EXHIBIT 10.25
SUBLEASE
Sublessor: At Web, Inc. Subleased Premises: 000 Xxxx Xxxxx, Xxxxxxxxx, XX
Sublessee: Power Integrations, Inc. Date: July 1, 1999
1. Parties:
This Sublease is made and entered into as of July 1, 1999, by and between AtWeb,
Inc. (Sublessor), and Power Integrations, Inc. (Sublessee), under the Master
Lease dated December 18, 1997, between A&P Family Investments as (Lessor) and
Sublessor under this Sublease as (Lessee.) A copy of the Master Lease is
attached hereto as Exhibit "A" and incorporated herein by this reference.
2. Provisions Constituting Sublease:
2.1 This Sublease is subject to all of the terms and conditions of the
Master Lease. Sublessee hereby assumes and agrees to perform all of the
obligations of Lessee under the Master Lease to the extent said obligations
apply to the Subleased Premises and Sublessee's use of the common areas,
except as specifically set forth herein. Sublessor hereby agrees to cause
Lessor, under the Master Lease, to perform all of the obligations of Lessor
thereunder to the extent said obligations apply to the Subleased Premises
and Sublessee's use of the common areas. Sublessee shall not commit or
permit to be committed on the Subleased Premises or on any other portion of
the Project any act or omission which violates any term or condition of the
Master Lease. Except to the extent waived or consented to in writing by the
other party or parties hereto who are affected thereby, neither of the
parties hereto will, by renegotiation of the Master Lease, assignment,
subletting, default or any other voluntary action, avoid or seek to avoid
the observance or performance of the terms to be observed or performed
hereunder by such party but, will at all times, in good faith assist in
carrying out all the terms of this Sublease and in taking all such action as
may be necessary or appropriate to protect the rights of the other party or
parties hereto who are affected thereby against impairment. Nothing
contained in this Section 2.1 or elsewhere in this Sublease shall prevent or
prohibit Sublessor (a) from exercising its right to terminate the Master
Lease pursuant to the terms thereof or (b) from assigning its interest in
this Sublease.
2.2 All of the terms and conditions contained in the Master Lease are
incorporated herein, except as specifically provided below, and shall
together with the terms and conditions specifically set forth in this
Sublease constitute the complete terms and conditions of this Sublease. 2
(Rent), 4G (Security Deposit), 39 (Basic Rent), 40 (Early Occupancy); and
paragraphs of the lease amendment #1 dated May 27, 1998: 2 (Termination
Agreement).
3. Premises:
Sublessor leases to Sublessee and Sublessee leases from Sublessor the Subleased
Premises upon all of the terms, covenants and conditions contained in this
Sublease. The Subleased Premises consist of approximately 13,769 square feet,
according to the Master Lease.
4. Rent:
Upon execution of this Agreement, Sublessee shall pay to Sublessor, at 000
Xxxxxxxxxxx, Xxxxxxxx View, as Rent for the Subleased Premises the sum of
Twenty-Four Thousand Six Hundred Forty-Six and 51/100 Dollars ($24,646.51),
representing the first month's rent. Thereafter, monthly rent shall be in
accordance with the following schedule:
Months Amount per Square Foot NNN
01 - 12 $1.79
13 - 24 $1.89
25 - 36 $1.99
37 - end of term $2.09
The rental amount shall be paid, without deductions, offset, prior notice or
demand. If the commencement date or the termination date of the Sublease occurs
on a date other than the first day or the last day, respectively, of a calendar
month, then the Rent for such partial month shall be prorated and the prorated
Rent shall be payable on the Sublease commencement date or on the first day of
the calendar month in which the Sublease termination date occurs, respectively.
Additionally, there is a management fee of $800 per month, which will be due
from Sublessee on the first of each month.
5. Security Deposit:
Upon execution of this Agreement, Sublessee shall pay to Sublessor an equivalent
of the last month's rent ($28,777.21) as a noninterest bearing Security Deposit.
In the event Sublessee has performed all of the terms and conditions of this
Sublease during the term hereof, Sublessor shall return to Sublessee, within
thirty (30) days after Sublessee has vacated the Subleased Premises, the
Security Deposit less any sums due and owing to Sublessor pursuant to the terms
of this Sublease.
6. Rights of Access and Use:
6.1 Use:
Sublessee shall use the Subleased Premises only for those purposes
permitted in the Master Lease.
6.2 Equipment:
Sublessee shall have the right to use Sublessor's furniture systems in
place in the Subleased Premises, as listed in Exhibit C attached hereto and
incorporated herein by this reference. Said furniture shall be returned to
Sublessor, normal wear and tear excepted, at the end of the Sublease. In
the event said furniture systems require repair other than normal wear and
tear, at the end of the Sublease, Sublessor may deduct the cost of such
repair from the Security Deposit.
7. Sublease Term:
7.1 Sublease Term:
The Sublease Term shall be for the period commencing on July 15, 1999, and
continuing through June 30, 2003. In no event shall the Sublease Term extend
beyond the Term of the Master Lease.
7.2 Inability to Deliver Possession:
In the event Sublessor is unable to deliver possession of the Subleased
Premises at the commencement of the term, Sublessor shall not be liable for
any damage caused thereby nor shall this Sublease be void or voidable, but
Sublessee shall not be liable for Rent until such time as Sublessor offers
to deliver possession of the Subleased Premises to Sublessee, but the term
hereof shall not be extended by such delay. If Sublessee, with Sublessor's
consent, takes possession prior to commencement of the term, Sublessee shall
do so subject to all the covenants and
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conditions hereof and shall pay Rent for the period ending with the
commencement of the term at the same rental as that prescribed for the first
month of the term prorated at the rate of 1/30th thereof per day. In the
event Sublessor has been unable to deliver possession of the Subleased
Premises within 30 days from the commencement date, Sublessee, at
Sublessee's option, may terminate this Sublease.
8. Notices:
All notices, demands, consents and approvals which may or are required to be
given by either party to the other hereunder shall be given in the manner
provided in the Master Lease at the addresses shown below. Sublessor shall
notify Sublessee of any Event of Default under the Master Lease, or of any other
event of which Sublessor has actual knowledge which will impair Sublessee's
ability to conduct its normal business at the Subleased Premises, as soon as
reasonably practicable following Sublessor's receipt of notice from the Lessor
of an Event of Default or actual knowledge of such impairment. If Sublessor
elects to terminate the Master Lease, Sublessor shall so notify Sublessee by
giving at least 30 days notice prior to the effective date of such termination.
Sublessor's Address: c/o Netscape Communications Sublessee's Address: Power Integrations, Inc.
Corporation c/o Xxxxxx Steples
Attn: Real Estate Department 477 North Mathilda
000 Xxxx Xxxxxxxxxxx Xxxxxxxxx, XX 00000
Xxxxxxxx Xxxx, XX 00000
Phone Number: 000-000-0000 Phone Number: 000-000-0000
Fax Number: 000-000-0000 Fax Number: 000-000-0000
9. Broker Fee:
Upon execution of the Sublease, Sublessor shall pay Cornish & Xxxxx Commercial,
a licensed real estate broker, fees set forth in a separate agreement between
Sublessor and Broker for brokerage services rendered by Broker to Sublessor in
these transactions.
10. Broker Representation:
The only Brokers involved in this Sublease are Cornish & Xxxxx Commercial
representing Sublessor and Colliers International representing Sublessee.
Sublessee shall indemnify Sublessor for any commission claims in conjunction
with this Sublease from other brokerage companies. Sublessor shall pay the
brokerage fees (50%/50%) to each brokerage company.
11. Sublessee Indemnity:
Sublessee shall defend, indemnify and hold Sublessor harmless from and against
any and all physical damage to the Premises or Sublessor's furniture located at
the Premises caused by Sublessee, or its agents, employees, contractors or
invitees or breach of the terms and conditions of this Sublease, including all
reasonable costs and expenses (including reasonable attorneys' fees) incurred by
the Sublessee in connection with any action, suit, proceeding, demand,
assessment or judgment incident to the foregoing.
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12. Assignment:
Sublessee may not assign this Sublease without the prior written consent of
Sublessor and Master Lessor.
Sublessor: AtWeb, Inc.
By: /s/ Date: July 21, 1999
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Title: Senior VP
Sublessee: POWER INTEGRATIONS, INC.
By: /s/ Date: July 16, 1999
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Title: Vice President - Finance/Administration
NOTICE TO SUBLESSOR AND SUBLESSEE: CORNISH & XXXXX COMMERCIAL IS NOT AUTHORIZED
TO GIVE LEGAL OR TAX ADVICE; NOTHING CONTAINED IN THIS SUBLEASE OR ANY
DISCUSSIONS BETWEEN CORNISH & XXXXX COMMERCIAL AND SUBLESSOR AND SUBLESSEE SHALL
BE DEEMED TO BE A REPRESENTATION OR RECOMMENDATION BY CORNISH & XXXXX
COMMERCIAL, OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL EFFECT OR TAX
CONSEQUENCES OF THIS DOCUMENT OR ANY TRANSACTION RELATING THERETO. ALL PARTIES
ARE ENCOURAGED TO CONSULT WITH THEIR INDEPENDENT FINANCIAL CONSULTANTS AND/OR
ATTORNEYS REGARDING THE TRANSACTION CONTEMPLATED BY THIS PROPOSAL.
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Exhibit "A" Master Lease
Exhibit "B" Premises
Exhibit "C" Equipment List
LESSOR CONSENT
The undersigned, Lessor under the Master Lease attached as Attachment I, hereby
consents to the subletting of the Subleased Premises described herein on the
terms and conditions contained in this Sublease. This Consent shall apply only
to this Sublease and shall not be deemed to be a consent to any other Sublease.
Lessor: A&P FAMILY INVESTMENTS
By: Date:
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ATTORNMENT AGREEMENT
Sublessee shall attorn to Lessor and perform all of Sublessee's obligations
under the Sublease directly to Lessor as if Lessor were the sublessor under the
Sublease. If Sublessee is not, at the time of the notice, in default, Lessor
shall continue to recognize the estate of Sublessee created under the Sublease.
If Sublessee is not in default, the Sublease shall continue with the same force
and effect as if Lessor and Sublessor had entered into a lease on the same
provisions as those contained in the Sublease, including, without limitation,
the Sublessee's right to extend the term of the Lease.
Lessor: A&P FAMILY INVESTMENTS
By: Date:
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SUBLEASE SUMMARY
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx
Sublease Dated July 1, 1999
Sublessor: AtWeb c/o Netscape Communications Corp
Attn: Real Estate Dept.
000 Xxxxxxxxxxx, Xx. Xxxx, Xxxxxxxxxx 00000
Landlord: Xxxxx & Xxxxxxxxx ("Xxxx Xxxxxxxxx Separate Property
Trust and Xxxxxxx X. Xxxxx Separate Property Trust")
Square Feet: 13,769
Lease Term: 3 years, 11 months
Commencement Date: August 1, 1999 (Commencement Memo still needed)
Termination Date: June 30, 2003
Monthly Rent: Base Rent Per Month
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8/l/99 - 6/30/00 $24,646.51
7/l/00 - 6/30/01 $26,023.41
7/l/01 - 6/30/02 $27,400.31
7/l/02 - 6/30/03 $28,777.21
Type of Rent: Triple Net - $800 monthly management fee (Paragraph 4
of Sublease). Sublessor has represented that triple
net costs (other than the management fee) are billed
quarterly.
Furniture and Equipment: Paragraph 6.2-POWI has right to use furniture and
equipment, free of charge, during term of sublease.
Security Deposit: $28,777.21
Signage: Monument signage
If you have any questions or would like further information contact:
Xxxxx Xxxxxxxx
Colliers International
0000 Xxx Xxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
(000) 000-0000
Facsimile (000) 000-0000
xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
S \Department\Adminsi\Wppool\CI\Lesumatweb8l6.Doc
July 22, 1999
Atweb, Inc.
c/o Netscape, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx, XX-000
Xx. Xxxx, XX 00000
Re: CONSENT TO SUBLEASE TO POWER INTEGRATIONS, INC., A CALIFORNIA CORPORATION
FOR A PERIOD OF THREE YEARS ELEVEN MONTHS COMMENCING AUGUST 1, 1999 AND
TERMINATING JUNE 30, 2003
Gentlemen:
This letter is written with regard to your proposed sublease of all of the
13,769 square feet of space (as shown on Exhibit A attached hereto) (the "Sublet
---------
Premises") leased by Tenant at 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxx, under Lease Agreement dated December 18, 1997 ("Master Lease"), by
and between Xxxx Xxxxxxxxx Separate Property Trust and Xxxxxxx X. Xxxxx Separate
Property Trust ("Master Landlord"), and Atweb, Inc., a California corporation
("Tenant"), which Tenant is proposing to sublease to Power Integrations, Inc., a
Delaware corporation ("Subtenant") on the terms and conditions set forth in the
proposed Sublease dated July 1, 1999, submitted by Tenant to Master Landlord on
July 22, 1999 (the "Sublease").
Pursuant to Master Lease Paragraph 16 ("Assignment and Subletting") Master
Landlord hereby approves Tenant's subleasing said space to Subtenant, under the
Sublease, subject to the following terms and conditions:
1. Master Landlord's Consent shall in no way void or alter any of the terms of
the Lease by and between Master Landlord and Tenant, nor shall this Consent
alter or diminish in any way Tenant's obligations to Master Landlord.
2. Tenant shall not give Subtenant any rights or privileges in excess of those
given Tenant under the terms of the Master Lease.
3. Subtenant shall not have a separate address from the address of the
Premises. Therefore, Tenant shall provide Subtenant with internal mail
delivery. Tenant and Subtenant shall share (the pro rata shares to be
determined in a separate agreement between Tenant and Subtenant) the
existing signage allocated to Tenant for the Premises.
4. Master Landlord has not reviewed the terms of any agreement between Tenant
and Subtenant, and in approving said Sublease, Master Landlord is in no way
approving any term, covenant or condition therein contained, and said
Sublease is subject and subordinate to all terms, covenants and conditions
of the Master Lease. Master Landlord shall not be bound by any agreement
other than the terms of the Master Lease between Master Landlord and Tenant.
In the event of conflict in the terms, covenants and conditions between the
Sublease and the Master Lease, the terms, covenants and conditions of the
Master Lease shall prevail and take precedence over said Sublease. Master
Landlord does not make any warranties or representations as to the condition
of the Leased Premises or the terms of the Lease between Master Landlord and
Tenant. This Consent to Sublease shall in no event be construed as consent
to any future sublease agreement (including any extensions and/or amendments
to the current Sublease) between Tenant and Subtenant, or any other party;
and any future sublease agreement (including any extensions and/or
amendments to the current Sublease) between Tenant and Subtenant, or any
other party
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shall require the prior written consent of Master Landlord. Under no
circumstances will Master Landlord consent to a sub-sublease or assignment
under the Sublease.
5. A. It is agreed by all parties hereto that in the event the Master Lease is
rejected by Tenant under a Chapter 11 or 7 proceeding and/or Master Landlord
terminates the Master Lease, pursuant to any right therein contained, said
Sublease shall automatically terminate simultaneously with the Master Lease.
Notwithstanding anything to the contrary set forth above, Master Landlord,
at Master Landlord's sole option and election, may choose to allow Subtenant
to remain in possession of the Sublet Premises leased under said Sublease
subject to all terms, covenants and conditions of said Master Lease by
giving Subtenant written notice prior to the effective date of termination
of said Master Lease, of Master Landlord's election to allow Subtenant to
remain in possession of the Sublet Premises in which event Subtenant shall
be entitled and obligated to remain in possession of the Sublet Premises
under the terms of said Sublease, subject to all terms, covenants and
conditions of the Master Lease, including, without limitation to, payment of
Basic Rent at the greater of: (i) the rate provided for in the Master Lease,
or (ii) the rate provided for in the Sublease. Such election by Master
Landlord shall not operate as a waiver of any claims Master Landlord may
have against Tenant. Following such written notice by Master Landlord
Subtenant shall then, as of the effective date of said termination of said
Master Lease, be liable to and shall attorn in writing directly to Master
Landlord as though said Sublease were executed directly between Master
Landlord and Subtenant; provided, however, it is specifically agreed between
the parties hereto, that whether Master Landlord elects to allow Subtenant
to remain in possession of the Sublet Premises under the terms of the
Sublease, subject to the Master Lease, or allow said Sublease to
automatically terminate simultaneously with the Master Lease, Master
Landlord shall not, in any event, nor under any circumstances be responsible
or liable to Subtenant for (i) the return of any security deposit paid by
Subtenant to Tenant, nor shall Subtenant be given credit for any prepaid
rental or other monetary consideration paid by Subtenant to Tenant under
said Sublease; (ii) any other claim or damage of any kind or nature
whatsoever by reason of or in connection with Master Landlord's termination
of said Master Lease and/or Sublease; and (iii) any default of Tenant under
the Sublease.
B. In the event Master Landlord has terminated the Master Lease, and has not
elected, in writing prior to the effective date of termination of said
Master Lease, to allow Subtenant to remain in the Sublet Premises as set
forth above, said Sublease shall terminate co-terminously with the effective
termination of the Master Lease automatically, without notice, and Subtenant
and/or Tenant, jointly and severally, shall surrender the Sublet Premises to
Master Landlord in good condition and repair as of the effective termination
of the Master Lease, with Master Landlord having no obligation or liability
whatsoever to Subtenant by reason of or in connection with such early
termination of the Master Lease. In the event Subtenant and/or Tenant fails
to timely surrender the Sublet Premises to Master Landlord in good condition
and repair as of the date the Master Lease terminates, Subtenant and/or
Tenant, jointly and severally, shall be liable to Master Landlord in such
event for all damages, costs, claims, losses, liabilities, fees or expenses
sustained by Master Landlord, including, but not limited to, loss of rental
income, attorney's fees and court costs resulting from or in connection with
Subtenant's failure to timely vacate the Sublet Premises and surrender the
Sublet Premises to Master Landlord as of the effective termination date of
said Master Lease.
C. As a condition to Landlord's consent to the Sublease, by execution of
this Consent to Sublease, Subtenant hereby agrees to be bound by the
following provision in relation to both Tenant and Master Landlord:
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If Master Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease Termination Date, then this Sublease (if then still in effect) shall
terminate concurrently with the termination of the Master Lease. Subtenant
expressly acknowledges and agrees that (1) the voluntary termination of the
Master Lease by Master Landlord and Tenant and the resulting termination of
this Sublease shall not give Subtenant any right or power to make any legal
or equitable claim against Master Landlord or Tenant, including without
limitation any claim for interference with contract or interference with
prospective economic advantage, and (2) Subtenant hereby waives any and all
rights it may have under law or at equity to challenge such an early
termination of the Sublease, and unconditionally releases and relieves
Master Landlord and Tenant, and their officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action
whatsoever (collectively, "Claims"), whether such matters are known or
unknown, latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in connection
with any such early termination of this Sublease. Subtenant knowingly and
intentionally waives any and all protection which is or may be given by
Section 1542 of the California Civil Code which provides as follows: "A
general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
debtor."
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of
and agreement to this early termination provision, (b) Subtenant's
acknowledgment that, in determining the net benefits to be derived by
Subtenant under the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement to the
general waiver and release of Claims above.
Initials: /s/ Initials: /s/
------------------- -------------------
Subtenant Tenant
6. In consideration of Master Landlord's consent to the Sublease, Tenant
irrevocably assigns to Master Landlord, as security for Tenant's obligations
under this Lease, all rent and income payable to Tenant under the Sublease.
Therefore Master Landlord may collect all rent due under the Sublease and
apply it towards Tenant's obligations under the Master Lease. Tenant and
Subtenant agree to pay same to Master Landlord upon demand without further
consent of Tenant and Subtenant required; provided, however, that until the
occurrence of a default by Tenant under the Master Lease, Tenant shall have
the right to collect such rent. Tenant hereby irrevocably authorizes and
directs Subtenant, upon receipt of a written notice from Master Landlord
stating that a default exists in the performance of Tenant's obligations
under the Master Lease, to pay to Master Landlord the rents due and to
become due under the Sublease. Tenant agrees that Subtenant shall have the
right to rely on any such statement and request from Master Landlord, and
that Subtenant shall pay such rents to Master Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice or claim from Tenant to the contrary. Tenant
shall have no right or claim against Subtenant or Master Landlord for any
such rents so paid by Subtenant to Master Landlord. It is further agreed
between the parties hereto that neither Tenant's assignment of such rent and
income, nor Master Landlord's acceptance of any payment of rental or other
sum due by Subtenant to Tenant under said
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sublease, whether payable directly to Master Landlord or endorsed to Master
Landlord by Tenant, shall in any way nor in any event be construed as
creating a direct contractual relationship between Master Landlord and
Subtenant, unless the Parties expressly so agree in writing and such
acceptance shall be deemed to be an accommodation by Master Landlord to, and
for the convenience of, Tenant and Subtenant. Any direct contractual
agreement between Master Landlord and Subtenant must be in writing.
7. Pursuant to the provisions of Paragraph 16 entitled "Assignment and
Subletting" of the Master Lease, Master Landlord hereby requires Tenant to
pay to Master Landlord, as Additional Rent, all rents and/or additional
consideration received by Tenant from said Sublease in excess of the Basic
Rent payable to Master Landlord in said Lease (hereinafter referred to as
"Excess Rent"). Tenant and Subtenant acknowledge that any Excess Rent is
owed to Master Landlord and Tenant hereby agrees to pay any Excess Rent to
Master Landlord as due under said Sublease. Tenant and Subtenant represent
and warrant to Master Landlord that: (1) the information to be completed and
provided by Tenant and Subtenant on the attached Exhibit B "Summary of
---------
Amounts/Consideration to be Paid by Subtenant" accurately represents amounts
to be paid by Subtenant under said Sublease; (2) no additional consideration
is due Tenant under said Sublease, other than the additional consideration
(if any) identified on Exhibit B; and (3) no changes in the terms and/or
---------
conditions of said Sublease shall be made without Master Landlord's prior
written approval.
8. This Consent is conditional upon Master Landlord's receipt of Master
Landlord's reasonable costs and attorney's fees, to which Master Landlord is
entitled under Paragraph 16 of the Master Lease. Tenant shall pay such fees
and costs to Landlord, pursuant to the invoice provided to Tenant by
Landlord with this Consent, upon execution of this Consent by Tenant and
Subtenant.
9. This Consent to Sublease shall only be considered effective, and Master
Date: Landlord's consent to the Sublease given, when (i) Landlord receives
payment from Tenant of Landlord's costs, and (ii) this Letter Agreement is
executed by Master Landlord, Tenant, and Subtenant, and Guarantors (if any)
under the Master Lease.
Please execute this letter in the space provided below, obtain the signature of
Subtenant, and return all copies to our office no later than August 4, 1999. In
the event Tenant fails to return the fully executed documents to Landlord by
August 4, 1999, this Consent shall be automatically rescinded, in which event,
Tenant shall be required to resubmit its request in the event Tenant desires to
go forward with said Sublease. A fully executed copy will be returned to you
after execution by the Master Landlord.
Very truly yours,
A&P FAMILY INVESTMENTS
By /s/
------------------------------------------
Xxxx Xxxxxxxxx
(Signatures Continued on Following Page)
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THE UNDERSIGNED Tenant and Subtenant do hereby jointly and severally agree to
the terms and conditions of this Consent to Sublease.
TENANT: SUBTENANT:
ATWEB, INC. POWER INTEGRATIONS, INC.
a California corporation a Delaware corporation
By /s/ By /s/
--------------------------------- ---------------------------------
Print Name Xxxx Starish Print Name Xxxxxx X. Xxxxxxx
------------------------- -----------------------
Title Senior VP Title VP Finance & Admin.
------------------------------ ----------------------------
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EXHIBIT B TO "CONSENT TO SUBLEASE"
SUMMARY OF AMOUNTS/CONSIDERATION TO BE PAID BY SUBTENANT
TOTAL CHARGE
PERIOD BASIC RENT R.E. TAXES PROP. INS. UTILITIES LANDSCAPE MISCELLANEOUS MISCELLANEOUS PER PERIOD
----------------------------------------------------------------------------------------------------------------------------------
BY MONTH TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF
----------------------------------------------------------------------------------------------------------------------------------
1-12 $295,758.12 $1.79 PER MASTER LEASE
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13-24 $312,280.92 $1.89 "
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25-36 $328,803.72 $1.99 "
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37-47.5 $330,937.91 $2.09 "
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IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH
*IF PAYMENTS ARE REQUIRED OTHER THAN MONTHLY, PLEASE INCLUDE THESE PAYMENTS AS WELL.
**IF SUBLEASE RENT PAID INCLUDES MISCELLANEOUS EXPENSES, PLEASE IDENTIFY THE $ AMOUNT/PSF
OF THE TOTAL RENT PAYMENT ALLOCATED TO BASIC RENT AND EACHADDITIONAL EXPENSE ITEM.
IS ANY ADDITIONAL CONSIDERATION (MONETARY AND/OR SERVICES) DUE UNDER THE SUBLEASE?: YES NO X
------- -------
IF "YES", IDENTIFY TYPE CONSIDERATION AND DOLLAR VALUE ASSIGNED TO SAID CONSIDERATION:
Type: ___________________________________________ TENANT SUBTENANT
ATWEB, INC. POWER INTEGRATIONS, INC.
Type: ___________________________________________
Type: ___________________________________________ By: /s/ By: /s/
------------ -------------------
Type: ___________________________________________ Printed: Xxxx Starish Printed: Xxxxxx X. Xxxxxxx
------------ -------------------
IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH Title: Senior VP Title: VP Finance & Admin.
------------ -------------------
LEASE AGREEMENT
THIS LEASE, made this 18th day of December, 1997, between A&P FAMILY
INVESTMENTS, a California general partnership, hereinafter called Landlord, and
ATWEB, INC., a California corporation, hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 33,948 square foot, one-story building
located at 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx
00000, consisting of approximately 4,793 square feet of space. Said
Premises is more particularly shown within the area outlined in Red on
Exhibit A attached hereto. The entire parcel, of which the Premises
---------
is a part, is shown within the area outlined in Green on Exhibit A
---------
attached. The Premises is leased on an "as-is" basis, in its present
condition, and in the configuration as shown in Red on Exhibit B
---------
attached hereto.
The word "Premises" as used throughout this Lease is hereby defined to
include the nonexclusive use of landscaped areas, sidewalks and driveways in
front of or adjacent to the Premises, and the nonexclusive use of the area
directly underneath or over such sidewalks and driveways. The gross leasable
area of the building shall be measured from outside of exterior walls to outside
of exterior walls, and shall include any atriums, covered entrances or egresses
and covered loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE. Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of general
office, light manufacturing, research and development, and storage and other
uses necessary for Tenant to conduct Tenant's business, provided that such uses
shall be in accordance with all applicable governmental laws and ordinances, and
for no other purpose. Tenant shall not do or permit to be done in or about the
Premises nor bring or keep or permit to be brought or kept in or about the
Premises anything which is prohibited by or will in any way increase the
existing rate of (or otherwise affect) fire or any insurance covering the
Premises or any part thereof, or any of its contents, or will cause a
cancellation of any insurance covering the Premises or any part thereof, or any
of its contents. Tenant shall not do or permit to be done anything in, on or
about the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Premises or neighboring premises or injure
or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. No sale by auction shall be
permitted on the Premises. Tenant shall not place any loads upon the floors,
walls, or ceiling which endanger the structure, or place any harmful fluids or
other materials in the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the Premises or outside of
the building in which the Premises are a part, except in trash containers placed
inside exterior enclosures designated by Landlord for that purpose or inside of
the building proper where
1
designated by Landlord. No materials, supplies, equipment, finished products
or semi-finished products, raw materials or articles of any nature shall be
stored upon or permitted to remain outside the Premises. 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.
No loudspeaker or other device, system or apparatus which can be heard outside
the Premises shall be used in or at the premises without the prior written
consent of Landlord. Tenant shall not commit or suffer to be committed any
waste in or upon the Premises. Tenant shall indemnify, defend and hold
Landlord harmless against any loss, expense, damage, reasonable attorneys'
fees or liability arising out of failure of Tenant to comply with any
applicable law. Tenant shall comply with any covenant, condition, or
restriction ("CC&R's") affecting the Premises. The provisions of this
paragraph are for the benefit of Landlord only and shall not be construed to
be for the benefit of any tenant or occupant of the Premises.
2. TERM./1/
A. The term of this Lease shall be for a period of two (2) years (unless
sooner terminated as hereinafter provided) and, subject to Paragraphs 2B and 3,
shall commence on the 1st day of February, 1998 and end on the 31st day of
January, 2000.
B. Possession of the premises shall be deemed tendered and the term of the
Lease shall commence on February 1, 1998, or:
(a) As otherwise agreed in writing.
3. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver
possession of said premises to Tenant at the commencement of the said term, as
hereinbefore specified, this Lease shall not be void or voidable; no obligation
of Tenant shall be affected thereby; nor shall Landlord or Landlord's agents be
liable to Tenant for any loss or damage resulting therefrom; but in that event
the commencement and termination dates of the Lease, and all other dates
affected thereby shall be revised to conform to the date of Landlord's delivery
of possession, as specified in Paragraph 2B above. The above is, however,
subject to the provision that the period of delay of delivery of the Premises
shall not exceed 30 days from the commencement date herein (except those delays
caused by Acts of God, strikes, war, utilities, governmental bodies, weather,
unavailable materials, and delays beyond Landlord's control shall be excluded in
calculating such period) in which instance Tenant, at its option, may, by
written notice to Landlord, terminate this Lease.
4. RENT.
A. Basic Rent. Tenant agrees to pay to Landlord at such place as Landlord
may designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basic Rent for the leased Premises the total sum of Two
Hundred Thirty-Five Thousand Eight Hundred Fifteen and 60/100 Dollars
($235,815.60) in lawful money of the United States of America, payable as
follows: See Paragraph 39 for Basic Rent Schedule.
---------------------------
/1/ It is agreed in the event said Lease commences on a date other than the
first day of the month the term of the Lease will be extended to account for
the number of days in the partial month. The Basic Rent during the resulting
partial month will be prorated (for the number of days in the partial month)
at the Basic Rent rate scheduled for the projected commencement date as shown
in Paragraph 39.
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B. Time for Payment. Full monthly rent is due in advance on the first day
of each calendar month. In the event that the term of this Lease commences on a
date other than the first day of a calendar month, on the date of commencement
of the term hereof Tenant shall pay to Landlord as rent for the period from such
date of commencement to the first day of the next succeeding calendar month that
proportion of the monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding calendar month
bears to thirty (30). In the event that the term of this Lease for any reason
ends on a date other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to Landlord as rent
for the period from said first day of said last calendar month to and including
the last day of the term hereof that proportion of the monthly rent hereunder
which the number of days between said first day of said last calendar month and
the last day of the term hereof bears to thirty (30).
C. Late Charge. Notwithstanding any other provision of this Lease, if
Tenant is in default in the payment of rental as set forth in this Paragraph 4
when due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten percent (10%) of each rental payment so
in default.
D. Additional Rent. Beginning with the commencement date of the term of
this Lease, Tenant shall pay to Landlord or to Landlord's designated agent in
addition to the Basic Rent and as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in Paragraph 9, and
(b) All insurance premiums relating to the Premises, as set forth in
Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses,
including reasonable attorneys' fees and legal expenses, that may accrue thereto
in the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of default of
Tenant or failure on Tenant's part to comply with the terms of this Lease. In
the event of nonpayment by Tenant of Additional Rent, Landlord shall have all
the rights and remedies with respect thereto as Landlord has for nonpayment of
rent.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent (i) within five (5) days for taxes and insurance and within thirty (30)
days for all other Additional Rent items after presentation of invoice from
Landlord or Landlord's agent setting forth such Additional Rent and/or (ii) at
the option of Landlord, Tenant shall pay to Landlord monthly, in advance,
Tenant's pro rata share of an amount estimated by Landlord to be Landlord's
approximate average monthly expenditure for such Additional Rent items, which
estimated amount shall be reconciled within one hundred twenty (120) days of the
end of each calendar year or more frequently if Landlord elects to do so at
Landlord's sole and absolute discretion as compared to Landlord's actual
expenditure for said Additional Rent items, with Tenant paying to Landlord, upon
demand, any amount of actual expenses expended by Landlord in excess of said
estimated amount, or Landlord crediting to Tenant (providing Tenant is not in
default in the performance of any of the terms, covenants and conditions of this
Lease) any amount of estimated payments made by Tenant in excess of Landlord's
actual expenditures for said Additional Rent items.
The respective obligations of Landlord and Tenant under this paragraph
shall survive the expiration or other termination of the term of this Lease, and
if the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and
3
shall be prorated in the proportion which the number of days in such calendar
year preceding such expiration or termination bears to 365.
E. Fixed Management Fee. Beginning with the Commencement Date of the Term
of this Lease, Tenant shall pay to Landlord, in addition to the Basic Rent and
Additional Rent, a fixed monthly management fee ("Management Fee") equal to
three percent (3%) of the Basic Rent due for each month during the Lease Term.
F. Place of Payment of Rent and Additional Rent. All Basic Rent hereunder
and all payments hereunder for Additional Rent shall be paid to Landlord at the
office of Landlord at A&P Family Investments, 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx
000, Xxxxx Xxxxx, XX 00000 or to such other person or to such other place as
Landlord may from time to time designate in writing.
G. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum of Twenty Thousand One Hundred Thirty
and 60/100 Dollars ($20,130.60). Said sum shall be held by Landlord as a
Security Deposit for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provision of
this Lease, including, but not limited to, the provisions relating to the
payment of rent and any of the monetary sums due herewith, Landlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of any other amount which Landlord may 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. If any portion of said
Deposit is so used or applied, Tenant shall, within ten (10) days after written
demand therefor, deposit cash with Landlord in the amount sufficient to restore
the Security Deposit to its original amount. Tenant's failure to do so shall be
a material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Deposit. If Tenant fully and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration of the Lease
term and after Tenant has vacated the Premises. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer said Deposit to
Landlord's successor in interest whereupon Tenant agrees to release Landlord
from liability for the return of such Deposit or the accounting therefor.
5. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant accepts
the Premises as being in good and sanitary order, condition and repair and
accepts the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the condition
of such building or as to the use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant. Tenant agrees on the last day of the Lease term, or on the sooner
termination of this Lease, to surrender the Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God, fire, normal wear
and tear excepted), with all interior walls painted, or cleaned so that they
appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; all broken, marred or
nonconforming acoustical ceiling tiles replaced; all windows washed; the air
conditioning and heating systems serviced by a reputable and licensed service
firm and in good operating condition and repair; the plumbing and electrical
systems and lighting in good order and repair, including replacement of any
burned out or broken light bulbs or ballasts; the lawn and shrubs in good
condition including the replacement of any dead or damaged plantings; the
sidewalk, driveways and parking areas in good order, condition and repair;
together with all alterations, additions, and improvements which may have been
made in, to, or on the Premises (except moveable trade fixtures installed at the
expense of Tenant) except that Tenant shall ascertain from Landlord within
thirty (30) days before the end of the term of this Lease whether Landlord
desires to have the Premises or any part or
4
parts thereof restored to their condition and configuration as when the
Premises were delivered to Tenant and if Landlord shall so desire, then Tenant
shall restore said Premises or such part or parts thereof before the end of
this Lease at Tenant's sole cost and expense. Tenant, on or before the end of
the term or sooner termination of this Lease, shall remove all of Tenant's
personal property and trade fixtures from the Premises, and all property not
so removed on or before the end of the term or sooner termination of this
Lease shall be deemed abandoned by Tenant and title to same shall thereupon
pass to Landlord without compensation to Tenant. Landlord may, upon
termination of this Lease, remove all moveable furniture and equipment so
abandoned by Tenant, at Tenant's sole cost, and repair any damage caused by
such removal at Tenant's sole cost. If the Premises be not surrendered at the
end of the term or sooner termination of this Lease, Tenant shall indemnify
Landlord against loss or liability resulting from the delay by Tenant in so
surrendering the Premises including, without limitation, any claims made by
any succeeding tenant founded on such delay. Nothing contained herein shall be
construed as an extension of the term hereof or as a consent of Landlord to
any holding over by Tenant. The voluntary or other surrender of this Lease or
the Premises by Tenant or a mutual cancellation of this Lease shall not work
as a merger and, at the option of Landlord, shall either terminate all or any
existing subleases or subtenancies or operate as an assignment to Landlord of
all or any such subleases or subtenancies.
6. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be made,
any alteration or addition to the Premises, or any part thereof, without the
written consent of Landlord first had and obtained by Tenant (such consent not
to be unreasonably withheld), but at the cost of Tenant, and any addition to,
or alteration of, the Premises, except moveable furniture and trade fixtures,
shall at once become a part of the premises and belong to Landlord. Landlord
reserves the right to approve all contractors and mechanics proposed by Tenant
to make such alterations and additions. Tenant shall retain title to all
moveable furniture and trade fixtures placed in the Premises. All heating,
lighting, electrical, air conditioning, floor to ceiling partitioning,
drapery, carpeting, and floor installations made by Tenant, together with all
property that has become an integral part of the Premises, shall not be deemed
trade fixtures. Tenant agrees that it will not proceed to make such alteration
or additions, without having obtained consent from Landlord to do so, and
until five (5) days from the receipt of such consent. In order to make such
alteration or additions, without having obtained consent from Landlord to do
so, and until five (5) days from the receipt of such consent, in order that
Landlord may post appropriate notices to avoid any liability to contractors or
material suppliers for payment for Tenant's improvements. Tenant will at all
times permit such notices to be posted and to remain posted until the
completion of work. Tenant shall, if required by Landlord, secure at Tenant's
own cost and expense, a completion and lien indemnity bond, satisfactory to
Landlord, for such work. Tenant further covenants and agrees that any
mechanic's lien filed against the Premises for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after the filing
thereof, at the cost and expense of Tenant. Any exceptions to the foregoing
must be made in writing and executed by both Landlord and Tenant.
7. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, and in good and sanitary condition.
Tenant's maintenance and repair responsibilities herein referred to include, but
are not limited to, janitorization, plumbing systems within the non-common areas
of the Premises (such as water and drain lines, sinks), electrical systems with
the non-common areas of the Premises (such as outlets, lighting fixtures, lamps,
bulbs, tubes, ballast), heating and air conditioning controls within the non-
common areas of the Premises (such as mixing boxes, thermostats, time clocks,
supply and return grills), all interior improvements within the Premises
including but not limited to: wall coverings, acoustical ceilings, vinyl tile,
carpeting, partitioning, doors (both interior and exterior, including closing
mechanisms, latches, locks), and all other interior improvements of any nature
whatsoever. Tenant agrees to provide carpet xxxxxxx under all rolling chairs or
to otherwise be responsible for wear and tear of the carpets caused by such
rolling chairs if such wear and tear exceeds that caused by
5
normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenant's sole expense upon Lease termination.
8. UTILITIES.
9. TAXES.
A. As Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to the Landlord, or if Landlord so directs, directly to the Tax
Collector, all Real Property Taxes relating to the Premises. In the event the
Premises leased hereunder consist of only a portion of the entire tax parcel,
Tenant shall pay to Landlord Tenant's proportionate share of such real estate
taxes allocated to the leased Premises by square footage or other reasonable
basis as calculated and determined by Landlord. If the tax billing pertains
100% to the leased Premises, and Landlord chooses to have Tenant pay said real
estate taxes directly to the Tax Collector, then in such event it shall be the
responsibility of Tenant to obtain the tax and assessment bills and pay, prior
to delinquency, the applicable real property taxes and assessments pertaining to
the leased Premises, and failure to receive a xxxx for taxes and/or assessments
shall not provide a basis for cancellation of or nonresponsibility for payment
of penalties for nonpayment or late payment by Tenant. The term "Real Property
Taxes," as used herein, shall mean (i) all taxes, assessments, levies and other
charges of any kind or nature whatsoever, general and special, foreseen and
unforeseen (including all installments of principal and interest required to pay
any general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership of the Premises)
now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy assessments,
which are levied or assessed against, or with respect to the value, occupancy or
use of, all or any portion of the Premises (as now constructed or as may at any
time hereafter be constructed, altered, or otherwise changed) or Landlord's
interest therein; any improvements located within the Premises (regardless of
ownership); the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Premises; or parking
areas, public utilities, or energy within the Premises; (ii) all charges, levies
or fees imposed by reason of environmental regulation or other governmental
control of the Premises; and (iii) all costs and fees (including reasonable
attorneys' fees) incurred by Landlord in reasonably contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. If
at any time during the term of this Lease the taxation or assessment of the
Premises prevailing as of the commencement date of this Lease shall be altered
so that in lieu of or in addition to any Real Property Tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Premises or Landlord's interest therein or (ii) on or measured
by the gross receipts, income or rentals from the Premises, on Landlord's
business of leasing the Premises, or computed in any manner with respect to the
operation of the Premises, then any such tax or charge, however designated,
shall be included within the meaning of the term "Real Property Taxes" for
purposes of this Lease. If any Real Property Tax is based upon property or
rents unrelated to the Premises, then only that part of such Real Property Tax
that is fairly allocable to the Premises shall be included within the meaning of
the term "Real Property Taxes." Notwithstanding the foregoing, the term "Real
Property Taxes" shall not include estate, inheritance, gift or franchise taxes
of Landlord or the federal or state net income tax imposed on Landlord's income
from all sources.
B. Taxes on Tenant's Property. Tenant shall be liable for and shall pay
ten days before delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice
6
to Tenant, pays the taxes based on such increased assessment, which Landlord
shall have the right to do regardless of the validity thereof, but only under
proper protest if requested by Tenant. Tenant shall upon demand, as the case
may be, repay to Landlord the taxes so levied against Landlord, or the
proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of such taxes so paid under
protest, and any amount so recovered shall belong to Tenant.
10. LIABILITY INSURANCE. Tenant, at Tenant's expense, agrees to keep in force
during the term of this Lease a policy of commercial general liability insurance
with combined single limit coverage of not less than Two Million Dollars
($2,000,000) per occurrence for bodily injury and property damage occurring in,
on or about the Premises, including parking and landscaped areas. Such
insurance shall be primary and noncontributory as respects any insurance carried
by Landlord. The policy or policies effecting such insurance shall name
Landlord as additional insureds, and shall insure any liability of Landlord,
contingent or otherwise, as respects acts or omissions of Tenant, its agents,
employees or invitees or otherwise by any conduct or transactions of any of said
persons in or about or concerning the Premises, including any failure of Tenant
to observe or perform any of its obligations hereunder; shall be issued by an
insurance company admitted to transact business in the State of California; and
shall provide that the insurance effected thereby shall not be cancelled, except
upon thirty (30) days' prior written notice to Landlord. A certificate of
insurance of said policy shall be delivered to Landlord. If, during the term of
this Lease, in the considered opinion of Landlord's Lender, insurance advisor,
or counsel, the amount of insurance described in this Paragraph 10 is not
adequate, Tenant agrees to increase said coverage to such reasonable amount as
Landlord's Lender, insurance advisor, or counsel shall deem adequate.
11. TENANT'S PERSONAL PROPERTY INSURANCE AND XXXXXXX'X COMPENSATION INSURANCE.
Tenant shall maintain a policy or policies of fire and property damage insurance
in "all risk" form with a sprinkler leakage endorsement insuring the personal
property, inventory, trade fixtures, and leasehold improvements within the
leased Premises for the full replacement value thereof. The proceeds from any
of such policies shall be used for the repair or replacement of such items so
insured.
Tenant shall also maintain a policy or policies of xxxxxxx'x compensation
insurance and any other employee benefit insurance sufficient to comply with all
laws.
12. PROPERTY INSURANCE. Landlord shall purchase and keep in force, and as
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (allocated to the leased Premises by square footage or other
equitable basis as calculated and determined by Landlord) of the deductibles on
insurance claims and the cost of, policy or policies of insurance covering loss
or damage to the Premises (excluding routine maintenance and repairs and
incidental damage or destruction caused by accidents or vandalism for which
Tenant is responsible under Paragraph 7) in the amount of the full replacement
value thereof, providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake insurance,
if available, plus a policy of rental income insurance in the amount of one
hundred (100%) percent of twelve (12) months Basic Rent, plus sums paid as
Additional Rent. If such insurance cost is increased due to Tenant's use of the
Premises, Tenant agrees to pay to Landlord the full cost of such increase.
Tenant shall have no interest in nor any right to the proceeds of any insurance
procured by Landlord for the Premises.
Landlord and Tenant do each hereby respectively release the other, to the
extent of insurance coverage of the releasing party, from any liability for loss
or damage caused by fire or any of the extended
7
coverage casualties included in the releasing party's insurance policies,
irrespective of the cause of such fire or casualty; provided, however, that if
the insurance policy of either releasing party prohibits such waiver, then
this waiver shall not take effect until consent to such waiver is obtained. If
such waiver is so prohibited, the insured party affected shall promptly notify
the other party thereof.
13. INDEMNIFICATION. Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person or
damage to or destruction of property in or about the Premises by or from any
cause whatsoever, including, without limitation, gas, fire, oil, electricity or
leakage of any character from the roof, walls, basement or other portion of the
Premises but excluding, however, the willful misconduct or negligence of
Landlord, its agents, servants, employees, invitees, or contractors of which
negligence Landlord has knowledge and reasonable time to correct. Except as to
injury to persons or damage to property to the extent arising from the willful
misconduct or the negligence of Landlord, its agents, servants, employees,
invitees, or contractors, Tenant shall hold Landlord harmless from and defend
Landlord against any and all expenses, including reasonable attorneys' fees, in
connection therewith, arising out of any injury to or death of any person or
damage to or destruction of property occurring in, on or about the Premises, or
any part thereof, from any cause whatsoever.
14. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgement of any court of competent jurisdiction or
the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any such law, statute, ordinance
or governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole cost and expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance covering
requirements pertaining to said Premises, of any insurance organization or
company, necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises.
15. LIENS. Tenant shall keep the Premises free from any liens arising out of
any work performed, materials furnished or obligation incurred by Tenant. In
the event that Tenant shall not, within ten (10) days following the imposition
of such lien, cause the same to be released of record, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but no
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All sums paid
by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
prime rate of interest as quoted by the Bank of America.
16. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall nor sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord which consent will not be unreasonably withheld. As a
condition for granting this consent to any assignment, transfer, or subletting,
Landlord shall require that Tenant agrees to pay to Landlord, as Additional
Rent, all rents and/or additional consideration due Tenant from its assignees,
transferees, or subtenants in excess of the Rent payable by Tenant to Landlord
hereunder for the assigned, transferred and/or subleased space. Tenant shall,
by thirty (30) days written notice, advise Landlord of its intent to assign or
transfer Tenant's
8
interest in the lease or sublet the Premises or any portion thereof for any
part of the term hereof. Within thirty (30) days after receipt of said written
notice, Landlord may, in its sole discretion, elect to terminate this Lease as
to the portion of the Premises described in Tenant's notice on the date
specified in Tenant's notice by giving written notice of such election to
terminate. If no such notice to terminate is given to Tenant within said
thirty (30) day period, Tenant may proceed to locate an acceptable sublessee,
assignee, or other transferee for presentment to Landlord for Landlord's
approval, all in accordance with the terms, covenants, and conditions of this
paragraph 16. If Tenant intends to sublet the entire Premises and Landlord
elects to terminate this Lease, this Lease shall be terminated on the date
specified in Tenant's notice. If, however, this Lease shall terminate pursuant
to the foregoing with respect to less than all the Premises, the rent, as
defined and reserved hereinabove shall be adjusted on a pro rata basis to the
number of square feet retained by Tenant, and this Lease as so amended shall
continue in full force and effect. In the event Tenant is allowed to assign,
transfer or sublet the whole or any part of the Premises, with the prior
written consent of Landlord, no assignee, transferee or subtenant shall assign
or transfer this Lease, either in whole or in part, or sublet the whole or any
part of the Premises, without also having obtained the prior written consent
of Landlord. A consent of Landlord to one assignment, transfer, hypothecation,
subletting, occupation or use by any other person shall not release Tenant
from any of Tenant's obligations hereunder or be deemed to be a consent to any
subsequent similar or dissimilar assignment, transfer, hypothecation,
subletting, occupation or use by any other person. Any such assignment,
transfer, hypothecation, subletting, occupation or use without such consent
shall be void and shall constitute a breach of this Lease by Tenant and shall,
at the option of Landlord exercised by written notice to Tenant, terminate
this Lease. The leasehold estate under this Lease shall not, nor shall any
interest therein, be assignable for any purpose by operation of law without
the written consent of Landlord. As a condition to its consent, Landlord shall
require Tenant to pay all expenses in connection with the assignment, and
Landlord shall require Tenant's assignee or transferee (or other assignees or
transferees) to assume in writing all of the obligations under this Lease and
for Tenant to remain liable to Landlord under the Lease. Notwithstanding the
above, in no event will Landlord consent to a sub-sublease.
17. SUBORDINATION AND MORTGAGES. In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Notwithstanding any such subordination, Tenant's possession under this
Lease shall not be disturbed if Tenant is not in default and so long as Tenant
shall pay all rent and observe and perform all of the provisions set forth in
this Lease.
18. ENTRY BY LANDLORD. Landlord reserves, and shall at all reasonable times
after at least 24 hours notice (except in emergencies) have the right to enter
the Premises to inspect them; to perform any services to be provided by Landlord
hereunder; to make repairs or provide any services to contiguous tenant(s); to
submit the Premises to prospective purchasers, mortgagers or tenants; to post
notices of nonresponsibility; and to alter, improve or repair the Premises or
other parts of the building, all without abatement of rent, and may erect
scaffolding and other necessary structures in or through the Premises where
reasonably required by the character of the work to be performed; provided,
however, that the business of Tenant shall be interfered with to the least
extent that is reasonably practical. Any entry to the Premises by Landlord for
the purposes provided for herein 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
portion thereof.
19. BANKRUPTCY AND DEFAULT. The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of
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creditors, or any similar action undertaken by Tenant, or the insolvency of
Tenant, shall, at Landlord's option, constitute a breach of this Lease by
Tenant. If the trustee or receiver appointed to serve during a bankruptcy,
liquidation, reorganization, insolvency or similar action elects to reject
Tenant's unexpired Lease, the trustee or receiver shall notify Landlord in
writing of its election within thirty (30) days after an order for relief in a
liquidation action or within thirty (30) days after the commencement of any
action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold
estate under this Lease, or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation
made under this Lease shall constitute a default hereunder by Tenant upon
expiration of the appropriate grace period hereinafter provided. Tenant shall
have a period of five (5) days from the date of written notice from Landlord
within which to cure any default in the payment of rental or adjustment thereto.
Tenant shall have a period of thirty (30) days from the date of written notice
from Landlord within which to cure any other default under this Lease. Upon an
uncured default of this Lease by Tenant, Landlord shall have the following
rights and remedies in addition to any other rights or remedies available to
Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the
time of award of the amount by which the unpaid rent for the balance of the
term after the time of award exceeds the amount of rental loss for the same
period that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed real estate broker in
the business of renting property of the same type and use as the Premises and
in the same geographic vicinity. Such two real estate brokers shall select a
third licensed real estate broker, and the three licensed real estate brokers
so selected shall determine the amount of the rental loss that could be
reasonably avoided from the balance of the term of this Lease after the time
of award. The decision of the majority of said licensed real estate brokers
shall be final and binding upon the parties hereto.
(b) The rights and remedies provided by California Civil Code Section
which allows Landlord to continue the Lease in effect and to enforce all of
its rights and remedies under this Lease, including the right to recover rent
as it becomes due, for so long as Landlord does not terminate Tenant's right
to possession; acts of maintenance or preservation, efforts to relet the
Premises, or the appointment
10
of a receiver upon Landlord's initiative to protect its interests
under this Lease shall not constitute a termination of Tenant's right to
possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant,
and to sell such property and apply such proceeds therefrom pursuant to
applicable California law, Landlord, may from time to time sublet the Premises
or any part thereof for such term or terms (which may extend beyond the term of
this Lease) and at such rent and such other terms as Landlord in its reasonable
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Upon each subletting, (i) Tenant shall be immediately
liable to pay Landlord, in addition to the indebtedness other than rent due
hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorneys' fees, and any real estate commissions actually paid,
and the cost of such reasonable alterations and repairs incurred by Landlord and
the amount, if any, by which the rent hereunder for the period of such
subletting (to the extent such period does not exceed the term hereof) exceed
the amount to be paid as rent for the Premises for such period or (ii) at the
option of Landlord, rents received from such subletting shall be applied first
to payment of indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs of such subletting and of such
alterations and repairs; third, to payment of rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
rent as the same becomes due hereunder. If Tenant has been credited with any
rent to be received by such subletting under option (i) and such rent shall not
be promptly paid to Landlord by the subtenant(s), or if such rentals received
from such subletting under option (ii) during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No taking
possession of the Premises by Landlord, shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant. Notwithstanding any such subletting without termination, Landlord
may at any time hereafter elect to terminate this Lease for such previous
breach.
(e) The right to 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 d above.
20. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease and if Tenant shall abandon, vacate or surrender
said Premises, or be dispossessed by the process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall be deemed
to be abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
21. DESTRUCTION. In the event the Premises are destroyed in whole or in part
from any cause, except for routine maintenance and repairs and incidental damage
and destruction caused from vandalism and accidents for which Tenant is
responsible under Xxxxxxxxx 0, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the
damage or destruction, or (providing that the Premises is damaged to the extent
of 33 1/3% of the replacement cost);
(b) Terminate this Lease
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If Landlord does not give Tenant notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense except for any deductible, which is the responsibility of Tenant,
promptly to rebuild or restore the Premises to their condition prior to the
damage or destruction. Tenant shall be entitled to a reduction in rent while
such repair is being made in the proportion that the area of the Premises
rendered untenantable by such damage bears to the total area of the Premises. If
Landlord initially estimates that the rebuilding or restoration will exceed 180
days or if Landlord does not complete the rebuilding or restoration within one
hundred eighty (180) days following the date of destruction (such period of time
to be extended for delays caused by the fault or neglect of Tenant or because of
Acts of God, act of public agencies, labor disputes, strikes, fires, freight
embargoes, rainy or stormy weather, inability to obtain materials, supplies or
fuels, acts of contractors or subcontractors, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the control of
Landlord), then Tenant shall have the right to terminate this Lease by giving
fifteen (15) days prior written notice to Landlord. Notwithstanding anything
herein to the contrary, Landlord's obligation to rebuild or restore shall be
limited to the building and interior improvements constructed by Landlord as
they existed as of the commencement date of the Lease and shall not include
restoration of Tenant's trade fixtures, equipment, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forthwith replace or fully repair at Tenant's sole cost and expense
provided this Lease is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of the
California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not. Notwithstanding anything to the contrary herein, Landlord
may terminate this Lease in the event of an uninsured event or if insurance
proceeds are insufficient to cover one hundred percent of the rebuilding costs
net of the deductible.
22. EMINENT DOMAIN. If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any and all payment, income, rent, award, or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill, shall be and remain
the property of Tenant.
If any action or proceeding is commenced for such taking of the Premises or
any part thereof, or if Landlord is advised in writing by any entity or body
having the right or power of condemnation of its intention to condemn the
premises or any portion thereof, then Landlord shall have the right to terminate
this Lease by giving Tenant written notice thereof within sixty (60) days of the
date of receipt of said written advice, or commencement of said action or
proceeding, or taking conveyance, which termination shall take place as of the
first to occur of the last day of the calendar month next following the month in
which such notice is given or the date on which title to the Premises shall vest
in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if the
portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant
12
shall have the privilege of terminating this Lease within sixty (60) days from
the date of such taking or conveyance, upon written notice to Landlord of its
intention so to do, and upon giving of such notice this Lease shall terminate on
the last day of the calendar month next following the month in which such notice
is given, upon payment by Tenant of the rent from the date of such taking or
conveyance to the date of termination.
If a portion of the Premises be taken by condemnation or conveyance in lieu
thereof and neither Landlord nor Tenant shall terminate this Lease as provided
therein, this Lease shall continue in full force and effect as to the part of
the Premises not so taken or conveyed, and the rent herein shall be apportioned
as of the date of such taking or conveyance so that thereafter the rent to be
paid by Tenant shall be in the ratio that the area of the portion of the
Premises not so taken or conveyed bears to the total area of the Premises prior
to such taking.
23. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or conveyance of
the Premises or any interest therein, by any owner of the reversion then
constituting Landlord, the transferor shall thereby be released from any further
liability upon any of the terms, covenants or conditions (express or implied)
herein contained in favor of Tenant, and in such event, insofar as such transfer
is concerned, Tenant agrees to look solely to the responsibility of the
successor in interest of such transferor in and to the Premises and this Lease.
This Lease shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the successor in interest of such transferor.
24. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest of Landlord
in the land and buildings in which the leased Premises are located (whether such
interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by the lender or any
third party through judicial foreclosure or by exercise of a power of sale at
private trustee's foreclosure sale, Tenant hereby agrees to attorn to the
purchaser at any such foreclosure sale and to recognize such purchaser as the
Landlord under this Lease. In the event the lien of the deed of trust securing
the loan from a Lender to Landlord is prior and paramount to the Lease, this
Lease shall nonetheless continue in full force and effect for the remainder of
the unexpired term hereof, at the same rental herein reserved and upon all the
other terms, conditions and covenants herein contained.
25. HOLDING OVER. Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of
the term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
26. CERTIFICATE OF ESTOPPEL. Tenant shall at any time upon not less than ten
(10) days prior written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing (i) certifying that the Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modification
except as may be represented by Landlord; that there are no uncured defaults in
Landlord's performance, and that not more than one month's rent has been paid in
advance.
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27. CONSTRUCTION CHANGES. It is understood that the description of the
Premises and the location of ductwork, plumbing and other facilities therein are
subject to such minor changes as Landlord or Landlord's architect determines to
be desirable in the course of construction of the Premises, and no such changes
shall affect this Lease or entitle Tenant to any reduction of rent hereunder or
result in any liability of Landlord to Tenant. Landlord does not guarantee the
accuracy of any drawing supplied to Tenant and verification of the accuracy of
such drawings rests with Tenant.
28. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder and such failure shall continue for five (5) days after written
notice by Landlord, or shall fail to perform any other term or covenant
hereunder on its part to be performed, and such failure shall continue for
thirty (30) days after written notice thereof by Landlord, Landlord, without
waiving or releasing Tenant from any obligation of Tenant hereunder, may, but
shall not be obligated to, make any such payment or perform any such other term
or covenant on Tenant's part to be performed. All sums so paid by Landlord and
all necessary costs of such performance by Landlord together with interest
thereon at the rate of the prime rate of interest per annum as quoted by the
Bank of America from the date of such payment on performance by Landlord, shall
be paid (and Tenant covenants to make such payment) to Landlord on demand by
Landlord, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of nonpayment by Tenant as
in the case of failure by Tenant in the payment of rent hereunder.
29. ATTORNEYS' FEES.
A. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee.
30. WAIVER. The waiver by either party of the other party's failure to perform
or observe any term, covenant or condition herein contained to be performed or
observed by such waiving party shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent failure of the party failing to perform
or observe the same or any other such term, covenant or condition therein
contained, and no custom or practice which may develop between the parties
hereto during the term hereof shall be deemed a waiver, or in any way affect,
the right of either party to insist upon performance and observance by the other
party in strict accordance with the terms hereof.
31. NOTICES. All notices, demands, requests, advices or designations which may
be or are required to be given by either party to the other hereunder shall be
in writing. All notices, demands, requests, advices or designations by Landlord
to Tenant shall be sufficiently given, made or delivered if personally served on
Tenant by leaving the same at the Premises or if sent by United States certified
or registered mail, postage prepaid, addressed to Tenant at the Premises. All
notices, demands, requests, advices or designations by Tenant to Landlord shall
be sent by United States certified or registered mail, postage prepaid,
addressed to Landlord at its offices at A&P Family Investments, 0000 Xxxxxxx
Xxxxxxx Xxxx.,
00
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000. Each notice, request, demand, advice
or designation referred to in this paragraph shall be deemed received on the
date of the personal service or mailing thereof in the manner herein provided,
as the case may be.
32. EXAMINATION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
33. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have heretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligations is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
34. CORPORATE AUTHORITY. If Tenant is a corporation (or a partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
in accordance with the by-laws of said corporation (or partnership in accordance
with the partnership agreement) and that the Lease is binding upon said
corporation (or partnership) in accordance with its terms. If Tenant is a
corporation, Tenant shall, within thirty (30) days after execution of this
Lease, deliver to Landlord a certified copy of the resolution of the Board of
Directors of said corporation authorizing or ratifying the execution of this
Lease.
35. OMITTED.
36. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against Landlord's interest in
the Premises leased herein;
(b) no partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the partnership;
(c) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(d) no partner of Landlord shall be required to answer or otherwise plead
to any service of process;
(e) no judgment will be taken against any partner of Landlord;
(f) any judgment taken against any partner of Landlord may be vacated and
set aside at any time without hearing;
(g) no writ of execution will ever be levied against the assets of any
partner of Landlord;
15
(h) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law.
37. SIGNS. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained 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. If Tenant is allowed to print or affix or in any
way place a sign in, on, or about the Premises, upon expiration or other sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of 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.
38. MISCELLANEOUS AND GENERAL PROVISIONS.
A. Use of Building Name. Tenant shall not, without the written consent of
Landlord, use the name of the building for any purpose other than as the address
of the business conducted by Tenant in the Premises.
B. Choice of Law; Severability. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provision of this Lease shall be invalid, unenforceable or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
C. Definition of Terms. The term "Premises" includes the space leased
hereby and any improvements now or hereafter installed therein or attached
thereto. The term "Landlord" or any pronoun used in place thereof includes the
plural as well as the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes the plural as well
as the singular and individuals, firms, associations, partnerships and
corporations, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the benefit of and bind
such heirs, executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings
of this Lease are for convenience of reference only and shall have no effect
upon the construction or interpretation of any provision hereof.
D. Time of Essence. Time is of the essence of this Lease and of each and
all of its provisions.
00
X. Xxxxxxxxx. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days
after written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in the
State of California, to remove the cloud or encumbrance created by this Lease
from the real property of which Tenant's Premises are a part.
F. Incorporation of Prior Agreements; Amendments. This instrument along
with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
agree hereby that all prior or contemporaneous oral agreements between and among
themselves and their agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.
G. Recording. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
H. Amendments for Financing. Tenant further agrees to execute any
amendments required by a lender to enable Landlord to obtain financing, so long
as Tenant's rights hereunder are not substantially affected.
I. Additional Paragraphs. Paragraphs 39 through 52 are added hereto and
are included as a part of this Lease.
J. Clauses, Plats and Riders. Clauses, plats and riders, if any, signed
by Landlord and Tenant and endorsed on or affixed to this Lease are a part
hereof.
K. Diminution of Light, Air or View. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect this
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year last written below.
LANDLORD: TENANT:
A&P FAMILY INVESTMENTS ATWEB, INC.
a California general partnership a California corporation
General Partner:
By: /s/
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By: /s/ Title: CFO
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Xxxx Xxxxxxxxx, Trustee
Type or Print Name
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Date: 12/29/97
---------------------------- Date: 12/29/97
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Paragraphs 39 through 52 to Lease Agreement dated December 18, 1997, By and
Between A&P Family Investments, a California general partnership, as Landlord,
and AtWeb, Inc., a California corporation, as Tenant for 4,793 + Square Feet of
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Space Located at 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000.
39. BASIC RENT: In accordance with Paragraph 4A herein, the total aggregate
sum of TWO HUNDRED THIRTY FIVE THOUSAND EIGHT HUNDRED FIFTEEN AND 60/100 DOLLARS
($235,815.60) shall be payable as follows:
On February 1, 1998, the sum of NINE THOUSAND FIVE HUNDRED EIGHTY SIX AND
NO/100 DOLLARS ($9,586.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including January 1, 1999.
On February 1, 1999, the sum of TEN THOUSAND SIXTY FIVE AND 30/100 DOLLARS
($10,065.30) shall be due, and a like sum due on the first day of each month
thereafter, through and including January 1, 2000; or until the entire aggregate
sum of TWO HUNDRED THIRTY FIVE THOUSAND EIGHT HUNDRED FIFTEEN AND 60/100 DOLLARS
($235,815.60) has been paid.
40. EARLY OCCUPANCY: Tenant shall have the right to occupy the Premises prior
to the scheduled Lease Commencement Date. This Lease shall commence and Tenant
shall pay to Landlord, effective as of the date Tenant so occupies the Premises,
all Additional Rent expenses which are Tenant's responsibility hereunder
(however, Tenant shall not be responsible for paying Basic Rent during the early
occupancy period), and Tenant shall be obligated to perform, and be bound by,
each and every term, covenant and condition of this Lease. In the event Tenant
occupies the Premises prior to February 1, 1998, the Term of this Lease will be
extended to include the early occupancy period (i.e. If Tenant occupies said
space on January 1, 1998, the Lease Term will be extended for one month from a
two year Term to a two year one month Term).
41. "AS-IS" BASIS: It is hereby agreed that the Premises leased hereunder is
leased strictly on an "as-is" basis and in its present condition, and in the
configuration as shown on Exhibit B attached hereto, and by reference made a
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part hereof. It is specifically agreed between the parties that Landlord shall
not be required to make, nor be responsible for any cost, in connection with any
repair, restoration, and/or improvement to the Premises in order for this Lease
to commence, or thereafter, throughout the Term of this Lease. Notwithstanding
anything to the contrary within this Lease, Landlord makes no warranty or
representation of any kind or nature whatsoever as to the condition or repair of
the Premises, nor as to the use or occupancy which may be made thereof.
42. RULES AND REGULATIONS AND COMMON AREA: Subject to the terms and conditions
of this Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Parcel/Building in which the premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the access
roads, parking areas, and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Parcel/Building in which the
Premises are located, which areas and facilities are referred to herein as
"Common Area". This right shall terminate upon the termination of this Lease.
Landlord reserves the right from time to time to make changes in the shape,
size, location, amount and extent of Common Area. Landlord further reserves the
right to promulgate such reasonable rules and regulations relating to the use of
the Common Area, and any part or parts thereof, as Landlord may deem appropriate
for the best interests of the occupants of the Parcel/Building. Such Rules and
Regulations may be amended by Landlord from time to time, with or without
advance notice, and all amendments shall be effective upon
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delivery of a copy to Tenant. Landlord shall not be responsible to Tenant for
the non-performance by any other tenant or occupant of the Parcel/Building of
any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
43. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
THE PARCEL AND BUILDING IN WHICH THE PREMISES ARE LOCATED: As Additional Rent
and in accordance with Paragraph 4D of this Lease, Tenant shall pay to Landlord
Tenant's proportionate share (calculated on a square footage or other equitable
basis as calculated by Landlord) of all expenses of operation, management,
maintenance and repair of the Common Areas of the Parcel including, but not
limited to, license, permit, and inspection fees; security; utility charges
associated with exterior landscaping and lighting (including water and sewer
charges); all charges incurred in the maintenance and replacement of landscaped
areas, lakes, parking lots and paved areas (including repairs, replacement,
resealing and restriping), sidewalks, driveways, maintenance, repair and
replacement of all fixtures and electrical, mechanical and plumbing systems;
supplies, materials, equipment and tools; the cost of capital expenditures which
have the effect of reducing operating expenses, provided, however, that in the
event Landlord makes such capital improvements, Landlord may amortize its
investment in said improvements (together with interest at the rate of fifteen
(15%) percent per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such amortization
is not at a rate greater than the anticipated savings in the operating expenses.
As Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including structural and common areas such as lobbies, restrooms, janitor's
closets, hallways, elevators, mechanical and telephone rooms, stairwells,
entrances, spaces above the ceilings and janitorization of said common areas) in
which the Premises are located. The maintenance items herein referred to
include, but are not limited to, all windows, window frames, plate glass,
glazing, truck doors, main plumbing systems of the building (such as water drain
lines, sinks, toilets, faucets, drains, showers and water fountains), main
electrical systems (such as panels and conduits), heating and airconditioning
systems (such as compressors, fans, air handlers, ducts, boilers, heaters),
structural elements and exterior surfaces of the building; store fronts, roof,
downspouts, building common area interiors (such as wall coverings, window
coverings, floor coverings and partitioning), ceilings, building exterior doors,
skylights (if any), automatic fire extinguishing systems, and elevators (if
any); license, permit and inspection fees; security, supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect of
reducing operating expenses, provided, however, that in the event Landlord makes
such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen (15%) percent per
annum on the unamortized balance) as an operating expense in accordance with
standard accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses. Tenant hereby
waives all rights hereunder, and benefits of, subsection 1 of Section 1932 and
Sections 1941 and 1942 of the California Civil Code and under any similar law,
statute or ordinance now or hereafter in effect.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges, expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest; or executive salaries.
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44. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED: As Additional
Rent and in accordance with paragraph 4D of this Lease Tenant shall pay its
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, (telephone, telex and other electronic communications service, if
applicable) sewer service, waste pick-up and any other utilities, materials or
services furnished directly to the building in which the Premises are located,
including, without limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance of any
of the terms, covenants or conditions of this Lease to be performed or observed
by it, Landlord shall furnish to the Premises between the hours of 8:00 am and
6:00 pm, Mondays through Fridays (holidays excepted) and subject to the rules
and regulations of the Common Area hereinbefore referred to, reasonable
quantities of water, gas, and electricity suitable for the intended use of the
Premises and heat and airconditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises for such purposes. Tenant agrees
that at all times it will cooperate fully with Landlord and abide by all
regulations and requirements that Landlord may prescribe for the proper
functioning and protection of the building heating, ventilating and
airconditioning systems. Whenever heat generating machines, equipment, or any
other devices (including exhaust fans) are used in the Premises by Tenant which
affect the temperature or otherwise maintained by the airconditioning system,
Landlord shall have the right to install supplementary airconditioning units in
the Premises and the cost thereof, including the cost of installation and the
cost of operation and maintenance thereof, shall be paid by Tenant to Landlord
upon demand by Landlord. Tenant will not, without the written consent of
Landlord, use any apparatus or device in the Premises (including, without
limitation), electronic data processing machines or machines using current in
excess of 110 Volts which will in any way increase the amount of electricity,
gas, water or airconditioning usually furnished or supplied to premises being
used as general office space, or connect with electric current (except through
existing electrical outlets in the Premises), or with gas or water pipes any
apparatus or device for the purposes of using electric current, gas, or water.
If Tenant shall require water, gas, or electric current in excess of that
usually furnished or supplied to premises being used as general office space,
Tenant shall first obtain the written consent of Landlord, which consent shall
not be unreasonably withheld and Landlord may cause an electric current, gas or
water meter to be installed in the Premises in order to measure the amount of
electric current, gas or water consumed for any such excess use. The cost of
any such meter and of the installation, maintenance and repair thereof, all
charges for such excess water, gas and electric current consumed (as shown by
such meters and at the rates then charged by the furnishing public utility); and
any additional expense incurred by Landlord in keeping account of electric
current, gas, or water so consumed shall be paid by Tenant, and Tenant agrees to
pay Landlord therefor promptly upon demand by Landlord.
45. PARKING: Tenant shall have the right to the nonexclusive use of nineteen
(19) parking spaces in the common parking area of the building. Tenant agrees
that Tenant, Tenant's employees, agents, representatives, and/or invitees shall
not use parking spaces in excess of said 19 parking spaces allocated to Tenant
hereunder. Landlord shall have the right, at Landlord's sole discretion, to
specifically designate the location of Tenant's parking spaces within the common
parking area of the building in the event of a dispute among the tenants
occupying the building referred to herein, in which event Tenant agrees that
Tenant, Tenant's employees, agents, representatives and/or invitees shall not
use any parking spaces other than those parking spaces specifically designated
by Landlord for Tenant's use. Said parking spaces, if specifically designated
by Landlord to Tenant, may be relocated by Landlord at any time, and from time
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to time. Landlord reserves the right, at Landlord's sole discretion, to rescind
any specific designation of parking spaces, thereby returning Tenant's parking
spaces to the common parking area. Landlord shall give Tenant written notice of
any change in Tenant's parking spaces. Tenant shall not, at any time, park or
permit to be parked, any trucks or vehicles adjacent to the loading area so as
to interfere in any way with the use of such areas, nor shall Tenant, at any
time, park or permit the parking of Tenant's trucks and other vehicles or the
trucks or vehicles of Tenant's suppliers or others, in any portion of the common
areas not designated by Landlord for such use by Tenant. Tenant shall not park
nor permit to be parked, any inoperative vehicles or equipment on any portion of
the common parking area or other common areas of the building. Tenant agrees to
assume responsibility for compliance by its employees with the parking provision
contained herein. If Tenant or its employees park in other than designated
parking areas, then Landlord may charge Tenant, as an additional charge, and
Tenant agrees to pay Ten Dollars ($10.00) per day for each day or partial day
each such vehicle is parking in any area other than that designated. Tenant
hereby authorizes Landlord, at Tenant's sole expense, to tow away from the
building any vehicle belonging to Tenant or Tenant's employees parked in
violation of these provisions, or to attach violation stickers or notices to
such vehicles. Tenant shall use the parking area for vehicle parking only and
shall not use the parking areas for storage.
46. ASSESSMENT CREDITS. The demised property herein may be subject to a
special assessment levied by the City of Sunnyvale as part of an Improvement
District. As a part of said special assessment proceedings (if any), additional
bonds were or may be sold and assessments were or may be levied to provide for
construction contingencies and reserve funds. Interest shall be earned on such
funds created for contingencies and on reserve funds which will be credited for
the benefit of said assessment district. To the extent surpluses are created in
said district through unused contingency funds, interest earnings or reserve
funds, such surpluses shall be deemed the property of Landlord. Notwithstanding
that such surpluses may be credited on assessments otherwise due against the
Leased Premises, Tenant shall pay to Landlord, as additional rent if, and at the
time of any such credit of surpluses, an amount equal to all such surpluses so
credited. For example: if (i) the property is subject to an annual assessment
of $1,000.00, and (ii) a surplus of $200.00 is credited towards the current
year's assessment which reduces the assessment amount shown on the property tax
xxxx from $1,000.00 to $800.00, Tenant shall, upon receipt of notice from
Landlord, pay to Landlord said $200.00 credit as Additional Rent.
47. ASSIGNMENT AND SUBLETTING (CONTINUED): Any and all sublease agreement(s)
between Tenant and any and all subtenant(s) (which agreements must be consented
to by Landlord, pursuant to the requirements of this Lease) shall contain the
following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease termination date, then this Sublease (if then still in effect) shall
terminate concurrently with the termination of the Master Lease. Subtenant
expressly acknowledges and agrees that (1) the voluntary termination of the
Master Lease by Landlord and Tenant and the resulting termination of this
Sublease shall not give Subtenant any right or power to make any legal or
equitable claim against Landlord, including without limitation any claim
for interference with contract or interference with prospective economic
advantage, and (2) Subtenant hereby waives any and all rights it may have
under law or at equity against Landlord to challenge such an early
termination of the Sublease, and unconditionally releases and relieves
Landlord, and its officers, directors, employees and agents, from any and
all claims, demands, and/or causes of action whatsoever (collectively,
("Claims"), whether such matters are known or unknown, latent or apparent,
suspected or unsuspected, foreseeable or unforeseeable, which Subtenant may
have arising out of or in connection with any such early termination of
this Sublease. Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the California Civil
Code which provides as follows: "A general release does not extend to
claims which the creditor does not
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know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
debtor."
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration or
and agreement to this early termination provision, (b) Subtenant's
acknowledgment that, in determining the net benefits to be derived by
Subtenant under the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement to the
general waiver and release of Claims above.
Initials: ____________ Initials: ____________
Subtenant Tenant
48. BANKRUPTCY AND DEFAULT: Paragraph 19 is modified to provide that with
respect to non-monetary defaults not involving Tenant's failure to pay Basic
Rent or Additional Rent, Tenant shall not be in default of any non-monetary
obligation if (i) more than thirty (30) days is required to cure such non-
monetary default, and (ii) Tenant commences cure of such default as soon as
reasonably practicable after receiving written notice of such default from
Landlord and thereafter continuously and with due diligence prosecutes such cure
to completion.
49. ABANDONMENT: Paragraph 20 is modified to provide that Tenant shall not be
in default under the Lease if it leaves all or any part of Premises vacant so
long as (i) Tenant is performing all of its other obligations under the Lease
including the obligation to pay Basic Rent and Additional Rent, (ii) Tenant
provides on-site security during normal business hours for those parts of the
Premises left vacant; (iii) such vacancy does not materially and adversely
affect the validity or coverage of any policy of insurance carried by Landlord
with respect to the Premises, and (iv) the utilities and heating and ventilation
system are operated and maintained to the extent necessary to prevent damage to
the Premises or its systems.
50. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect to
the existence or use of "Hazardous Materials" (as defined herein) on, in, under
or about the Premises and real property located beneath said Premises and the
common areas of the Parcel, which includes the entire parcel of land on which
the Premises are located as shown in Green on Exhibit A attached hereto
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(hereinafter collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean any material,
waste, chemical mixture or byproduct which is or hereafter is defined, listed or
designated under Environmental Laws (defined below) as a pollutant, or as a
contaminant, or as a toxic or hazardous substance, waste or material, or any
other unwholesome, hazardous, toxic biohazardous, or radioactive material,
waste, chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation, petroleum
hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term
"Environmental Laws" shall mean any applicable Federal, State or California or
local government law (including common law), statute, regulation, rule,
ordinance, permit, license, order, requirement, agreement, or approval, or any
determination, judgment, directive, or order of any executive or judicial
authority at any level of Federal, State of California or local government
(whether now existing or subsequently adopted or promulgated) relating to
pollution or the protection of the environment, ecology, natural resources, or
public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be withheld
in Landlord's discretion, prior to the occurrence of any Tenant's Hazardous
Materials Activities (defined below); provided, however, that Landlord's consent
shall not be required for normal use in compliance with
25
applicable Environmental Laws of customary household and office supplies (Tenant
shall first provide Landlord with a list of said materials use), such as mild
cleaners, lubricants and copier toner. As used herein, the term "Tenant's
Hazardous Materials Activities" shall mean any and all use, handling,
generation, storage, disposal, treatment, transportation, release, discharge, or
emission of any Hazardous Materials on, in, beneath, to, from, at or about the
Property, in connection with Tenant's use of the Property, or by Tenant or by
any of Tenant's agents, employees, contractors, vendors, invitees, visitors or
its future subtenants or assignees. Tenant agrees that any and all Tenant's
Hazardous Materials Activities shall be conducted in strict, full compliance
with applicable Environmental Law at Tenant's expense, and shall not result in
any contamination of the Property or the environment. Tenant agrees to provide
Landlord with prompt written notice of any spill or release of Hazardous
Materials at the Property during the term of the Lease of which Tenant becomes
aware, and further agrees to provide Landlord with prompt written notice of any
violation of Environmental Laws in connection with Tenant's Hazardous Materials
Activities of which Tenant becomes aware. If Tenant's Hazardous Materials
Activities involve Hazardous Materials other than normal use of customary
household and office supplies, Tenant also agrees at Tenant's expense: (i) to
install such Hazardous Materials monitoring, storage and containment devices as
Landlord reasonably deems necessary (Landlord shall have no obligation to
evaluate the need for any such installation or require any such installation);
(ii) provide Landlord with a written inventory of such Hazardous Materials,
including an update of same each year upon the anniversary date of the
Commencement Date of the Lease ("Anniversary Date"), and (iii) on each
Anniversary Date, to retain a qualified environmental consultant, acceptable to
Landlord, to evaluate whether Tenant is in compliance with all applicable
Environmental Laws with respect to Tenant's Hazardous Materials Activities.
Tenant, at its expense, shall submit to Landlord, a report from such
environmental consultant which discusses the environmental consultant's findings
within two (2) months of each Anniversary Date. Tenant, at its expense, shall
promptly undertake and complete any and all steps necessary, and in full
compliance with applicable Environmental Laws, to fully correct any and all
problems or deficiencies identified by the environmental consultant, and
promptly provide Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant at its expense,
shall (i) properly remove from the Property all Hazardous Materials which come
to be located at the Property in connection with Tenant's Hazardous Materials
Activities, and (ii) fully comply with and complete all facility closure
requirements of applicable Environmental Laws regarding Tenant's Hazardous
Materials Activities, including but not limited to (x) properly restoring and
repairing the Property to the extent damaged by such closure activities, and (y)
obtaining from the local Fire Department or other appropriate governmental
authority with jurisdiction a written concurrence that closure has been
completed in compliance with applicable Environmental Laws. Tenant shall
promptly provide Landlord with copies of any claims, notices, work plans, data
and reports prepared, received or submitted in connection with any such closure
activities.
D. If Landlord, in its sole discretion, believes that the Property has
become contaminated as a result of Tenant's Hazardous Materials Activities,
Landlord in addition to any other rights it may have under this Lease or under
Environmental Laws or other laws, may enter upon the Property and conduct
inspection, sampling and analysis, including but not limited to obtaining and
analyzing samples of soil and groundwater, for the purpose of determining the
nature and extent of such contamination. Tenant shall promptly reimburse
Landlord for the costs of such an investigation, including but not limited to
reasonable attorneys' fees Landlord incurs with respect to such investigation,
that discloses Hazardous Materials contamination for which Tenant is liable
under this Lease. Except as may be required of Tenant by applicable
Environmental Laws, Tenant shall not perform any sampling, testing, or drilling
to identify the presence of any Hazardous Materials at the Property, without
Landlord's prior written consent which may be withheld in Landlord's discretion.
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
sampling, testing or drilling performed pursuant to the preceding sentence.
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E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents and
representatives from and against any and all claims (including but not limited
to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but not
limited to reasonable attorneys', consultants' and other agents' fees and
costs), and damages, which arise from or relate to: (i) Tenant's Hazardous
Materials Activities; (ii) any Hazardous Materials contamination caused by
Tenant prior to the Commencement Date of the Lease; or (iii) the breach of any
obligation of Tenant under this Paragraph 50 (collectively, "Tenant's
Environmental Indemnification"). Tenant's Environmental Indemnification shall
include but is not limited to the obligation to promptly and fully reimburse
Landlord for losses in or reductions to rental income, and diminution in fair
market value of the Property. Tenant's Environmental Indemnification shall
further include but is not limited to the obligation to diligently and properly
implement to completion, at Tenant's expense, any and all environmental
investigation, removal, remediation, monitoring, reporting, closure activities,
or other environmental response action (collectively, "Response Actions").
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibilities under this Paragraph
50.
51. CONSENT: Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
52. AUTHORITY TO EXECUTE: The parties executing this Lease Agreement hereby
warrant and represent that they are properly authorized to execute this Lease
Agreement and bind the parties on behalf of whom they execute this Lease
Agreement and to all of the terms, covenants and conditions of this Lease
Agreement as they relate to the respective parties hereto.
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AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 27th day of May, 1998,
by and between A&P Family Investments, as LANDLORD, and Atweb, Inc., a
California corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated December 18, 1997 Landlord leased to
Tenant approximately 4,793+ square feet of that certain 33,948+ square foot
- -
building located at 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx, the
details of which are more particularly set forth in said December 18, 1997 Lease
Agreement, and
B. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by (i) increasing the square footage of the Leased Premises by 8,976+ square
-
feet effective July 1, 1998, (ii) extending the Lease Term for an additional
three years and five months, (iii) amending the Basic Rent schedule and
Aggregate Rent accordingly, (iv) increasing the Security Deposit required under
the Lease, (v) increasing Tenant's non-exclusive parking spaces, (vi) and
amending Lease Paragraph 16 ("Assignment and Subletting") of said Lease
Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. INCREASED PREMISES: Subject to Paragraph 2 below, effective July 1,
------------------
1998, the size of the Leased Premises will be increased by 8,976+ square feet
-
("Increased Space"), or from 4,793+ square feet to 13,769+ square feet of space.
- -
Total said Premises are more particularly shown within the area outlined in Red
on Exhibit A. The entire parcel, of which the Leased Premises is a part, is
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shown within the area outlined in Green on Exhibit A. The additional 8,976+
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square feet of space is leased on an "as-is" basis, in its present condition and
configuration, as set forth in Blue on Exhibit B attached hereto, with the
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entire interior leased Premises shown in Red on Exhibit B.
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2. AMENDMENT SUBJECT TO LANDLORD'S OBTAINING TERMINATION AGREEMENT WITH
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CURRENT TENANT FOR CURRENT TENANT'S SPACE: This Amendment is subject to
-----------------------------------------
Landlord obtaining, from Manex Systems, Inc. ("Manex"), the current tenant
occupying the Increased Space to be leased hereunder, a Termination Agreement
satisfactory to Landlord on or before June 30, 1998. In the event Landlord is
unable to obtain said satisfactory Termination Agreement on or before June 30,
1998, and/or in the event Manex fails to timely vacate the Increased Space and
surrender same to Landlord free and clear of its occupancy, this Amendment
shall, at Landlord's option: a) be rescinded, or b) the Commencement Date of
the Increased Premises hereof shall be modified to reflect the date Landlord so
obtains said satisfactory Termination Agreement and receives possession of the
Increased Premises free and clear of Manex's occupancy; provided, however, that
said period of delay caused by Manex shall not extend beyond September 28, 1998.
In the event Landlord cannot deliver said Increased Premises by September 28,
1998, this Amendment No. 1 shall be automatically rescinded.
3. TERM OF LEASE: Subject to Paragraph 2 above, it is agreed between the
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parties that the Term of said Lease Agreement shall be extended for an
additional three (3) year five (5) month period, and the Lease Termination Date
shall be changed from January 31, 2000 to June 30, 2003.
1
4. BASIC RENT SCHEDULE: Subject to Paragraph 2 above, the Basic Rent
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schedule, as shown in Paragraph 4(A) of the Lease Agreement shall be amended as
follows:
On July 1, 1998, the sum of TWENTY THREE THOUSAND FIFTY AND NO/100 DOLLARS
($23,050.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including January 1, 1999.
On February 1, 1999, the sum of TWENTY THREE THOUSAND FIVE HUNDRED TWENTY
NINE AND 30/100 DOLLARS ($23,529.30) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 1999.
On July 1, 1999, the sum of TWENTY FOUR THOUSAND FOUR HUNDRED TWENTY SIX
AND 90/100 DOLLARS ($24,426.90) shall be due, and a like sum due on the first
day of each month thereafter, through and including January 1, 2000.
On February 1, 2000, the sum of TWENTY FOUR THOUSAND NINE HUNDRED SIX AND
20/100 DOLLARS ($24,906.20) shall be due, and a like sum due on the first day of
each month thereafter, through and including June 1, 2000.
On July 1, 2000, the sum of TWENTY FIVE THOUSAND EIGHT HUNDRED THREE AND
80/100 DOLLARS ($25,803.80) shall be due, and a like sum due on the first day of
each month thereafter, through and including January 1, 2001.
On February 1, 2001, the sum of TWENTY SIX THOUSAND TWO HUNDRED EIGHTY
THREE AND 10/100 DOLLARS ($26,283.10) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 2001.
On July 1, 2001, the sum of TWENTY SEVEN THOUSAND ONE HUNDRED EIGHTY AND
70/100 DOLLARS ($27,180.70) shall be due, and a like sum due on the first day of
each month thereafter, through and including January 1, 2002.
On February 1, 2002, the sum of TWENTY SEVEN THOUSAND SIX HUNDRED SIXTY AND
NO/100 DOLLARS ($27,660.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including June 1, 2002.
On July 1, 2002, the sum of TWENTY EIGHT THOUSAND FIVE HUNDRED FIFTY SEVEN
AND 60/100 DOLLARS ($28,557.60) shall be due, and a like sum due on the first
day of each month thereafter, through and including January 1, 2003.
On February 1, 2003, the sum of TWENTY NINE THOUSAND THIRTY SIX AND 90/100
DOLLARS ($29,036.90) shall be due, and a like sum due on the first day of each
month thereafter, through and including June 1, 2003.
As a result of the increase in square feet leased and the Extended Term,
the Aggregate Rental shall be increased by $1,372,324.90, or from $235,815.60 to
$1,608,140.50.
5. INCREASED PARKING: Tenant's nonexclusive parking spaces shall be
-----------------
increased by 39 spaces or from 19 spaces to 58 spaces.
6. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
----------------
$37,943.20, or from $20,130.60 to $58,073.80, payable upon Tenant's execution of
this Amendment No. 1.
2
7. ASSIGNMENT AND SUBLETTING: Lease Paragraph 16 ("Assignment and
-------------------------
Subletting") shall be amended to include the following language:
"Notwithstanding the foregoing, Landlord and Tenant agree that it shall not
be unreasonable for Landlord to refuse to consent to a proposed assignment,
sublease or other transfer ("Proposed Transfer") if the Premises or and other
portion of the Property would become subject to additional or different
Government Requirements as a direct or indirect consequence of the Proposed
Transfer and/or the Proposed Transferee's use and occupancy of the Premises and
the Property. However, Landlord may, in its sole discretion, consent to such a
Proposed Transfer where Landlord is indemnified by Tenant and (i) Subtenant or
(ii) Assignee, in form and substance satisfactory to Landlord's counsel, by
Tenant and/or the Proposed Transferee from and against any and all costs,
expenses, obligations and liability arising out of the Proposed Transfer and or
the Proposed Transferee's use and occupancy of the Premises and the Property."
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said December 18, 1997 Lease Agreement shall remain in full force and effect.
3
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 1
to Lease as of the day and year last written below.
LANDLORD: TENANT:
A&P FAMILY INVESTMENTS ATWEB, INC.
a California corporation
By ____________________________________ By: __________________________
Xxxx Xxxxxxxxx, Trustee of the Xxxxxxx
X. Xxxxx 1076 Children Trusts, as its
General Partner ______________________________
Print or Type Name
Date: _________________________________
Title: _______________________
Date:_________________________
4
Rent Increase Calculations
Space (sq. ft.) 4,793 13,769
Current New
Jun 9,586.00 2.00 9,586.00 2.00
Jul 9,586.00 2.00 23,050.00 1.67
Aug 9,586.00 2.00 23,050.00 1.67
Sep 9,586.00 2.00 23,050.00 1.67
Oct 9,586.00 2.00 23,050.00 1.67
Nov 9,586.00 2.00 23,050.00 1.67
Dec 9,586.00 2.00 23,050.00 1.67
1999 Jan 9,586.00 2.00 23,050.00 1.67
Feb 10,065.00 2.10 23,529.00 1.71
Mar 10,065.00 2.10 23,529.00 1.71
Apr 10,065.00 2.10 23,529.00 1.71
May 10,065.00 2.10 23,529.00 1.71
Jun 10,065.00 2.10 23,529.00 1.71
Jul 10,065.00 2.10 24,427.00 1.77
Aug 10,065.00 2.10 24,427.00 1.77
Sep 10,065.00 2.10 24,427.00 1.77
Oct 10,065.00 2.10 24,427.00 1.77
Nov 10,065.00 2.10 24,427.00 1.77
Dec 10,065.00 2.10 24,427.00 1.77
2000 Jan 10,065.00 2.10 24,427.00 1.77
Feb 24,906.00 1.81
Mar 24,906.00 1.81
Apr 24,906.00 1.81
May 24,906.00 1.81
Jun 24,906.00 1.81
Jul 25,804.00 1.87
Aug 25,804.00 1.87
Sep 25,804.00 1.87
Oct 25,804.00 1.87
Nov 25,804.00 1.87
Dec 25,804.00 1.87
2001 Jan 25,804.00 1.87
Feb 26,283.00 1.91
Mar 26,283.00 1.91
Apr 26,283.00 1.91
May 26,283.00 1.91
Jun 26,283.00 1.91
Jul 27,181.00 1.97
Aug 27,181.00 1.97
Sep 27,181.00 1.97
Oct 27,181.00 1.97
Nov 27,181.00 1.97
Dec 27,181.00 1.97
5
Current New
2002 Jan 27,181.00 1.97
Feb 27,660.00 2.01
Mar 27,660.00 2.01
Apr 27,660.00 2.01
May 27,660.00 2.01
Jun 27,660.00 2.01
Jul 28,558.00 2.07
Aug 28,558.00 2.07
Sep 28,558.00 2.07
Oct 28,558.00 2.07
Nov 28,558.00 2.07
Dec 28,558.00 2.07
2003 Jan 28,558.00 2.07
Feb 29,037.00 2.11
Mar 29,037.00 2.11
Apr 29,037.00 2.11
May 29,037.00 2.11
Jun 29,037.00 2.11
Totals: 197,468.00 1,569,801.00
6
AMENDMENT NO. 2
TO LEASE
THIS AMENDMENT NO. 2 is made and entered into this 27th day of May, 1998,
by and between A&P FAMILY INVESTMENTS, a California general partnership, as
LANDLORD, and MANEX SYSTEMS, INC., a California corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 7, 1995 Landlord leased to
Tenant approximately 9,672 + square feet of that certain 34,675 + square foot
- -
building located at 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx, the
details of which are more particularly set forth in said July 7, 1995 Lease
Agreement, and
B. WHEREAS, said Lease was amended by Amendment No. 1 dated December 26,
1995, which corrected the size of the Leased Premises and the total size of the
Building in which the Premises are located, established the Lease Commencement
Date of August 7, 1995, and adjusting the Basic Rent and Aggregate Rent
accordingly, and,
C. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by terminating said Lease effective June 30, 1998 and amending the Basic Rent
schedule and Aggregate Rent of said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TERMINATION OF LEASE: As an accommodation to Tenant, Landlord has
--------------------
agreed to the early termination of said Lease Agreement effective June 30, 1998,
subject to the terms and conditions stated herein. Tenant shall be responsible
for relinquishing the Premises in the condition required under Lease Paragraph 5
("Acceptance and Surrender of Premises") and Lease Paragraph 6 ("Alterations and
Additions"). Prior to Lease Termination, Landlord and Tenant shall conduct a
joint inspection of the Premises to determine the extent of the work required by
Tenant to comply with the provisions of said Paragraphs 5 and 6 ("Restoration
Work"). In lieu of Tenant completing the required Restoration Work, Tenant
agrees to pay to Landlord a fee equal to the total of the estimates received
from Landlord's contractors for the Restoration Work ("Restoration Fee"). Said
Restoration Fee shall be paid by Tenant to Landlord within ten days after Tenant
receives Landlord's statement of said Restoration Fee. Tenant shall be
responsible for paying all Basic Rent and Additional Rent and fulfilling all
Lease obligations as contained in said Lease through the date of termination.
Notwithstanding the above, Tenant's obligations as stated in Lease Paragraphs 14
("Compliance") and 47 ("Hazardous Materials") shall survive the Termination Date
of this Lease.
2. EARLY TERMINATION OF LEASE CONTINGENT UPON LANDLORD OBTAINING AN
----------------------------------------------------------------
AGREEMENT WITH THIRD PARTY TO LEASE SAID PREMISES: Landlord's agreement to
--------------------------------------------------
allow the early termination of Tenant's Lease is subject to and conditional upon
Landlord obtaining an executed agreement from AtWeb, Inc. ("AtWeb") to lease
said Premises, upon terms and conditions acceptable to Landlord, effective the
day following the early Termination Date of Tenant's Lease. In the event
Landlord is unable to obtain said executed agreement with AtWeb on or before
June 30, 1998, the Termination Date of this Lease shall be modified to reflect
the date Landlord so
1
obtains said agreement and is able to transfer possession of the Premises to
AtWeb. In the event Landlord does not obtain an executed Lease Agreement with
AtWeb, this Lease shall continue in full force and effect through the scheduled
Lease Termination Date of July 31, 2000 and this Amendment No. 2 shall be
automatically rescinded. In no event shall Tenant's termination date exceed the
original Termination Date of July 31, 2000 (provided Tenant fully complies with
the terms and conditions in Paragraph 5, "Acceptance and Surrender of Premises",
of the Lease Agreement).
3. AGGREGATE RENT: The Aggregate Basic Rent for the Lease shall be
--------------
decreased by $201,511.20 or from $357,682.92 to $156,171.72.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said July 7, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 2
to Lease as of the day and year last written below.
LANDLORD: TENANT:
A&P FAMILY INVESTMENTS MANEX SYSTEMS, INC.
a California corporation
XXXXXXX X. XXXXX 1976 CHILDREN
TRUSTS
By ___________________________________ By ________________________
Xxxx Xxxxxxxxx, Trustee, as general partner
Date: ________________________________ ___________________________
Print Name/Title
Date: _____________________
2
