned by Landlord
or Tenant; (c) the possession, lease, operation, management, maintenance,
alteration, improvement, repair, use or occupancy of
-11-
the premises or any portion thereof by Tenant (provided that this clause shall
not be construed to require Tenant to make payments in duplication of amounts
payable pursuant to Paragraph 20 hereof); (d) this transaction or any document
to which Tenant is a party creating or transferring any interest or estate in
the premises; (e) the cost and expenses of contesting the amount or validity of
any of the foregoing taxes. If any such taxes are levied against Landlord or
Landlord's property, and if Landlord pays the same, which Landlord shall have
the right to do regardless of the validity of such levy, or if the assessed
value of Landlord's property is increased by the inclusion therein of a value
placed upon such personal property, trade fixtures or Special Improvements of
Tenant, and if Landlord pays the taxes based upon such increased assessment,
which Landlord shall have the right to do regardless of the validity thereof,
Tenant shall, upon demand, repay to Landlord the taxes so levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment, as the case may be. In the event that it shall not be lawful for
Tenant so to reimburse Landlord, the rent payable to Landlord under this lease
shall be revised to yield to Landlord the same net rent from the premises after
imposition of any such tax upon Landlord as would have been received by Landlord
from the premises prior to the imposition of such tax. The amount of any tax
upon Tenant's personal property attached to the premises, trade fixtures or
Special Improvements which is included in the property tax assessment for the
building shall be determined on the basis of the records of the County Assessor
if such records are sufficiently detailed to allow such determination, and if
not, then the amount shall be determined on the basis of the actual cost of
construction or installation thereof. Notwithstanding the foregoing, Tenant
shall have the right to contest the imposition or assessment of any such taxes
by appropriate legal procedures, provided that unless the taxing authority
agrees to suspend Tenant's obligation to pay such amounts during the pendency of
such contest, Tenant shall not be relieved of the obligation to pay, or
reimburse Landlord for, any such taxes during the pendency of such contest, and
Tenant shall indemnify and hold Landlord harmless from any liability, cost,
damage or expense arising out of such contest.
19. LIENS. Tenant shall keep the premises, building, and the Project, free
from any liens arising out of any work performed, materials furnished or
obligations incurred by Tenant.
20. RENTAL ADJUSTMENT. The monthly rental provided in Paragraph 3 shall be
subject to adjustment as follows:
(a) Landlord shall bear all Project Taxes and Operating Expenses through
and including the Base Year, which is calendar year 1993. If Project Taxes and
Operating Expenses in any subsequent year of the lease term exceed the Base Year
Project Taxes and Operating Expenses, Tenant shall pay to Landlord with respect
to each such year, Tenant's Share of such excess.
(b) Tenant shall pay its share of any such excess in the following manner:
After the first calendar year following the Base Year (hereinafter referred to,
together with each successive calendar year of the lease term, as the
"Comparison Year"), Landlord shall calculate the actual Project Taxes and
Operating Expenses and Tenant's share of the excess amount over the Base Year
Project Taxes and Operating Expenses. Landlord shall notify Tenant of the total
amount of its share of the excess. Tenant shall pay to Landlord the full amount
of its share of the excess for the first Comparison Year within thirty (30) days
after its receipt of the invoice. One-twelfth (1/12th) of Tenant's share of the
excess for the first Comparison Year shall be added to the monthly rental
payments required to be made by Tenant in the Second Comparison Year as an
estimated amount of Tenant's share of the excess for such Comparison Year, and
any installments which would have been
-12-
payable in the months preceding Landlord's notice to Tenant shall be payable
within thirty (30) days after Landlord's notice. The procedure outlined above
shall be repeated in each successive Comparison Year, provided that the total
amount of monthly payments made by Tenant in any Comparison Year shall be
deducted from its share of the excess amount for such Comparison Year, with the
balance to be paid by Tenant within thirty (30) days after its receipt of the
reconciliation statement for such Comparison Year, or with any overpayment by
Tenant to be credited against the next installment of rent due under the lease,
and further provided that Tenant shall pay the same installment amount in each
Comparison Year as in the prior year until such amount is adjusted by Landlord
in the reconciliation statement for the prior Comparison Year.
(c) Landlord shall, as soon as practicable after the close of any calendar
year for which rental was increased under Subparagraph 20(a) hereof, deliver to
Tenant a written statement summarizing actual Project Taxes and Operating
Expenses for such calendar year and showing Tenant's Share of any excess over
the Base Year Project Taxes and Operating Expenses. If Tenant disputes the
amount set forth in such statement, Tenant shall have the right, by written
request made not later than thirty (30) days following receipt of such
statement, to cause Landlord's books and records with respect to such calendar
year to be audited by independent certified public accountants mutually
acceptable to Landlord and Tenant. Prior to any such audit, Tenant shall pay to
Landlord a deposit equal to the full amount of any unpaid amount in dispute.
Notwithstanding the foregoing, Tenant may elect to deposit such disputed amount
with a neutral escrowholder by so notifying Landlord provided that in such
event, the audit must be concluded, and Landlord and Tenant shall each cause the
escrowholder to release any amounts determined to be owed to Tenant or Landlord,
respectively, no later than sixty (60) days following the original due date for
the disputed amount. All amounts held in such escrow account shall bear interest
at the highest available rate for short-term deposits for the benefit of Tenant,
unless such audit reveals that the amount in dispute is in fact owing to
Landlord, in which case such interest shall be for the benefit of Landlord. The
amounts payable under Subparagraph 20(b) by Landlord to Tenant or Tenant to
Landlord, as the case may be, shall be appropriately adjusted on the basis of
such audit. If such audit discloses a liability for further refund by Landlord
to Tenant in excess of five percent (5%) of the amount determined by Landlord
pursuant to this subparagraph 20(c) hereof as Tenant's Share of actual excess
Project Taxes and Operating Expenses for such calendar year, the cost of such
audit and the escrowholder's fee shall be borne by Landlord; otherwise the cost
of such audit and the escrowholder's fee shall be borne by Tenant. Tenant shall
pay all reasonable expenses of Landlord in connection with any inspection or
audit of Landlord's books and records hereunder (including without limitation
accounting or legal fees incurred by Landlord in connection therewith), unless
under the terms of this subparagraph 20(c) Landlord is required to pay the cost
of an audit for the calendar year covered by Tenant's inspection or audit. If
Tenant shall not request an audit in accordance with the provisions of this
subparagraph 20(c) within ninety (90) days of receipt of Landlord's statement,
such statement shall be conclusively binding upon Tenant.
(d) Tenant's obligation under this Paragraph 20 for any fraction of a
calendar year at the end of the lease term shall be determined by prorating
Tenant's obligation hereunder on the basis which the number of days in such
fractional calendar year in the lease term bears to 365. If the lease term
terminates during a calendar year, additional rent payable hereunder, as pro-
rated, shall be due and payable when determined notwithstanding the termination
of this lease. If this lease shall be terminated by Landlord pursuant to the
default provisions of Paragraph 14,
-13-
Tenant's liability under this Paragraph 20 shall immediately be due and payable,
based upon Landlord's reasonable current projection as to likely excess actual
Project Taxes and Operating Expenses if the same are not yet then ascertainable
with certainty, with any such projection and payment by Tenant subject to
subsequent adjustment when the actual applicable Project Taxes and Operating
Expenses can be determined. For purposes of this Paragraph 20, Project Taxes and
Operating Expenses for any year (including the Base Year) during which the
Project is not fully occupied shall be calculated by projection as if the
Project were 95% occupied during the entire calendar year.
(e) For the purposes of this paragraph the following definitions shall
apply:
(1) "Project Taxes" shall include (a) all real estate taxes,
possessory interest taxes, personal property taxes levied upon, measured by, or
assessed to Landlord in connection with the Project other than taxes covered by
Paragraph 18, and any other taxes, charges and assessments (including, without
limitation, any taxes, charges or assessments for public improvements, services
or benefits, transit development fees, housing funds, education funds, street
highway or traffic fees, environmental charges, fees or penalties imposed as a
means of controlling or abating environmental degradation or energy use
(provided, however, that Project Taxes shall not include charges based on the
presence of Hazardous Substances), and taxes, charges or assessments upon or
measured by or for parking facilities) which are levied with respect to or in
connection with the Project, and any improvements, fixtures and equipment and
all other property of Landlord, real or personal, located in or around the
Project and used in connection with the operation of the Project; and (b) any
other tax, charge, assessment, fee or governmental imposition or charge of every
kind or nature whatsoever assessed to Landlord in connection with the Project,
any part thereof, or the premises (other than estate taxes, inheritance taxes,
or net income taxes payable against nonrental as well as rental income) whether
or not in addition to or in lieu of such real estate and possessory interest or
personal property taxes, whether or not now customary or within the
contemplation of the parties hereto, ordinary or extraordinary, foreseen or
unforeseen, or similar or dissimilar to any of the foregoing, including by way
of illustration but not limitation any and all taxes, impositions, charges, fees
or assessments upon, allocable to, or measured by the area of the premises or
the Project or on the rent payable hereunder or the rent payable on the premises
or the Project or any portion thereof, including without limitation any gross
income tax, excise tax or value added tax, levied by any governmental or quasi-
governmental entity with respect to the Project, any part thereof, or such rent;
and (c) the reasonable cost and expenses of contesting the amount or validity of
any of the foregoing taxes. In the event that it shall not be lawful for Tenant
to reimburse Landlord for Tenant's Share of any tax, as defined herein, the rent
payable to Landlord under this lease shall be revised to yield to Landlord the
same net rent from the premises after imposition of any such tax upon Landlord
as would have been received by Landlord hereunder prior to the imposition of
such tax. Notwithstanding anything to the contrary in this paragraph, Tenant
shall not be responsible for any increase in real property taxes arising from
any sale or transfer of the Project, or any interest therein, or in Landlord,
during the first five (5) years commencing with the commencement of this lease.
Tenant shall be responsible for Tenant's share of any increases in real property
taxes occasioned by changes in the existing real property tax laws or
regulations, or the enactment of any new real property tax laws or regulations,
after the date hereof.
(2) "Operating Expenses" shall mean all costs and expenses of
ownership, operation and maintenance of the Project
-14-
(excluding depreciation on the buildings and improvements, all amounts paid on
loans of Landlord, real estate brokers' commissions, and expenses capitalized
for federal income tax purposes except as specified herein) including by way of
illustration but not limited to: utilities; supplies; insurance; business
license, permit, inspection and other authorization fees, charges, exactions and
taxes; special charges or assessments for services provided to the Project,
including without limitation sewer, water, fire or police protection; cost of
services of independent contractors (including without limitation accounting and
legal services and property management fees); cost of compensation (including
employment taxes and fringe benefits) of all persons who perform regular and
recurring duties connected with day-to-day operation, maintenance and repair of
the buildings, their equipment and the adjacent walks, malls, arcades, atriums,
balconies, roof gardens, parking area and landscaped areas, including without
limitation janitorial, scavenger, gardening and landscaping, security, operating
engineer, elevator, painting, plumbing, electrical, carpentry, heating,
ventilation, air-conditioning, window washing, signing and advertising (but
excluding persons performing services not uniformly available to or performed
for substantially all Project tenants); maintenance and repair expenses,
including but not limited to capital expenditures required to meet changed
government regulations and governmental regulations for environmental protection
or energy conservation, and rental expenses for personal property to the extent
used in the maintenance, operation and repair of the Project; Landlord's
reasonable administration expense; and the reasonable cost of contesting the
validity, amount, or applicability of any governmental enactments or other
expenses which may affect Operating Expenses.
(3) "Tenant's Share" is agreed to be forty-three and 30/100 percent
(43.3%).
21. SUBORDINATION. Tenant agrees that this lease shall be subject and
subordinate to any mortgage, deed of trust or like encumbrance heretofore or
hereafter placed upon the Project or the premises by Landlord or its successors
in interest, to secure the payment of monies loaned, interest thereon and/or
other obligations, and this lease also shall be subject and subordinate to any
ground lease or underlying lease heretofore or hereafter affecting the Project.
Notwithstanding the foregoing, in the event that, subsequent to the execution of
this lease, a new mortgage, deed of trust or like encumbrance on the premises is
created, or a ground lease or underlying lease to which this lease shall be
subordinate is entered into, then this lease shall be subject and subordinate to
such encumbrance or lease only if Landlord obtains from such mortgagor or lessor
a written agreement in form acceptable to such mortgagor or lessor, providing
substantially that Tenant's rights under this lease shall not be affected by any
foreclosure or deed in lieu of foreclosure of, or sale under such encumbrances
for so long as Tenant performs its obligations under this lease (or, in the case
of a ground lease or underlying lease, Tenant's rights shall not be affected by
any termination of such lease for so long as Tenant performs its obligations
under this lease). Tenant agrees to execute and deliver, upon demand of
Landlord, any and all instruments reasonably desired by Landlord, subordinating
in the manner requested by Landlord, this lease to such mortgage, deed of trust,
like encumbrance, ground lease, or underlying lease. On or before the
commencement date of this Lease, Landlord shall deliver to Tenant a recordable
non-disturbance agreement in favor of Tenant, in commercially reasonable form,
executed by Bank of America with respect to its mortgage lien encumbering the
Project.
22. OFFSET STATEMENT. Within ten (10) business days after request therefor
by Landlord, or in the event of any sale,
-15-
assignment or hypothecation of the premises and/or the Project or any portion
thereof, by Landlord, Tenant agrees to deliver in recordable form a certificate
to any proposed mortgagee, trust deed beneficiary or purchaser, or to Landlord,
in form reasonably satisfactory to the addressee, certifying as to (a) the date
of this lease and any amendments thereto, (b) the date upon which this lease
term commenced and will end, (c) the fact that this lease, as so amended, is in
full force and effect and has not been modified except as stated, (d) whether
any rentals are then prepaid or unpaid hereunder, (e) whether any defaults then
exist hereunder, (f) whether Tenant claims any offsets or defenses to any
obligation imposed hereunder and (g) any other information reasonably requested
of Tenant. If Tenant is provided with a proposed form of such certificate, and
fails to execute same within ten (10) business days after receipt thereof,
Tenant agrees that such failure shall, at Landlord's option, constitute an event
of default under this lease. Tenant acknowledges that any proposed mortgagee,
trust deed beneficiary, or purchaser, or Landlord, may rely on the truth of
statements set forth in such certificate as executed by Tenant.
23. ATTORNMENT. In the event of a termination of all or any part of
Landlord's interest in the building or the Project due to sale or other
disposition, or from any cause whatsoever or in the event of the foreclosure of
or exercise of a power of sale under any mortgage or deed of trust made by
Landlord covering the premises, Tenant shall attorn to and recognize as Landlord
hereunder, Landlord's assignee or successor in interest or the purchaser at such
foreclosure or sale in lieu thereof, as the case may be, on condition that such
assignee, successor or purchaser does not disturb Tenant's possession under this
lease (so long as no event of default exists under Paragraph 14(a) hereof). Any
such sale, disposition, or other termination of Landlord's interest in the
building or Project shall operate to release Landlord from any liability
thereafter arising under any of the covenants or conditions of this lease,
express or implied, in favor of Tenant, and in such event Tenant agrees to look
solely to the responsibility of Landlord's successor in interest under this
lease, as limited by Paragraph 29 hereof.
24. CONDEMNATION. Should the whole or any part of the premises be
condemned and taken by any competent authority for any public or quasi-public
use or purpose, or should Landlord receive written notice of any threatened
condemnation or taking, Landlord shall promptly notify Tenant in writing. All
awards payable on account of such condemnation and taking shall be payable to
Landlord, and Tenant hereby waives all interest in or claim to said awards, or
any part thereof; provided, however, that nothing contained herein shall be
deemed to give Landlord any interest in or require Tenant to assign to the
Landlord any award made payable to Tenant and specifically designated as
compensation for the taking of personal property and fixtures belonging to
Tenant and removable by Tenant at the expiration of the term of the lease or for
the interruption of or damage to Tenant's business or for any costs or expenses
of relocating Tenant's business. If the whole of the premises shall be so
condemned and taken, then this lease shall terminate effective on the earlier of
thirty (30) days after Landlord's delivery of a notice to Tenant to such effect
or the date upon which the condemning authority takes possession. If a part only
of the premises is condemned and taken and the remaining portion thereof is not
suitable for the purposes of which Tenant had leased said premises, either
Landlord or Tenant may terminate this lease upon thirty days' notice to the
other, which notice must be served on the other within ten (10) business days of
Landlord's delivery of the notice of condemnation to Tenant. If by such
condemnation and taking a part only of the premises is taken, and the remaining
part thereof is suitable for the purposes for which Tenant has leased said
premises, this lease shall continue, but the
-16-
rental shall be reduced in an amount proportionate to the value of the portion
taken as it related to the total value of the premises.
25. WAIVER OF REDEMPTION; HOLDING OVER. Tenant hereby waives for Tenant
and all those claiming under Tenant, all right now or hereafter existing to
redeem the leased premises after termination of Tenant's right of occupancy by
notice of termination by Landlord pursuant to Paragraph 14 hereof or by order or
judgment of any court or by any legal process or writ. If Tenant holds over
after the term hereof, with or without the express or implied consent of
Landlord, such tenancy shall be from month to month only, and not a renewal
hereof or an extension for any further term, and in such case the rent shall be
increased to any amount which Landlord may specify in a written notice to Tenant
(but not exceeding 125% of the rent payable hereunder immediately before
expiration of the term), and all other payments provided herein shall be payable
in the amount and at the times specified in this lease. Such month to month
tenancy shall be subject to every other term, covenant, and agreement contained
herein except as to the term of this lease.
26. ENTRY AND INSPECTION; CONFIDENTIALITY.
(a) Landlord and its agents shall have the right to enter into and
upon the premises at all reasonable times upon at least 24 hours oral notice
(which shall not be required in the case of emergency), for the purpose of
inspecting the same, or for the purpose of showing same to prospective
purchasers, mortgagees, or tenants, or for the purpose of protecting the
interest therein of Landlord or to post notices of non-responsibility, or to
make alterations or additions to the premises or to any other portion of the
building in which the premises are situated, including the erection of
scaffolding or other mechanical devices, or to provide any service provided by
Landlord to Tenant hereunder, including window cleaning and janitor service,
without any rebate of rent to Tenant for any loss of occupancy or quiet
enjoyment of the premises, or damage, injury or inconvenience thereby
occasioned, provided that in all situations other than an emergency Landlord
shall exercise its rights hereunder in a manner that will not unreasonably
interfere with Tenant's use of the premises. For each of the aforesaid purposes,
Landlord shall at all times have and retain a key with which to unlock all of
the doors in, upon, and about the premises, excluding Tenant's vaults and safes,
or special security areas (designated in a writing signed by Tenant and Landlord
in advance), and Landlord shall have the right to use any and all means which
Landlord may deem necessary or proper to open said doors in an emergency,
without liability of Landlord to Tenant, in order to obtain entry to any portion
of the premises, and any entry to the premises, or portions thereof obtained by
Landlord by any of said means, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of, the premises,
or an eviction, actual or constructive, of Tenant from the premises or any
portions thereof. Landlord shall make reasonable efforts to minimize any
interference with Tenant's use and enjoyment of the premises in making any such
entry. In connection with any such entry to the premises, Tenant may require
that Landlord or its agent or contractor be accompanied by Tenant, provided that
Tenant shall be available for such accompaniment in accordance with Landlord's
or its agent's or contractor's schedule.
(b) Landlord acknowledges that Tenant's operations at the premises
will include the development, application and marketing of confidential and
proprietary trade secrets. If Tenant provides Landlord written notice describing
in reasonably sufficient detail certain areas within the premises as secure
areas, Landlord agrees to enter such areas only after advance notice to Tenant
and subject to accompaniment by Tenant, except that such notice and
accompaniment shall not be required in cases
-17-
of emergency, or upon expiration or earlier termination of this lease. Landlord
agrees to not disclose such confidential and/or proprietary information about
Tenant and its business; provided, however, that Landlord shall not be precluded
from making any disclosure compelled by a court or other governmental entity.
(c) Subject to events of force majeure, acts of God, riot, war, public
disturbance, casualties, events beyond Landlord's control, and to the necessity
to limit or restrict access as may be required from time to time for safety,
repair or maintenance, Tenant shall have access to the premises 24 hours per
day, seven days a week.
27. BUILDING PLANNING. Landlord shall have the right at any time, without
the same constituting an actual or constructive eviction and without incurring
any liability to Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the building and the Project, and to change
the name, number or designation by which the building or the Project is commonly
known.
28. HAZARDOUS SUBSTANCES. Landlord represents and warrants to Tenant that
to the best of its knowledge as of the date of this lease, there are no
Hazardous Substances located in, on or under the building or the Project other
than as disclosed to Tenant in writing; provided that, for purposes of the
foregoing representation and warranty, "Hazardous Substances" shall mean those
substances which are as of the date of this lease regulated by local, state or
federal law or regulation requiring removal or other remediation, warning or
restrictions on use, generation, storage, disposal or transportation to the
extent those substances are present in quantities which are deemed hazardous by
such laws or regulations. For purposes of the remainder of this Paragraph 28,
"Hazardous Substances" shall mean those substances which are now or hereafter
regulated by local, state or federal law or regulation requiring removal or
other remediation, warning or restrictions on use, generation, storage, disposal
or transportation to the extent those substances are present in quantities which
are deemed hazardous by such laws or regulations. Landlord shall indemnify and
hold Tenant harmless from and against all claims, costs, damages and
liabilities, including attorneys' fees and costs, arising out of or in
connection with the presence of any Hazardous Substances in, on or under the
building or the Project to the extent such presence is caused by Landlord or
such presence existed prior to the date of this lease. Landlord's obligations
hereunder shall survive the termination of this lease.
Tenant, at its sole cost, shall comply with all laws relating to its
storage, use, generation, transportation, disposal and release of Hazardous
Substances. If Tenant does store, use, generate, transport or dispose of any
Hazardous Substances, Tenant shall notify Landlord in writing at least ten (10)
days prior to their first appearance on the premises; provided, however, that
Tenant shall not have to give such notice with regard to incidental quantities
of any such Hazardous Substances present in products stored, used or otherwise
brought onto the premises for general office and/or janitorial purposes. Tenant
shall be solely responsible for and shall defend, indemnify and hold Landlord
and its agents, employees and representatives harmless from and against all
claims, costs, damages and liabilities, including attorneys' fees and costs,
arising out of or in connection, with Tenant's, or Tenant's agents, contractors
or employees, storage, use, generation, transport, disposal or release of
Hazardous Substances, including, without limitation, any such claims, costs,
damages and liabilities, including attorneys' fees and costs, arising out of or
in connection with any investigation, testing, removal, clean-up,
-18-
remediation and/or restoration services, work, equipment and materials necessary
to remove or otherwise satisfactorily remediate the contamination and any
related problems actually caused by Tenant's, or Tenant's agents, contractors or
employees, use, storage, generation, transportation, disposal or release of
Hazardous Substances in, on or around the premises or the Project; but it is
understood and agreed that Tenant shall not be responsible, and Landlord
releases Tenant from liability for, Hazardous Substances contamination in, on or
around the premises, including without limitation investigation, testing,
remediation and/or restoration costs related thereto, that is not actually
caused by the storage, use, generation, transport, disposal or release of
Hazardous Substances by Tenant or Tenant's agents, contractors or employees.
Tenant's obligations hereunder shall survive the termination of this lease. If
at any time during or after the term of this lease, as it may be extended,
Tenant becomes aware of any inquiry, investigation, and administrative
proceeding, or judicial proceeding by any governmental agency regarding the
storage, use or disposition of any Hazardous Substances by Tenant or its agents,
contractors or employees on or about the premises or the Project, Tenant shall
within five (5) days after first learning of such inquiry, investigation or
proceeding give Landlord written notice advising Landlord of same. Landlord and
Tenant agree that this Paragraph 28 is intended to delineate the parties'
respective rights and obligations regarding the presence of Hazardous Substances
in, on or around the premises or the Project and that other provisions of this
lease shall not be construed to expand, or limit, such rights or obligations.
29. LIMITATION ON LANDLORD'S LIABILITY. In the event of any actual or
alleged failure, breach or default by Landlord hereunder pertaining to the
premises, the building, or the Project, Tenant shall give Landlord written
notice of such default and Landlord shall not be deemed in default hereunder
unless Landlord fails to cure such default within thirty (30) days after receipt
of such written notice (or such longer period as is reasonably necessary to
remedy such default, provided that Landlord shall, within such thirty (30) day
period, commence and thereafter diligently pursue such remedy until such default
is cured). If Landlord fails to cure such default in the applicable time period,
Tenant may elect to cure such default, and Landlord shall reimburse Tenant the
reasonable costs of such cure within thirty (30) days after its receipt of
documentation of such costs. If Landlord fails to make such payment when due,
Tenant may deduct the amount of such costs from its monthly base rental payment,
provided that the amount of the deduction in any one month shall not exceed
fifty percent (50%) of the base rental amount due for such month, and provided
further that Tenant shall not be entitled to exercise such deduction right with
respect to base monthly rental payments for more than four months in any twelve
month period during the term of this Lease. In consideration of the benefits
accruing to Tenant hereunder, Tenant agrees for itself and its successors and
assigns that in the event of any such failure, breach or default,' or of any
damage to Tenant from any act or omission of Landlord pertaining to the premises
or the Project, the sole and exclusive remedy of Tenant shall be against
Landlord's interest in the Project, that any judgment obtained against Landlord,
or any person who owns an interest in the building or land shall be satisfied
solely by execution of the judgment and levy against the right, title and
interest of Landlord or such person in the Project, and rentals therefrom.
Neither Landlord, nor any such person who owns any interest whatsoever in the
Project, shall be personally liable for any deficiency after such execution and
levy. Notwithstanding the foregoing, Tenant shall have recourse against Landlord
for any loss incurred by Tenant as a result of Landlord's failure to carry the
insurance required under this lease, or the failure of an assignee of Landlord
to whom Landlord has sold or transferred its interest in the Project to assume
liability for the
-19-
defaults or obligations of Landlord which accrued prior to the date of such sale
or transfer.
30. SUCCESSORS AND ASSIGNS. Subject to the provisions hereof relating to
assignment, mortgaging, pledging and subletting, this lease is intended to and
does bind the heirs, executors, administrators, successors and assigns of any
and all of the parties hereto.
31. SECURITY. Tenant has deposited with Landlord the sum of Forty-Seven
Thousand Three Hundred Twenty-Two Dollars ($47,322.00) as the Security Deposit
for the full and faithful performance of every provision of this lease to be
performed by Tenant. Title to the Security Deposit has been transferred to
Landlord subject only to Tenant's right to the return of the Security Deposit as
set forth below. If Tenant defaults with respect to any provision of this lease,
Tenant's right to the return of the Security Deposit shall terminate to the
extent of any payments then past due hereunder, and Landlord may apply all or
any part of the Security Deposit for the payment of any rent or other sum in
default, the repair of such damage to the premises or the payment of any other
amount which Landlord may spend or become obligated to spend by reason of
Tenant's default or to compensate Landlord for any other, loss or damage which
Landlord may suffer by reason of Tenant's default to the full extent permitted
by law. If any portion of the Security Deposit is so applied, Tenant shall,
within five (5) days after written demand therefor, deposit cash with Landlord
in an amount sufficient to restore the Security Deposit to its original amount.
Landlord shall not be required to keep the Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant is not otherwise in default, the Security Deposit or any
balance thereof shall be returned to Tenant at its last address known to
Landlord within thirty (30) days of termination of the lease.
32. PARKING. Landlord agrees that Tenant shall be provided on a non-
exclusive basis and at no additional cost with 112 non-reserved automobile
parking spaces. Such number of parking spaces shall be subject to pro rata
adjustment if a lesser or greater area shall hereafter be contained in the
definition of the premises subject to this lease. Said parking spaces shall be
located in the parking area which is part of the Project. Landlord shall keep
the parking area clean, lighted and in good repair. Landlord shall not
oversubscribe parking at the Project. Landlord may designate certain parking
areas as Visitors' Parking, to be reserved for guests and/or visitors of the
Project, and Tenant and Tenant's employees shall not park in areas designated
for Visitors' Parking. Additionally, Landlord agrees that Tenant shall be
provided on an exclusive basis and at no additional cost with fifteen (15)
reserved automobile parking spaces. Said reserved parking spaces shall be
properly marked by Landlord as "Reserved." The location of the reserved parking
stalls is identified in Exhibit C. Landlord shall have no policing or enforcing
responsibilities with respect to the reserved spaces.
33. SUITE AND BUILDING IDENTIFICATION. Landlord will provide, at
Landlord's expense, Tenant's name plate and suite number on Tenant's suite door
using building standard design and materials and shall provide lobby directory
signage for Tenant and a reasonably limited number of key employees in building
standard design. Tenant shall be permitted monument signage at the front of the
building at Tenant's sole expense, subject to Landlord's reasonable approval and
provided that Tenant shall be responsible for compliance with applicable codes
and regulations.
34. RULES AND REGULATIONS. The rules and regulations attached to this
lease, as well as such reasonable rules and
-20-
regulations as may be hereafter adopted by Landlord for the safety, care and
cleanliness of the premises and the operation of the Project, and the
preservation of good order thereon, are hereby expressly made a part hereof, and
Tenant agrees to comply with them. Landlord shall not be liable to any person,
including Tenant, for the failure of any other tenant or person to observe such
rules and regulations.
35. TIME. Time is of the essence of this lease.
36. LEASE EXAMINATION AND EXECUTION. Tenant acknowledges that submission
of this lease for examination by Tenant does not constitute a reservation or
option for lease, and that this lease is not and shall not be effective until
(a) Tenant has delivered to Landlord at least three originals of this lease,
fully executed by Tenant, accompanied by payment to Landlord of a sum equal to
the sum of (i) one month's rent hereunder, which shall be applied toward
Tenant's rental obligations under Paragraph 3 hereof upon commencement of this
lease, and (ii) the amount of the security deposit provided in Paragraph 31
hereof; and (b) Landlord has delivered to Tenant at least one fully executed
original of this lease. Tenant, and each person executing this lease on behalf
of Tenant, represent and warrant that this lease is duly executed by Tenant, and
that the persons executing this lease on behalf of Tenant are duly authorized so
to do and to bind Tenant to the obligations set forth in this lease. Landlord,
and each person executing this lease on behalf of Landlord, represent and
warrant that this lease is duly executed by Landlord, and that the persons
executing this lease on behalf of Landlord are duly authorized so to do and to
bind Landlord to the obligations set forth in this lease.
37. MISCELLANEOUS. This lease shall constitute the entire agreement of the
parties pertaining to the premises and all prior agreements and representations
of the parties (except representations of Tenant concerning its financial
condition), whether written or oral, shall be superseded by this lease. This
lease may not be amended or modified except by written agreement duly executed
by the parties hereto. This lease shall be interpreted as follows: (a) according
to the fair meaning of the language without strict construction against either
party; (b) under the laws of the state of California; (c) by disregarding
captions, which shall have no significance except convenience; (d) by
substituting appropriate gender where required; and (e) by substituting the
plural for the singular, and vice versa, where the context requires. If any
provision of this lease is found to be unenforceable or otherwise invalid, such
unenforceable provision shall be deemed separable and the remaining provisions
of this lease shall remain in full force and effect. Landlord's and Tenant's
covenants shall survive termination of this lease where reasonably appropriate
to accomplish the purpose thereof. Tenant, at its sole cost and expense, may
cause to be prepared a memorandum of lease to be executed by the parties, in
form reasonably acceptable to Landlord, which may be recorded by Tenant in the
Official Records of San Mateo County, California. Upon the expiration or earlier
termination of this lease, Tenant shall cause to be prepared and recorded in the
Official Records of San Mateo County, California, at its sole cost and expense,
a quitclaim deed to be executed by Tenant, in form reasonably acceptable to
Landlord.
38. EXHIBITS. Exhibit A hereto, Exhibit B hereto, Exhibit C hereto, the
Rules and Regulations attached hereto as Exhibit D, and any other Exhibit or
Addendum which is initialed or signed by Landlord and Tenant and attached hereto
shall be considered a part of this lease for all purposes.
-21-
39. BROKERS. Landlord and Tenant each warrants that it has had no dealings
with any real estate brokers or agents in connection with the negotiation of
this lease excepting only Cornish and Xxxxx Commercial and The CAC Group and it
knows of no other real estate broker or agent who is entitled to a commission in
connection with this lease.
40. NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which is now or may hereafter be erected on
lands adjacent to the Project shall in no way affect this lease or impose any
liability on Landlord. Noise, dust or vibration or other incidents to new
construction of improvements on lands adjacent to the Project, whether or not by
Landlord, shall in no way affect this lease or impose any liability on Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed these presents the
day and year first above written.
LANDLORD: TENANT:
THE XXXXXX AND XXX XXXX REVOCABLE ELECTRONICS FOR IMAGING,
TRUST a California corporation
By:/s/ Signature Illegible By:/s/ Signature Illegible
Its:__________________________ Its:__________________________________
By:______________________________ By:______________________________________
Its:__________________________ Its:__________________________________
- 22 -
EXHIBIT A
PAGE 1
[EXHIBIT OMITTED]
EXHIBIT A
PAGE 2
[EXHIBIT OMITTED]
EXHIBIT B
SUITE IMPROVEMENTS
1. Landlord shall, at Landlord's cost, construct the improvements to the
premises described in, and in accordance with, those certain plans and
specifications for the premises (the "Final Plans") dated June 15, 1992, by
Ambience. Subject to any Tenant Delays, as hereinafter defined, Landlord
estimates the construction period to substantially complete the tenant
improvements to be 60 days from the date of issuance of the permit for the
tenant improvements (said completion date is hereinafter referred to as the
"estimated completion date"), and Landlord will use its best efforts and due
diligence to obtain such permit at the earliest date reasonably possible and
complete the tenant improvements by the estimated completion date. Landlord
shall provide Tenant with access to the premises for the purpose of installing
modular office cubicles, computer and telephone wires and other cabling no later
than three weeks prior to the estimated completion date. Landlord shall have no
responsibility for coordinating or installing such cubicles, wires or cables.
Tenant shall be solely responsible for the cost of acquisition and installation
of its telephone and computer equipment, and all of Tenant's furnishings and
personal property.
2. Landlord shall turn-key the tenant improvements in the premises in
accordance with the Final Plans and any Change Orders pursuant to Paragraph 3
hereof. The cost shall include the cost of Tenant's space planner's services,
including the cost of preparing the Final Plans and permit fees. Tenant
improvements shall include all architectural fees (up to $1.00 per square foot),
demolition, permits, all code compliance work, all fire/life safety compliance,
fire sprinklers (if required), bathroom upgrading including handicap retrofit
(if required), Title 24, ADA costs, construction and Landlord fees, if any.
3. Tenant may by written instructions or drawings issued to Landlord (a
"Change Order Request") make changes in the Final Plans, including with
limitation, requiring additional work, directing the omission of work previously
ordered, or changing the quantity or type of any materials, equipment or
services. Promptly upon receipt of a Change Order Request, Landlord will provide
Tenant with a statement in detail setting forth the cost of said change
(including a breakdown of costs attributable to labor and materials,
construction equipment exclusively necessary for the change, and preparation or
amendment to shop drawings resulting from said change) and any time delays
anticipated to result from said change, prior to Tenant's final authorization
thereof. Tenant will have two (2) business days after receipt of such statement
in which to confirm the Change Order Request and authorize in writing the work
to be performed pursuant thereto, or to withdraw such request. Change Orders
will be signed by Landlord and Tenant in advance of any Change Order work.
Landlord will not unreasonably withhold its consent to any such Change Order
provided the changes do not, in Landlord's reasonable opinion, adversely affect
the Building's structure, systems, equipment or appearance. No changes to the
Final Plans will be made except pursuant to a written Change Order signed by
Tenant. The cost of all Change Orders which adds cost over the tenant
improvements shown on the Final Plans shall be paid by Tenant after substantial
completion of such Change Order work and within ten days of its receipt of an
invoice therefor.
4. Landlord warrants that all tenant improvements to be constructed by
Landlord as initial tenant improvements shall be constructed in a good and
workmanlike manner using materials of good quality in accordance with the Final
Plans and with all applicable laws. Within thirty (30) days after the
commencement date of the Lease term, Tenant shall make an inspection of the
1
premises and prepare a punchlist of items needing additional work by Landlord.
Landlord's contractor shall complete all punchlist items reasonably identified
by Tenant within thirty (30) days after the inspection or as soon as practicable
thereafter.
5. Notwithstanding anything to the contrary in this Lease, the
commencement of the term of this Lease shall not be delayed to the extent that
delivery of the premises to Tenant is caused by the following ("Tenant Delays"):
construction to be furnished by Landlord is delayed (1) by or at the instruction
of Tenant or its architect, including without limitation, pursuant to or
resulting from a written Change Order (or Orders) pursuant to Section 3 above,
or (2) to accommodate the installation of Tenant's modular office cubicles,
computer and telephone wires and other cabling pursuant to Section 1 above (it
being agreed that Tenant shall not, without Landlord's consent, seek to make any
other installations or conduct any other work which might delay delivery of the
premises); provided that Landlord gives Tenant written notice of any such delay.
6. Upon termination of the Lease, all of the initial tenant improvements
shall remain in the premises unless Landlord shall consent in writing to the
removal thereof by Tenant.
7. Tenant acknowledges that Landlord will make no independent review of
the Final Plans and that Landlord does not warrant either expressly or
impliedly, the adequacy of the Final Plans, the tenant improvements or Tenant's
equipment for Tenant's intended purpose, other than a warranty that the tenant
improvements have been constructed according to the Final Plans in a good and
workmanlike manner, and in accordance with applicable laws.
2
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, pictures, advertisement, name or placard shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building without the written consent of the Landlord first had and
obtained (not to be unreasonably withheld) and Landlord shall have the right to
remove any such sign, placard, picture, advertisement, name or notice without
notice to and at the expense of Tenant.
All approved signs or lettering or doors shall be printed, painted, affixed
or inscribed at the expense of Tenant by a person approved by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the Premises; provided, however, that Landlord may furnish and install a
Building standard window covering at all exterior windows. Tenant shall not
without prior written consent of Landlord (not to be unreasonably withheld)
sunscreen any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress and egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any doors or windows of the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage, damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employees or invitees shall have
caused it.
5. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into
the Building without the prior notice of Landlord and all moving of the same
into or out of the Building shall be done at such time and in such manner as
Landlord shall reasonably designate. Landlord shall have the right to prescribe
the weight, size and position of all safes and other heavy equipment brought
into the Building and also the times and manner of moving the same in and out of
the Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of damage to
any such safe or property from any cause and all damage done to the Building by
moving or maintaining any such safe or other property shall be repaired at the
expense of the Tenant.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interferes in any way with other tenants or those having business therein, nor
shall any animals (seeing eye dogs excepted) or birds be brought in or kept in
or about the Premises or the Building.
8. No cooking shall be done or permitted by Tenant on the Premises
(except that employees may use a UL-rated microwave
oven for personal food preparation), nor shall the Premises be used for the
storage of merchandise, for washing clothes, for lodging, or for any improper,
objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material or use any
method of heating or air conditioning other than supplied by the Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of the Landlord. The location of fixtures affixed to
the Premises shall be subject to the approval of Landlord.
11. On Saturdays, Sundays and legal holidays and on other days between the
hours of 6:00 p.m. and 8:00 a.m. the following day, access to the Building, or
to the halls, corridors, elevators or stairways in the Building, or to the
Premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
In case of invasion, mob, riot, public excitement, or other commotion, the
Landlord reserves the right to prevent access to the Building during the
continuance of the same by closing of the doors or otherwise, for safety of the
tenants and protection of property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
13. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord, which shall not unreasonably be withheld.
14. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building of
which the Premises are a part.
15. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
17. Landlord shall have the right to control and operate the public
portions of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the tenants,
in such manner as it deems best for the benefit of the tenants generally,
provided that Landlord exercises its rights hereunder in a manner consistent
with the operation of a first-class office building.
18. All entrance doors in the Premises shall be left locked when the
Premises are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises.
2
FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE ("First Addendum") is dated for reference
purposes as of July 30, 1992, and is made between The Xxxxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a part
of that certain Agreement of Lease, of even date herewith, between Landlord and
Tenant (herein the "Lease Form") concerning 32,863 rentable square feet of space
(the "Premises") located at 0000 Xxxxxx Xxxxx (xxx "Xxxxxxx"), Xxx Xxxxx,
Xxxxxxxxxx. Landlord and Tenant agree that the Lease Form is modified and
supplemented by this First Addendum.
1. Commencement Date. Notwithstanding anything to the contrary in the
-----------------
Lease Form:
A. The Lease shall commence (the "Commencement Date") on the later
of November 1, 1992, and the first to occur of (i) the date by which all of the
following have occurred: (a) Landlord has substantially completed the tenant
improvements described in Exhibit B to the Lease Form (the "Tenant
---------
Improvements") in accordance with such Exhibit B, (b) Landlord has delivered
---------
possession of the Premises to Tenant; and (c) Landlord has obtained all
approvals and permits from the appropriate governmental authorities required for
the legal occupancy of the Premises for general office use, or (ii) the date by
which the conditions specified in part (i) hereof would satisfied but for Tenant
Delay, as defined in Exhibit B.
---------
B. If the Commencement Date has not occurred for any reason other
than Tenant Delay on or before November 1, 1992, then in that event Tenant shall
not be liable for any rent until such time as Landlord shall deliver possession
of said premises to Tenant. If the Commencement Date has not occurred for any
reason other than Tenant Delay, as defined in Exhibit B by February 1, 1993,
---------
then Tenant may terminate this Lease by written notice to Landlord, whereupon
any monies previously paid by Tenant to Landlord shall be reimbursed to Tenant.
2. Rent. Notwithstanding anything to the contrary in the Lease Form, all
----
base rent and additional rent shall be equitably prorated to reflect the
commencement and termination dates of the Lease.
3. Acceptance of Premises. Notwithstanding anything to the contrary in
----------------------
the Lease Form:
A. Tenant's acceptance of the Premises shall not be deemed a waiver
of Tenant's right to have defects caused by Landlord or Landlord's contractor in
the Tenant Improvements or the Premises repaired at Landlord's expense.
B. Landlord warrants and represents that as of the Commencement Date
the Premises will be in good condition and repair and the electrical,
mechanical, HVAC, plumbing, elevator and other systems serving the Premises and
the Building will be in good condition and repair.
4. Compliance with Laws. Notwithstanding anything to the contrary in the
--------------------
Lease, Form, at the Commencement Date, the Premises and the Project shall
conform to all requirements of applicable covenants, conditions, restrictions
and encumbrances ("CC&R's"), all underwriter's requirements, and all rules,
regulations, statutes, ordinances, laws and building codes (collectively,
"Laws") applicable thereto.
5. Use of Premises. Notwithstanding anything to the contrary in the Lease
---------------
Form, to Landlord's knowledge, as of the Commencement Date, Landlord represents
and warrants that Tenant's use of the Premises, as described in Paragraph 4 of
the Lease
1
Form, is permitted by all Laws, CC&R's, and fire underwriter's requirements and
that electricity, water, janitorial, heating, ventilating, air conditioning and
other services, at the levels generally provided for office uses in comparable
buildings in the vicinity of the Premises, will be available to the Premises at
all times during the Lease term; subject to Paragraph 8 of the Lease Form, and
subject to events beyond Landlord's control.
6. Alternations, Additions and Improvements. Notwithstanding anything to
----------------------------------------
the contrary in the Lease Form:
A. Nonstructural. Provided that Tenant shall deliver to Landlord a
-------------
copy of all final plans, specifications and working drawings for any such work
at least ten (10) days before commencing such work, Tenant may construct
nonstructural alterations, additions and improvements ("Alterations") in the
Premises without Landlord's prior approval which (i) do not affect any area
outside the Premises, (ii) do not affect the Building's structure, equipment,
services or systems, or the outside appearance or use of the Premises or
Building, and (iii) does not cost more than Twenty-Five Thousand Dollars
($25,000). If Landlord's consent is required for an Alteration and Landlord does
not notify Tenant in writing of its approval or disapproval within fifteen (15)
days following Tenant's written request for approval (provided Tenant's request
must specify that failure to respond shall be deemed approval), then Landlord
shall be deemed to have approved the proposed Alteration. Tenant shall insure
that all work done by Tenant or its contractors, agents or employees complies
with all Laws, and Tenant shall obtain all necessary permits and approvals, at
Tenant's cost, copies and/or other acceptable documentation of which shall be
provided to Landlord prior to commencement of any work.
B. Removal. Upon Tenant's written request, Landlord shall advise
-------
Tenant in writing whether it reserves the right to require Tenant to remove any
Alterations from the Premises upon termination of the Lease.
C. Tenant's Property. All Alterations, trade fixtures and personal
-----------------
property installed in the Premises at Tenant's expense ("Tenant's Property")
shall at all times remain Tenant's property and Tenant shall be entitled to all
depreciation, amortization and other tax benefits with respect thereto. Except
for Alterations which cannot be removed without structural injury to the
Premises, at any time Tenant may remove Tenant's Property from the Premises,
provided Tenant repairs all damage caused by such removal.
X. Xxxx Waiver. Landlord shall have no lien or other interest
-----------
whatsoever in any item of Tenant's Property, or any portion thereof or interest
therein located in the Premises or elsewhere, and Landlord hereby waives all
such liens and interests. Within ten (10) business days after receipt of
Tenant's written request (and acceptable documents), Landlord shall execute
documents reasonably necessary to evidence Landlord's waiver of any right,
title, lien or interest in Tenant's Property located in the Premises.
E. Insurance. Tenant shall have no obligation to insure any property
---------
in the Premises, other than as required in the Lease Form, from fire or any
other casualty and Tenant shall be entitled to all insurance proceeds and
condemnation awards and settlements payable with respect to Tenant's Property.
F. Sale of Tenant's Property. Landlord shall provide Tenant with at
-------------------------
least five (5) days prior written notice of any sale of Tenant's Property by
Landlord.
7. Repairs and Maintenance. Notwithstanding anything to the contrary in
-----------------------
the Lease Form:
2
A. Landlord shall perform and construct, and (except to the extent
any such performance, repair, maintenance or improvement is an obligation of
Tenant under the Lease Form or this Addendum, or is required due to the act or
omission of Tenant, its agents, contractors, employees, invitees or licensees,
or due to a breach of this Lease by Tenant) Tenant shall have no responsibility
to perform or construct, any repair, maintenance or improvement (i) necessitated
by the acts or omissions of Landlord or its agents, employees or contractors,
(ii) required as a consequence of any violation of Law or construction defect in
the Premises or the Project as of the Commencement Date caused by Landlord or
its contractors, and (iii) to the heating, ventilating, air conditioning,
electrical, water, sewer, and plumbing systems serving the Premises or the
Project. Tenant's obligation, if any, to reimburse Landlord for the costs of
such repairs, maintenance and improvements shall be governed by the other
provisions of this Lease. Tenant shall not be required to perform or construct
any repair, maintenance or improvement necessitated by the acts or omissions of
any other occupant of the Project or its agents, employees or contractors.
B. Capital Improvements. If any of Tenant's obligations under the
--------------------
Lease (as modified by this First Addendum) require Tenant to pay all or any
portion of any charge which could be treated as a capital improvement under
generally accepted accounting principles, then Tenant shall pay its share of
such expense as follows:
1. The cost of such improvement shall be amortized over the
useful life of the improvement (as reasonably determined by Landlord) with
interest on the unamortized balance at the then prevailing market rate Landlord
would pay if it borrowed funds to construct such improvements from an
institutional lender, and Landlord shall inform Tenant of the monthly
amortization payment required to so amortize such costs, and shall also provide
Tenant with the information upon which such determination is made.
2. Tenant shall pay Tenant's Share of such amortization payment
for each month after such improvement is completed until the first to occur of
(i) the expiration of the Lease term or (ii) the end of the term over which such
costs were amortized, which amount shall be due at the same time the base
monthly rent is due.
8. Expenses. Notwithstanding anything to the contrary in the Lease Form:
--------
"Operating Expenses" shall be defined to exclude the following
repairs, maintenance, improvements, replacements, premiums, claims, losses,
fees, charges, costs and expenses (collectively, "Costs"), nor shall any portion
of any Tenant Improvement allowance be applied to such costs:
A. Losses Caused by Others. Costs incurred with respect to repairs
-----------------------
required due to the negligent act or omission or violation of Law by Landlord,
any other occupant of the Project, or their respective agents, employees or
contractors.
B. Casualties. Costs occasioned by fire, acts of God, or other
----------
casualties to the extent such costs are covered by, or are required to be
covered by, Landlord's insurance specified in this lease.
C. Capital Improvements. Costs relating to repairs, alterations,
--------------------
improvements, equipment and tools which would properly be capitalized under
generally accepted accounting principles, except to the extent that (i) the
foregoing reduces Operating Expenses and (ii) such Cost is amortized in an
annual
3
amount equal to the amortization of such costs over the useful life of the
capital item in question.
D. Reimbursed Expenses. Costs for which Landlord actually receives
-------------------
reimbursement from others, provided that Landlord shall use commercially
reasonable efforts to obtain such reimbursements to which it is entitled.
E. Real Estate Taxes. Taxes, assessments, all other governmental
-----------------
levies, and any increases in the foregoing occasioned by or relating to (i)
construction of improvements for other occupants of the Project, and (ii) a
change of ownership of any interest of Landlord in the Project during the term
of the Lease, as extended pursuant to the terms hereof, if (a) to any person or
entity affiliated with or related to Landlord, or the beneficiaries, partners,
officers, shareholders or directors which comprise Landlord, or (b) in
connection with Landlord's estate planning.
F. Construction Defects. Costs to correct any construction defect in
--------------------
the Premises or the Project (except for defects in work or items installed by
Tenant or its contractors) or to correct a violation by Landlord of any CC&R's,
underwriter's requirement or Law applicable to the Premises or the Project on
the Commencement Date.
G. Utilities or Services. Costs (i) arising from the
---------------------
disproportionate use of any utility or service supplied by Landlord to any other
occupant of the Project, or (ii) associated with utilities and services of a
type not provided to Tenant.
H. Interior Improvements. The cost of any renovation, improvement,
---------------------
painting or redecorating of space for other tenants of the Project.
I. Leasing Expenses. Fees, commissions, attorneys' fees, Costs or
----------------
other disbursements incurred in connection with negotiations or disputes with
any other occupant of the Project. Costs arising from the violation by Landlord
or any occupant of the Project (other than Tenant) of the terms and conditions
of any lease or other agreement.
J. Reserves. Depreciation, amortization, or other expense reserves,
--------
except to the extent amortization is otherwise expressly permitted by this
lease.
K. Mortgages. Interest, charges and fees incurred on debt, payments
---------
on mortgages and rent under ground leases.
L. Insurance. Increases in insurance costs after the Commencement
---------
Date caused by the activities of another occupant of the Project, and co-
insurance payments. Deductibles in excess of $5,000 for the insurances carried
by Landlord hereunder. Premiums for earthquake and flood damage insurance,
unless such insurance is required by an institutional lender providing financing
for the building or Project, but in no event shall Tenant be required to pay in
excess of Tenant's Share of $20,000 annually as its share of such insurance.
M. Hazardous Substances. Costs incurred to investigate the presence
--------------------
of any Hazardous Substance (defined in the Lease Form), Costs to respond to any
claim of Hazardous Substance contamination or damage, Costs to remove any
Hazardous Substance from the Project and any judgments or other Costs incurred
in connection with any Hazardous Substance exposure or releases, except to the
extent caused by the storage, use, release, transport or disposal of the
Hazardous Substance in question by Tenant.
4
N. Management. Any fee in excess of the management fee which would
----------
be charged by an independent professional management service for operation of
comparable projects in the vicinity.
O. Duplication. Costs and expenses for which Tenant reimburses
-----------
Landlord directly or which Tenant pays directly to a third party.
9. Indemnity. Notwithstanding anything to the contrary in the Lease Form
---------
(but subject to the last paragraph of Paragraph 9 and to Paragraph 29 thereof):
A. Negligence or Misconduct. Tenant shall neither release Landlord
------------------------
from, nor indemnify Landlord with respect to: (i) the negligence or willful
misconduct of Landlord or its agents, employees, or contractors, or (ii) a
breach of Landlord's obligations or representations under this Lease.
B. Landlord's Indemnification. Except to the extent of Tenant's
--------------------------
negligence or willful misconduct, Landlord shall indemnify, defend, protect and
hold harmless Tenant from all losses, costs, claims and damages, including
reasonable attorneys' fees and expenses to the extent the foregoing results from
the negligence or willful misconduct of Landlord or its agents, employees,
contractors, licensees or invitees, or the breach by Landlord of Landlord's
obligations or representations under this Lease.
10. Common Areas. Notwithstanding anything to the contrary in the Lease
------------
Form, if Landlord is permitted to alter any common area of the Project, such
alteration shall not unreasonably interfere with Tenant's use of or access to
the Premises or Tenant's parking rights.
11. Rules and Regulations. Notwithstanding anything to the contrary in the
---------------------
Lease Form, Tenant shall comply with all new non-discriminatory rules or
regulations which do not unreasonably interfere with Tenant's use of or access
to the Premises or Tenant's parking rights.
12. Reasonable Expenditures. Notwithstanding anything to the contrary in
-----------------------
the Lease Form, any expenditure by a party permitted or required under the
Lease, for which such party is entitled to demand and does demand reimbursement
from the other party, shall be limited to the fair market value of the goods and
services involved, shall be reasonably incurred, and shall be substantiated by
documentary evidence available for inspection and review by the other party or
its representative during normal business hours.
13. Surrender. Notwithstanding anything to the contrary in the Lease Form,
---------
Tenant's obligation to surrender the Premises shall be fulfilled if Tenant
surrenders possession of the Premises in the condition existing at the
commencement of the Lease, ordinary wear and tear, acts of God, casualties,
condemnation, Hazardous Substances (other than those stored, used or disposed of
by Tenant in or about the Premises or Project or for which Tenant is otherwise
responsible), and interior improvements which Landlord has not stated in writing
must be removed at the termination of the Lease excepted.
14. Damage or Destruction. Notwithstanding anything to the contrary in the
---------------------
Lease Form:
A. Landlord's Insurance. Landlord shall carry the following
--------------------
insurance: All risk, extended coverage property and casualty insurance for the
full replacement value of the Project and comprehensive general liability
insurance in the amount of $1,000,000 per occurrence. Landlord's casualty
insurance shall
5
contain a "building ordinance" endorsement with respect to reconstruction costs
arising out of changes in applicable building codes.
B. Uninsured Casualty. Subject to the parties' rights to terminate
------------------
this Lease pursuant to the first sentence of Paragraph 11 of the Lease Form, in
the case of damage which is relatively minor (e.g., repair or restoration would
take fewer than ninety (90) days and would cost less than five percent (5%) of
the replacement cost of the Building), or if Tenant agrees to pay the cost of
repair in excess of a pre-agreed base amount, Landlord shall, at Landlord's cost
(provided that Tenant shall be responsible for any repairs required due to the
act or omission, or negligence or other fault of Tenant, its agents,
contractors, employees, invitees or licensees) repair such damage regardless of
whether insurance proceeds are available to make such repairs.
C. Tenant's Right to Terminate. Landlord shall notify Tenant within
---------------------------
fifteen (15) business days following any damage to or destruction of the
Premises (or the Building if such damage or destruction interferes with Tenant's
use of the Premises) the length of time Landlord reasonably estimates to be
necessary for repair or restoration. Tenant shall have the right to terminate
the Lease provided in Paragraph 11 of the Lease Form.
D. Construction Standard. In repairing the Premises, Landlord may
---------------------
use designs, plans and specifications other than those used in the original
construction, and may alter or relocate the premises, provided that the premises
as altered or relocated shall be in all material respects reasonably comparable
to the premises as defined herein.
15. Eminent Domain. Notwithstanding anything to the contrary in the Lease
--------------
Form, Tenant shall be entitled to pursue with and receive from the condemning
authority a separate award for a portion of the condemnation proceeds (whether
by award or payment under threat of condemnation) based on: (i) the Lease bonus
value (the difference between the Lease rent and fair market value rent); (ii)
the value of the condemned improvements Tenant has the right to remove from the
Premises; (iii) the unamortized value, allocable to the remainder of the Lease
term, of any improvements installed at Tenant's expenses, which are not
removable; (iv) Tenant's moving cost; (v) loss to Tenant's goodwill as a
consequence of the condemnation; and (vi) Tenant's trade fixtures.
16. Quiet Possession. Notwithstanding anything to the contrary in the
----------------
Lease Form, Tenant shall peacefully have, hold and enjoy the Premises, subject
to the other terms of this Lease, provided that Tenant pays the rent and
performs all of Tenant's covenants and agreements contained in this Lease. This
covenant and the other covenants of Landlord contained in this Lease shall be
binding upon Landlord and its successors only with respect to breaches occurring
during its and their respective ownerships of Landlord's interest hereunder.
17. Offset Statements, Reciprocal Obligation. Notwithstanding anything to
----------------------------------------
the contrary in the Lease Form, Section 22 of the Lease Form shall be deemed to
impose a reciprocal obligation on Landlord for the benefit of Tenant.
18. Landlord's Default. If Landlord's failure to perform any of its
------------------
obligations under the Lease results in a condition which is causing or threatens
to cause immediate damage to Tenant's personnel or property, then Landlord shall
repair such condition as soon as possible after receiving notice from Tenant.
19. Effect of Addendum. Each term used herein with initial capital letters
------------------
shall have the meaning ascribed to such term in
6
the Lease Form unless specifically otherwise defined herein. In the event of any
inconsistency between this First Addendum and the Lease Form, the terms of this
First Addendum shall prevail. As used herein, the term "Lease" shall mean the
Lease Form, this First Addendum and all riders, exhibits, rules, regulations,
covenants, conditions and restrictions referred to in the Lease Form or this
First Addendum.
20. Option to Extend. Notwithstanding anything to the contrary in the
----------------
Lease Form:
X. Xxxxx of Option. Landlord hereby grants to Tenant two consecutive
---------------
option(s) (the "Extension Option(s)") to extend the term of this Lease, each for
an additional term of three (3) years, commencing when the then-existing term
expires, upon the terms and conditions set forth in this Paragraph.
B. Exercise of Extension Options. Tenant must exercise such
-----------------------------
Extension Option(s) by giving Landlord written notice of its intention not less
than nine (9) months prior to the expiration of the then-existing term of this
Lease. If Tenant fails to exercise its first extension option, it shall be
deemed to have waived the second such option.
C. Extended Term Rent. If the Extension Option(s) are timely
------------------
exercised, in accordance herewith, the base rent for the Premises shall be based
upon the then current fair market monthly rent ("Fair Market Rent") for the
Premises as of the commencement date of the applicable extended term, as
determined by the agreement of the parties or, if the parties cannot agree by
the date which is seven (7) months prior to the commencement of such extended
term, then by an appraisal. The base rent for the Premises during each extended
term shall equal one hundred percent (100%) of Fair Market Rent, if such Fair
Market Rent is less than the base rent payable by Tenant for the month
immediately prior to commencement of such extended term. Otherwise, base rent
during such extended term shall equal the greater of ninety-five percent (95%)
of Fair Market Rent or One and 44/100 Dollars ($1.44) per rentable square foot
of the Premises. All other terms and conditions contained in the Lease and this
First Addendum, as the same may be amended from time to time by the parties in
accordance with the provisions of the Lease, shall remain in full force and
effect and shall apply during the extension term(s). Landlord shall be at no
expense (other than applicable leasing commissions, if any) in connection with
Tenant's election to extend the Lease term (including without limitation not
being obligated to pay for additional tenant improvements in connection with
such extended term) and Tenant shall accept the Premises during the extended
term in their then-existing condition. Notwithstanding the foregoing, if Tenant
exercises its first renewal option, Landlord, at Landlord's sole expense, shall
touch up the walls of the leased Premises, as needed, and shampoo the carpet. If
Tenant properly exercises its second renewal option, Landlord, at Landlord's
sole expense, shall repaint and recarpet the leased Premises at its sole
expense.
D. Appraisal. If it becomes necessary to determine the fair market
---------
rental value for the Premises by appraisal, real estate brokers (referred to
hereafter as "appraisers"), all of whom shall be licensed real estate brokers
who have at least five (5) years experience appraising and/or leasing office
space located in the vicinity of the Premises shall be appointed and shall act
in accordance with the following procedures:
(i) If the parties are unable to agree on the Fair Market Rent within
the allowed time, either party may demand an appraisal by giving written notice
to the other party, which demand to be effective must state the name, address
and qualifications of an appraiser selected by the party demanding an
7
appraisal (the "Notifying Party"). Within ten (10) days following the Notifying
Party's appraisal demand, the other party (the "Non-Notifying Party") shall
either approve the appraiser selected by the notifying party or select a second
properly qualified appraiser by giving written notice of the name, address and
qualification of said appraiser to the Notifying Party. If the Non-Notifying
Party fails to select an appraiser within the ten (10) day period, the appraiser
selected by the Notifying Party shall be deemed selected by both parties and no
other appraiser shall be selected. If two appraisers are selected, they shall
select a third appropriately qualified appraiser. If the two appraisers fail to
select a third qualified appraiser, the third appraiser shall be appointed by
the then presiding judge of the county where the Premises are located upon
application by either party.
(ii) If only one appraiser is selected, that appraiser shall notify
the parties in simple letter form of its determination of the Fair Market Rent
for the Premises within fifteen (15) days following his selection, which
appraisal shall be conclusively determinative and binding on the parties as the
appraised Fair Market Rent.
(iii)If multiple appraisers are selected, the appraisers shall
meet not later than ten (10) days following the selection of the last appraiser.
At such meeting the appraisers shall attempt to determine the Fair Market Rent
for the Premises as of the commencement date of the extended term by the
agreement of at least two (2) of the appraisers.
(iv) If two (2) or more of the appraisers agree on the Fair Market
Rent for the Premises at the initial meeting, such agreement shall be
determinative and binding upon the parties hereto and the agreeing appraisers
shall, in simple letter form executed by the agreeing appraisers, forthwith
notify both Landlord and Tenant of the amount set by such agreement. If multiple
appraisers are selected and two (2) appraisers are unable to agree on the Fair
Market Rent for the Premises, all appraisers shall submit to Landlord and Tenant
an independent appraisal of the Fair Market Rent for the Premises in simple
letter form within twenty (20) days following appointment of the final
appraiser. The parties shall then determine the Fair Market Rent for the
Premises by averaging the appraisals; provided that any high or low appraisal,
differing from the middle appraisal by more than ten percent (10%) of the middle
appraisal, shall be disregarded in calculating the average.
(v) The appraisers' determination of Fair Market Rent shall be based
on rental of space of the same age, construction, size and location as the
Premises, taking into account the improvements installed therein at Landlord's
expense and Tenant's obligations to pay additional rent under this Lease. In
determining Fair Market Rent, the appraisers shall not consider any alterations
installed in the Premises at Tenant's expense.
(vi) If only one appraiser is selected, then each party shall pay one-
half of the fees and expenses of that appraiser. If three appraisers are
selected, each party shall bear the fees and expenses of the appraiser it
selects and one-half of the fees and expenses of the third appraiser.
(vii) If the process described above for selection of Fair Market
Rent has not resulted in a determination of such rent by the commencement of the
applicable lease term, then Tenant shall continue to pay rent in the amounts
then payable under this Lease prior to the commencement of the applicable
extended term, until the appraiser(s) reach a decision, with an appropriate
rental adjustment and other adjustments for any overpayment or underpayment of
rent or other amounts if the above
8
described process subsequently results in a different rate for the Fair Market
Rent than is then payable hereunder.
21. Phase Two Expansion. Tenant shall further lease from Landlord the
-------------------
additional space (the "Phase Two Space") located on the second floor of the
Building consisting of 2,536 rentable square feet and 2,255 useable square feet
as shown on Exhibit "A" to the Lease
-----------
Form as the "Phase Two Space". Landlord shall, at Landlord's sole expense,
construct the improvements to the Phase Two Space described in the Final Plans.
Landlord shall construct such improvements in accordance with Exhibit "B" to the
Lease Form, except that -----------
Landlord estimates that such improvements shall be substantially complete by
February 1, 1993. As of the later of February 1, 1993 or the first to occur of
(i) the date by which all of the events described in clause (i) of Subparagraph
1(A) of this First Addendum have occurred with respect to such improvements and
the Phase Two Space, or (ii) the date by which the events specified in such part
(i) would have occurred but for Tenant Delay(s) as defined in Exhibit B, the
---------
Phase Two Space shall be deemed a portion of the Premises, base
monthly rent for the Premises shall be increased to Fifty Thousand Nine Hundred
Seventy-Four Dollars ($50,974.00), and the Tenant's Share shall equal 46.64%.
Promptly thereafter, Landlord and Tenant shall execute an amendment to this
Lease confirming the effective date of such expansion of the Premises to include
the Phase Two Space. The expansion of the Premises to include the Phase Two
Space shall further be subject to Subparagraph 1(B) of this First Addendum,
except that "May 1, 1993," shall be substituted for "February 1, 1993."
22. Options to Expand. Notwithstanding anything to the contrary in the
-----------------
Lease Form:
X. Xxxxx of Expansion Options. Landlord hereby grants to Tenant
--------------------------
options (the "Expansion Options") to lease all of the remaining space (the
"Expansion Space") on the second floor of the Building on the terms and
conditions described in this Paragraph.
B. Landlord Representations. Landlord represents that the Expansion
------------------------
Space is subject only to the following interests, and the Expansion Options
shall be subject only to such interests:
1. Xxxxxxx & Xxxxxxx currently leases 2,912 rentable square
feet (the "Xxxxxxx Space") with a lease expiration date of July 31, 1993.
2. Concrete Form Contractors currently leases 8,203 rentable
square feet with a lease expiration date of July 31, 1993, but such tenant has
an option to extend its lease term for an additional two years thereafter.
3. Lincoln National Life currently leases 3,418 rentable square
feet with a lease expiration date of March 31, 1995, but such tenant has an
option to cancel such lease effective March 31, 1993.
4. Kensington Microware currently has a right of first refusal
to lease all the space on the second floor of the Building.
C. Exercise of Expansion Options. Landlord shall comply with all
-----------------------------
terms and conditions of Kensington Microware's right of first refusal. In the
event that Kensington Microwave does not exercise such right of first refusal
with respect to any portion of the Expansion Space, Landlord shall promptly
thereafter give Tenant written notice of the availability of such Expansion
Space, which notice shall specify the date that such Expansion Space will become
available for Tenant's occupancy.
9
Such notice shall be given to Tenant at least six (6) months prior to the
availability date of the Concrete Form Construction space, at least five (5)
months prior to the availability date of the Lincoln National Life Space, and at
least three (3) months prior to the availability of the Xxxxxxx & Xxxxxxx space.
Tenant must exercise its Expansion Option with respect to such available
Expansion Space by giving Landlord notice thereof within eight (8) business days
after Tenant's receipt of Landlord's notice of availability thereof.
D. Effect of Exercise. If Tenant exercises an Expansion Option with
------------------
respect to any Expansion Space, this Lease shall be amended as follows:
1. Such Expansion Space shall be measured in accordance with
applicable BOMA measurement standards and included within the Premises, except
that the Base Year for determining Operating Expenses and Project Taxes with
respect to such Expansion Space shall be the calendar year next following
inclusion of such Expansion Space within the Premises.
2. The Tenant's Share shall be increased to equal a fraction
(expressed as a percentage), the numerator of which equals the total rentable
square feet of the Premises (including such Expansion Space) and the denominator
of which equals the total rentable square feet of the Building.
3. Base monthly rent for any Expansion Space other than the
Xxxxxxx Space shall equal the Fair Market Rent of such Expansion Space as
determined by agreement of the parties or, if the parties cannot agree within
twenty (20) days of Tenant's exercise of the Expansion Option, by the appraisal
procedure described in Subparagraph 20(D) of this First Addendum (taking into
account the tenant improvement allowance provided in Paragraph 22.D.4). If such
appraisal process has not resulted in a final determination of Fair Market Rent
by the commencement date of the term respecting applicable Expansion Space, then
the rate then payable with respect to the remainder of the Premises, shall be
used until such final determination, with an appropriate adjustment for any
overpayments or underpayments of rent or other amounts if the appraisal results
in a determination of Fair Market Rent different from such amounts then payable
with respect to the remainder of the Premises. Base monthly rent for the Xxxxxxx
Space shall be at the same base monthly rental rate per square foot of rentable
space payable by Tenant under this Lease for the initial Premises at the time
the Xxxxxxx Space is included within the Premises.
4. Landlord shall provide to Tenant an allowance for tenant
improvements to such Expansion Space in an amount equal to Fifteen Dollars
($15.00) per rentable square foot of the applicable Expansion Space.
5. Such amendment of the Lease shall be effective, as to the
applicable Expansion Space, as of the earlier of (a) the date Tenant takes
possession of such Expansion Space, or (b) the occurrence of all of the events
described in clause (i) of subparagraph 1(A) of this First Addendum with respect
to such Expansion Space and any tenant improvements to be made by Landlord to
such Expansion Space, or (c) the date by which such events described in clause
(i) would have occurred but for Tenant Delay, as
defined in Exhibit B. Promptly thereafter, Landlord and Tenant shall execute an
---------
amendment to this Lease confirming the effective date of such expansion, the
base monthly rent for the entire Premises (including such Expansion Space), the
amount of Tenant's improvement allowance for the applicable Expansion Space, and
the Tenant's Share after such expansion.
23. Tenant's Right of First Refusal to Lease Additional Space. If at any
---------------------------------------------------------
time during the initial or any extended term of
10
this Lease Landlord determines to lease any additional space not encumbered by
lease, options, or rights of refusal at the Project ("Additional Space"), then
Landlord shall notify Tenant of the terms on which Landlord is willing to lease
such Additional Space. If Tenant, within eight (8) business days after receipt
of Landlord's written notice gives Landlord notice in writing of its agreement
to lease the Additional Space on the terms stated in Landlord's notice, then
Landlord shall lease to Tenant and Tenant shall lease from Landlord the
Additional Space on the terms stated in Landlord's notice. If Tenant does not
give Landlord written notice of its agreement to lease the Additional Space on
the terms contained in Landlord's notice within said eight (8) business day
period, then Landlord shall thereafter have the right to lease the Additional
Space to a third party, provided that the material terms agreed to with said
third party are substantially the same as the terms stated in Landlord's notice
to Tenant. If Landlord does not lease the Additional Space within six (6) months
after the expiration of said eight (8) business day period, any further
transaction shall be deemed a new determination by Landlord to lease such
Additional Space and the provisions of this Paragraph shall again be applicable.
24. Cancellation. Tenant shall have the option to cancel this Lease prior
------------
to the expiration of the initial term by giving written notice specifying its
election to so cancel this lease to Landlord no later than the first day of the
thirty-fourth (34th) month of the lease term, in which event such cancellation
shall be effective as of the end of the forty-second (42nd) month of the term.
Tenant acknowledges that if Tenant so terminates the lease term pursuant to this
Paragraph, and as payment for the privilege of terminating the lease as herein
provided, Tenant shall pay to Landlord (in addition to all other payments for
rental or other payments due during the time the lease is in effect), the amount
of One Hundred Forty One Thousand Nine Hundred Sixty-Six and no/100 Dollars
($141,966.00). Such payment shall be made by certified or cashiers check no
later than the last day of the forty-second (42nd) month of the term.
LANDLORD: TENANT:
-------- ------
THE XXXXXX AND XXX XXXX REVOCABLE ELECTRONICS FOR IMAGING,
TRUST a California corporation
By: /s/ Xxxxxx Xxxx Xxx Xxxx By: /s/ X. Xxxxx
Printed Printed
Name:_____________________________ Name: X. XXXXX
Title:____________________________ Title: C.E.O.
Date: 8/10/92 Date: 7 August 1992,
11
SECOND ADDENDUM TO LEASE
This Second Addendum to Lease ("Second Addendum") is dated for references
purposes April 1, 1993, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a part
of that certain Agreement of Lease ("Lease") dated July 30, 1992. Landlord and
Tenant agree that the Lease and First Addendum to Lease are modified and
supplemented by this Second Addendum as follows:
1. Premises. The Premises shall be increased by 2,536 rentable square feet
--------
(2,255 useable). ("Phase II Expansion") as shown on Exhibit A to the Lease.
The total Premises shall be increased from 32,863 rentable square feet
(31,254 useable) to 35,399 rentable square feet (33,509 useable). The total
square footage on the second floor of the building shall be 10,399 rentable
square feet (9,245 useable).
2. Term. The effective date of this expansion shall be April 1, 1993.
----
3. Rent. Tenant agrees to pay Landlord $1.44 per rentable square foot per
----
month for the Phase II Expansion ($3,651.84). The base monthly rent payable
for the entire Premises (including the Phase II Expansion) shall be Fifty
Thousand Nine Hundred Seventy Four and 00/100 Dollars ($50,974.00).
20. Rental Adjustment.
(b) Tenant's Share shall be Forty Six and 64/100 percent (46.64%).
Landlord Tenant
Xxxxxx and Xxx Xxxx Revocable Trust Electronics For Imaging
By: /s/ Xxxxxx Xxxx By: /s/ Signature Illegible
By: /s/ Xxx Xxxx
Date: 6/15/93 Date: 6/8/93
THIRD ADDENDUM TO LEASE
This Third Addendum to Lease ("Third Addendum") is dated for references purposes
May 20, 1993, and is made between the Xxxxxx Xxxx and Xxx Xxxx Revocable Trust
("Landlord") and Electronics for Imaging ("Tenant") to be a part of that certain
Agreement of Lease dated July 30, 1992. Landlord and Tenant agree that the
Agreement of Lease and the First and Second Addendums to the Lease ("Lease") are
modified and supplemented by this Third Addendum as follows:
1. Premises. The Premises shall be increased by 6,145 rentable square feet
--------
(5,487 useable) ("Added Premises"). (This is essentially the addition of
the two end sections of the space formerly occupied by Concrete Form
Constructors as shown on Exhibit A.) The total Premises shall be increased
from 35,399 rentable square feet (33,509 useable) to 41,544 rentable square
feet (38,996 useable) as shown on Exhibit A. The total square footage on
the second floor of the building shall be 16,544 rentable square feet
(14,737 useable).
2. Term. The term of this Lease shall be extended from 50 months to 56 months,
----
ending on June 30, 1997. The term for the Added Premises shall be 48 months
commencing on July 1, 1993 and ending on June 30, 1997.
3. Rent. Tenant agrees to pay Landlord $1.65 per rentable square foot per
----
month for the Added Premises referred to in this Addendum ($10,139.25 per
month). (The base rent for all other Premises remains $1.44 per rentable
square foot.) The monthly base rent payable for the entire Premises
(including the Added Premises) shall be Sixty-One Thousand One Hundred
Thirteen and 25/100 Dollars ($61,113.25).
6. Repairs and Alterations. Notwithstanding anything to the contrary in the
-----------------------
Lease or First Addendum, after proper installations by Landlord's
contractor, Tenant shall be responsible for the operation, maintenance and
repair of all equipment in the kitchen/dining facility other than standard
building plumbing, electricity and HVAC.
20. Rental Adjustment.
-----------------
(a) The Base Year for the Added Premises shall be 1994.
(b) Tenant's Share (with the Added Premises) shall be Fifty-five and
80/100 percent (55.80%).
39. Brokers. Landlord and Tenant each warrants that it has had no dealings with
-------
any real estate brokers or agents in connection with the negotiation of the
lease of the Added Premises.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. Commencement Date. This entire paragraph shall not apply to the Added
-----------------
Premises. The term for the Added Premises and the payment of rent shall
commence on July 1, 1993 whether or not Landlord has substantially
completed the tenant improvements described in Exhibit B to this Third
Addendum and whether or not Tenant is able to occupy or take possession of
all or any part of the Added Premises by that date.
22. Options to Expand.
-----------------
D. Effect of Exercise. All sections except Subsection 5 (see Commencement
------------------
Date above) of this paragraph shall apply to the Added Premises
including but not limited to the tenant improvement allowance. (See
Exhibit B attached hereto).
24. Cancellations. This paragraph shall be deleted.
-------------
25. Must-Take Option. Tenant shall have a must-take option on 1,905 rentable
----------------
square feet (1,701 useable) on the second floor shown on Exhibit A. The
term on this must-take space shall commence no later than July 1, 1994.
Promptly thereafter Landlord shall execute an amendment to this Lease
confirming the effective date of such expansion, the base monthly rent for
the entire premises including the option space, the amount of the tenant
improvement allowance and the Tenant's share after the must-take space is
added. Landlord shall be permitted to lease this space through July 1,
1994, however, Tenant may exercise its option in writing prior to July 1,
1994 if the space is unoccupied.
Landlord Tenant
Xxxxxx and Xxx Xxxx Revocable Trust Electronics For Imaging
By: /s/ Xxxxxx Xxxx By: /s/ Signature Illegible
By: /s/ Xxx Xxxx
Date: 6/15/93 Date: 6/8/93
[CHART OMITTED]
EXHIBIT B TO THE THIRD ADDENDUM
TENANT IMPROVEMENTS
1. Landlord shall, construct the improvements to the Added Premises
described in, and in accordance with, those certain plans and specifications for
the Added Premises (the "Final Plans") dated __________, 1993, by Fee, Xxxxxx,
Xxxxx. Subject to any Tenant Delays, as hereinafter defined, Landlord estimates
the construction period to substantially complete the tenant improvements to be
60 days from the date of issuance of the permit for the tenant improvements
(said completion date is hereinafter referred to as the "estimated completion
date"), and Landlord will use its best efforts and due diligence to obtain such
permit at the earliest date reasonably possible and complete the tenant
improvements by the estimated completion date. The Commencement Date for the
Added Premises shall be July 1, 1993, regardless of whether the space is
substantially completed and regardless of whether Tenant is actually able to
occupy or take possession of the Premises by that date. However, for each day of
delay in the construction fully in the control of and caused by Landlord, Tenant
shall be provided one day free rent. The free rent shall be credited to Tenant
in the first full month after occupancy by Tenant. Landlord shall provide Tenant
with access to the premises for the purpose of installing modular office
cubicles, computer and telephone wires, other cabling and kitchen equipment, no
later than three weeks prior to the estimated completion date. Landlord shall
have no responsibility for coordinating or installing such cubicles, wires,
cables or equipment. Tenant shall be solely responsible for the cost of
acquisition and installation of its telephone and computer equipment, and all of
Tenant's furnishings, personal property and kitchen equipment.
2. Landlord shall provide a $15.00 per rentable square foot allowance for
the tenant improvements. In addition Landlord shall provide an allowance of
$1.00 per rentable square foot for architectural fees. All costs exceeding these
allowances shall be paid by Tenant within ten (10) days of receipt of invoice
from Landlord. Landlord shall provide Tenant with a construction cost breakdown
for the improvements shown in the Final Plans and Tenant shall provide Landlord
with written authorization to proceed based upon that budget.
3. Tenant may be written instructions or drawings issued to Landlord (a
"Change Order Request") make changes in the Final Plans, including with
limitation, requiring additional work, directing the omission of work previously
ordered, or changing the quantity or type of any materials, equipment or
services. Promptly upon receipt of a Change Order Request, Landlord will provide
Tenant with a statement in detail setting forth the cost of said change
(including a breakdown of costs attributable to labor and materials,
construction equipment exclusively necessary for the change, and preparation or
amendment to shop drawings resulting from the change) and any time delays
anticipated to result from the change, prior to Tenant's final authorization
thereof. Tenant will have two (2) business days after receipt of such statement
in which to confirm the Change Order Request and authorize in writing the work
to be performed pursuant thereto, or to withdraw such request. Change Orders
will be signed by Landlord and Tenant in advance of any Change Order work.
Landlord will not unreasonably withhold its consent to any such Change Order
provided the changes do not, in Landlord's reasonable opinion, adversely affect
the Building's structure, systems, equipment or appearance. No changes to the
Final Plans will be made except pursuant to a written Change Order signed by
Tenant. The cost of all Change Orders which adds cost over the tenant
improvements shown on the Final Plans shall be paid by Tenant after substantial
completion of such Change Order work and within ten (10) days of its receipt of
an invoice from Landlord.
4. Landlord warrants that all tenant improvements to be constructed by
Landlord as initial tenant improvements shall be constructed in a good and
workmanlike manner using materials of good quality in accordance with the Final
Plans and with all applicable laws. Within thirty (30) days after occupancy,
Tenant shall make an inspection of the premises and prepare a punchlist of items
needing additional work by Landlord. Landlord's contractor shall complete all
punchlist items reasonably identified by Tenant within thirty (30) days after
the inspection or as soon as practicable thereafter.
5. The carpet from the existing space shall be reused in all areas except
the kitchen area. There shall be adequate HVAC provided so as to prevent odors
travelling into the rest of the building from the food service.
6. Upon termination of the Lease, all of the tenant improvements shall
remain in the premises unless Landlord shall consent in writing to the removal
thereof by Tenant.
7. Tenant acknowledges that Landlord will make no independent review of
the Final Plans and that Landlord does not warrant either expressly or
impliedly, the adequacy of the Final Plans, the tenant improvements or Tenant's
equipment for Tenant's intended purpose, other than a Warranty that the tenant
improvements have been constructed according to the Final Plans in a good and
workmanlike manner, and in accordance with applicable laws.
Landlord Initials
Tenant Initials
FOURTH ADDENDUM TO LEASE
This Fourth Addendum to Lease ("Fourth Addendum") is dated for references
purposes May 25, 1993, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a part
of that certain Agreement of Lease dated July 30, 1992. Landlord and Tenant
agree that the Agreement of Lease and the First, Second and Third Addendums to
the Lease ("Lease") are modified and supplemented by this Fourth Addendum as
follows:
1. Premises. The Premises shall be increased by 2,912 rentable square feet
--------
(2,600 useable) ("Added Premises"). (This is essentially the addition of
the space formerly occupied by Xxxxxx and Xxxxxxx as shown on Exhibit A
attached hereto). The total Premises shall be increased from 41,544
rentable square feet (36,109 useable) to 44,456 rentable square feet
(41,596 useable). The total square footage on the second floor of the
building shall be 19,456 rentable square feet (17,337 useable).
2. Term. The term for the Added Premises referred to in this Addendum shall be
----
47 months commencing on August 1, 1993 and ending on June 30, 1997.
3. Rent. Tenant agrees to pay Landlord $1.44 per rentable square foot per
----
month for the Added Premises referred to in this Addendum ($4,193.28 per
month). The base monthly rent payable for the entire Premises (including
the Added Premises) shall be Sixty-Five Thousand Three Hundred and Six and
53/100 Dollars ($65,306.53).
20. Rental Adjustment.
-----------------
(a) The base year for the Added Premises shall be 1994.
(b) Tenant's Share (with the Added Premises) shall be Fifty-Nine and
70/100 percent (59.70%).
39. Brokers. Landlord and Tenant each warrants that it has had no dealings with
-------
any real estate brokers or agents in connection with the negotiation of the
lease of the Added Premises.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. Commencement Date. This entire paragraph shall not apply to the Added
-----------------
Premises. The term for the Added Premises and the payment of rent shall
commence on August 1, 1993 whether or not Landlord has substantially
completed the tenant improvements described in Exhibit B to this Fourth
Addendum and whether or not Tenant is able to occupy or take possession of
all or any part of the Added Premises by that date.
22. Options to Expand.
-----------------
D. Effect of Exercise. All sections except Subsection 5 (see Commencement
------------------
Date above) of this paragraph shall apply to the Added Premises
including but not limited to the tenant improvement allowance. (See
Exhibit B attached hereto).
Landlord Tenant
Xxxxxx and Xxx Xxxx Revocable Trust Electronics For Imaging
By: /s/ Xxxxxx Xxxx By: /s/ Signature Illegible
By: /s/ Xxx Xxxx
Date: 6/15/93 Date: 6/8/83
EXHIBIT A TO FOURTH ADDENDUM
[EXHIBIT OMITTED]
EXHIBIT B TO THE FOURTH ADDENDUM
TENANT IMPROVEMENTS
1. Landlord shall, construct the improvements to the Added Premises
described in, and in accordance with, those certain plans and specifications for
the Added Premises (the "Final Plans") dated _______, 1993, by Fee, Xxxxxx,
Xxxxx. Subject to any Tenant Delays, as hereinafter defined, Landlord estimates
the construction period to substantially complete the tenant improvements to be
60 days from the date of issuance of the permit for the tenant improvements
(said completion date is hereinafter referred to as the "estimated completion
date"), and Landlord will use its best efforts and due diligence to obtain such
permit at the earliest date reasonably possible and complete the tenant
improvements by the estimated completion date. The Commencement Date for the
Added Premises shall be August 1, 1993, regardless of whether the space is
substantially completed and regardless of whether Tenant is actually able to
occupy or take possession of the Premises by that date. However, for each day of
delay in the construction fully in the control of and caused by Landlord, Tenant
shall be provided one day free rent. The free rent shall be credited to Tenant
in the first full month after occupancy by Tenant. Landlord shall provide Tenant
with access to the premises for the purpose of installing modular office
cubicles, computer and telephone wires, other cabling and kitchen equipment, no
later than three weeks prior to the estimated completion date. Landlord shall
have no responsibility for coordinating or installing such cubicles, wires,
cables or equipment. Tenant shall be solely responsible for the cost of
acquisition and installation of its telephone and computer equipment, and all of
Tenant's furnishings, personal property and kitchen equipment.
2. Landlord shall provide a $15.00 per rentable square foot allowance for
the tenant improvements. In addition Landlord shall provide an allowance of
$1.00 per rentable square foot for architectural fees. All costs exceeding these
allowances shall be paid by Tenant within ten (10) days of receipt of invoice
from Landlord. Landlord shall provide Tenant with a construction cost breakdown
for the improvements shown in the Final Plans and Tenant shall provide Landlord
with written authorization to proceed based upon that budget.
3. Tenant may by written instructions or drawings issued to Landlord (a
"Change Order Request") make changes in the Final Plans, including with
limitation, requiring additional work, directing the omission of work previously
ordered, or changing the quantity or type of any materials, equipment or
services. Promptly upon receipt of a Change Order Request, Landlord will provide
Tenant with a statement in detail setting forth the cost of said change
(including a breakdown of costs attributable to labor and materials,
construction equipment exclusively necessary for the change, and preparation or
amendment to shop drawings resulting from the change) and any time delays
anticipated to result from the change, prior to Tenant's final authorization
thereof. Tenant will have two (2) business days after receipt of such statement
in which to confirm the Change Order Request and authorize in writing the work
to be performed pursuant thereto, or to withdraw such request. Change Orders
will be signed by Landlord and Tenant in advance of any Change Order work.
Landlord will not unreasonably withhold its consent to any such Change Order
provided the changes do not, in Landlord's reasonable opinion, adversely affect
the Building's structure, systems, equipment or appearance. No changes to the
Final Plans will be made except pursuant to a written Change Order signed by
Tenant. The cost of all Change Orders which adds cost over the tenant
improvements shown on the Final Plans shall be paid by Tenant after substantial
completion of such Change Order work and within ten (10) days of its receipt of
an invoice from Landlord.
4. Landlord warrants that all tenant improvements to be constructed by
Landlord as initial tenant improvements shall be constructed in a good and
workmanlike manner using materials of good quality in accordance with the Final
Plans and with all applicable laws. Within thirty (30) days after occupancy,
Tenant shall make an inspection of the premises and prepare a punchlist of items
needing additional work by Landlord. Landlord's contractor shall complete all
punchlist items reasonably identified by Tenant
1
within thirty (30) days after the inspection or as soon as practicable
thereafter.
5. Upon termination of the Lease, all of the tenant improvements shall
remain in the premises unless Landlord shall consent in writing to the removal
thereof by Tenant.
6. Tenant acknowledges that Landlord will make no independent review of
the Final Plans and that Landlord does not warrant either expressly or
impliedly, the adequacy of the Final Plans, the tenant improvements or Tenant's
equipment for Tenant's intended purpose, other than a Warranty that the tenant
improvements have been constructed according to the Final Plans in a good and
workmanlike manner, and in accordance with applicable laws.
Landlord Initials
Tenant Initials
2
FIFTH ADDENDUM TO LEASE
This Fifth Addendum to Lease ("Fifth Addendum") is dated for references purposes
July 12, 1994, and is made between the Xxxxxx Xxxx and Xxx Xxxx Revocable Trust
("Landlord") and Electronics for Imaging ("Tenant") to be a part of that certain
Agreement of Lease dated July 30, 1992. Landlord and Tenant agree that this
Lease is modified and supplemented by this Fifth Addendum.
1. Premises. The premises shall be increased by 1,905 rentable square feet
--------
(1,701 useable square feet) ("Must-take Premises"). The total Premises
shall be increased from 44,456 rentable square feet (36,109 useable square
feet) to 46,361 rentable square feet (37,810 useable square feet).
2. Term. The term for the Must-take Premises shall be for 36 months commencing
----
on July 1, 1994 and ending on June 30, 1997.
3. Rent. Tenant agrees to pay Landlord $1.65 per rentable square foot for the
----
Must-take Premises ($3,143.25). The total rent payable for the entire
Premises (including the Must-take Premises) shall be $68,449.78 per month.
20. Rental Adjustment.
-----------------
(a) The base year for the Must-take Premises shall be 1994.
(3) Tenant's Share shall increase from 59.7% to 62.3%.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. Commencement Date. This entire paragraph shall not apply to the Added
-----------------
Premises.
22. Options to Expand.
-----------------
D. Effect of Exercise.
Subsection 5 to Paragraph 22(D) shall not apply to the Must-take Premises.
(See Paragraph 2 above.)
24. Cancellations. This paragraph shall be deleted as it applies to the Must-
-------------
take Premises.
Landlord Tenant
/s/ Xxxxxx Xxxx /s/ Signature Illegible
Xxxxxx Xxxx GVP & CFO
Date: 9-14-94 Date: 9/7/94
SIXTH ADDENDUM TO LEASE
This Sixth Addendum to Lease ("Sixth Addendum") is dated for references purposes
January 19, 1995, and is made between the Xxxxxx Xxxx and Xxx Xxxx Revocable
Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a part of that
certain Agreement of Lease dated July 30, 1992, and the First through Fifth
Addendums. Landlord and Tenant agree that this Lease is modified and
supplemented by this Sixth Addendum.
1. Premises. The premises shall be increased by 3,418 rentable square feet
--------
(3,101 useable square feet) ("Additional Premises"). The total Premises
shall be increased from 46,361 rentable square feet (43,297 useable square
feet) to 49,779 rentable square feet (46,398 useable square feet).
2. Term. The term for the Additional Premises shall be for 27 months
----
commencing on April 1, 1995 and ending on June 30, 1997. The Commencement
Date will be adjusted to the date the current tenant vacates the space.
3. Rent. Tenant agrees to pay Landlord $1.75 per rentable square foot for the
----
Additional Premises ($5,981.50). The total base rent payable for the entire
Premises (including the Additional Premises) shall be $74,431.28 per month.
20. Rental Adjustment.
-----------------
(a) The base year for the Additional Premises shall be 1995.
(3) Tenant's Share shall increase from 62.3% to 65.6%.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. Commencement Date. This entire paragraph shall not apply to the Additional
-----------------
Premises.
22. Options to Expand.
-----------------
D. Effect of Exercise.
4. Landlord shall provide to Tenant an allowance for tenant
improvements to such Additional Premises in an amount equal to
$10.00 per useable square foot including architectural services
which shall not exceed $1.00 per useable square foot. This
allowance must be expended within the first six months of
possession and can only be used on these particular premises.
Subsection 5 to Paragraph 22(D) shall not apply to the Additional Premises.
(See Paragraph 2 above.)
24. Cancellations. This paragraph shall be deleted as it applies to the
-------------
Additional
The Xxxxxx Xxxx and Xxx Xxxx Electronics for Imaging
Revocable Trust
/s/ Xxxxxx Xxxx /s/ Signature Illegible
Xxxxxx Xxxx
Date: 5-23-95 Date: 5/1/95
SEVENTH ADDENDUM TO LEASE
This Seventh Addendum to Lease ("Seventh Addendum") is dated for reference
purposes December 4, 1996, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a part
of that certain Agreement of Lease dated July 30, 1992, and the First through
Sixth Addendum. Landlord and Tenant agree that this Lease is modified and
supplemented by this Seventh Addendum.
Landlord and Tenant are parties to the Lease pursuant to which Landlord
leased to Tenant and Tenant leased from Landlord office space. Tenant wishes to
exercise is first option to extend the Lease as set forth in the First Addendum
to Lease dated July 30, 1992. The Lease is hereby amended as follows:
1. Premises. The existing premises of 49,779 rentable sq. ft. and 46,398
--------
useable sq. ft. located on the first and second floors of the building
located at 0000 Xxxxxx Xxxxx xx Xxx Xxxxx, Xxxxxxxxxx.
2. Term. The term of the option period shall be three years commencing July 1,
----
1997 and ending on June 30, 2000.
3. Rent. Tenant agrees to pay Landlord 52.60 per rentable square foot per
----
month for the Premises. The total Base Rent payable for the entire Premises
is $129,425.40 per month.
4. Over-standard Electrical. Landlord provides Tenant an electrical service
------------------------
allowance of $.155 per rentable sq. ft. which is included in the Base Rent.
Landlord and Tenant recognized that Tenant's electrical service shall cost
in excess of the $.155 allowances due to Tenant's heavy electrical and air
conditioning requirements. Therefore, Tenant agrees to pay for all
electrical charges over and above the monthly allowance provided above,
less any over-standard charges to other tenants in the building (any usage
over the $.155 allowance provided to each Tenant).
Landlord shall charge Tenant $9,000.00 per month for the over-standard
electrical useage as a projected expense. This amount shall be paid along
with the monthly rent. At the end of the year, Landlord shall prepare a
PG&E invoice analysis showing the actual cost of over-standard usage by
Tenant. Landlord shall credit Tenant for any costs in excess of the total
projected sum paid by Tenant over the year. If the amount of Tenant's
credit is less than the actual cost then Tenant shall reimburse Landlord
within thirty (30) of receipt of an invoice. The monthly amount paid by
Tenant for over-standard electrical usage for each year shall be based on
the previous year's charges. A similar accounting between Landlord and
Tenant will occur annually.
1
5. Except as set forth herein, the Lease shall remain unmodifed and in full
force and effect. Should there by any conflict between the terms of the Lease
and the terms of this Seventh Addendum, the terms of this Seventh Addendum shall
control.
IN WITNESS WHEREOF, the parties have executed this Seventh Addendum to
Lease as of the date first written above.
The Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust
/s/ Signature Illegible
Xxxxxx Xxxx, Trustee
Electronics for Imaging, Inc.
By:/s/ Signature Illegible
Emi Sultman
Its: Vice President, Strategic Relations
2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
WILSON, SONSINI, XXXXXXXX & XXXXXX
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Real Estate Department/DKK
MEMORANDUM OF LEASE
-------------------
THIS MEMORANDUM OF LEASE is made as of the 30th day of July, 1992, by and
between THE XXXXXX AND XXX XXXX REVOCABLE TRUST ("Landlord") and ELECTRONICS FOR
IMAGING, a California corporation ("Tenant").
W I T N E S S E T H
-------------------
1. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, approximately 32,863 rentable square feet and 31,254 usable square
feet of space (the "Premises") at that certain improved real property commonly
referred to as 0000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxxx Xxxxxx, Xxxxxxxxxx, being
more particularly described on
Exhibit "A" attached hereto, on the terms and conditions of that certain
-----------
Agreement of Lease and First Addendum to Lease (collectively, the "Lease") dated
the date hereof by Landlord and Tenant regarding the Premises.
2. The term of the Lease is projected to commence on November 1, 1992,
and to expire on December 31, 1996, but the actual commencement and expiration
dates of such term shall be as provided in the Lease.
3. Landlord hereby grants to Tenant two (2) consecutive options to extend
the term of the Lease, each for an additional term of three (3) years,
commencing when the then existing term expires, upon the terms and conditions
described in the Lease.
4. Landlord hereby grants to Tenant an option to lease all of the
remaining space on the second floor of the building in which the Premises are
situated on the terms and conditions described in the Lease.
5. Landlord hereby grants to Tenant a right of first refusal to lease any
additional space (not encumbered by lease, options or rights of first refusal)
at the building in which the Premises are situated on the terms and conditions
provided in the Lease.
6. The purpose of this Memorandum is to give public notice of the
existence of the Lease and of certain rights and options granted therein. In the
event, however, of any inconsistency between this Memorandum and the terms and
conditions of the Lease, the Lease shall prevail.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease, by
their duly-authorized representatives, as of the day and year first above
written.
LANDLORD:
--------
THE XXXXXX AND XXX XXXX
REVOCABLE TRUST
By: /s/ Xxxxxx Xxxx Xxx Xxxx
Title: ____________________
TENANT:
------
ELECTRONICS FOR IMAGING,
a California corporation
By: /s/ X. Xxxxx
Title: C.E.O.
STATE OF CALIFORNIA )
) ss.
COUNTY OF MARIN )
Before me, X.X. XXXX, a Notary Public in and for the County and State
aforesaid, personally appeared XXXXXX and Xxx Xxxx, who is personally known to
me (or proved to me on
the basis of satisfactory evidence) to be the person who subscribed the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity and that by his/her signature on such instrument the person
or entity on behalf of which the person acted executed the instrument.
WITNESS my hand and official seal this 10TH day of August, 1992.
/s/ Signature Illegible
Notary Public
My commission expires:
-2-
STATE OF CALIFORNIA )
) SS.
COUNTY OF San Mateo )
Before me, GAY M MINDER, a Notary Public in and for the County and State
aforesaid,
personally appeared X. Xxxxx, who is personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person who subscribed the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity and that by his/her signature on such instrument the person
or entity on behalf of which the person acted executed the instrument.
WITNESS my hand and official seal this 7th day of August, 1982
/s/ Gay X. Xxxxxx
[SEAL OMITTED]
Notary Public
My commission expires: November 11, 1995
-3-
EXHIBIT A
---------
The land referred to herein is situated in the City of San Mateo, County of
San Mateo, State of California and is described as follows:
Lots 1 through 7, Parcel A and Parcel B on the map entitled "Peninsula
Office Park, City of San Mateo, San Mateo County, California", which map
was filed in the Office of the Recorder of the County of San Mateo, State
of California on October 2, 1972 in Book 78 of Maps at Pages 32 and 33,
together with Parcels 1 and 2 as designated on the map entitled "Parcel Map
No. 154, BEING A RESUBDIVISION OF XXX 0 XXXXXXXXX XXXXXX XXXX, XXXX XX XXX
XXXXX (VOL. 78 of maps pages 32 and 33) SAN MATEO COUNTY, CALIFORNIA",
which map was filed in the Office of the Recorder of the County of San
Mateo, State of California on December 22, 1976 in Book 34 of Parcel Maps
at Page 34.
EXHIBIT B
TO
SUBLEASE AGREEMENT
FLOOR PLAN
A floor plan generally depicting the Sublease Premises is attached hereto.
[CHART OMITTED]
