\nARTICLE 11 DAMAGE TO LEASED PREMISES
\n 11.1 Landlord’s Duty to Restore…………………… 29
\n 11.2 Landlord’s Right to Terminate………………… 30
\n 11.3 Tenant’s Right to Terminate………………….. 31
\n 11.4 Abatement of Rent…………………………… 31<\/p>\nARTICLE 12 CONDEMNATION
\n 12.1 Landlord’s Right to Terminate………………… 32
\n 12.2 Tenant’s Right to Terminate………………….. 32
\n 12.3 Temporary Taking……………………………. 32
\n 12.4 Restoration and Abatement of Rent…………….. 33
\n 12.5 Division of Condemnation Award……………….. 33<\/p>\n
ARTICLE 13 DEFAULT AND REMEDIES
\n 13.1 Events of Tenant’s Default…………………… 34
\n 13.2 Landlord’s Remedies…………………………. 35
\n 13.3 Landlord’s Default and Tenant’s Remedies………. 38
\n 13.4 Waiver…………………………………….. 39<\/p>\n
ARTICLE 14 ASSIGNMENT AND SUBLETTING
\n 14.1 By Tenant………………………………….. 39
\n 14.2 By Landlord………………………………… 42<\/p>\n
ARTICLE 15 GENERAL PROVISIONS
\n 15.1 Landlord’s Right to Enter……………………. 43
\n 15.2 Surrender of the Leased Premises……………… 44
\n 15.3 Holding Over……………………………….. 44
\n 15.4 Subordination………………………………. 45
\n 15.5 Tenant’s Attornment…………………………. 46
\n 15.6 Mortgagee Protection………………………… 46
\n 15.7 Estoppel Certificates……………………….. 46
\n 15.8 Force Majeure………………………………. 47
\n 15.9 Notices……………………………………. 47
\n 15.10 Attorneys Fees……………………………… 48
\n 15.11 Corporate Authority…………………………. 48
\n 15.12 Additional Definitions………………………. 48
\n 15.13 Miscellaneous………………………………. 50
\n 15.14 Termination by Exercise of Option…………….. 51
\n 15.15 Brokerage Commissions……………………….. 51
\n 15.16 Arbitration………………………………… 51
\n 15.17 Entire Agreement……………………………. 53
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
5<\/p>\n
EXHIBITS<\/p>\n
A. Property Plan
\n B. Floor Plan
\n C. Rules and Regulations
\n D. “Left out Intentionally”
\n E. Tenant Estoppel
\n F. Standard Janitorial Services
\n G. Net Rentable Measurement Definition
\n H. Lease Guaranty<\/p>\n
6
\n OFFICE SPACE LEASE<\/p>\n
THIS LEASE, dated November 15, 1999 for reference purposes only, is
\nmade by and between Macanan Investments, a California limited partnership
\n(“Landlord”), whose address is Suite #280, 333 W. Santa Clara, San Jose,
\nCalifornia 95113, and Bay Area Multimedia, Inc. (“Tenant”), whose present
\naddress is 1072 Cross Springs Court, San Jose, CA 95120, but from and after the
\nRent Commencement Date shall be Suite 930, 333 W. Santa Clara, San Jose,
\nCalifornia 95113, the address of the Leased Premises.<\/p>\n
ARTICLE 1<\/p>\n
DEFINITIONS<\/p>\n
1.1 Rent Commencement Date: The term “Rent Commencement Date” shall mean
\nJanuary 1, 2000, or if Landlord is unable to deliver possession of the Leased
\nPremises on or before such date, then, subject to the provisions of paragraph
\n2.4 below, the first (1st) day after whichever of the following dates first
\noccurs:<\/p>\n
A. The date Tenant takes possession of the Leased Premises.<\/p>\n
1.2 Lease Term: The term “Lease Term” shall mean the term of this Lease,
\nwhich shall commence on the Rent Commencement Date and continue for a period
\nof Thirty-six (36) full calendar months (plus the partial month, if any,
\nimmediately following the Rent Commencement Date), unless this Lease is sooner
\nterminated according to its terms or by mutual written agreement.<\/p>\n
1.3 Property: The term “Property” shall mean that real property with all
\nimprovements now or hereafter located thereon commonly known as 333 W. Santa
\nClara, San Jose, California as shown as Exhibit “A”.<\/p>\n
-1-
\n 7
\n 1.4 Building: The term “Building” shall mean the building (including the
\nparking structure) located on the Property in which the Leased Premises are
\nlocated, including all parking space. The Building contains approximately two
\nhundred thirteen thousand five hundred (213,500) square feet of “gross leasable
\narea” (the “Building Gross Leasable Area”). Building Gross Leasable Area does
\nnot include any parking space.<\/p>\n
1.5 Leased Premises: The term “Leased Premises” shall mean those certain
\npremises which are a portion of, and located within the Building and as shown by
\nthe floor plan attached hereto as Exhibit “B”, containing approximately two
\nthousand, one hundred eighteen (2,118) square feet of gross leasable area
\n(“Tenant’s Gross Leasable Area”) including approximately one thousand, nine
\nhundred thirty-seven (1,937) square feet of net leasable area (“Tenant’s Net
\nLeasable Area”).<\/p>\n
1.6 Tenant’s Allocated Share: The term “Tenant’s Allocated Share” shall
\nmean the percentage obtained by dividing Tenant’s Gross Leasable Area by the
\nBuilding Gross Leasable Area, which as of the Effective Date hereof is agreed to
\nbe one percent (1.00%).<\/p>\n
1.7 Prepaid Rent: The term “Prepaid Rent” shall mean the sum of Five
\nthousand, eight hundred twenty-five and 00\/100 Dollars ($5,825.00).<\/p>\n
1.8 Security Deposit: The term “Security Deposit” shall mean the sum of
\nFive thousand, eight hundred twenty-five and 00\/100 Dollars ($5,825.00).<\/p>\n
1.9 Permitted Use: The term “Permitted Use” shall mean General Office Use.<\/p>\n
1.10 Tenant’s Minimum Liability Insurance Coverage: The term “Tenant’s
\nMinimum Liability Insurance Coverage” shall mean One Million Dollars
\n($1,000,000.00).<\/p>\n
-2-
\n 8
\n 1.11 Operating Expense Base Year: The term “Operating Expense Base Year”
\nshall mean, 2000.<\/p>\n
1.12 Real Property Base Tax Year: The term “Real Property Tax Base Year”
\nshall mean the real property tax year 1999\/2000.<\/p>\n
1.13 Additional Definitions: As used in this Lease or any addendum or
\namendment hereto, the following terms shall have the meanings set forth in
\nparagraph 15.12: “Common Area”, “Consumer Price Index”, “Effective Date”,
\n“Law”, “Leasehold Improvements”, “Lender”, “Private Restrictions”, and “Trade
\nFixtures”.<\/p>\n
ARTICLE 2<\/p>\n
DEMISE, TERM, AND POSSESSION<\/p>\n
2.1 Demise of Leased Premises: Landlord hereby leases to Tenant, and
\nTenant leases from Landlord, for the Lease Term upon the terms and conditions
\nof this Lease, the Leased Premises together with the non-exclusive right to the
\nparking spaces described in paragraph 4.5 infra, and the non-exclusive right to
\nuse the Common Area for ingress to and egress from the Leased Premises and the
\nparking spaces above mentioned reserving and excepting to Landlord the use of
\nexterior walls, the roof and the area beneath the Leased Premises, together
\nwith the right to install, maintain, use, and replace ducts, wires, conduits
\nand pipes leading through the Leased Premises in locations which will not
\nmaterially interfere with Tenant’s use of the Leased Premises. Tenant’s lease
\nof the Leased Premises shall be subject to (i) all Laws, (ii) all existing
\nPrivate Restrictions, easements, and other matters of public record, and (iii)
\nthe reasonable rules and regulations from time to time promulgated by Landlord
\nand now more particularly set forth in Exhibit C attached hereto and
\nincorporated herein by this reference.<\/p>\n
-3-
\n 9
\n 2.2 “As Is” Condition: Tenant accepts premises in an “as is” condition.
\nPrior tenant will leave certain built in furniture in place, which shall be
\nconsidered henceforth as fixtures owned by Landlord.<\/p>\n
2.3 Delivery and Acceptance of Possession: Following removal of the
\nprior tenant, which may occur on or before, December 20, 1999. Landlord shall
\npermit Tenant and its contractors to enter the Leased Premises for the purpose
\nof commencing and completing such construction work that Tenant has elected.
\nLandlord shall deliver the Premises to tenant in a condition which is in
\ncompliance with California Title 24, and any requirements by the City of San
\nJose.<\/p>\n
2.4 Early Occupancy: If Tenant enters or permits its contractors to
\nenter the Leased Premises prior to the Rent Commencement Date with the written
\npermission of Landlord, it shall do so upon all of the terms of this Lease
\n(including its<\/p>\n
This area left blank intentionally, paragraph 2.4 continues on page 5.<\/p>\n
-4-
\n 10
\nobligations regarding indemnity and insurance) except those regarding the
\nobligation to pay rent, which shall commence on the Rent Commencement Date.<\/p>\n
ARTICLE 3<\/p>\n
RENT<\/p>\n
3.1 Base Monthly Rent: Commencing on the Rent Commencement Date and
\ncontinuing throughout the Lease Term, Tenant shall pay to Landlord a monthly
\nrent (the “Base Monthly Rent”), which shall be the sum of the following:<\/p>\n
(a) Base Rent; $5,825.00<\/p>\n
(b) Initial Parking Charge; $ 0.00<\/p>\n
Base Monthly Rent: $5,825.00<\/p>\n
3.2 Additional Rent: Commencing on the Rent Commencement Date and
\ncontinuing throughout the Lease Term, Tenant shall pay, as additional rent (the
\n“Additional Rent”), (i) Tenant’s share of increases in Operating Expenses as
\nrequired by paragraph 6.4, (ii) Tenant’s share of increases in Real Property
\nTaxes as required by paragraph 8.2, (iii) Landlord’s share of the consideration
\nreceived by Tenant upon certain assignments and sublettings as required by
\nparagraph 14.1, (iv) any late charges or interest due Landlord pursuant to
\nparagraph 3.5, (v) any legal fees and costs pursuant to paragraph 15.10, and
\n(vi) any other charges due Landlord pursuant to this Lease.<\/p>\n
3.3 Payment of Rent: All rent required to be paid in monthly
\ninstallments shall be paid in advance on the first day of each calendar month
\nduring the Lease Term. All rent shall be paid in lawful money of the United
\nStates, without any abatement, deduction or offset for any reason whatsoever,
\nand without any prior demand therefor, to Landlord at its address set forth
\nabove or at such other place as Landlord may designate from time to time.
\nTenant’s obligation to pay Base<\/p>\n
-5-
\n 11
\nMonthly Rent and all Additional Rent shall be prorated at the commencement and
\nexpiration of the Lease Term.<\/p>\n
3.4 Late Charge and Interest on Rent in Default: Tenant acknowledges that
\nthe late payment by Tenant of any monthly installment of Base Monthly Rent or
\nany Additional Rent will cause Landlord to incur certain costs and expenses not
\ncontemplated under this Lease, the exact amount of which are extremely difficult
\nor impractical to fix. Such costs and expenses will include, without limitation,
\nadministration and collection costs and processing and accounting expenses.
\nTherefore, if any such Base Monthly or Additional Rent is not received by
\nLandlord from Tenant within ten (10) days after the same becomes due, Tenant
\nshall immediately pay to Landlord a late charge equal to ten percent (10%) of
\nsuch delinquent rent. Landlord and Tenant agree that this late charge represents
\na reasonable estimate of such costs and expenses and is fair compensation to
\nLandlord for its loss suffered by Tenant’s failure to make timely payment. In no
\nevent shall this provision for a late charge be deemed to grant to Tenant a
\ngrace period or extension of time within which to pay any rental installment or
\nprevent Landlord from exercising any right or remedy available to Landlord upon
\nTenant’s failure to pay each rental installment due under this Lease in a timely
\nfashion, including the right to terminate this Lease. If any rent remains
\ndelinquent for a period in excess of thirty (30) days then, in addition to such
\nlate charge, Tenant shall pay to Landlord interest on any rent that is not paid
\nwhen due at the maximum applicable rate permitted by Law, but in no event higher
\nthan the prime interest rate charged by Bank of America, from the thirtieth
\n(30th) day following the date such amount became due until paid.<\/p>\n
3.5 Prepayment of Rent: Tenant has paid to Landlord the amount set forth
\nin paragraph 1.7 as prepayment of rent for credit against the first
\ninstallment(s) of Base Monthly<\/p>\n
-6-
\n 12<\/p>\n
Rent due hereunder.<\/p>\n
3.6 Security Deposit: Tenant has deposited with Landlord the amount set
\nforth in paragraph 1.8 (the “Security Deposit”) as security for the performance
\nby Tenant of the terms of this Lease to be performed by Tenant, and not as
\nprepayment of rent. Landlord may apply such portion or portions of the Security
\nDeposit as are reasonably necessary for the following purposes: (i) to remedy
\nany default by Tenant in the payment of Base Monthly Rent or Additional Rent;
\n(ii) to repair damage to the Leased Premises caused by Tenant; and (iii) to
\nremedy any other default of Tenant to the extent permitted by Law, and in this
\nregard, Tenant hereby waives any restriction on the uses to which the Security
\nDeposit may be put contained in Section 1950.7(c) of the California Civil Code.
\nIn the event the Security Deposit or any portion thereof is so used, Tenant
\nshall pay to Landlord promptly upon demand an amount in cash sufficient to
\nrestore the Security Deposit to the full original sum. Landlord shall not be
\ndeemed a trustee of the Security Deposit. Landlord may use the Security Deposit
\nin Landlord’s ordinary business and shall not be required to segregate it from
\nits general accounts. Tenant shall not be entitled to any interest on the
\nSecurity Deposit. If Landlord transfers the Leased Premises during the Lease
\nTerm, Landlord may pay the Security Deposit to any subsequent owner in
\nconformity with the provisions of Section 1950.7 of the California Civil Code
\nand\/or any successor statute, in which event the transferring Landlord shall be
\nreleased from all liability for the return of the Security Deposit.<\/p>\n
ARTICLE 4<\/p>\n
USE OF LEASED PREMISES<\/p>\n
4.1 Limitation on Type: Tenant shall use the Leased Premises solely for
\nthe Permitted Use (as described in paragraph 1.9). Tenant shall continuously and
\nwithout interruption use the Leased Premises for such purpose for the entire
\nLease Term. Tenant shall not do or permit<\/p>\n
-7-
\n 13
\nanything to be done in or about the Leased Premises which will (i) interfere
\nwith the rights of other occupants of the Property, (ii) cause structural injury
\nto the Property, or (iii) cause damage to any part of the Property. Tenant shall
\nnot operate any equipment within the Leased Premises which will (i) injure,
\nvibrate or shake the Leased Premises or the Building, (ii) overload existing
\nelectrical systems or other utilities or equipment servicing the Leased Premises
\nor Building, or (iii) impair the efficient operation of the sprinkler system (if
\nany) or the heating, ventilating and air conditioning (“HVAC”) equipment within
\nor servicing the Leased Premises or the Building. All noise or odors generated
\nby Tenant’s use of the Leased Premises shall be muffled or contained so that
\nthey do not interfere with the businesses of other tenants of the Property.
\nTenant shall not change the exterior of the Building or install any equipment or
\nantennas on or make any penetrations of the exterior or roof of the Building.
\nTenant shall not commit nor permit to be committed any waste in or about the
\nLeased Premises, and Tenant shall keep the Leased Premises in a neat, clean,
\nattractive and orderly condition, free of any objectionable noises, odors, dust
\nor nuisances which may disturb the quiet enjoyment of other tenants or occupants
\nof the Building.<\/p>\n
4.2 Compliance with Laws and Private Restrictions: Tenant shall not use
\nor permit any person to use the Leased Premises in any manner which violates
\nany Laws or Private Restrictions. Tenant shall abide by and promptly observe
\nand comply with all Laws relating to its use of premises and its activities
\ntherein; and Private Restrictions and shall indemnify and hold Landlord
\nharmless from any liability resulting from Tenant’s failure to do so.<\/p>\n
4.3 Insurance Requirements: Tenant shall not use or permit any person to
\nuse the Leased Premises in any manner which will cause the existing rate of
\ninsurance upon the Building or any of its contents to be increased or cause a
\ncancellation of any insurance policy covering the Building. Tenant shall not
\nkeep or use anything in or about the Leased Premises which may be<\/p>\n
-8-
\n 14
\nprohibited by the standard form of life insurance policy. Tenant shall comply
\nwith all requirements of any insurance company, insurance underwriter, or Board
\nof Fire Underwriters which are necessary to maintain, at standard rates, the
\ninsurance coverage carried by either Landlord or Tenant pursuant to this Lease.<\/p>\n
4.4 Rules and Regulations: Tenant shall observe and comply with the rules
\nand regulations attached hereto as Exhibit “C”. Landlord shall have the right
\nfrom time to time to promulgate reasonable amendments and reasonable additional
\nrules and regulations for the care and orderly management of the Property, and
\nfor the safety of its tenants and invitees. Upon delivery of a copy of such
\namendments and additional rules and regulations to Tenant, Tenant shall comply
\nwith the rules and regulations. A violation by Tenant of any of such rules and
\nregulations shall constitute a default by Tenant under this Lease. If there is
\na conflict between the rules and regulations and any of the provisions of this
\nLease, the provisions of this Lease shall prevail. Landlord shall not be
\nresponsible for the violation by any other tenant of the Property of any such
\nrules and regulations.<\/p>\n
4.5 Parking: Parking in the Building garage will be available up to 6
\nspaces on month-to-month leases at the initial rates of $90.00 per space per
\nmonth for unreserved covered parking and when available $60.00 per space per
\nmonth for unreserved uncovered parking (available on the fourth (4th) floor of
\nthe parking garage only). Landlord may adjust parking rates to market during
\nlease term or any extension thereof. If Tenant elects to lease parking spaces on
\nthe fourth (4th) floor of the parking garage, Tenant will be issued a parking
\ncard for each space leased which will permit the user to enter and exit the
\nfourth (4th) floor in addition to the ground floor entrance and exit of the
\nparking garage. If, after electing to lease parking spaces on the fourth (4th)
\nfloor of the parking garage, Tenant or its employees park on any floor other
\nthan the<\/p>\n
-9-<\/p>\n
15
\nfourth (4th) floor, Tenant’s parking card will be automatically cancelled and
\nTenant will be required to contact the Building Manager to reactivate the
\ncancelled parking card. Tenant will be charged an additional $30.00 per month
\nfor each card that must be reactivated due to improper use.<\/p>\n
Tenant shall not at any time use or permit its employees or invitees to use
\nmore parking spaces than the number so allocated to Tenant. Except as may be
\nherein provided, Tenant shall not have the exclusive right to use any specific
\nparking space. In the event Landlord elects or is required by any Law to limit
\nor control parking in the Property, whether by validation of parking tickets or
\nany other method, Tenant, subject to its right to the non-exclusive use of the
\nnumber of parking spaces above specified, agrees to participate in such
\nvalidation or other program under such reasonable rules and regulations as are
\nfrom time to time established by Landlord.<\/p>\n
4.6 Window Coverings: Landlord has designated to Tenant a standard window
\ncovering which will be used throughout the Building. Tenant shall use this
\nstandard window covering to cover all windows in the Leased Premises.<\/p>\n
ARTICLE 5<\/p>\n
TRADE FIXTURES AND LEASEHOLD IMPROVEMENTS<\/p>\n
5.1 Trade Fixtures: Throughout the Lease Term, Tenant shall provide,
\ninstall, and maintain in good condition all Trade Fixtures required in the
\nconduct of its business in the Leased Premises. All Trade Fixtures shall remain
\nTenant’s property.<\/p>\n
5.2 Leasehold Improvements: Tenant shall not construct any Leasehold
\nImprovements or otherwise alter the Leased Premises without Landlord’s prior
\nwritten approval if the cost or value thereof exceeds One thousand and 00\/100
\nDollars ($1,000.00) and not until Landlord shall have first approved in writing
\nthe plans and specifications therefor, which<\/p>\n
-10-
\n 16
\napprovals shall not be unreasonably withheld. In no event shall Tenant make any
\nalterations to the Leased Premises which could affect the structural integrity
\nor design of the Building. All such approved Leasehold Improvements shall be
\ninstalled by Tenant at Tenant’s expense using a licensed contractor first
\napproved by Landlord and in substantial compliance with the approved plans and
\nspecifications therefor. All construction undertaken by Tenant shall be done in
\naccordance with all Laws and in a good and workmanlike manner using new
\nmaterials of good quality. Tenant shall not commence construction of any
\nLeasehold Improvements until (i) all required governmental approvals and permits
\nshall have been obtained, (ii) all requirements regarding insurance imposed by
\nthis Lease have been satisfied, (iii) Tenant shall have given Landlord at least
\nfive (5) days prior written notice of its intention to commence such
\nconstruction, (iv) Tenant shall have notified Landlord by telephone of the
\ncommencement of construction on the day it commences, and (v) if requested by
\nLandlord, Tenant shall have obtained contingent liability and broad form
\nbuilder’s risk insurance in an amount satisfactory to Landlord if there are any
\nperils relating to the proposed construction not covered by insurance carried
\npursuant to Article 9. All Leasehold Improvements shall remain the property of
\nTenant during the Lease Term but shall not be damaged, altered, or removed from
\nthe Leased Premises. At the expiration or sooner termination of the Lease Term,
\nall Leasehold Improvements shall be surrendered to Landlord as a part of the
\nrealty and shall then become Landlord’s property, and Landlord shall have no
\nobligation to reimburse Tenant for all or any portion of the value or cost
\nthereof; provided, however, that if Landlord requires Tenant to remove any
\nLeasehold Improvements in accordance with the provisions of paragraph 15.2, then
\nTenant shall so remove such Leasehold Improvements prior to the expiration or
\nsooner termination of the Lease Term and restore said Leased Premises to their
\noriginal condition save and except reasonable wear and tear.<\/p>\n
-11-
\n 17
\n 5.3 Alterations Required by Law: Tenant shall, at Tenant’s sole expense
\nand upon Landlord’s consent, make any alteration, addition or change of any
\nsort, whether structural or otherwise, to the Leased Premises that is required
\nby any Law because of (i) Tenant’s use or change of use of the Leased Premises,
\n(ii) Tenant’s application for any permit or governmental approval, or (iii)
\nTenant’s construction or installation of any Leasehold Improvements or Trade
\nFixtures.<\/p>\n
5.4 Landlord’s Improvements: All fixtures, improvements or equipment
\nwhich are installed or constructed on or attached to the Property by Landlord
\nat its expense shall become a part of the realty and belong to Landlord.<\/p>\n
5.5 Liens: Tenant shall keep the Leased Premises and the Property free
\nfrom any liens and shall pay when due all bills arising out of any work
\nperformed, materials furnished, or obligations incurred by Tenant, its agents,
\nemployees or contractors relating to the Leased Premises. If any claim of lien
\nis recorded, Tenant shall bond against or discharge the same within ten (10)
\ndays after the same has been recorded against the Leased Premises and\/or the
\nProperty. Should any lien be filed against the Leased Premises or any action
\ncommenced affecting title to the Leased Premises, the party receiving notice of
\nsuch lien or action shall immediately give the other party written notice
\nthereof.<\/p>\n
ARTICLE 6<\/p>\n
REPAIR AND MAINTENANCE<\/p>\n
6.1 Landlord’s Obligation to Maintain: Landlord shall repair and
\nmaintain, in reasonably good condition except as provided in paragraph 6.6
\n(Tenant’s Negligence), the following: (i) the structural parts of the Building
\n(including foundation, load-bearing and exterior walls, subflooring and roof),
\n(ii) the Common Area of the Building, including all parking<\/p>\n
-12-
\n 18
\nstructures, (iii) the electrical, utility, plumbing, sewage and HVAC equipment
\nservicing the Building, installed or furnished by Landlord, and (iv) interior
\ndemising walls and partitions (but not wall or partition coverings), windows,
\nceiling light fixtures, drop ceiling and doors. It is an express condition
\nprecedent to Landlord’s obligation to repair and maintain that Tenant shall
\nhave first notified Landlord in writing of the need for such repairs and
\nmaintenance.<\/p>\n
6.2 Tenant’s Obligation to Maintain: Tenant shall, at all times during
\nthe Lease Term, maintain the Leased Premises in good order, condition and
\nrepair, except as otherwise provided in Article 11 regarding the restoration of
\ndamage caused by fire and other perils. Tenant shall be responsible for the
\nmaintenance, repair and replacement, when necessary, of wall, window and floor
\ncoverings.<\/p>\n
6.3 Hazardous Materials: Tenant shall not use or store any Hazardous
\nMaterials in, on or about the Premises or the Property except in compliance
\nwith all applicable laws, and the highest standards prevailing in the industry
\nfor the storage and use of any such Hazardous Materials, nor allow any Hazardous
\nMaterials to be brought into the Building except to use in the ordinary course
\nof Tenant’s Business, and then only after written notice to Landlord of the
\nHazardous Materials to be used by Tenant. Tenant shall not cause or permit the
\nescape, release or disposal of any Hazardous Materials in the Premises. If any
\nLender or governmental agency requires any testing of the Premises or the
\nBuilding to ascertain whether there has been any release of Hazardous Materials
\nin, on or about the Premises or the Building, Tenant shall reimburse Landlord,
\nas additional rent, for the cost of any such testing or inspection if such
\ntesting or inspection, together with any other evidence obtained by Landlord,
\nshows that the presence of such Hazardous Materials in the Premises and\/or the
\nBuilding was caused by Tenant, its agents, employees, contractors, invitees or
\nsubtenants. In addition, Tenant shall at Landlord’s request <\/p>\n
-13-
\n 19
\nexecute affidavits, representations or other documents concerning Tenant’s best
\nknowledge and belief regarding the presence of Hazardous Materials on the
\nPremises. Tenant shall indemnify, defend and hold Landlord harmless from and
\nagainst any liability, penalties, losses, damages, costs or expenses (including
\nreasonable attorneys’ fees), causes of action, claims and\/or judgments arising
\nfrom the use, storage, release or disposal of any Hazardous Materials in, or
\nabout the Premises or the Building by Tenant, its agents, employees,
\ncontractors, invitees or subtenants. For the purposes of this Lease, the term
\n“Hazardous Materials” shall mean any substance or material which has been
\ndesignated hazardous or toxic by any federal, state, county, municipal, or other
\ngovernmental agency or determined by such agency to be capable of endangering or
\nposing a risk of injury to, or adverse effect on, the health or safety of
\npersons, the environment or property, including without limitation those
\nsubstances or materials described in the Comprehensive Environmental Response,
\nCompensation and Liability Act of 1980, as amended, U.S.C. Section 9601 et seq.
\nThe within covenants shall survive the expiration or earlier termination of this
\nLease.<\/p>\n
6.4 Tenant’s Obligation to Reimburse: As additional rent, Tenant shall pay
\nTenant’s Allocated Share of all increases in “Operating Expenses” (as defined
\nbelow) over those paid during the Operating Expense Base Year (as defined in
\nparagraph 1.11). Payment shall be made by whichever of the following methods is
\nfrom time to time designated by Landlord, and Landlord may change the method of
\npayment at any time. Tenant shall pay such share of increases in the actual
\nOperating Expenses incurred or paid by Landlord but not theretofore billed to
\nTenant, within (10) days after receipt of a written bill therefor from Landlord,
\non such periodic basis as Landlord shall designate, but in no event more
\nfrequently than once a month. Alternatively, (i) Landlord shall deliver to
\nTenant Landlord’s reasonable estimate of increases in the Operating<\/p>\n
-14-
\n 20
\nExpenses it anticipates will be paid or incurred for the calendar year in
\nquestion, (ii) during such calendar year, Tenant shall pay such share of the
\nestimated increases in Operating Expenses in advance in equal monthly
\ninstallments due with the installments of Base Monthly Rent, and (iii) within
\nninety (90) days after the end of such calendar year, Landlord shall furnish to
\nTenant a statement in reasonable detail of the actual increases in Operating
\nExpenses paid or incurred by Landlord in accordance with this Article during the
\njust ending calendar year and thereupon there shall be an adjustment between
\nLandlord and Tenant, with payment to Landlord or credit by Landlord against the
\nnext installment of Base Monthly Rent, as the case may require, within ten (10)
\ndays after delivery by Landlord to Tenant of said statement, to the end that
\nLandlord shall receive the entire amount of Tenant’s share of increases in
\nOperating Expenses for such calendar year and no more. If this Lease terminates
\nor expires on any date other than the last day of a calendar year, the amount of
\nincrease in Operating Expenses payable by Tenant shall be prorated on the basis
\nwhich the number of days from the commencement of said calendar year to and
\nincluding the date on which this Lease terminates or expires bears to 365. Such
\namount shall be due and payable when rendered notwithstanding the termination or
\nexpiration of this Lease. Tenant shall have the right, exercisable upon
\nreasonable prior written notice to Landlord, to inspect Landlord’s books and
\nrecords at Landlord’s office during normal office hours as they relate to
\nOperating Expenses. Such inspection must be within thirty (30) days of receipt
\nof any annual statement for the same, and is limited to verification of the
\ncharges contained in such statement. Tenant may not withhold payment pending
\ncompletion of such inspection.<\/p>\n
6.5 Operating Expenses Defined: The term “Operating Expenses” shall mean
\nthe sum of the following:<\/p>\n
A. All costs and expenses paid or incurred by Landlord relating to
\nthe<\/p>\n
-15-<\/p>\n
21<\/p>\n
following (including payments to independent contractors providing services
\nrelated to the performance of the following): (i) maintaining, cleaning,
\nrepairing and resurfacing the roof and the exterior surfaces (including painting
\nand window washing) of the Building; (ii) maintenance and repair of the
\nstructural parts of the Building; (iii) maintenance of the liability, fire and
\nproperty damage insurance covering the Property carried by Landlord pursuant to
\nparagraph 9.2 (including the payment of “deductibles” of up to $5,000.00 per
\noccurrence and the pre-payment of premiums for coverage of up to one year); (iv)
\nmaintaining, repairing, operating, and replacing when necessary (in which event
\nsuch replacement costs shall be amortized over the useful life of the item)
\nelectrical, plumbing, sewage, HVAC equipment, utility facilities, elevators,
\nescalators, and other Building service equipment; (v) providing services and
\nutilities to the Building and Common Area (including the services and utilities
\nspecified in paragraph 7.1); (vi) complying with all applicable Laws and Private
\nRestrictions; (vii) cleaning, repairing and replacing floor, window and wall
\ncoverings in the Common Area; (viii) resurfacing, repairing, re-striping and
\nmaintaining the parking garage; (ix) replacement or installation of lighting
\nfixtures, directional or other signs, gates and signals, irrigation systems and
\nall landscaping in the Common Area; (x) repairing damage to the Building caused
\nby earthquake (said total cost for all tenants shall not exceed $500,000 during
\nthe term of the lease) where the cost of such repair is not covered by any
\ninsurance maintained by Landlord; (xi) obtaining and maintaining material,
\nsupplies and tools used in maintaining, repairing and cleaning the Building;
\n(xii) depreciation on maintenance and operating machinery and equipment (if
\nowned) and rental paid for such machinery and equipment (if rented); (xiii)
\nproviding, maintaining and servicing such Building fire protection and security
\nmeasures as are reasonably required including, without limitation, security
\npersonnel, equipment and alarms; and (xiv) accounting services provided by
\ncertified public accountants and legal<\/p>\n
-16-<\/p>\n
22
\nservices with respect to the ownership and operation of the Property.<\/p>\n
B. That portion of all compensation (including benefits and
\npremiums for worker’s compensation and other insurance) paid to or for the
\nbenefit of employees of Landlord involved in the performance of the work
\ndescribed by subparagraphs A and B above that is fairly allocable to the
\nProperty; and<\/p>\n
C. Property management fees, not to exceed however an annual fee
\ngreater than three percent (3%) of Gross Receipts. Provided however, that
\nduring any period of time that Landlord shall retain an independent contractor
\nto manage the parking upon the Property, the management fee shall not exceed
\nthree percent (3%) of Gross Receipts excluding the Parking Charge hereinbefore
\nprovided at paragraph 3.1.<\/p>\n
6.6 Control of Common Area: Landlord shall at all times have exclusive
\ncontrol of the Common Area. Landlord shall have the right, without the same
\nconstituting an actual or constructive eviction and without entitling Tenant to
\nany abatement of rent, to: (i) close any part of the Common Area to whatever
\nextent required in the opinion of Landlord’s counsel to prevent a dedication
\nthereof or the accrual of any prescriptive rights therein; (ii) temporarily
\nclose the Common Area to perform maintenance or for any other reason deemed
\nsufficient by Landlord; (iii) reasonable changes to the shape, size, location,
\nand extent of improvements on the Common Area; (iv) eliminate or add any
\nimprovements; (v) reasonably select a person to maintain and operate any of the
\nCommon Area at any time Landlord determines that the best interests of the
\nProperty will be served by having the Common Area maintained and operated by
\nthat person; (vi) make reasonable changes to the Common Area including, for
\nexample changes in the location of driveways, entrances, passageways, doors and
\ndoorways, elevators, stairs, restrooms, exits, parking spaces, parking areas,
\nsidewalks, the direction of the flow of traffic and the site of the<\/p>\n
-17-
\n 23
\nCommon Area but in no event decrease the number of parking spaces allocated to
\nTenant; and\/or (vii) change the name or, if required by any governmental
\nauthority, the address of the Building. The use of the Common Area shall be
\nsubject to such reasonable regulations and changes therein as Landlord shall
\nmake from time to time. Tenant shall keep the Common Area free and clear of all
\nobstructions created or permitted by Tenant. If in the opinion of Landlord
\nunauthorized persons are using any of the Common Area by reason of the presence
\nof Tenant in the Building, Tenant, upon demand of Landlord, shall restrain such
\nunauthorized use by appropriate proceedings. Nothing herein shall affect the
\nright of Landlord at any time to remove such unauthorized person from the Common
\nArea nor to prohibit the use of the Common Area by unauthorized persons. In
\nexercising any such rights regarding the Common Area, Landlord shall make a
\nreasonable effort to minimize any disruption to Tenant’s business.<\/p>\n
6.7 Tenant’s Negligence: Anything in this Article to the contrary
\nnotwithstanding, Tenant shall pay for all damage to the Leased Premises or the
\nProperty caused by the negligent act or omission of Tenant, its agents,
\nemployees, contractors, or invitees or by the failure of Tenant to promptly
\ndischarge its obligations under this Lease or comply with the terms of this
\nLease, but only to the extent such damage is not covered by insurance proceeds
\nactually recovered by Landlord. Tenant shall make payment therefor on demand by
\nLandlord.<\/p>\n
ARTICLE 7<\/p>\n
SERVICES AND UTILITIES<\/p>\n
7.1 Landlord’s Obligations: Provided Tenant is not then in default
\nhereunder, and subject to the rules and regulations for the Building, Landlord
\nagrees to furnish to the Leased Premises during ordinary business hours of
\ngenerally recognized business days as specified in Exhibit C, page 8, to be
\ndetermined by Landlord in its sole discretion (but exclusive, in any event,<\/p>\n
-18-
\n 24<\/p>\n
of Saturdays after 12:00 noon, Sundays and legal holidays), the following
\nservices: (i) water, gas, and electricity suitable for the intended use of the
\nLeased Premises; (ii) HVAC services required in Landlord’s judgment for the
\ncomfortable use and occupation of the Leased Premises; (iii) janitorial and
\nwindow washing services as described in Exhibit “F” attached hereto and
\nincorporated herein by reference; and (iv) security services during the times
\nand in the manner such services are, in Landlord’s judgment, customarily
\nfurnished in comparable office buildings in the immediate market area; and (v)
\nelevator service. Landlord shall also maintain and keep lighted the common
\nstairs, entries and rest rooms in the Building. If Tenant makes use of HVAC
\nservices after hours or in amounts greater than provided for under subparagraph
\n(ii) above Tenant shall pay to Landlord a reasonable charge for such services as
\ndetermined by Landlord. Whenever heat generating machines, excess lighting or
\nequipment are used in the Leased Premises which affect the temperature otherwise
\nmaintained by the HVAC system, Landlord may install supplementary air
\nconditioning units in the Leased Premises, and the cost thereof, including the
\ncost of installation and the cost of operation and maintenance thereof, shall be
\npaid by Tenant to Landlord within ten (10) days after being billed for the same
\nby Landlord.<\/p>\n
7.2 Tenant’s Obligations: Tenant shall pay for, prior to delinquency, all
\ntelephone and all other materials and services not expressly required to be paid
\nby Landlord, which may be furnished to or used in or about the Leased Premises
\nduring the Lease Term. Tenant may not use any apparatus or device in the Leased
\nPremises which will in any way increase the amount of electricity or water
\nusually supplied for the use of the Leased Premises as general office space,
\nincluding, without limitation, machines using excess lighting or using current
\nin excess of 220 volts. Tenant shall not connect to any electric current or
\nwater pipes, except through existing outlets in the Leased Premises any
\napparatus or device for the purposes of using electrical current<\/p>\n
-19-<\/p>\n
25
\nor water. If Tenant shall require water or electric current or any other
\nresource in excess of that usually furnished or supplied for the use of the
\nLeased Premises as general office space, Tenant may do so by use of the master
\nlight switch in the Leased Premises. If Landlord determines that Tenant is using
\na disproportionate amount of any utility service not separately metered, then
\nLandlord at its election may (i) periodically charge Tenant, as additional rent,
\na sum equal to Landlord’s estimate of the cost of Tenant’s excess use of such
\nutility service, or (ii) install a separate meter or computer to measure the
\nutility service supplied to the Leased Premises, the cost of any such meters or
\ncomputers and of installation, maintenance and repair thereof shall be paid by
\nTenant. Tenant agrees to pay Landlord promptly upon demand therefor by Landlord
\nfor all such water, electric current or other resource consumed, as shown by
\nsaid meters or computers, at the rates charged by the local public utility,
\nfurnishing the same, plus any additional expense incurred in keeping account of
\nthe water, electric current or other resource so consumed.<\/p>\n
7.3 Compliance With Governmental Regulations: Landlord and Tenant shall
\ncomply with all rules, regulations and requirements promulgated by national,
\nstate or local governmental agencies or utility suppliers concerning the use of
\nutility services, including any rationing, limitation or other control. Landlord
\nmay voluntarily cooperate in a reasonable manner with the efforts of all
\ngovernmental agencies or utility suppliers in reducing energy or other resources
\nconsumption. Tenant shall not be entitled to terminate this Lease nor to any
\nabatement in rent by reason of such compliance or cooperation. Tenant agrees at
\nall time to cooperate fully with Landlord and to abide by all rules and
\nregulations and requirements which Landlord may prescribe in order to maximize
\nthe efficient operation of the HVAC system and all other utility systems. Tenant
\nshall keep and cause to be kept closed all window coverings when necessary
\nbecause of the sun’s position in order to reduce unnecessary energy consumption.<\/p>\n
-20-
\n 26
\n ARTICLE 8<\/p>\n
REAL PROPERTY TAXES<\/p>\n
8.1 Real Property Taxes Defined: The term “Real Property Taxes” as used
\nherein shall mean (i) all taxes, assessments, levies, and other charges of any
\nkind or nature whatsoever, general and special, foreseen and unforeseen
\n(including all installments of principal and interest required to pay any
\ngeneral or special assessments for public improvements and any increases
\nresulting from reassessments caused by any change in ownership or new
\nconstruction) now or hereafter imposed by any governmental or quasi-
\ngovernmental authority or special district having the direct or indirect power
\nto tax or levy assessments, which are levied or assessed against or with respect
\nto, the value, occupancy or use of all or any portion of the Property (as now
\nconstructed or as may at any time hereafter be constructed, altered, or
\notherwise changed) or Landlord’s interest therein, the fixtures, equipment and
\nother property of Landlord, real or personal, that are an integral part of and
\nlocated on the Property, the gross receipts, income, or rentals from the
\nProperty, (ii) all charges, levies or fees imposed by reason of environmental
\nregulation or other governmental control of the Property; and (iii) all costs
\nand fees (including attorneys’ fees) incurred by Landlord in contesting any Real
\nProperty Tax and in negotiating with public authorities as to any Real Property
\nTax. If at any time during the Lease Term the taxation or assessment of the
\nProperty prevailing as of the Effective Date shall be altered so that in lieu of
\nor in addition to any Real Property Tax described above there shall be levied,
\nassessed or imposed (whether by reason of a change in the method of taxation or
\nassessment, creation of a new tax or charge, or any other cause) an alternate,
\nsubstitute, or additional tax or charge (i) on the value, use or occupancy of
\nthe Property or Landlord’s interest therein or, (ii) on or measured by the<\/p>\n
-21-
\n 27
\ngross receipts, income, or rentals from the Property or on Landlord’s business
\nof leasing the Property, or (iii) computed in any manner with respect to the
\noperation of the Property, then any such tax, or charge, however designated,
\nshall be included with the meaning of the term “Real Property Taxes” for
\npurposes of this Lease. If any Real Property Tax is based upon property or
\nrents unrelated to the Property, then only that part of such Real Property Tax
\nthat is fairly allocable to the Property shall be included within the meaning
\nof the term “Real Property Taxes”. Notwithstanding the foregoing, the term
\n“Real Property Taxes” shall not include estate, inheritance, transfer, gift or
\nfranchise taxes of Landlord or the federal or state net income tax imposed on
\nLandlord’s income from all sources.<\/p>\n
8.2 Tenant’s Obligation to Reimburse: Landlord shall use the 1999\/2000
\nSanta Clara County Tax Assessments on the property as the base figure for all
\ndeterminations of real property tax increase reimbursements hereunder so that
\nas additional rent, Tenant shall pay Tenant’s allocated share of all increases
\nin real property taxes over those so estimated for the Real Property Tax Base
\nYear.<\/p>\n
Tenant shall pay its share of increases in Real Property Taxes (i)
\nwithin ten (10) days after being billed for the same by Landlord, or (ii) no
\nlater than ten (10) days before such Real Property Taxes become delinquent,
\nwhichever last occurs. If requested by Tenant in writing within thirty (30)
\ndays of receipt of a bill for Tenant’s Allocated Share of Real Property Taxes,
\nLandlord shall furnish Tenant with such evidence as is reasonably available to
\nLandlord with respect to the amount of any Real Property Tax which is part of
\nsuch bill. Tenant may not withhold payment of such bill pending receipt and\/or
\nreview of such evidence. If any Lender requires Landlord to impound Real
\nProperty Taxes on a periodic basis during the Lease Term, then Tenant, on
\nnotice from Landlord indicating this requirement, shall pay a sum of money<\/p>\n
-22-
\n 28
\ntoward its liability under this Article to Landlord on the same periodic basis
\nin accordance with the Lender’s requirements. Landlord shall impound the Real
\nProperty Tax payments received from Tenant in accordance with the requirements
\nof the Lender. If any assessments are levied against the Property, Landlord may
\nelect to either pay the assessment in full or allow the assessment to go to
\nbond. If Landlord pays the assessment in full, Tenant shall pay to Landlord
\neach time payment of Real Property Taxes is made a sum equal to that which
\nwould have been payable (as both principal and interest) had Landlord allowed
\nthe assessment to go to bond.<\/p>\n
8.3 Taxes on Tenant’s Property: Tenant shall pay before delinquency any
\nand all taxes, assessments, license fees, and public charges levied, assessed,
\nor imposed against Tenant or Tenant’s estate in this Lease or the property of
\nTenant situated within the Leased Premises which become due during the Lease
\nTerm. On demand by Landlord, Tenant shall furnish Landlord with satisfactory
\nevidence of these payments.<\/p>\n
ARTICLE 9<\/p>\n
INSURANCE<\/p>\n
9.1 Tenant’s Insurance: Tenant shall maintain insurance complying with
\nall of the following:<\/p>\n
A. Tenant shall procure, pay for and keep in full force and effect
\nthe following:<\/p>\n
(1) Comprehensive general liability insurance, including
\nproperty damage, against liability for personal injury, bodily injury, death
\nand damage to property occurring in or about, or resulting from an occurrence
\nin or about, the Leased Premises with combined single limit coverage of not
\nless than the amount of Tenant’s Minimum Liability Insurance Coverage set forth
\nin paragraph 1.10, which insurance shall contain “fire legal” endorsement<\/p>\n
-23-
\n 29
\ncoverage and a “contractual liability” endorsement insuring Tenant’s
\nperformance of Tenant’s obligation to indemnify Landlord contained in paragraph
\n10.3;<\/p>\n
(2) Fire and property damage insurance against loss caused by
\nfire, extended coverage perils including boiler insurance, if applicable,
\nvandalism, malicious mischief, fire sprinkler damage and such other additional
\nperils as now are or hereafter may be included in a standard extended coverage
\nendorsement from time to time in general use in the county in which the leased
\npremises are located, insuring Tenant’s personal property, inventory, Trade
\nFixtures, and Leasehold Improvements within the Leased Premises for the full
\nactual replacement cost thereof;<\/p>\n
(3) Worker’s compensation coverage and any other employee
\nbenefit insurance sufficient to comply with all Laws;<\/p>\n
(4) With respect to construction, alterations, improvements,
\nor the like undertaken by Tenant, contingent liability and builder’s risk
\ninsurance, in an amount satisfactory to Landlord;<\/p>\n
B. Each policy of insurance required to be carried by Tenant
\npursuant to this paragraph (i) shall, to the extent that Landlord has an
\ninsurable interest, name Landlord and such other parties in interest as
\nLandlord designates as additional insureds; (ii) shall be primary insurance
\nwhich provides that the insurer shall be liable for the full amount of the loss
\nup to and including the total amount of liability set forth in the declarations
\nwithout the right of contribution from any other insurance coverage of
\nLandlord; (iii) shall be in a form satisfactory to Landlord; (iv) shall be
\ncarried with companies reasonably acceptable to Landlord; (v) shall provide
\nthat such policy shall not be subject to cancellation, lapse or change except
\nafter at least thirty (30) days prior written notice to Landlord; (vi) shall
\nnot have a “deductible” in excess of Five Thousand<\/p>\n
-24-
\n 30
\nDollars ($5,000.00) per occurrence; (vii) shall contain a cross liability
\nendorsement; (viii) shall contain a waiver by the insurer of any right to
\nsubrogation against Landlord, its agents, employees and contractors which might
\narise by reason of any payment under such policy or by reason of any act or
\nomission of Landlord, its agents, employees or contractors; and (ix) shall
\ncontain a “severability” clause.<\/p>\n
C. A copy of each paid-up policy evidencing the insurance required to be
\ncarried by Tenant pursuant to this paragraph (appropriately authenticated by
\nthe insurer) or a certificate of the insurer, certifying that such policy has
\nbeen issued, providing the coverage required by this paragraph, and containing
\nthe provisions specified herein, shall be delivered to Landlord prior to the
\ntime Tenant or any of its contractors enters the Leased Premises and upon
\nrenewal of such policies, but not less than thirty (30) days prior to the
\nexpiration of the term of such coverage. Landlord may, at any time, and from
\ntime to time, inspect and\/or copy any and all insurance policies required to be
\nprocured by Tenant pursuant to this paragraph. If Landlord’s lender, insurance
\nadviser or counsel reasonably determines at any time that the amount and\/or
\ntype of coverage required for any policy of insurance Tenant is to obtain
\npursuant to this paragraph is not adequate, then Tenant shall adjust such
\ncoverage for such insurance in such manner as Landlord’s lender, insurance
\nadvisor or counsel reasonably deems adequate, not to exceed the level of
\ncoverage commonly carried by comparable businesses similarly situated for such
\ninsurance.<\/p>\n
9.2 Landlord’s Insurance: <\/p>\n
A. Landlord shall maintain, as the minimum coverage required of it by
\nthis Lease, a policy or policies of fire and property damage insurance in
\nso-called “fire and extended coverage” form insuring Landlord (and such others
\nas Landlord may designate) against loss of<\/p>\n
-25-<\/p>\n
31<\/p>\n
rents for a period of not less than twelve (12) months and from physical damage
\nto the Building with coverage for not less than one hundred percent (100%) of
\nthe full replacement cost thereof. The foregoing notwithstanding, such fire and
\nproperty damage insurance, at Landlord’s election, (i) may be written in
\nso-called “all risk” form to include such perils as are commonly covered by such
\nform of coverage, (ii) may provide coverage for physical damage to the
\nimprovements so insured up to the then full replacement cost thereof, (iii) may
\nbe endorsed to cover loss caused by such additional perils against which
\nLandlord may elect to insure, including earthquake and\/or flood, (iv) may
\nprovide coverage for loss of rents for a period of up to twelve (12) months, (v)
\nmay contain “deductibles” not exceeding Five Thousand Dollars ($5,000.00) per
\noccurrence, and (vi) may include plateglass insurance, at actual replacement
\ncost. Landlord shall not be required to cause such insurance to cover any Trade
\nFixtures, Leasehold Improvements, or any inventory or other personal property of
\nTenant.<\/p>\n
B. Landlord shall maintain a policy or policies of comprehensive
\ngeneral liability insurance insuring Landlord (and such others as are designated
\nby Landlord) against liability for personal injury, bodily injury, death, and
\ndamage to property occurring or resulting from an occurrence in, on or about the
\nProperty, with combined single limit coverage of Two Million Dollars
\n($2,000,000.00), or such greater coverage as Landlord may from time to time
\ndetermine is reasonably necessary for its protection.<\/p>\n
9.3 Tenant’s Obligation to Reimburse: The cost of the insurance carried
\nby Landlord pursuant to paragraph 9.2 and any “deductible” amount not exceeding
\nFive Thousand Dollars ($5,000.00) per occurrence paid by Landlord and excluded
\nfrom the coverage of such insurance shall be an Operating Expense and Tenant
\nshall pay its share thereof as provided in paragraph 6.3. However, if Landlord’s
\ninsurance rates for the Building are increased at any time during the Lease<\/p>\n
-26-<\/p>\n
32
\nTerm as a result of the nature of Tenant’s use and occupancy of the Leased
\nPremises and Landlord does not elect to terminate the Lease, Tenant shall
\nreimburse Landlord for the full amount of such increase immediately upon
\nreceipt of a bill from Landlord therefor.<\/p>\n
9.4 Release and Waiver of Subrogation: The parties hereto release each
\nother, and their respective agents, employees, and contractors, from any
\nliability for injury to any person or damage to property that is caused by or
\nresults from any risk insured against under any valid and collectible insurance
\npolicy carried by either of the parties which contains a waiver of subrogation
\nby the insurer and is in force at the time of such injury or damage; provided,
\nhowever, that any such person or entity shall not be released from such
\nliability to the extent any damages resulting from such injury or damage is not
\ncovered by the recovery obtained by the insured from such insurance, but only
\nif the insurance in question permits such partial release in connection with
\nobtaining a waiver of subrogation from the insurer. This release shall be in
\neffect only so long as the applicable insurance policy contains a clause to the
\neffect that this release shall not affect the right of the insured to recover
\nunder such policy. Each party shall use its best efforts to cause each
\ninsurance policy obtained by it to provide that the insurer waives all right
\nof recovery by way of subrogation in connection with any injury or damage
\ncovered by such policy. However except as required in paragraph 9.1B above, if
\nany insurance policy cannot be obtained with such a waiver of subrogation, or
\nif such waiver of subrogation is only available at additional cost and the
\nparty for whose benefit the waiver is to be obtained does not pay such
\nadditional cost, then the party obtaining such insurance shall notify the other
\nparty of that fact and thereupon shall be relieved of the obligation to obtain
\nsuch waiver of subrogation rights from the insurer with respect to the
\nparticular insurance involved.<\/p>\n
ARTICLE 10<\/p>\n
-27-
\n 33
\n ARTICLE 10<\/p>\n
LIMITATION ON LANDLORD’S<\/p>\n
LIABILITY AND INDEMNITY<\/p>\n
10.1 Limitation on Landlord’s Liability: Landlord shall not be liable to
\nTenant, nor shall Tenant be entitled to terminate this Lease or to any abatement
\nof rent, for any injury to Tenant, its agents, employees, contractors, or
\ninvitees, damage to Tenant’s property, or loss to Tenant’s business resulting
\nfrom any cause, including without limitation any (i) failure, interruption or
\ninstallation of any HVAC or other utility system or service, (ii) failure to
\nfurnish or to delay in furnishing any utilities or services “When such failure
\nor delay is caused by Acts of God or the elements, labor disturbances of any
\ncharacter, any other accidents or other conditions beyond the reasonable control
\nof Landlord, or by the making of repairs or improvements to the Leased Premises
\nor to the Building, (iii) maintenance, repairs or improvements to the Leased
\nPremises or the Building, (iv) limitation, curtailment, rationing or restriction
\non use of water or electricity, gas or any other form of energy or any other
\nservice or utility serving the Leased Premises or the Building, (vi) vandalism
\nor forcible entry by unauthorized persons, or (vii) penetration of water into or
\nonto any portion of the Leased Premises or the Common Area through roof leaks or
\notherwise. Notwithstanding the foregoing, Landlord shall be liable for any such
\ninjury, damage or loss which is proximately caused by Landlord’s active
\nnegligence or willful misconduct.<\/p>\n
10.2 Limitation on Tenant’s Resource: If Landlord is a corporation,
\ntrust, partnership, joint venture, unincorporated association, and\/or other form
\nof business entity, (i) the obligations of Landlord shall not constitute
\npersonal obligations of the officers, directors, trustees, partners, joint
\nventurers, members, owners, stockholders, or other principals or representatives
\nof such business entity, and (ii) Tenant shall have recourse only to the assets
\nof such business entity for the satisfaction of such obligations and not against
\nthe assets of such officers, directors, trustees,<\/p>\n
-28-
\n 34<\/p>\n
partners, joint venturers, members, owners, stockholders, principals, or
\nrepresentatives, other than to the extent of their interest in the assets owned
\nby such business entity.<\/p>\n
10.3 Indemnification of Landlord: Tenant shall hold harmless, indemnify
\nand defend Landlord and its employees, agents, and contractors, with competent
\ncounsel reasonably satisfactory to Landlord, from all liability, penalties,
\nlosses, damages, costs, expenses, causes of action, claims and\/or judgments
\narising by reason of any death, bodily injury, personal injury or property
\ndamage (i) resulting from any cause or causes whatsoever (other than the active
\nnegligence or wilful misconduct of Landlord) occurring in or about or resulting
\nfrom an occurrence in or about the Leased Premises, (ii) resulting from the
\nnegligence or wilful misconduct of Tenant, its agents, employees and
\ncontractors, wherever the same may occur, or (iii) resulting from a breach of
\nTenant’s obligations under this lease. The provisions of this paragraph shall
\nsurvive the expiration or sooner termination of this Lease with respect to any
\nclaims or liability occurring prior to such expiration or sooner termination.<\/p>\n
ARTICLE 11<\/p>\n
DAMAGE TO LEASED PREMISES<\/p>\n
11.1 Landlord’s Duty to Restore: If the Leased Premises or Building,
\nincluding the parking space, are damaged by any peril after the Effective Date
\nof this Lease, Landlord shall restore the Leased Premises as well as the parking
\nspace unless the Lease is terminated by Landlord pursuant to paragraph 11.2 or
\nby Tenant pursuant to paragraph 11.3. All insurance proceeds available from the
\nfire and property damage insurance carried by Landlord pursuant to paragraph 9.2
\nshall be paid to and become the property of Landlord. If this lease is
\nterminated pursuant to either paragraph 11.2 or 11.3, then all insurance
\nproceeds available from insurance carried by Tenant which covers loss to
\nproperty that is Landlord’s property or would become<\/p>\n
-29-
\n 35<\/p>\n
Landlord’s property on termination of this Lease shall be paid to and become the
\nproperty of Landlord. If this Lease is not so terminated, then upon receipt of
\nthe insurance proceeds (if the loss is covered by insurance and the issuance of
\nall necessary governmental permits, Landlord shall commence and diligently
\nprosecute to completion the restoration of the Leased Premises, to the extent
\nthen allowed by Law, to substantially the same condition in which the Leased
\nPremises were immediately prior to such damage. Landlord’s obligation to restore
\nshall be limited to the Leased Premises and interior improvements constructed by
\nLandlord as they existed as of the Rent Commencement Date, excluding any
\nLeasehold Improvements, Trade Fixtures and\/or personal property constructed or
\ninstalled by Tenant in the leased Premises. Tenant shall forthwith replace or
\nfully repair all Leasehold Improvements and Trade Fixtures installed by Tenant
\nand existing at the time of such damage or destruction.<\/p>\n
11.2 Landlord’s Right to Terminate: Landlord shall have the option to
\nterminate this Lease in the event any of the following occurs, which option may
\nbe exercised only by delivery to Tenant of a written notice of election to
\nterminate Within thirty (30) days after the date of such damage:<\/p>\n
A. The Building or the Leased Premises are damaged by any peril to
\nsuch an extent that the necessary repairs can not, in Landlord’s opinion, be
\nmade Within sixty (60) days of such damage; or<\/p>\n
B. The Building is damaged by any peril and, because of the Laws
\nthen in force, (i) may not be restored at reasonable cost to substantially the
\nsame condition in which it was prior to such damage, or (ii) may not be used for
\nthe same use being made thereof before such damage whether or not restored as
\nrequired by this Article.<\/p>\n
C. The Building or the Leased Premises are damaged by a peril not
\ninsured<\/p>\n
-30-
\n 36<\/p>\n
against pursuant to the terms of this lease and Landlord does not elect, within
\nsixty (60) days of such damage, to nevertheless restore.<\/p>\n
11.3 Tenant’s Right to Terminate: If the Leased Premises are damaged by
\nany peril and Landlord does not elect to terminate this Lease or is not entitled
\nto terminate this Lease pursuant to paragraph 11.2, then as soon as reasonably
\npracticable, Landlord shall furnish Tenant with the written opinion of
\nLandlord’s architect or construction consultant as to when the restoration work
\nrequired of Landlord may be completed. Tenant shall have the option to terminate
\nthis Lease in the event any of the following occurs, which option may be
\nexercised only by delivery to Landlord of a written notice of election to
\nterminate within ten (10) days after Tenant receives from Landlord the estimate
\nof the time needed to complete such restoration:<\/p>\n
A. The Leased Premises are damaged by any peril and, in the
\nreasonable opinion of Landlord’s architect or construction consultant, the
\nrestoration of the Leased Premises cannot be substantially completed within one
\nhundred eighty (180) days after commencement of the work of restoration; or<\/p>\n
B. The Leased premises are damaged by any peril within one hundred
\neighty (180) days of the last day of the Lease Term, and, in the reasonable
\nopinion of Landlord’s architect or construction consultant, the restoration of
\nthe Leased Premises cannot be substantially completed within sixty (60) days
\nafter the date of such damage.<\/p>\n
11.4 Abatement of Rent: In the event of damage to the Leased Premises
\nwhich does not result in the termination of this Lease, the Base Monthly Rent
\n(but not any Additional Rent) shall be temporarily abated during the period of
\nrestoration in proportion to the degree to which Tenant’s use of the Leased
\nPremises is impaired by such damage. Tenant shall not be entitled to any
\ncompensation or damages from Landlord for loss of Tenant’s business or property
\nor for any<\/p>\n
-31-
\n 37<\/p>\n
inconvenience or annoyance caused by such damage or restoration. Tenant hereby
\nwaives the provisions of Section 1932, Subdivision 2, and Section 1933,
\nSubdivision 4, of the California Civil Code, and the provisions of any similar
\nlaw hereinafter enacted.<\/p>\n
ARTICLE 12<\/p>\n
CONDEMNATION<\/p>\n
12.1 Landlord’s Right to Terminate: Landlord shall have the option to
\nterminate this Lease if, as a result of a taking by means of the exercise of the
\npower of eminent domain (including a voluntary sale or transfer by Landlord to a
\ncondemnor under threat of condemnation) all or any material portion of the
\nBuilding is so taken. Any such option to terminate by Landlord must be
\nexercisable within a reasonable period of time, to be effective as of the date
\npossession is taken by the condemnor.<\/p>\n
12.2 Tenant’s Right to Terminate: Tenant shall have the option to
\nterminate this Lease if, as a result of any taking by means of the exercise of
\nthe power of eminent domain (including any voluntary sale or transfer by
\nLandlord to any condemnor under threat of condemnation), (i) all or any material
\nportion of the Leased Building is so taken, or (ii) such portion of the Leased
\nPremises is so taken that the part of the Leased premises that remains cannot be
\nconstructed within a reasonable period of time to be made reasonably suitable
\nfor the continued operation of the Tenant’s business. Tenant must exercise such
\noption within thirty (30) days of notice of such taking. Such exercise by Tenant
\nshall be effective on the date that possession of that portion of the Common
\nArea or the Leased Premises that is condemned is taken by the condemnor.<\/p>\n
12.3 Temporary Taking: If any portion of the Leased Premises is
\ntemporarily taken for ninety days or less, this Lease shall remain in effect. If
\ntwenty-five percent (25%) or more of the Leased Premises is temporarily taken by
\ncondemnation for a period which either exceeds ninety<\/p>\n
-32-
\n 38<\/p>\n
(90) days or which extends beyond what would have been the expiration of the
\nLease Term without such taking, then Landlord and Tenant shall each
\nindependently have the option to terminate this Lease, effective on the date
\npossession is taken by the condemnor.<\/p>\n
12.4 Restoration and Abatement of Rent: If any part of the Building or
\nLeased premises is taken by condemnation and this Lease is not terminated, then
\nLandlord shall restore the Leased premises and interior improvements constructed
\nby Landlord as they existed as of the Rent Commencement Date, excluding any
\nLeasehold Improvements, Trade Fixtures and\/or personal property constructed or
\ninstalled by Tenant. Thereafter, except in the case of a temporary taking, as of
\nthe date possession is taken the Rent shall be reduced in the same proportion
\nthat the floor area of that part of the Leased Premises so taken (less any
\naddition thereto by reason of any reconstruction) bears to the original floor
\narea of the Leased Premises.<\/p>\n
12.5 Division of Condemnation Award: Any award made for any condemnation
\nof the property or Leased Premises shall belong to and be paid to Landlord, and
\nTenant hereby assigns to Landlord all of its right, title and interest in any
\nsuch award provided, however, that Tenant shall be entitled to receive any
\ncondemnation award that is made directly to Tenant (i) for the taking of
\npersonal property or Trade Fixtures belonging to Tenant, (ii) for the
\ninterruption of Tenant’s business or its moving costs, or (iii) for any
\ntemporary taking where this Lease is not terminated as a result of such taking
\n(subject to the requirements of subparagraph 14.18G), Tenant shall receive any
\nrelocated fees that maybe awarded. The rights of Landlord and Tenant regarding
\nany condemnation shall be determined as provided in this Article, and each party
\nhereby waives the provisions of Section 1265.130 of the California Code of Civil
\nProcedure, and the provisions of any similar law hereinafter enacted, allowing
\neither party to petition the Superior Court to terminate this Lease in the event
\nof a partial taking of the Leased Premises.<\/p>\n
-33-
\n 39<\/p>\n
ARTICLE 13<\/p>\n
DEFAULT AND REMEDIES<\/p>\n
13.1 Events of Tenant’s Default: Tent shall be in default of its
\nobligations under this Lease if any of the following events occurs:<\/p>\n
A. Tenant shall have failed to pay Base Monthly Rent or any
\nAdditional Rent when due; or<\/p>\n
B. Tenant shall have failed to perform any term, covenant, or
\ncondition of this Lease except those requiring the payment of Base Monthly Rent
\nor Additional Rent, and Tenant shall have failed to cure such breach within ten
\n(10) days after written notice from Landlord specifying the nature of such
\nbreach; or<\/p>\n
C. Tenant shall have made a general assignment of its assets for the
\nbenefit of its creditors; or<\/p>\n
D. Tenant shall have sublet the Leased Premises or assigned its
\ninterest in the Lease in violation of the provisions contained in Article 14,
\nwhether voluntarily or by operation of law; or<\/p>\n
E. Tenant shall have permitted the sequestration or attachment of,
\nor execution on, or the appointment of a custodian or receiver with respect to,
\nall or any substantial part of the property of Tenant or any property essential
\nto the conduct of Tenant’s business and Tenant shall have failed to obtain a
\nreturn or release of such property within thirty (30) days thereafter, or prior
\nto sale pursuant to such sequestration, attachment or levy, whichever is
\nearlier; or<\/p>\n
F. Tenant shall have abandoned the Leased Premises or left the
\nLeased Premises vacant for more than fourteen (14) days in any sixty (60) day
\nperiod; or<\/p>\n
-34-
\n 40<\/p>\n
G. A court shall have made or entered any decree or order with
\nrespect to Tenant or Tenant shall have submitted to or sought a decree or order
\n(or a petition or pleading shall have been filed in connection therewith)
\nwhich: (i) grants or constitutes (or seeks) an order for relief, appointment of
\na trustee, or confirmation of a reorganization plan under the bankruptcy laws of
\nthe United States; (ii) approves as properly filed (or seeks such approval of) a
\npetition seeking liquidation or reorganization under said bankruptcy laws or
\nany other debtor’s relief law or statute of the United States or any state
\nthereof; or (iii) otherwise directs (or seeks) the winding up or liquidation of
\nTenant; and such petition, decree or order shall have continued in effect for a
\nperiod of thirty (30) or more days.<\/p>\n
13.2 Landlord’s Remedies: In the event of any default by Tenant,
\nLandlord shall have the following remedies, in addition to all other rights and
\nremedies provided by any Law or otherwise provided in this Lease, to which
\nLandlord may resort cumulatively, or in the alternative:<\/p>\n
A. Landlord may, at Landlord’s election, keep this Lease in effect
\nand enforce by an action at law or in equity all of its rights and remedies
\nunder the Lease, including (i) the right to recover the rent and other sums as
\nthey become due by appropriate legal action, (ii) the right to make payments
\nrequired of Tenant or perform Tenant’s obligations and be reimbursed by Tenant
\nfor the cost thereof with interest at the maximum applicable rate permitted by
\nLaw, but in no event higher than the prime interest rate charged by Bank of
\nAmerica, from the date the sum is paid by Landlord until Landlord is reimbursed
\nby Tenant, and (iii) the remedies of injunctive relief and specific performance
\nto compel Tenant to perform its obligations under this Lease.<\/p>\n
B. Landlord may, at Landlord’s election, terminate this Lease by
\ngiving Tenant written notice of termination, in which event this Lease shall
\nterminate on the date set forth for termination in such notice. Any termination
\nunder this subparagraph shall not relieve Tenant from<\/p>\n
-35-
\n 41<\/p>\n
its obligation to pay any sums then due Landlord or from any claim against
\nTenant for damages or Base Monthly Rent or any Additional Rent previously
\naccrued or then accruing. In no event shall any one or more of the following
\nactions by Landlord, in the absence of a written election by Landlord to
\nterminate this Lease, constitute a termination of this Lease:<\/p>\n
(1) Appointment of a receiver or keeper in order to protect
\nLandlord’s interest hereunder;<\/p>\n
(2) Consent to any subletting of the Leased Premises or
\nassignment of this Lease by Tenant, whether pursuant to the provisions hereof or
\notherwise; or<\/p>\n
(3) Any other action by Landlord or Landlord’s agents intended to
\nmitigate the adverse effects of any breach of this Lease by Tenant, including
\nwithout limitation any action taken to maintain and preserve the Leased Premises
\nor any action taken to relet the Leased Premises or any portions thereof, for
\nthe account of Tenant and in the name of Tenant.<\/p>\n
C. In the event Tenant breaches this Lease and abandons the Leased
\nPremises, this Lease shall not terminate unless Landlord gives Tenant written
\nnotice of its election to so terminate this Lease. No act by or on behalf of
\nLandlord intended to mitigate the adverse effect of such breach, including
\nthose described by subparagraphs B(1), (2) and (3) immediately preceding, shall
\nconstitute a termination of Tenant’s right to possession unless Landlord gives
\nTenant written notice of termination. Should Landlord not terminate this Lease
\nby giving Tenant written notice, Landlord may enforce all its rights and
\nremedies under this Lease, including the right to recover the rent as it becomes
\ndue under the Lease as provided in California Civil Code Section 1951.4, as in
\neffect on the Effective Date of this Lease.<\/p>\n
D. In the event Landlord terminates this Lease, Landlord shall be
\nentitled, at Landlord’s election, to damages in an amount as set forth in
\nCalifornia Civil Code Section 1951.2<\/p>\n
-36-
\n 42<\/p>\n
as in effect on the Effective Date of this Lease. For purposes of computing
\ndamages pursuant to said Section 1951.2, an interest rate of the maximum
\napplicable rate permitted by Law, but in no event higher than the prime interest
\nrate charged by Bank of America, shall be used where permitted. Such damages
\nshall include without limitation:<\/p>\n
(1) The worth at the time of award of the amount by which the
\nunpaid rent for the balance of the term after the time of award exceeds the
\namount of such rental loss that Tenant proves could be reasonably avoided,
\ncomputed by discounting such amount at the discount rate of the Federal Reserve
\nBank of San Francisco at the time of award plus one percent (1%); and<\/p>\n
(2) Any other amount necessary to compensate Landlord for all
\ndetriment proximately caused by Tenant’s failure to perform Tenant’s obligations
\nunder this Lease, or which in the ordinary course of things would be likely to
\nresult therefrom, including, without limitation, the following: (i) expenses
\nfor cleaning, repairing or restoring the Leased Premises; (ii) expenses for
\naltering, remodeling or otherwise improving the Leased Premises for the purpose
\nof reletting, including installation of leasehold improvements (whether such
\ninstallation be funded by a reduction of rent, direct payment or allowance to a
\nnew tenant, or otherwise); (iii) broker’s fees, advertising costs and other
\nexpenses of reletting the Leased Premises; (iv) costs of carrying the Leased
\nPremises, such as taxes, insurance premiums, utilities, and security
\nprecautions; (v) expenses in retaking possession of the Leased Premises; and
\n(vi) attorneys’ fees and court costs incurred by Landlord in retaking possession
\nof the Leased Premises and in releasing the Leased Premises or otherwise
\nincurred as a result of Tenant’s default.<\/p>\n
(3) For purposes of this Article, if it becomes necessary to
\ndetermine the amount of Additional Rent that would have become due had Tenant
\nnot breached its<\/p>\n
-37-
\n 43<\/p>\n
obligations under this Lease, all such Additional Rent shall be computed on the
\nbasis of the average monthly amount thereof accruing during the immediately
\npreceding sixty (60) month period, except that if it becomes necessary to
\ncompute such Additional Rent before such a sixty (60) month period has occurred,
\nthen such rent shall be computed on the basis of the average monthly amount
\nthereof accruing during such shorter period.<\/p>\n
E. Nothing in this paragraph shall limit Landlord’s right to
\nindemnification from Tenant as provided in paragraph 10.3.<\/p>\n
13.3 LANDLORD’S DEFAULT AND TENANT’S REMEDIES: In the event Landlord
\nfails to perform any of its obligations under this Lease and fails to cure such
\ndefault within thirty (30) days after written notice from Tenant specifying the
\nnature of such default where such default could reasonably be cured within said
\nthirty (30) day period, or fails to commence such cure within said thirty (30)
\nday period and thereafter continuously with due diligence prosecute such cure to
\ncompletion where such default could not reasonably be cured within said thirty
\n(30) day period, then Tenant shall have the following remedies only:<\/p>\n
A. Tenant may proceed in equity or at law to compel Landlord to
\nperform its obligations and\/or to recover damages proximately caused by such
\nfailure to perform (except to the extent Tenant has waived its right to damages
\nresulting from injury to person or damage to property as provided herein).<\/p>\n
B. Tenant, at its option, may cure any default of Landlord at
\nLandlord’s cost. If Tenant at any time by reason of Landlord’s default
\nreasonably pays any sum or does any act that requires the payment of any sum,
\nthe sum paid by Tenant shall be immediately due from Landlord to Tenant at the
\ntime the sum is paid, and shall bear interest at the maximum applicable rate
\npermitted by Law, but in no event higher than the prime interest rate charged by
\nBank of America,<\/p>\n
-38-
\n 44<\/p>\n
from the date the sum is paid by Tenant until Tenant is reimbursed by Landlord.<\/p>\n
C. Tenant waives the provisions of Sections 1932(l), 1941 and 1942
\nof the California Civil Code and\/or any similar or successor law regarding
\nTenant’s right to terminate this Lease or to make repairs and deduct the
\nexpenses of such repairs from the rent due under the Lease. Tenant hereby waives
\nany right of redemption or relief from forfeiture under the laws of the State of
\nCalifornia, or under any other present or future law, in the event Tenant is
\nevicted or Landlord takes possession of the Leased Premises by reason of any
\ndefault by Tenant.<\/p>\n
13.4 Waiver: One party’s consent to or approval of any act by the other
\nparty requiring the first party’s consent or approval shall not be deemed to
\nwaive or render unnecessary the first party’s consent to or approval of any
\nsubsequent similar act by the other party. The receipt by Landlord of any rent
\nor payment with or without knowledge of the breach of any other provision hereof
\nshall not be deemed a waiver of any such breach unless such waiver is in writing
\nand signed by Landlord. No delay or omission in the exercise of any right or
\nremedy accruing to either party upon any breach by the other party under this
\nLease shall impair such right or remedy or be construed as a waiver of any such
\nbreach theretofore or thereafter occurring. The waiver by either party of any
\nbreach of any provision of this Lease shall not be deemed to be a waiver of any
\nsubsequent breach of the same or any other provisions herein contained.<\/p>\n
ARTICLE 14<\/p>\n
ASSIGNMENT AND SUBLETTING<\/p>\n
14.1 By Tenant: Tenant shall not sublet the Leased Premises or assign or
\nencumber its interest in this Lease, whether voluntarily or by operation of
\nlaw, without Landlord’s prior written consent, which consent shall not be
\nunreasonably withheld. In this regard:<\/p>\n
A. Any attempted subletting, assignment or encumbrance without
\nLandlord’s<\/p>\n
-39-
\n 45<\/p>\n
prior consent shall be voidable and, at Landlord’s election, shall constitute a
\ndefault.<\/p>\n
B. Tenant shall, by written notice, advise Landlord of its desire
\nfrom and after a stated date (which shall not be less than thirty (30) days nor
\nmore than one hundred eighty (180) days after the date of Tenant’s notice), to
\nsublet the Leased Premises or any portion thereof for any part of the term
\nhereof, and in such event Landlord shall have the right to be exercised by
\ngiving written notice to Tenant thirty (30) days after receipt of Tenant’s
\nnotice, to terminate this Lease as to the portion of the Leased Premises
\ndescribed in Tenant’s notice and such notice shall, if given, terminate this
\nLease with respect to the portion of the Leased Premises therein described as of
\nthe date stated in Tenant’s notice. Said notice by Tenant shall state the name
\nand address of the proposed subtenant, and Tenant shall deliver to Landlord a
\ntrue and complete copy of the proposed sublease with said notice. If said notice
\nshall specify all of the Leased Premises and Landlord shall give said
\ntermination notice with respect thereto, this Lease shall terminate on the date
\nstated in Tenant’s notice. If, however, this Lease shall terminate pursuant to
\nthe foregoing with respect to less than all the Leased Premises, the Base
\nMonthly Rent, as defined in paragraph 3.1 and adjusted pursuant to paragraph
\n3.2, shall be adjusted on a pro rata basis to the number of square feet retained
\nby Tenant, and this Lease as so amended shall continue thereafter in full force
\nand effect.<\/p>\n
C. Tenant agrees to reimburse Landlord all reasonable costs and
\nattorneys’ fees incurred by Landlord in conjunction with the processing and
\ndocumentation of any such requested subletting, assignment or encumbrance. Such
\nsublease, assignment or encumbrance shall not be effective until (i) Tenant
\nshall have paid such costs and fees, (ii) each such sublessee, assignee or
\ntransferee shall have agreed in writing for the benefit of Landlord to assume,
\nto be bound by, and to perform the obligations of this Lease to be performed by
\nTenant, and (iii) an<\/p>\n
-40-
\n 46<\/p>\n
executed copy of such sublease, assignment or encumbrance shall have been
\ndelivered to Landlord.<\/p>\n
D. Consent by Landlord to one or more assignments or encumbrances of
\nthis Lease or to one or more sublettings of the Leased Premises shall not be
\ndeemed to be a consent to any subsequent assignment, encumbrance, or subletting.<\/p>\n
E. No subletting or assignment, even with the consent of Landlord,
\nshall relieve Tenant of its personal and primary obligation to pay the rent and
\nto perform all of the other obligations to be performed by Tenant hereunder. The
\nacceptance of rent by Landlord from any person shall not be deemed to be a
\nwaiver by Landlord of any provision of this Lease or to be a consent to any
\nassignment or subletting.<\/p>\n
F. If Tenant is a corporation, any dissolution, merger,
\nconsolidation, or other reorganization of Tenant, or the sale or other transfer
\nin the aggregate over the Lease Term of a controlling percentage of the capital
\nstock of Tenant, shall be deemed a voluntary assignment of Tenant’s interest in
\nthis Lease. The phrase “controlling percentage” means the ownership of and the
\nright to vote stock possessing more than fifty percent (50%) of the total
\ncombined voting power of all classes of Tenant’s capital stock issued,
\noutstanding and entitled to vote for the election of directors. If Tenant is a
\npartnership, a withdrawal or change, voluntary, involuntary or by operation of
\nlaw, of any general partner, or the dissolution of the partnership, shall be
\ndeemed a voluntary assignment.<\/p>\n
G. It is the intent of the parties hereto that this Lease shall
\nconfer upon Tenant only the right to use and occupy the Premises, and to
\nexercise such other rights as are conferred upon Tenant by this Lease. The
\nparties agree that this Lease is not intended to have a bonus value, nor to
\nserve as a vehicle whereby Tenant may profit by a future Transfer of this Lease
\nor<\/p>\n
-41-
\n 47
\nthe right to use or occupy the Premises as a result of any favorable terms
\ncontained herein or any future changes in the market for leased space. It is the
\nintent of the parties that any such bonus value that may attach to this Lease
\nshall be and remain the exclusive property of Landlord. In order to carry out
\nthis intent, if Tenant assigns its interest in this Lease in accordance with
\nthis Article, then Tenant shall pay to Landlord all of the net consideration if
\nany received by Tenant as a result of such assignment as and when received by
\nTenant. If Tenant sublets all or part of the Leased Premises in accordance with
\nthis Article, then Tenant shall pay to Landlord all the positive difference, if
\nany, between (i) all rent and other consideration paid by the subtenant to
\nTenant less (ii) all costs incurred by Tenant incident to the sublease agreement
\n(including an amount equal to the resulting product of the rent payable
\nhereunder to Landlord by Tenant during the time period covered by such payments
\nby the subtenant times a fraction whose numerator is the leasable area of that
\nportion of the Leased Premises so sublet and whose denominator is Tenant’s Gross
\nLeasable Area). Said consideration shall be payable to Landlord on the same
\nbasis, whether periodic or in lump sums, that such consideration is paid to
\nTenant by its subtenant. In calculating Landlord’s right to any periodic
\npayments, all costs incurred by Tenant incident to the sublease agreement shall
\nbe amortized over the term of the sublease. At the time Tenant makes any payment
\nto Landlord required by this subparagraph, Tenant shall deliver an itemized
\nstatement of the method by which the amount due Landlord was calculated,
\ncertified by Tenant as true and correct. Landlord shall have the right to
\ninspect Tenant’s books and records relating to the payments due pursuant to this
\nsubparagraph.<\/p>\n
14.2 By Landlord: Landlord and its successors in interest shall have the
\nright to transfer their interest in the Leased Premises and the Property at any
\ntime and to any person or entity. In the event of any such transfer, the
\nLandlord originally named herein (and in the case of any<\/p>\n
-42-
\n 48<\/p>\n
subsequent transfer, the transferor), from the date of such transfer, (i) shall
\nbe automatically relieved, without any further act by any person or entity, of
\nall liability for the performance of the obligations of the landlord hereunder
\nwhich may accrue after the date of such transfer, and (ii) shall be relieved of
\nall liability for the performance of the obligations of the landlord hereunder
\nwhich have accrued before the date of transfer if its transferee agrees to
\nassume and perform all such obligations of the landlord hereunder. After the
\ndate of any such transfer, the term “Landlord” as used herein shall mean the
\ntransferee of such interest in the Leased Promises and the Property.<\/p>\n
ARTICLE 15<\/p>\n
GENERAL PROVISIONS<\/p>\n
15.1 Landlord’s Right to Enter: Landlord and its agents shall have the
\nright to enter the Leased Premises at all reasonable times for the purpose of
\n(i) inspecting the same; (ii) posting notices of non-responsibility; (iii)
\nsupplying janitorial service or any other service to be provided by Landlord to
\nTenant; (iv) showing the Leased Premises to prospective purchasers, mortgagees
\nor tenants; (v) making necessary alterations, additions, or repairs; (vi)
\nperforming Tenant’s obligation when Tenant has failed to do so after written
\nnotice from Landlord; (vii) placing upon the Leased Premises ordinary “for
\nlease” signs, and\/or (viii) in the case of an emergency. For each of the
\naforesaid purposes, Landlord may enter the Leased Premises by means of a master
\nkey, and Landlord shall have the right to use any and all means Landlord may
\ndeem necessary and proper to open the doors of the Leased Premises in an
\nemergency. Any entry to the Leased Premises or portions thereof obtained by
\nLandlord by any of said means, or otherwise, shall not under any circumstances
\nbe construed or deemed to be a forcible or unlawful entry into, or a detainer
\nof, the Leased Premises, or an eviction, actual or constructive, of Tenant from
\nthe Leased Premises or<\/p>\n
-43-
\n 49<\/p>\n
any portion thereof.<\/p>\n
15.2 Surrender of the Leased Premises: Immediately prior to the
\nexpiration or upon the sooner termination of this Lease, Tenant shall remove
\nall Tenant’s Trade Fixtures and other personal property and vacate and surrender
\nthe Leased Premises to Landlord in the same condition as existed at the Rent
\nCommencement Date, reasonable wear and tear excepted, all HVAC equipment within
\nthe Leased Premises, if any, installed by Tenant in operating order and in good
\nrepair, and all floors cleaned, all to the reasonable satisfaction of Landlord.
\nLandlord may, at Tenant’s expense, hire independent contractors to inspect any
\nHVAC system serving the Leased Premises installed by Tenant or electrical system
\nwithin the Leased Premises installed by Tenant for the purpose of determining
\nwhether they have been properly maintained by Tenant, and Tenant shall pay the
\ncost thereof within ten (10) days after receipt of a statement therefore from
\nLandlord. Upon request by Landlord, Tenant shall, prior to the expiration or
\nsooner termination of this Lease, remove Tenant’s Leasehold Improvements
\ndesignated by Landlord and repair all damage caused by such removal. If the
\nLeased Premises are not so surrendered at the termination of this Lease, Tenant
\nshall be liable to Landlord for all costs incurred by Landlord in returning the
\nLeased Premises to the required condition, plus interest on all costs incurred
\nat the maximum applicable rate permitted by Law, but in no event higher than the
\nprime interest rate charged by Bank of America. Tenant shall indemnify Landlord
\nagainst loss or liability resulting from delay by Tenant in so surrendering the
\nLeased Premises, including, without limitation, any claims made by any
\nsucceeding tenant or losses to Landlord due to lost opportunities to lease to
\nsucceeding tenants.<\/p>\n
15.3 Holding Over: This Lease shall terminate without further notice at
\nthe expiration of the Lease Term. Any holding over by Tenant after expiration
\nof the Lease Term shall not<\/p>\n
-44-
\n 50<\/p>\n
constitute a renewal or extension of the Lease or give Tenant any rights in or
\nto the Leased Premises except as expressly provided in this Lease. Any holding
\nover after such expiration with the consent of Landlord shall be construed to be
\na tenancy from month to month on the same terms and conditions herein specified
\ninsofar as applicable except that Base Monthly Rent shall be increased to an
\namount equal to one hundred twenty-five percent (125%) of the Base Monthly Rent
\nrequired during the last month of the Lease Term.<\/p>\n
15.4 Subordination: This Lease is subject and subordinate to all
\nunderlying ground leases, mortgages and deeds of trust which affect the Property
\nand are of public record as of the Effective Date of this Lease, and to all
\nrenewals, modifications, consolidations, replacements and extensions thereof.
\nHowever, if the Landlord under any such lease or any Lender holding such
\nmortgage or deed of trust shall advise Landlord that it desires or requires this
\nLease to be prior and superior thereto, then, upon written request of Landlord
\nto Tenant, Tenant shall promptly execute, acknowledge and deliver any and all
\ndocuments or instruments which Landlord or such lessor or Lender deems necessary
\nor desirable to make this Lease prior thereto; At Landlord’s election, this
\nLease shall become and thereafter remain subject and subordinate to any and all
\nfuture ground leases, first mortgages or first deeds of trust affecting the
\nProperty which may hereafter be executed and placed of public record after the
\nEffective Date of this Lease, or any renewals, modifications, consolidations,
\nreplacements or extensions thereof, for the full amount of all advances made or
\nto be made thereunder and without regard to the time or character of such
\nadvances, so long as the Landlord of such ground lease or the Lender holding the
\nmortgage or deed of trust to which this Lease is to be subordinated agrees that
\nit will recognize Tenant’s rights under this Lease and not disturb its quiet
\npossession of the Leased Premises so long as Tenant is not in default hereunder.
\nTenant agrees, within ten (10) days after Landlord’s written request<\/p>\n
-45-
\n 51<\/p>\n
therefor to execute, acknowledge and deliver upon request of Landlord any and
\nall documents or instruments requested by Landlord or such lessor or mortgage
\nholder(s) as may be necessary or proper to assure the subordination of this
\nLease to any such ground lease, mortgage or deed of trust.<\/p>\n
15.5 Tenant’s Attornment: Tenant shall attorn (i) to any purchaser of
\nthe Building or Property at any foreclosure sale or private sale conducted
\npursuant to any security instrument encumbering the Building or the Property,
\n(ii) to any grantee or transferee designated in any deed given in lieu of
\nforeclosure, or (iii) to the lessor under any underlying ground lease should
\nsuch ground lease be terminated.<\/p>\n
In no event shall any Lender, purchaser, grantee, transferee or
\nground lessor have any liability as to any Security Deposit under this Lease
\nunless such party shall have actually received the same.<\/p>\n
15.6 Mortgagee Protection: In the event of any default on the part of
\nLandlord, Tenant will give notice by registered mail to any Lender or lessor
\nunder any underlying ground lease whose name has been provided to Tenant and
\nshall offer such Lender or lessor a reasonable opportunity to cure the default,
\nincluding time to obtain possession of the Leased Premises by power of sale or
\njudicial foreclosure or other appropriate legal proceedings, if such should
\nprove necessary to effect a cure.<\/p>\n
15.7 Estoppel Certificates: At all times during the Lease Term, Tenant
\nagrees, following any request by Landlord, to promptly execute and deliver to
\nLandlord an estoppel certificate (i) certifying that this Lease is unmodified
\nand in full force and effect, or, if modified, stating the nature of such
\nmodification and certifying that this Lease, as so modified, is in full force
\nand effect, (ii) stating the date to which the rent and other charges are paid
\nin advance, if<\/p>\n
-46-
\n 52<\/p>\n
any, (iii) acknowledging that there are not, to Tenant’s knowledge, any uncured
\ndefaults on the part of Landlord hereunder, or specifying such defaults if any
\nare claimed, and (iv) certifying such other information about the Lease as may
\nbe reasonably required by Landlord. Tenant’s failure to deliver an estoppel
\ncertificate within ten (10) days after delivery of Landlord’s request therefore
\nshall be a conclusive admission by Tenant that, as of the date of the request
\nfor such statement, except as otherwise set forth in such request (i) this Lease
\nis unmodified and is in full force and effect, (ii) there are no uncured
\ndefaults in Landlord’s performance, and (iii) no rent has been paid in advance.
\nLandlord and Tenant intend that any statement delivered pursuant to this
\nparagraph may be relied upon by any mortgagee, beneficiary, purchaser or
\nprospective purchaser of the Building or any interest therein.<\/p>\n
15.8 Force Majeure: Any prevention, delay, or stoppage due to strikes,
\nlockouts, inclement weather, labor disputes, inability to obtain labor,
\nmaterials, fuels or reasonable substitutes therefor, governmental restrictions,
\nregulations, controls, action or inaction, civil commotion, fire or other acts
\nof God, and other causes beyond the reasonable control of the party obligated to
\nperform (except financial inability) shall excuse the performance, for a period
\nequal to the period of any said prevention, delay, or stoppage, of any
\nobligation hereunder except the obligation of Tenant to pay rent or any other
\nsums due hereunder.<\/p>\n
15.9 Notices: Any notice required or desired to be given regarding this
\nLease shall be in writing and shall be personally served, or in lieu of personal
\nservice may be given by certified mail. If served by mail, such notice shall be
\ndeemed to have been given (i) on the third business day after mailing if such
\nnotice was deposited in the United States mail, certified and postage prepaid,
\naddressed to the party to be served at its address first above set forth and
\n(ii) in all other cases when actually received. Either party may change its
\naddress by giving notice of same in<\/p>\n
-47-
\n 53<\/p>\n
accordance with this paragraph.<\/p>\n
15.10 Attorneys’ Fees: In the event Landlord shall bring any action or
\nlegal proceeding for an alleged breach of any provision of this Lease, to
\nrecover rent, to terminate this Lease or to otherwise enforce, protect or
\nestablish any term or covenant of this Lease the prevailing party shall be
\nentitled to recover as a part of such action or proceedings, or in a separate
\naction brought for that purpose, reasonable attorneys’ fees and court costs as
\nmay be fixed by the court.<\/p>\n
15.11 Corporate Authority: If Tenant is a corporation (or a
\npartnership), each individual executing this Lease on behalf of said corporation
\n(or partnership) represents and warrants that he is duly authorized to execute
\nand deliver this Lease on behalf of said corporation in accordance with the
\nby-laws of said corporation (or partnership in accordance with the partnership
\nagreement of said partnership) and that this Lease is binding upon said
\ncorporation (or partnership) in accordance with its terms. If Tenant is a
\ncorporation, each of the persons executing this Lease on behalf of Tenant does
\nhereby covenant and warrant that Tenant is a duly authorized and existing
\ncorporation, that Tenant has and is qualified to do business in California, and
\nthat the corporation has full right and authority to enter into this Lease. If
\nTenant is a corporation Tenant shall, within thirty (30) days after execution of
\nthis Lease, deliver to Landlord a certified copy of the resolution of the board
\nof directors of said corporation authorizing or ratifying the execution of this
\nLease.<\/p>\n
15.12 Additional Definitions: Any term that is given a special meaning
\nby any provision in this Lease shall have such meaning when used in this Lease
\nor any addendum or amendment hereto. As used herein, the following terms shall
\nhave the following meanings:<\/p>\n
A. Common Area: The term “Common Area” shall mean all areas and
\nfacilities within the Property that are provided and designated by Landlord from
\ntime to time for<\/p>\n
-48-<\/p>\n
54
\ngeneral use and convenience of the lessees and occupants of all or any part of
\nthe Property, including the lobbies, stairs, elevators, escalators, corridors,
\nrest rooms, parking areas and facilities, access and perimeter roads, pedestrian
\nsidewalks, landscaped areas and the like.<\/p>\n
B. Effective Date: The term “Effective Date” shall mean the date the
\nlast signatory to this Lease whose execution is required to make it binding on
\nthe parties hereto shall have executed this Lease.<\/p>\n
C. Law: The term “Law” shall mean any judicial decision, statute,
\nconstitution, ordinance, resolution, regulation, rule, administrative order, or
\nother requirement of any municipal, county, state, federal, or other government
\nagency or authority having jurisdiction over the parties to this Lease or the
\nLeased Premises or both, in effect either at the Effective Date of this Lease or
\nany time during the Lease Term, including, without limitation, any regulation,
\norder, or policy of any quasi-official entity or body (e.g., board of fire
\nexaminers, public utility or special district).<\/p>\n
D. Leasehold Improvements: The term “Leasehold Improvements” shall
\nmean all improvements, additions, alterations, and fixtures installed in the
\nLeased Premises by Tenant at its expense which are not Trade Fixtures.<\/p>\n
E. Lender: The term “Lender” shall mean any beneficiary, mortgagee,
\nsecured party, or other holder of any deed of trust, mortgage or other written
\nsecurity device or agreement affecting the Property, and the note or other
\nobligations secured by it.<\/p>\n
F. Private Restrictions: The term “Private Restrictions” shall mean
\nall recorded covenants, conditions and restrictions, private agreements,
\nreciprocal easement agreements and any other recorded instruments affecting the
\nuse of the Property, as they may now exist and as they maybe reasonably changed,
\naltered and modified from time to time.<\/p>\n
-49-<\/p>\n
55<\/p>\n
G. Trade Fixtures: The term “Trade Fixtures” shall mean anything
\naffixed to the Leased Premises by Tenant at its expense for purposes of trade,
\nmanufacture, ornament, or domestic use (except replacement of similar work or
\nmaterial originally installed by Landlord) which can be removed without injury
\nto the Leased Premises unless such thing has, by the manner in which it is
\naffixed, become an integral part of the Leased Premises; provided, however, that
\nall of Tenant’s signs shall be Trade Fixtures regardless of how affixed to the
\nLeased Premises.<\/p>\n
15.13 Miscellaneous: Should any provision of this Lease prove to be invalid
\nor illegal, such invalidity or illegality shall in no way affect, impair or
\ninvalidate any other provision hereof, and such remaining provisions shall
\nremain in full force and effect. Time is of the essence with respect to the
\nperformance of every provision of this Lease in which time of performance is a
\nfactor. Any executed copy of this Lease shall be deemed an original for all
\npurposes. This Lease shall, subject to the provisions regarding assignment,
\napply to and bind the respective heirs, successors, executors, administrators
\nand assigns of Landlord and Tenant. “Party” shall mean Landlord or Tenant as the
\ncontext implies. If Tenant consists of more than one person or entity, then all
\nmembers of Tenant shall be jointly and severally liable hereunder. This Lease
\nshall be construed and enforced in accordance with the laws of the State of
\nCalifornia. The language in all parts of this Lease shall in all cases be
\nconstrued as a whole according to its fair meaning, and not strictly for or
\nagainst either Landlord or Tenant. The captions used in this Lease are for
\nconvenience only and shall not be considered in the construction or
\ninterpretation of any provision hereof. When the context of this Lease requires,
\nthe neuter gender includes the masculine, the feminine, a partnership or
\ncorporation or joint venture, and the singular includes the plural. The terms
\n“shall”, “will”, and “agree” are mandatory. The term “may” is permissive. When a
\nparty is required to do something by this Lease, it shall do so at its sole cost
\nand expense without right of<\/p>\n
-50-
\n 56<\/p>\n
reimbursement from the other party unless specific provision is made therefor.
\nAll measurements of gross leasable area shall be made as provided in Exhibit G,
\nattached hereto and incorporated herein by reference. Where Tenant is obligated
\nnot to perform any act, Tenant is also obligated to restrain any others within
\nits control from performing said act, including agents, invitees, contractors,
\nsubcontractors and employees. Landlord shall not become or be deemed a partner
\nor a joint venturer with Tenant by reason of the provisions of this Lease.<\/p>\n
15.14 Termination By Exercise of Option: If this Lease is terminated
\npursuant to its terms by the proper exercise of an option to terminate
\nspecifically granted to Landlord or Tenant by this Lease, then this Lease shall
\nterminate thirty (30) days after the date the option to terminate is properly
\nexercised (unless another date is specified in that part of the Lease creating
\nthe option, in which event the date so specified for termination shall prevail),
\nthe rent and all other charges due hereunder shall be prorated as of the date of
\ntermination, and neither Landlord nor Tenant shall have any further rights or
\nobligations under this Lease except for those that have accrued prior to the
\ndate of termination. This paragraph does not apply to a termination of this
\nLease by Landlord as a result of a default by Tenant.<\/p>\n
15.15 Brokerage Commissions: Tenant warrants and represents that it has
\nnegotiated this Lease directly with Macanan Marketing, Inc. and has not
\nauthorized or employed, or acted by implication to authorize or to employ, any
\nother real estate broker or salesman to act for Tenant in connection with this
\nLease. Tenant shall indemnify and defend Landlord against and hold Landlord
\nharmless from any and all claims by any real estate broker or salesman claims
\nthrough tenant and other than those specified in this Article 15 for a
\ncommission or finder’s fee as a result of Tenant’s entering into this Lease.<\/p>\n
15.16 Arbitration: Any question, dispute or controversy arising under this
\nLease or any<\/p>\n
-51-
\n 57<\/p>\n
Exhibit or Addendum thereto which is specifically made subject to arbitration
\nby the terms hereof shall be determined by arbitration as provided below. Any
\nsuch arbitration shall in no way delay or affect the commencement of the term
\nof the Lease and\/or Tenant’s obligation to pay rent. Neither Landlord or Tenant
\nshall have the right, and hereby waive such right, to request or require
\narbitration of any question, dispute or controversy arising under the Lease, or
\nany Exhibit or Addendum thereto, other than those specifically made subject to
\narbitration by the terms hereof. Arbitrable questions, disputes or
\ncontroversies shall be arbitrated according to the following procedure. Either
\nLandlord or Tenant may initiate arbitration by giving written notice to the
\nother stating an intention to arbitrate, the issue to be arbitrated, and the
\nrelief sought. Such arbitration shall be conducted pursuant to the provisions of
\nthe laws of the State of California then in force and the procedural rules of
\nthe American Arbitration Association or its successor insofar as said rules of
\nprocedure do not conflict with said laws or this Paragraph. Once notice to
\narbitrate has been given, Landlord and Tenant shall within ten (10) days select
\none joint arbitrator, or if they cannot agree on one joint arbitrator then each
\nshall select an arbitrator within fifteen (15) days of delivery of said notice
\nand notify the other party of its selection. The two arbitrators selected shall
\ndesignate the third arbitrator forthwith. The three arbitrators shall convene in
\nSan Jose, California and offer Landlord and Tenant the opportunity to present
\ntheir cases. If any party fails to appear, participate or produce evidence in an
\narbitration proceeding, the arbitrators may make their award and decision based
\nsolely on the evidence actually presented. The arbitrators shall, by majority
\nvote, make such award and decision as is appropriate and in accord with the
\nterms of this Lease, and such award and decision shall be binding upon
\nLandlord and Tenant and enforceable in a court of law. Said award and decision
\nshall include an award to the prevailing party of reasonable attorneys’ fees and
\nexpenses and costs of arbitration. In the event either party<\/p>\n
-52-
\n 58<\/p>\n
fails to appoint an arbitrator or the two arbitrators fail to select a third
\narbitrator within the time required by this paragraph, upon application of
\neither party the missing arbitrator shall be appointed by the American
\nArbitration Association, or if there be no American Arbitration Association or
\nit shall refuse to perform this function, then by the then Presiding Judge of
\nthe Superior Court of the State of California for Santa Clara County.<\/p>\n
15.17 Entire Agreement: The Lease, Exhibits “A” (Property Plan),
\n“B” (Floor Plan), “C” (Rules and Regulations), “D” (Left out Intentionally),
\n“E” (Tenant Estoppel), “F” (Janitorial Services), “G” (Net Rentable
\nMeasurement), “H” (Lease Guaranty), which are executed by Landlord and Tenant
\nconcurrently with this Lease and are attached hereto (and by this reference
\nincorporated herein), constitute the entire agreement between the parties, and
\nthere are no binding agreements or representations between the parties except as
\nexpressed herein. Tenant acknowledges that neither Landlord nor Landlord’s
\nagent(s) has made any representation or warranty as to the suitability of the
\nLeased Premises or the Common Area for the conduct of Tenant’s business or the
\ncondition of any improvements located thereon. Tenant expressly waives all
\nclaims for damage by reason of any statement, representation, warranty, promise,
\nor other agreement of Landlord or Landlord’s agent(s), if any, not contained in
\nthis Lease or in any addendum or amendment hereto. No subsequent change or
\naddition to this Lease shall be binding unless in writing and signed by the
\nparties hereto.<\/p>\n
-53-
\n 59<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease with the
\nintent to be legally bound thereby, to be effective as of the Effective Date of
\nthis Lease.<\/p>\n
AS LANDLORD:<\/p>\n
MACANAN INVESTMENTS,
\n a California limited partnership<\/p>\n
By: MACANAN FINANCIAL CORPORATION
\n a California corporation,
\n Its general partner<\/p>\n
Dated: 11\/22\/99 By \/s\/ DONALD H. MACMILLAN
\n ———- ———————————-
\n Donald H. MacMillan
\n President<\/p>\n
By \/s\/ W. JOHN BUCHANAN
\n ———————————-
\n W. John Buchanan
\n Secretary<\/p>\n
AS TENANT:<\/p>\n
BAY AREA MULTIMEDIA, INC.<\/p>\n
Dated: 11\/22\/99 By \/s\/ [SIGNATURE ILLEGIBLE]
\n ———- ———————————-<\/p>\n
Title Pres. & CEO
\n ———————————-<\/p>\n
By
\n ———————————-<\/p>\n
Title
\n —————————-<\/p>\n
-54-
\n 60<\/p>\n
SECOND FLOOR<\/p>\n
[SITE PLAN]<\/p>\n
SITE PLAN, FIRST FLOOR,
\n FIRST FLOOR PARKING<\/p>\n
[SITE PLAN]<\/p>\n
EXHIBIT “A”<\/p>\n
A-1
\n 61<\/p>\n
FOURTH FLOOR
\n [SITE PLAN]<\/p>\n
THIRD FLOOR
\n [SITE PLAN]<\/p>\n
A-2<\/p>\n
62<\/p>\n
9th Floor
\n [SITE PLAN]<\/p>\n
A-3
\n 63<\/p>\n
DIMENSION PLAN
\n [FLOOR PLAN]<\/p>\n
EXHIBIT B<\/p>\n
64<\/p>\n
EXHIBIT C
\n COMERICA BANK BUILDING
\n RULES AND REGULATIONS<\/p>\n
1. Sidewalks, halls, passages, exits, entrances, parking aisles, elevators,
\nand stairways shall not be obstructed by Tenants or used by them for any
\npurpose other than for ingress to and egress from their respective premises. The
\nhalls, passages, exits, entrances, elevators, and stairways are not for the use
\nof the general public and Landlord shall in all cases retain the right to
\ncontrol and prevent access thereto by all persons whose presence, in the
\njudgment of Landlord, shall be prejudicial to the safety, character,
\nreputation, and interests of the Building and its Tenants, provided that nothing
\nherein contained shall be construed to prevent such access to persons with whom
\nany Tenant normally deals in the ordinary course of such Tenant’s business
\nunless such persons are engaged in illegal activities. No Tenant, and no
\nemployees or invitees of any Tenant, shall go upon the roof of the building,
\nexcept as authorized by Landlord.<\/p>\n
2. No sign, placard, picture, name, advertisement, or notice, visible from
\nthe exterior of the leased premises shall be inscribed, painted, affixed,
\ninstalled, or otherwise displayed by any Tenant either on its premises or any
\npart of the building without the prior written consent of Landlord, and Landlord
\nshall have the right to remove any such sign, placard, picture, name,
\nadvertisement, or notice without notice to and at the expense of the Tenant.<\/p>\n
If Landlord shall have given such consent to any Tenant at any time, whether
\nbefore or after the execution of the lease, such consent shall in no way operate
\nas a waiver or release of any of the provisions hereof or of such lease, and
\nshall be deemed to relate only to the particular sign, placard, picture, name,
\nadvertisement, or notice so consented to by Landlord and shall not be construed
\nas dispensing with the necessity of obtaining the specific written consent of
\nLandlord with respect to any other such sign, placard, picture, name,
\nadvertisement, or notice.<\/p>\n
All approved signs or lettering on doors and walls shall be printed, painted,
\naffixed or inscribed at the expense of the Tenant by a person approved by
\nLandlord<\/p>\n
3. The bulletin board or directory of the Building will be provided
\nexclusively for the display of the name and location of Tenants only and
\nLandlord reserves the right to exclude any other names therefrom.<\/p>\n
C-1
\n 65<\/p>\n
4. No curtains, exterior draperies, blinds, shutters, shades, screens, or
\nother coverings, awnings hangings, or decorations shall be attached to, hung or
\nplaced in, or used in connection with, any window or door on any premises
\nwithout the prior written consent of Landlord. In any event with the prior
\nwritten consent of Landlord, all such items shall be installed inboard of
\nLandlord’s standard window covering and shall in no way be visible from the
\nexterior of the Building. No articles shall be placed or kept on the window
\nsills so as to be visible from the exterior of the Building. No articles shall
\nbe placed against glass partitions or doors which might appear unsightly from
\noutside Tenant’s Premises.<\/p>\n
5. Landlord reserves the right to exclude from the Building between the hours
\nof 6 pm. and 8 am. and at all hours on Saturdays, Sundays, and holidays all
\npersons who are not Tenants or their accompanied guests in the Building. Each
\nTenant shall be responsible for all persons for whom it allows to enter the
\nBuilding and shall be liable to Landlord for all acts of such persons.<\/p>\n
Landlord shall in no case be liable for damages for error with regard to the
\nadmission to or exclusion from the Building of any person.<\/p>\n
During the continuance of any invasion, mob, riot, public excitement, or other
\ncircumstance rendering such action advisable in Landlord’s opinion, Landlord
\nreserves the right to prevent access to the Building by closing the doors, or
\notherwise, for the safety of Tenants and protection of the Building and property
\nin the Building.<\/p>\n
6. No Tenant shall employ any person or persons other than the janitor of
\nLandlord for the purpose of cleaning Premises unless otherwise agreed to by
\nLandlord in writing. Except with the written consent of Landlord no person or
\npersons other than those approved by Landlord shall be permitted to enter the
\nBuilding for the purpose of cleaning the same. No Tenant shall cause any
\nunnecessary labor by reason of such Tenant’s carelessness or indifference in the
\npreservation of good order and cleanliness of the Premises. Landlord shall in no
\nway be responsible to any Tenant for any loss of property on the Premises,
\nhowever occurring, or for any damage done to the effects of any Tenant by the
\njanitor or any other employee or any other person.<\/p>\n
7. No Tenant shall obtain for use upon its Premises ice, drinking water, food,
\nbeverage, towel, or other similar services except through facilities provided by
\nLandlord (and maintained by Tenant) and under regulations fixed by Landlord, or
\naccept barbering or bootblacking services in its Premises except from persons
\nauthorized by Landlord.<\/p>\n
C-2<\/p>\n
66<\/p>\n
8. Each Tenant shall see that all doors of its Premises are closed and
\nsecurely locked and must observe strict care and caution that all water faucets
\nor water apparatus are entirely shut off before the Tenant or its employees
\nleave such Premises, and that all utilities shall likewise be carefully shut
\noff, so as to prevent waste or damage, and for any default or carelessness the
\nTenant shall make good all injuries sustained by other Tenants or occupants of
\nthe Building or Landlord. On multiple-tenancy floors, all Tenants shall keep
\nthe door or doors to the Building corridors closed at all times except for
\ningress and egress.<\/p>\n
9. As more specifically provided in the Tenant’s Lease of the Premises, Tenant
\nshall not waste electricity, water, or air-conditioning and agrees to cooperate
\nfully with Landlord to assure the most effective operation of the Building’s
\nheating and air-conditioning, and shall refrain from attempting to adjust any
\ncontrols other than room thermostats installed for Tenant’s use.<\/p>\n
10. No Tenant shall alter any lock or access device or install a new or
\nadditional lock or access device or any bolt on any door of its Premises
\nwithout the prior written consent of Landlord. If Landlord shall give its
\nconsent, the Tenant shall in each case furnish Landlord with a key for any such
\nlock.<\/p>\n
11. No Tenant shall make or have made additional copies of any keys or access
\ndevices provided by Landlord. Each Tenant, upon the termination of the Tenancy,
\nshall deliver to Landlord all the keys or access devices for the Building,
\noffices, rooms, and toilet rooms which shall have been furnished the Tenant or
\nwhich the Tenant shall have had made. In the event the loss of any keys or
\naccess devices so furnished by Landlord, Tenant shall pay Landlord therefor.<\/p>\n
12. The toilet rooms, toilets, urinals, wash bowls, and other apparatus shall
\nnot be used for any purpose other than that for which they were constructed and
\nno foreign substance of any kind whatsoever shall be thrown therein, and the
\nexpense of any breakage, stoppage, or damage resulting from the violation of
\nthis rule shall be borne by the Tenant who, or whose employees or invitees,
\nshall have caused it.<\/p>\n
13. No Tenant shall use or keep in its premises or the Building any kerosene,
\ngasoline, or inflammable or combustible fluid or material other than limited
\nquantities necessary for the operation or maintenance of office or office
\nequipment. No Tenant shall use any method of heating or air-conditioning other
\nthan that supplied by Landlord.<\/p>\n
C-3<\/p>\n
67<\/p>\n
14. No Tenant shall use, keep or permit to be used or kept in its Premises any
\nfoul or noxious gas or substance or permit or suffer such premises to be
\noccupied or used in a manner offensive or objectionable to Landlord or other
\noccupants of the Building by reason of noise, odors and\/or vibrations or
\ninterfere in any way with other Tenants or those having business therein, nor
\nshall any animals or birds be brought or kept in or about any Premises of the
\nBuilding.<\/p>\n
15. No cooking shall be done or permitted by any Tenant on its Premises (except
\nthat use by the Tenant of Underwriters’ Laboratory approved equipment including
\nmicrowave, refrigerator, and icemaker for the preparation of coffee, tea, hot
\nchocolate, and similar beverages for Tenants and their employees shall be
\npermitted, provided that such equipment and use is in accordance with all
\napplicable federal, state, and city laws, codes, ordinances, rules, and
\nregulations), nor shall Premises be used for lodging.<\/p>\n
16. Except with the prior written consent of Landlord, no Tenant shall sell, or
\npermit the sale, at retail, of newspapers, magazines, periodicals, theater
\ntickets, or any other goods or merchandise in or on any Premises, nor shall
\nTenant carry on, or permit or allow any employee or other person to carry on,
\nthe business of stenography, typewriting, or any similar business in or from any
\npremises for the service of accommodation of occupants of any other portion of
\nthe Building, nor shall the Premises of any Tenant be used for the storage of
\nmerchandise or for the manufacturing of any kind, or the business of a public
\nbarber shop, beauty parlor, nor shall the Premises of any Tenant be used for any
\nimproper, immoral, or objectionable purpose, or any business or activity other
\nthan that specifically provided for in such Tenant’s lease.<\/p>\n
17. If Tenant requires telegraphic, telephonic, burglar alarm, or similar
\nservices, it shall first obtain, and comply with, Landlord’s instructions in
\ntheir installation.<\/p>\n
18. Landlord will direct electricians as to where and how telephone, telegraph,
\nand electrical wires are to be introduced or installed. No boring or cutting for
\nwires will be allowed without the prior written consent of Landlord. The
\nlocation of burglar alarms, telephone, call boxes, and other office equipment
\naffixed to all Premises shall be subject to the written approval of Landlord.<\/p>\n
19. No Tenant shall install any radio or television antenna, loud-speaker, or
\nany other device on the exterior walls or the roof of the Building without
\nLandlord’s approval. Tenant shall not interfere with radio or television
\nbroadcasting or reception from or in the Building or elsewhere. <\/p>\n
C-4<\/p>\n
68<\/p>\n
20. No Tenant shall lay linoleum, tile, carpet, or any floor covering so that
\nthe same shall be affixed to the floor of its Premises in any manner except as
\napproved in writing by Landlord. The expense of repairing any damage resulting
\nfrom a violation of this rule or the removal of any floor covering shall be
\nborne by the Tenant by whom, or by whose contractors, employees, or invitees,
\nthe damage shall have been caused.<\/p>\n
21. No furniture, freight, equipment, materials, supplies, packages,
\nmerchandise, or other property will be received in the Building or carried up or
\ndown the elevators except between such hours and in such elevators as shall be
\ndesignated by Landlord.<\/p>\n
Landlord shall have the right to prescribe the weight, size and position of all
\nsafes, furniture, or other heavy equipment brought into the Building. Safes or
\nother heavy objects shall, if considered necessary by Landlord, stand on wood
\nstrips of such thickness as determined by Landlord to be necessary to properly
\ndistribute the weight thereof. Landlord will not be responsible for loss of or
\ndamage to any such safe, equipment, or property from any cause, and all damage
\ndone to the Building by moving or maintaining any such safe, equipment, or other
\nproperty shall be repaired at the expense of Tenant.<\/p>\n
Business machines and mechanical equipment belonging to Tenant which cause noise
\nor vibration that may be transmitted to the structure of the Building or to any
\nspace therein to such a degree as to be objectionable to Landlord or to any
\nTenants in the Building shall be placed and maintained by Tenant, at Tenant’s
\nexpense, on vibration eliminators or other devices sufficient to eliminate noise
\nor vibration. The persons employed to move such equipment in or out of the
\nBuilding must be acceptable to Landlord.<\/p>\n
22. No Tenant shall place a load upon any floor of the premises which exceeds
\nthe load per square foot which such floor was designed to carry and which is
\nallowed by law. No Tenant shall mark, or drive nails, screw or drill into, the
\npartitions, woodwork, or plaster or in any way deface such Premises or any part
\nthereof.<\/p>\n
23. No Tenant shall install, maintain, or operate upon the Premises any vending
\nmachine without the written consent of Landlord.<\/p>\n
24. There shall not be used in any space, or in the public areas of the
\nBuilding, either by any Tenant or others, any hand trucks except those equipped
\nwith rubber tires and side guards or such other material-handling equipment as
\nLandlord may approve. No other vehicles of any kind shall be brought by any
\nTenant into or kept in or about the Premises.<\/p>\n
C-5<\/p>\n
69<\/p>\n
25. Each Tenant shall store all its trash and garbage within the interior of
\nits Premises. No material shall be placed in the trash boxes or receptacles if
\nsuch material is of such nature that it may not be disposed of in the ordinary
\nand customary manner of removing and disposing of trash and garbage in the city
\nwithout violation of any law or ordinance governing such disposal. All trash,
\ngarbage, and refuse disposal shall be made only through entryways and elevators
\nprovided for such purposes and at such times as Landlord shall designate.<\/p>\n
26. Canvassing, soliciting, distribution of handbills, or any other written
\nmaterial, and peddling in the Building are prohibited and each Tenant shall
\ncooperate to prevent the same. No Tenant shall make room-to-room solicitation of
\nbusiness from other Tenants in the Building.<\/p>\n
27. Landlord reserves the right to exclude or expel from the Building any
\nperson who, in Landlord’s judgment, is intoxicated or under the influence of
\nliquor or drugs or who is in violation of any of the rules and regulations of
\nthe Building.<\/p>\n
28. Without the prior written consent of Landlord, Tenant shall not use the
\nname of the Building or a photograph or any other form of representation of the
\nBuilding in connection with or in promoting or advertising the business of
\nTenant except as a portion of Tenant’s address.<\/p>\n
29. Tenant shall comply with all safety, fire protection, and evacuation
\nprocedures and regulations established by Landlord or any governmental agency.<\/p>\n
30. Tenant assumes any and all responsibility for protecting its Premises from
\ntheft, robbery, and pilferage, which includes keeping doors locked and other
\nmeans of entry to the Premises closed.<\/p>\n
31. The requirements of Tenants will be attended to only upon application at
\nthe office of the Building by an authorized individual. Employees of Landlord
\nshall not perform any work or do anything outside of their regular duties unless
\nunder special instructions from Landlord, and no employees will admit any person
\n(Tenant or otherwise) to any office without specific instructions from Landlord.<\/p>\n
32. Landlord may waive any one or more of these Rules and Regulations for the
\nbenefit of any particular Tenant or Tenants, but no such waiver by Landlord
\nshall be construed as a waiver of such Rules and Regulations in favor of any
\nother Tenant or Tenants, nor prevent Landlord from thereafter enforcing any such
\nRules and Regulations against any or all Tenants of the Building.<\/p>\n
C-6<\/p>\n
70<\/p>\n
33. Landlord reserves the right to make such other and reasonable rules and
\nregulations as in its judgment may from time to time be needed for safety and
\nsecurity, for care and cleanliness of the Building and for the preservation of
\ngood order therein. Tenant agrees to abide by all such Rules and Regulations
\nherein above stated and any additional Rules and Regulations which are adopted.<\/p>\n
34. Tenant agrees to abide by any special Parking Rules and Regulations
\nimposed by the Landlord such as, but not limited to, the following:<\/p>\n
a. Landlord reserves the right to designate the use of the parking spaces
\n on the Premises, subject to the lease provisions.<\/p>\n
b. Tenant or Tenant’s guests shall park between designated parking lines
\n only, and shall not occupy two spaces with one car. Vehicles in
\n violation of the above shall be subject to tow-away, at vehicle
\n owner’s expense.<\/p>\n
c. Vehicles parked on Premises overnight without prior written consent of
\n the Landlord shall be deemed abandoned and shall be subject to
\n tow-away at vehicle owner’s expense.<\/p>\n
35. Tenant shall use carpet protector under all desk chairs.<\/p>\n
36. Tenant shall be responsible for the observance of all of the foregoing
\nRules and Regulations by Tenant’s employees, clients, customers, invitees, and
\nguests.<\/p>\n
37. Tenant agrees to move in and\/or move out of the building only on weekends
\nunless Landlord has specifically approved other arrangements. Tenant shall
\nrequest such moving approval in writing at least five (5) days in advance.<\/p>\n
38. Any light bulbs or tubes other than those fluorescent tubes used in
\nbuilding standard ceiling fixtures shall be changed and paid for by Landlord,
\nbut the cost of the lamps or bulbs shall be back charged to Tenant and paid for
\nby Tenant. Desk lights or free standing lamps will not be changed by Landlord
\nnor will Landlord stock light bulbs for them.<\/p>\n
39. These Rules and Regulations are in addition to, and shall not be construed
\nto in any way modify, alter, or amend, in whole or in part, the terms,
\ncovenants, agreements, and conditions of any Lease of Premises in the Building.
\nThe word “Building” as used herein is defined in the above mentioned Lease and
\nis commonly referred to as the Comerica Bank Building, of which the Premises are
\npart.<\/p>\n
C-7<\/p>\n
71<\/p>\n
COMERICA BANK BUILDING HOURS<\/p>\n
1. BUILDING HOURS (Doors Open)<\/p>\n
M – F – 5:00 a.m. – 7:00 p.m.
\n Sat. – 7:00 a.m. – 12:00 noon
\n Sun. – Closed<\/p>\n
Building is accessible after normal operating hours by a check in and out
\nprocedure with the security guard.<\/p>\n
2. HVAC HOURS<\/p>\n
M – F – 7:00 a.m. – 7:00 p.m.
\n Sat. – 7:00 a.m. – 12:00 noon
\n Sun. – None
\n Note – Circulation 24 hours per day<\/p>\n
Computer controlled system permits HVAC use at election of and cost to
\n the tenant by use of manual override switch in suites.<\/p>\n
3. SECURITY HOURS<\/p>\n
(Building is open to Tenants and Tenants’ guests at all times during
\n security hours, provided rules are properly followed.)<\/p>\n
M – F – 5:00 p.m. – 7:00 a.m.
\n Sat. – 24 hours
\n Sun. – 24 hours
\n Holidays – 24 hours<\/p>\n
4. ELEVATOR HOURS<\/p>\n
M – F – 6:00 a.m. – 7:00 p.m.
\n Sat. – 7:00 a.m. – 12:00 noon
\n Sun. and other hours – Elevators to all floors with return to 1st floor
\n guard station for entry and exit.<\/p>\n
5. VISITOR PARKING ATTENDANT HOURS<\/p>\n
Short Term: M – F – 7:00 a.m. – 7:00 p.m.
\n Sat. – 7:00 a.m. – 12:00 noon<\/p>\n
Long Term: M – F – 7:00 a.m. – 7:00 p.m.
\n Sat. – Closed<\/p>\n
All after hour incoming parking must use short term parking area.<\/p>\n
6. LONG TERM PARKING – DOOR OPEN<\/p>\n
M – F – 5:00 a.m.- 7:00 p.m.
\n Sat. – Closed
\n Sun. – Closed<\/p>\n
Any tenant using long term parking after hours can exit by inserting
\n parking card in card reader which will activate the roll up gate to
\n permit exit.<\/p>\n
C-8<\/p>\n
72<\/p>\n
TENANT ESTOPPEL CERTIFICATE<\/p>\n
This Certificate is given to GMAC Commercial Mortgage Corporation, its
\nsuccessors and\/or assigns (collectively the “Lender”), by Bay Area Multimedia,
\nInc. (“Tenant”), with the understanding that Lender and its counsel will rely on
\nthis Certificate in connection with a proposed mortgage loan (the “Loan”) on the
\nComerica Bank Building, 333 W. Santa Clara Street, San Jose, Santa Clara County,
\nCalifornia (the “Property”). Tenant hereby certifies as follows:<\/p>\n
1. The undersigned is the Tenant under that certain lease dated November
\n15. 1999 (the “Lease”) executed by Macanan Investments (“Landlord”), as
\nlandlord and Tenant as tenant.<\/p>\n
2. Pursuant to the Lease, Tenant has leased space in the Property
\nconsisting of approximately Two thousand, one hundred eighteen leasable square
\nfeet (the “Premises”); the commencement date of the term of the Lease is
\nJanuary 1, 2000; the expiration date of the term of the Lease is December 31,
\n2003; the fixed annual minimum rent is $69,900.00, payable monthly in advance on
\nthe first day of each calendar month; the next rental payment in the amount of
\n$5,825.00 is due on February 1, 2000; no rent has been prepaid except for the
\ncurrent month, and Tenant agrees not to pay rent more than one month is advance
\nat any time; and Tenant has paid a security deposit of $5,825.00 in connection
\nwith the Lease.<\/p>\n
3. Tenant does not have any right or option to renew or extend the term
\nof the Lease or to expand into any additional space or to terminate the Lease
\nin whole or in part prior to the expiration of the term except as set forth
\nbelow in this paragraph.<\/p>\n
NONE<\/p>\n
4. The Lease has been duly executed and delivered by, and is a binding
\nobligation of, Tenant, and the Lease is in full force and effect. The Lease is
\nthe entire agreement between Landlord (or any affiliated party) and Tenant (or
\nany affiliated patty) pertaining to the Premises. Except as set forth below in
\nthis paragraph, there are no amendments, modifications, supplements,
\narrangements, side letters or understandings, oral or written, of any sort,
\nmodifying, amending, altering, supplementing or changing the terms of the Lease.<\/p>\n
NONE<\/p>\n
5. Tenant has unconditionally accepted the Premises and is satisfied with
\nall the work done by and required of Landlord; Tenant has taken possession of
\nthe Premises and is in occupancy thereof; rent payments have commenced, and all
\ntenant improvements in the Premises have been completed by Landlord in
\naccordance with plans and specifications approved by Tenant; and as of the date
\nhereof Tenant is not aware of any defect in the Premises.<\/p>\n
6. Except as set forth in this paragraph, Landlord has satisfied all
\ncommitments made to induce Tenant to enter into the Lease; there are no offsets
\nor credits against rentals payable under the Lease; no free periods of rent,
\ntenant improvements, contributions or other concessions have been granted to
\nTenant; Landlord is not reimbursing Tenant or paying Tenant’s rent obligations
\nunder any other lease; and Tenant has not advanced any funds for or on behalf of
\nLandlord for which Tenant has the right to deduct from future rent payments.<\/p>\n
7. All obligations of Landlord under the Lease have been performed, and
\nno event has occurred and no condition exists that, with the giving of notice or
\nlapse of time or both, would constitute a default by Landlord under the Lease.
\nThere are no offsets or defenses that Tenant has against the full enforcement of
\nthe Lease by Landlord<\/p>\n
E-1<\/p>\n
73<\/p>\n
8. Tenant is not in any respect in default under the Lease and has not
\nassigned, transferred or hypothecated the Lease or any interest therein or
\nsubleased all or any portion of the Premises. Tenant is not insolvent and is
\nable to pay its debts as they mature. Tenant has not declared bankruptcy or
\nfiled a petition seeking to take advantage of any law relating to bankruptcy,
\ninsolvency, reorganization, winding-up or composition or adjustment of debts,
\nTenant has no present intentions of doing so, and no such proceeding has been
\ncommenced against Tenant seeking such relief, and Tenant has no knowledge that
\nany such proceeding is threatened.<\/p>\n
9. Tenant does not have any right or option to purchase all or any part
\nof the real property of which the Premises constitute a part.<\/p>\n
10. Tenant agrees that no future modifications or amendment of the Lease
\nwill be enforceable unless the modification or amendment has been consented to
\nin writing by the Lender.<\/p>\n
11. Tenant has no notice of any assignment of the Lease by the Landlord,
\nor any assignment, hypothecation or pledge of rents accruing under the Lease by
\nthe Landlord.<\/p>\n
12. Tenant further agrees that, from and after the date hereof until
\nTenant has received notice to pay rent directly to the Lender, the Tenant will
\nnot pay any rent under the Lease more than 30 days in advance of its due date
\nand will not assign or sublet its interest in the Premises or any portion
\nthereof or make or cause to be made any additions, alterations or improvements
\nto the Premises except as expressly permitted under the Lease without the prior
\nwritten consent of the Landlord and Lender. The undersigned will not surrender
\nor consent to the modification of any of the terms of the Lease by the Lessor
\nwithout the prior written consent of the Lender. The Tenant will not seek to
\nexercise any right it may have under the Lease to terminate the Lease or
\nwithhold rent or other payments due under the Lease by reason of any act or
\nomission of the Landlord until a reasonable period of time shall have elapsed
\nfollowing the giving of such notice, during which period Lender shall have the
\nright, but shall not be under any obligation to remedy such act or omission.<\/p>\n
13. Tenant acknowledges that Lender intends to fund a loan (the “Loan”) to
\nLandlord relating to the Premises. Tenant hereby acknowledges and agrees that
\nTenant’s rights under the Lease, at Lender’s sole option, shall be subject and
\nsubordinate to Lender’s rights under any mortgage, deed of trust or similar
\nagreement given Landlord in connection with the Loan, subject however to the
\nagreement of Lender by performance of any other terms of the Lease. Tenant’s
\noccupancy of the Leased Premises will not be disturbed by Lender in the event of
\nforeclosure of such lien. Tenant, at Lender’s sole option, shall attorn to and
\naccept performance by Lender of any covenant, agreement or obligation of
\nLandlord contained in the Lease with the same force and effect as if performed
\nby Landlord.<\/p>\n
14. Tenant agrees to provide copies of all notices given Landlord under
\nthe Lease or this instrument to Lender at the following address: <\/p>\n
GMAC Commercial Mortgage
\n P.O. Box 1015
\n Horsham, PA 19044-8015
\n Attention: Doug Gray<\/p>\n
Or such other address as Lender shall designate in writing; and all such notices
\nshall be in writing and shall be considered as properly given if (i) mailed to
\nthe addressee by first class United States mail, postage prepaid, registered or
\ncertified with return receipt requested, (ii) by delivering same in person to
\nthe addressee, or (iii) by delivery to a third party commercial delivery service
\nfor same day or next day delivery to the office of the address with proof of
\ndelivery; any notice so given shall be effective, as applicable, upon (a) the
\nthird (3rd) day following the day such notice is deposited with the United
\nStates mail, (b) delivery to the addressee, or (c) upon delivery to such third
\nparty delivery service; and any notice given in any other manner shall be
\neffective only if and when received by the addressee.<\/p>\n
15. The person executing this Tenant Estoppel Certificate is authorized by
\nTenant to do so and execution hereof is the binding act of Tenant enforceable
\nagainst Tenant.<\/p>\n
E-2<\/p>\n
74<\/p>\n
Dated: Nov. 22, 1999 TENANT: Bay Area Multimedia, Inc.<\/p>\n
By: \/s\/ RAYMOND MUSCI
\n ——————————-<\/p>\n
Name: Raymond Musci<\/p>\n
Title: President & CEO<\/p>\n
E-3<\/p>\n
75<\/p>\n
Exhibit F<\/p>\n
COMERICA DANK BUILDING<\/p>\n
STANDARD JANITORIAL SERVICES<\/p>\n
Nightly (Monday-Friday)<\/p>\n
1. Empty and wipe clean all ashtrays and wastepaper baskets and any other
\n trash receptacles.<\/p>\n
2. Dust tops of cabinets, desks, credenzas, conference room tables, all
\n chairs, office equipment, and telephones. <\/p>\n
3. Vacuum all carpeted areas. Simple spot cleaning.<\/p>\n
4. Sweep and\/or dry mop all hard surface floor areas. Simple spot cleaning.<\/p>\n
5. Clean and polish all drinking fountains and coolers. Empty waste water.<\/p>\n
6. Sweep and dust all private stairways,<\/p>\n
7. Clean all restrooms, sanitize all fixtures, replenish all sanitary supplies
\n (sanitary supplies in private, tenant restrooms will be charged back to
\n tenant).<\/p>\n
8. Main lobby, all elevator lobbies, and all elevators are to be kept in a
\n neat and orderly fashion. All ceramic tile, granite, and terrazzo flooring
\n to be wet mopped.<\/p>\n
Weekly<\/p>\n
1. Detail vacuuming of all carpeted areas.<\/p>\n
2. Spot clean furniture tops (entire desk to be cleaned if all items are
\n removed).<\/p>\n
3. Dust all window sills, picture frames, and miscellaneous items such as
\n chalk rails, etc.<\/p>\n
Monthly<\/p>\n
Dust all door jams, high partitions, and ledges.<\/p>\n
Quarterly<\/p>\n
1. Vacuum all fabric furniture.<\/p>\n
2. Dust return air vents and light diffusers.<\/p>\n
3. Wash partition glass (not obstructed).<\/p>\n
As Needed<\/p>\n
1. Steam clean all soiled carpeted areas.<\/p>\n
2. Machine scrub and polish all hard surface floor areas.<\/p>\n
3. Clean all interior butted glass, including TVS glass (main lobby).<\/p>\n
Window cleaning<\/p>\n
1. Tower windows inside and out – spring, summer, and fall.<\/p>\n
2. 1st and 2nd floor windows inside and out – once every other month.<\/p>\n
Janitorial Follow-up Procedures<\/p>\n
Special request forms for janitorial (also for mechanical, electrical, plumbing,
\netc.) problems may be obtained from building management office.<\/p>\n
Janitorial Hours<\/p>\n
Building janitors shall have access to leased premises between the hours of 6:00
\npm. and 2:00 am. (Any special janitorial hours requested by tenant other than
\nnoted will be at extra cost to tenant.)<\/p>\n
F-1<\/p>\n
76<\/p>\n
EXHIBIT G<\/p>\n
Net Rentable Measurement Definition<\/p>\n
Outside walls – Measure to inside of outside wall at floor level.<\/p>\n
Corridor walls – Measure to corridor side of corridor wall.<\/p>\n
All other walls – Center to center measurement.<\/p>\n
Full floor tenant – Measure per above, subtract elevators, air conditioning
\n ducts, stairways.<\/p>\n
Partial floor tenant – Measure per full floor tenant minus rest-rooms, corridor,
\n and electrical\/janitorial rooms.<\/p>\n
G-1<\/p>\n
77<\/p>\n
LEASE GUARANTY<\/p>\n
This Lease Guaranty (“Guaranty”) is executed this 15 day of November, 1999
\nby Ray Musci (“Guarantor”) in favor of Macanan Investments, a California general
\npartnership (“Lessor”).<\/p>\n
RECITALS<\/p>\n
A. Lessor bas entered into a lease (the “Lease”) with Bay Area
\nMultimedia, Inc. (“Lessee”), dated November 15, 1999 whereby Lessee has leased
\nfrom Lessor approximately the real property located at 333 W. Santa Clara
\nStreet, Suite 930, San Jose, CA 95113 more particularly described in the Lease
\n(the “Premises”).<\/p>\n
B. Pursuant to the terms, conditions and provisions of the Lease, Lessee
\nis and will be subject to certain obligations, agreements, duties and covenants
\n(collectively “Lessee’s obligations”).<\/p>\n
C. Lessor has requested that Guarantor guarantee to Lessor the punctual
\nand full performance and observance of all of Lessee’s Obligations and, but
\nfor Guarantor’s agreement to so guarantee Lessee’s Obligations, Lessor would not
\nenter into the Lease.<\/p>\n
D. It is the intent of Guarantor that Guarantor shall be subject at all
\ntimes to this Guaranty and be and remain liable to Lessor to the same extent as
\nif it were jointly and severally liable with Lessee to Lessor for the full
\nperformance of all the terms, conditions and provisions of the Lease.<\/p>\n
NOW, THEREFORE, for good and valuable consideration, the receipt of which
\nis acknowledged, and as a material inducement to and in consideration of Lessor
\nentering into the Lease with Lessee, Guarantor hereby covenants and agrees as
\nfollows:<\/p>\n
ARTICLE 1
\n CONTINUING GUARANTY<\/p>\n
Guarantor absolutely and unconditionally guarantees to Lessor, its
\nsuccessors and assigns, the full and prompt performance of all of Lessee’s
\nObligations including but not limited to the payment when due of all rents,
\ncharges of additional sums coming due under the Lease, and the performance of
\nall covenants and agreements of the Lessee contained in the Lease. Guarantor
\nfurther unconditionally guarantees the full and prompt payment of all damages
\nthat may arise or be incurred by Lessor, its successors and assigns as the
\nconsequence of Lessee’s failure to perform any of Lessee’s Obligations.
\nGuarantor unconditionally further agrees to pay all expenses, including
\nattorneys’ fees and legal expenses, paid or incurred by Lessor in endeavoring to
\ncollect or enforce Lessee’s Obligations or any part thereof. Such payment and
\nperformance is to be made or performed by Guarantor forthwith upon a default by
\nLessee. Guarantor agrees that this Guaranty arises out of the conduct of a
\ntrade, business or profession.<\/p>\n
H-1<\/p>\n
78<\/p>\n
In the event of the dissolution, bankruptcy or insolvency of Lessee, or the
\ninability of Lessee to pay debts as they mature, or an assignment by Lessee for
\nthe benefit of creditors, or the institution of any bankruptcy or other
\nproceedings by or against Lessee alleging that Lessee is insolvent or unable to
\npay debts as they mature, or Lessee’s default under the Lease, and if such event
\nshall occur at a time when any of Lessee’s Obligations may not then be due and
\npayable, Guarantor agrees to pay to Lessor upon demand, the full amount which
\nwould be payable hereunder by Guarantor if all Lessee’s Obligations were then
\ndue and payable.<\/p>\n
This Guaranty shall be an absolute and unconditional guaranty and shall
\nremain in full force and effect as to Guarantor for the full term of the Lease
\nany extensions thereof. Notwithstanding termination of the Lease, Guarantor
\nshall continue to be liable for all Lessee’s Obligations which have accrued up
\nto and including the date of termination.<\/p>\n
Guarantor covenants and agrees that it shall not be released from the
\nobligations of this Guaranty, nor shall such obligations be diminished or
\notherwise affected by (a) any extension of time or other indulgence granted to
\nLessee or other guarantors, or by a waiver with respect to Lessee’s Obligations
\nor any of them, (b) any assignment of the Lease or any subletting of the all or
\nany portion of the Premises, (c) any amendment or modification of the Lease
\n(except to the extent such amendment or modification affects Lessee’s
\nObligations) or (d) any other act or omission of Lessor other than a written
\nwaiver.<\/p>\n
ARTICLE 2
\n LESSOR’S RIGHT TO ADDITIONAL SECURITY<\/p>\n
Lessor may, from time to time, without notice to Guarantor and without the
\nnecessity of Guarantor consenting thereto: (a) retain or obtain the primary or
\nsecondary liability of any third party or parties, in addition to Guarantor,
\nwith respect to any of Lessee’s Obligations, (b) retain or obtain security
\ninterests in any property owned by any third parties to secure any of Lessee’s
\nObligations, (c) extend or renew for any period (whether or not longer than the
\noriginal period), alter or exchange the Lease or any of Lessee’s Obligations,
\n(d) release, waive or compromise any liability of Guarantor or any liability of
\nany other party or parties primarily or secondarily liable on any of Lessee’s
\nObligations, (e) release or impair any security interest or lien, if any, in all
\nor any property securing any of Lessee’s Obligations or any obligation of
\nGuarantor and permit any substitution or exchange for any such property, and (f)
\nresort to Guarantor for payment of any of Lessee’s obligations, whether or not
\nLessor shall have resorted to any property securing any of Lessee’s Obligations
\nor any obligation of Guarantor or shall have proceeded against Lessee or any
\nother party primarily or secondarily liable on any of Lessee’s Obligations. No
\nsuch action or failure to act by Lessor shall affect Guarantor’s liability
\nhereunder in any manner whatsoever. Any amount received by Lessor from any
\nsource and applied by Lessor toward the payment of Lessee’s Obligations shall be
\napplied in such order of application as Lessor may from time to time elect.<\/p>\n
H-2<\/p>\n
79<\/p>\n
ARTICLE 3
\n WAIVER BY GUARANTOR<\/p>\n
Guarantor hereby expressly waives: (a) notice of the acceptance of this
\nGuaranty, (b) notice of the existence, creation, amount, modification,
\namendment, alteration or extension of the Lease or all or any of Lessee’s
\nObligations, whether or not such notice is required to be given to Lessee under
\nthe terms of the Lease, (c) presentment, demand, notice of dishonor, protest,
\nand all other notices whatsoever, (d) the benefit of any statute of limitations
\navailable to Lessee or Guarantor to the fullest extent such waiver is available
\nby law, (e) any benefit of valuation, appraisement, homestead or other exemption
\nlaw, now or hereafter in effect in any jurisdiction in which enforcement of this
\nGuaranty is sought, and (f) all diligence in collection, perfection or
\nprotection of or realization upon any of Lessee’s Obligations any obligation of
\nGuarantor hereunder, or any security for any of the foregoing.<\/p>\n
ARTICLE 4
\n NONWAIVER BY LESSOR<\/p>\n
No delay on the part of Lessor in the exercise of any right or remedy
\neither as to Lessee or as to Guarantor shall operate as a waiver thereof, and no
\nfinal or partial exercise by Lessor of any right or remedy shall preclude other
\nor further exercises thereof or the exercises of any other right or remedy. The
\nvalidity of this Guaranty and the obligations of Guarantor hereunder shall not
\nbe terminated, affected or impaired by reason of any action which Lessor may
\ntake or fail to take against Lessee or other guarantors nor by reason of any
\nwaiver of, or failure to enforce any of the rights or remedies reserved to
\nLessor in the Lease, or otherwise, nor by reason of the bankruptcy, insolvency
\nor inability to pay debts as they mature of Lessee and whether or not the term
\nof the Lease shall terminate by reason of such bankruptcy, insolvency or
\ninability to pay debts as they mature.<\/p>\n
ARTICLE 5
\n NOTICES<\/p>\n
Guarantor agrees that any notice or demand upon it shall be deemed
\nsufficiently given or served if in writing and either personally delivered or
\nmailed by overnight mail or by United States Mail, certified or registered,
\nreturn receipt requested, addressed to Guarantor at:<\/p>\n
ARTICLE 6
\n GENERAL PROVISIONS<\/p>\n
6.1 Binding on Successors. This Guaranty shall be binding upon Guarantor,
\nits successors and assigns.<\/p>\n
6.2 Choice of Law and Choice of Forum. This Guaranty shall be governed by
\nthe laws of the State of California. Guarantor consents to the jurisdiction of
\nthe courts of the State of California and agrees that any action arising from
\nthis Guaranty shall be brought in Santa Clara County, California or in the
\nUnited States District Court which has jurisdiction of Santa Clara County,
\nCalifornia.<\/p>\n
H-3<\/p>\n
80<\/p>\n
6.3 Attorneys’ Fees. In the event of any controversy, claim, dispute or
\naction to this Guaranty, the prevailing party shall be entitled to recover
\nreasonable attorneys’ fees an expenses in addition to all other available
\nremedies. “Prevailing party” shall mean the party which obtains substantially
\nthe relief sought by it in the controversy, claim, dispute or action.<\/p>\n
6.4 Amendment. This Guaranty may by amended only by written agreement
\nsigned by Lessor and Guarantor.<\/p>\n
6.5 All previous negotiations and agreements by and between the parties
\nand their agents with respects to this transaction are merged into this
\nGuaranty which completely sets forth the obligations of the parties.<\/p>\n
6.6 Interpretation. The captions and headings in this Guaranty are for
\nreference and convenience only and shall not limit or expand the meaning of the
\nprovisions of this Guaranty.<\/p>\n
6.7 Severability. If any provision of this Guaranty or of any document
\ncontemplated hereby shall be invalid, such invalid provision shall be severable,
\nand such invalidity shall not impair the validity of any other provision of
\nthis Guaranty or of any document contemplated hereby.<\/p>\n
6.8 Joint and Several. If this Guaranty is executed on behalf of Guarantor
\nby more than one person or entity, each person or entity executing this Guaranty
\nshall be jointly and severally liable, and Lessor shall have the right to join
\none or all of them in any proceeding or to proceed against them in any order,
\nand to settle or compromise any of Lessor’s rights as against any Guarantor.<\/p>\n
GUARANTOR:<\/p>\n
By: \/s\/ RAYMOND MUSCI
\n ————————————<\/p>\n
Title: President & CEO – Bay Area Multimedia, Inc.<\/p>\n
By:
\n ————————————<\/p>\n
Title:
\n ————————————<\/p>\n
H-4<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6843],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9583,9579],"class_list":["post-41718","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bam-entertainment-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41718","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41718"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41718"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41718"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41718"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}