\n December 1, 1996- 31,699 x $1.35 =$42,793.65
\n December 31, 1996<\/p>\n January 1, 1997- 45,118 x $1.35 =$60,909.30
\n November 30, 1997<\/p>\n
December 1, 1997- Monthly Base Rent to be increased in
\n November 30, 2001 accordance with the Consumer Price
\n Index Price (see Paragraph 4(a) of
\n the Lease)
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Prepaid Base Rent: Forty Two Thousand Seven Hundred Ninety-Three and
\n 65\/100 Dollars ($42,793.65)<\/p>\n
Month to which Prepaid
\n Base Rent and Additional
\n Rent will be Applied: First (1st) month of the Term following the
\n Initial Premises Commencement Date<\/p>\n
Security Deposit: Seventy One Thousand Two Hundred Fifty-Five
\n and 27\/100 Dollars ($71,255.27)<\/p>\n
Permitted Use: General office use for software development<\/p>\n
Unreserved Parking
\n Spaces:<\/p>\n
Prior to occupancy of One hundred eighteen (118) nonexclusive and
\n Subsequent Premises: undesignated parking spaces<\/p>\n
From and after occupancy One hundred sixty-eight (168) nonexclusive and
\n of Subsequent Premises: undesignated parking spaces<\/p>\n
Brokers: Randy Arfillaga and Mark Daschbach of Cornish & Carey Commercial (Landlord’s Broker)<\/p>\n
Phil Mahoney and Terry Haught of Cornish & Carey
\n Commercial (Tenant’s Broker)<\/p>\n
vi<\/p>\n
LEASE AGREEMENT<\/p>\n
THIS LEASE AGREEMENT is made and entered into by and between Landlord and
\nTenant on the Lease Date. The defined terms used in this Lease which are defined
\nin the Basic Lease information attached to this Lease Agreement (“Basic Lease
\nInformation”) shall have the meaning and definition given them in the Basic
\nLease information. The Basic Lease Information, the exhibits, the addendum or
\naddenda described in the Basic Lease Information, and this Lease Agreement are
\nand shall be construed as a single instrument and are referred to herein as the
\n“Lease”.<\/p>\n
1. DEMISE<\/p>\n
In consideration for the rents and all other charges and payments payable
\nby Tenant, and for the agreements, terms and conditions to be performed by
\nTenant in this Lease, LANDLORD DOES HEREBY LEASE TO TENANT, AND TENANT DOES
\nHEREBY HIRE AND TAKE FROM LANDLORD, the Initial Premises and the Subsequent
\nPremises (individually or collectively, as applicable, the “Premises”), upon the
\nagreements, terms and conditions of this Lease for the Term hereinafter stated.<\/p>\n
2. PREMISES<\/p>\n
The Premises demised by this Lease is located in that certain building
\n(the “Building”) specified in the Basic Lease Information, which Building is
\nlocated in that certain real estate development (the “Project”) specified in the
\nBasic Lease Information. The Premises has the address and contains the square
\nfootage specified in the Basic Lease Information. The location and dimensions of
\nthe Initial Premises and the Subsequent Premises are depicted on Exhibit A,
\nwhich is attached hereto and incorporated herein by this reference. Tenant shall
\nhave the non-exclusive right (in common with the other tenants, Landlord and any
\nother person granted use by Landlord) to use the Common Areas (as hereinafter
\ndefined), excluding, however, the parking areas, together with a license to use
\nthe number of non-exclusive and undesignated parking spaces set forth in the
\nBasic Lease Information in the Building or Project’s parking areas; provided,
\nhowever, that Landlord shall not be required to enforce Tenant’s right to use
\nsuch parking spaces; and, provided further, that the number of parking spaces
\nallocated to Tenant hereunder shall be reduced on a proportionate basis in the
\nevent any of the parking spaces in the Building or Project’s parking areas are
\ntaken or otherwise eliminated as a result of any Condemnation (as hereinafter
\ndefined) or casualty event affecting such parking areas. No easement for light
\nor air is incorporated in the Premises. For purposes of this Lease, the term
\n“Common Areas” shall mean all areas and facilities outside the Premises and
\nwithin the exterior boundary line of the Project that are provided and
\ndesignated by Landlord for the non-exclusive use of Landlord, Tenant and other
\ntenants of the Project and their respective employees, guests and invitees.<\/p>\n
1<\/p>\n
Landlord has the right, in its sole discretion, from time to time, to (a)
\nmake changes to the Common Areas, including, without limitation, changes in the
\nlocation, size, shape and number of driveways, entrances, parking spaces,
\nparking areas, ingress, egress, direction of driveways, entrances, corridors and
\nwalkways; (b) close temporarily any of the Common Areas for maintenance purposes
\nso long as reasonable access to the Premises remains available; (c) add
\nadditional buildings and improvements to the Common Areas or remove existing
\nbuildings or improvements therefrom; (d) use the Common Areas while engaged in
\nmaking additional improvements, repairs or alterations to the Project or any
\nportion thereof; and (e) do and perform any other acts or make any other
\nchanges in, to or with respect to the Common Areas and the Project as Landlord
\nmay, in its sole discretion, deem to be appropriate. Notwithstanding the
\nforegoing, in no event shall such changes (i) materially reduce parking
\navailable to Tenant or Tenant’s customers, (ii) materially interfere with
\nTenant’s use of the Premises, (iii) unreasonably and materially impair customer
\naccess to or visibility of the Premises.<\/p>\n
3. TERM<\/p>\n
The term of this Lease (the “Term”) with respect to each of the Initial
\nPremises and the Subsequent Premises shall commence on the date (the
\n“Commencement Date”) Landlord delivers possession of the respective Premises to
\nTenant for the commencement or business operations; provided, however, that
\nTenant shall not be deemed to have commenced business operations in the Initial
\nPremises for purposes of this Paragraph 3 if Tenant enters upon the Initial
\nPremises for the sole purpose of installing its fixtures and equipment and
\npreparing the Initial Premises for Tenant’s business operations in accordance
\nwith Paragraph 8(c) below.<\/p>\n
The date on which the Term commences with respect to the Initial Premises
\nshall be hereinafter referred to as the “initial Premises Commencement Date.”
\nThe date on which the Term commences with respect to the Subsequent Premises
\nshall be hereinafter referred to as the “Subsequent Premises Commencement Date.”
\nIn the event the actual Commencement Date of this Lease with respect to either
\nthe Initial Premises or the Subsequent Premises, as determined pursuant to the
\nforegoing, is a date other than the Estimated Commencement Date for the
\nrespective Premises specified in the Basic Lease Information, then Landlord and
\nTenant shall promptly execute a Commencement and Expiration Date Memorandum in
\nthe form attached hereto as Exhibit B, wherein the parties shall specify the
\nCommencement Date of the respective Premises and the Expiration Date. The Term
\nshall expire with respect to the Initial Premises and the Subsequent Premises on
\nthe fifth (5th) anniversary of the Initial Premises Commencement Date (the
\n“Expiration Date”).<\/p>\n
2<\/p>\n
4. RENT<\/p>\n
(a) Base Rent. Tenant shall pay to Landlord, in advance on the first day
\nof each month, without further notice or demand and without offset or deduction,
\nthe monthly installments of rent specified in the Basic Lease Information (the
\n“Base Rent”).<\/p>\n
The Base Rent under this Paragraph 4(a) shall be adjusted, as stated
\nbelow, on each anniversary of the Commencement Date of this Lease to reflect
\npercentage increases in the cost of living. The Consumer Price Index (U.S.
\nDepartment of Labor Consumer Price Index (all items) for Urban Wage Earners and
\nClerical Workers, San Francisco Bay Area (1982-1984= 100), hereinafter referred
\nto as the “Index”) published for the month immediately preceding such adjustment
\ndate (“Adjustment Index”) and the Index published for the month immediately
\npreceding the Commencement Date of this Lease (“Base Index”) Shall be compared
\nand the percentage difference between the Adjustment Index and the Base Index
\nshall be determined. The initial Base Rent specified in the Basic Lease
\nInformation shall be increased by adding to said initial Base Rent the
\npercentage amount of said initial Base Rent equal to the percentage difference
\nbetween the Base Index and the Adjustment Index; provided, however, in no event
\nshall the initial Base Rent hereunder be increased by less than four percent
\n(4%) or more than seven percent (7%) for any one year. When the adjusted Base
\nRent is determined after each adjustment date, Landlord shall give Tenant
\nwritten notice indicating the amount thereof and the method of computation. If
\nthe Consumer Price Index is changed or discontinued, Landlord shall substitute
\nan official index published by the Bureau of Labor Statistics or its successor
\nor similar governmental agency as may then be in existence and shall be most
\nnearly equivalent thereto.<\/p>\n
Upon execution of this Lease, Tenant shall pay to Landlord the
\nPrepaid Base Rent specified in the Basic Lease Information and first monthly
\ninstallment of estimated Additional Rent (as hereinafter defined) to be applied
\ntoward Base Rent and Additional Rent for the month of the Term specified in the
\nBasic Lease Information.<\/p>\n
(b) Additional Rent. This Lease is intended to be a triple-net Lease with
\nrespect to Landlord; and subject to Paragraph 13(b) below, the Base Rent owing
\nhereunder is (1) to be paid by Tenant absolutely net of all costs and expenses
\nrelating to Landlord’s ownership and operation of the Project and the Building,
\nand (2) not to be reduced, offset or diminished, directly or indirectly, by any
\ncost, charge or expense payable hereunder by Tenant or by others in connection
\nwith the Premises, the Building and\/or the Project or any part thereof. The
\nprovisions of this Paragraph 4(b) for the payment of Tenant’s Proportionate
\nShare(s) of Expenses (as hereinafter defined) are intended to pass on to Tenant
\nits share of all such costs and expenses. In addition to the Base Rent, Tenant
\nshall pay to Landlord, in accordance with this Paragraph 4, Tenant’s
\nProportionate Share(s) of all costs and expenses paid or incurred by Landlord in
\nconnection with the ownership, operation, maintenance, management and repair of
\nthe Premises, the Building and\/or the Project or any part thereof, except as
\nexpressly provided for herein (collectively, the<\/p>\n
3<\/p>\n
“Expenses”), including, without limitation, all the following items (the
\n“Additional Rent”):<\/p>\n
(1) Taxes and Assessments. All real estate taxes and assessments,
\nwhich shall include any form of tax, assessment, fee, license fee, business
\nlicense fee, levy, penalty (only if a result of Tenant’s delinquency), or tax
\n(other than net income, estate, succession, inheritance, transfer or franchise
\ntaxes), imposed by any authority having the direct or indirect power to tax, or
\nby any city, county, state or federal government or any improvement or other
\ndistrict or division thereof, whether such tax is (i) determined by the area of
\nthe Premises, the Building and\/or the Project or any part thereof, or the Rent
\nand other sums payable hereunder by Tenant or by other tenants, including, but
\nnot limited to, any gross income or excise tax levied by any of the foregoing
\nauthorities with respect to receipt of Rent and\/or other sums clue under this
\nLease; (ii) upon any legal or equitable interest of Landlord in the Premises,
\nthe Building and\/or the Project or any part thereof; (iii) upon this-transaction
\nor any document to which Tenant is a party creating or transferring any interest
\nin the Premises, the Building and\/or the Project; (iv) levied or assessed in
\nlieu of, in substitution for, or in addition to, existing or additional taxes
\nagainst the Premises, the Building and\/or the Project, whether or not now
\ncustomary or within the contemplation of the parties; or (v) surcharged against
\nthe parking area. Tenant and Landlord acknowledge that Proposition 13 was
\nadopted by the voters of the State of California in the June, 1978 election and
\nthat assessments, taxes, fees, levies and charges may be imposed by
\ngovernmental agencies for such purposes as fire protection, street, sidewalk,
\nroad, utility construction and maintenance, refuse removal and for other
\ngovernmental services which may formerly have been provided without charge to
\nproperty owners or occupants. It is the intention of the parties that all new
\nand increased assessments, taxes, fees, levies and charges due to any cause
\nwhatsoever are to be included within the definition of real property taxes for
\npurposes of this Lease. “Taxes and assessments” shall also include legal and
\nconsultants fees, costs and disbursements incurred in connection with
\nproceedings to contest, determine or reduce taxes, Landlord specifically
\nreserving the right, but not the obligation, to contest by appropriate legal
\nproceedings the amount or validity of any taxes. Notwithstanding the foregoing,
\nthe following shall not constitute “Taxes and assessments” for the purposes of
\nthis Lease, and nothing contained herein shall be deemed to require Tenant to
\npay any of the following: (i) any state, local, federal, personal or corporate
\nincome tax measured by the income of Landlord; (ii) any estate or inheritance
\ntaxes, (iii) any franchise, succession or transfer taxes; or (iv) interest on
\ntaxes or penalties resulting from Landlord’s failure to pay taxes, except to the
\nextent such failure is due to Tenant’s failure to pay such taxes to Landlord
\nwhen provided under this Lease. If any assessments affecting the Premises are
\npayable in installments and Landlord should prepay such assessments in advance
\nof the date such installments would become due, Tenant shall be solely
\nresponsible for the portion of such assessment that would have normally come
\nclue as an installment, unless consented to by Tenant in writing.<\/p>\n
4<\/p>\n
(2) Insurance. All insurance premiums for the Building and\/or the
\nProject or any part thereof, including premiums for “all risk (special form)”
\nfire and extended coverage insurance, commercial general liability insurance,
\nincluding, without limitation, commercial general liability insurance covering
\nthe acts of Landlord and its Agents, rent loss or abatement insurance in an
\namount equal to the Rent due hereunder for up to twelve (12) months, earthquake
\ninsurance, flood or surface water coverage, and other insurance as Landlord
\ndeems prudent in its sole discretion, and any deductibles paid under policies of
\nany such insurance. Notwithstanding the foregoing, in the event of any insured
\ncasualty to the Building and\/or the Project or any part thereof during the Term
\nfor which the deductible under any applicable policy of casualty insurance
\nexceeds an amount equal to one (1) month of Base Rent payable hereunder at the
\ntime of such casualty, then the portion of such deductible equal to one (1)
\nmonth’s Base Rent shall be payable hereunder immediately as Additional Rent
\npursuant to this Paragraph 4(b), and the balance of such deductible shall be
\namortized by Landlord and payable by Tenant, together with interest thereon at
\nthe rate of eight percent (8%) per annum, in equal monthly installments over the
\nremaining Term of this Lease; provided, however, that if this Lease shall
\nterminate for any reason prior to the scheduled expiration thereof, the unpaid
\nbalance of such deductible and all accrued and unpaid interest thereon shall
\nimmediately become due and payable in full.<\/p>\n
(3) Utilities. The cost of all Utilities (as hereinafter defined)
\nserving the Premises, the Building and the Project that are not separately
\nmetered to Tenant, any assessments or charges for Utilities or similar purposes
\nincluded within any tax bill for the Building or the Project, including without
\nlimitation, entitlement fees, allocation unit fees. and\/or any similar fees or
\ncharges and any penalties (if a result of Tenant’s delinquency) related thereto,
\nand any amounts, taxes, charges, surcharges, assessments or impositions levied,
\nassessed or imposed upon the Premises, the Building or the Project or any part
\nthereof, or upon Tenant’s use and occupancy thereof, as a result of any
\nrationing of Utility services or restriction on Utility use affecting the
\nPremises, the Building and\/or the Project, as contemplated in Paragraph 5 below
\n(collectively, “Utility Expenses”).<\/p>\n
(4) Common Area Expenses. All costs to operate, maintain, repair,
\nreplace, supervise, insure and administer the Common Areas, including supplies,
\nmaterials, labor and equipment used in or related to the operation and
\nmaintenance of the Common Areas, including parking areas (including, without
\nlimitation, all costs of resurfacing and restriping parking areas), signs and
\ndirectories on the Building and\/or the Project, landscaping (including
\nmaintenance contracts and fees payable to landscaping consultants), amenities,
\nsprinkler systems, sidewalks, walkways, driveways, curbs, lighting systems and
\nsecurity services, if any, provided by Landlord for the Common Areas, and any
\ncharges, assessments, costs or fees levied by any association or entity of which
\nthe Project or any part thereof is a member or to which the Project or any part
\nthereof is subject.<\/p>\n
5<\/p>\n
(5) Parking Charges. Any parking charges or other costs levied,
\nassessed or imposed by, or at the direction of, or resulting from statutes or
\nregulations, or interpretations thereof, promulgated by any governmental
\nauthority or insurer in connection with the use or occupancy of the Building or
\nthe Project.<\/p>\n
(6) Maintenance and Repair Costs. Except for costs which are the
\nresponsibility of Landlord pursuant to Paragraph 13(b) below, all costs to
\nmaintain, repair, and replace the Premises, the Building and\/or the Project or
\nany part thereof, including without limitation, (i) all costs paid under
\nmaintenance, management and service agreements such as contracts for janitorial,
\nsecurity and refuse removal, (ii) all costs to maintain, repair and replace the
\nroof coverings of the Building or the Project or any part thereof, (iii) all
\ncosts to maintain, repair and replace the heating, ventilating, air
\nconditioning, plumbing, sewer, drainage, electrical, fire protection, life
\nsafety and security systems and other mechanical, electrical and communications
\nsystems and equipment serving the Premises, the Building and\/or the Project or
\nany part thereof (collectively, the “Systems”).<\/p>\n
(7) Life Safety Costs. All costs to install, maintain, repair and
\nreplace all life safety systems, including, without limitation, all fire alarm
\nsystems, serving the Premises, the Building and\/or the Project or any part
\nthereof (including all maintenance contracts and fees payable to life safety
\nconsultants) whether such systems are or shall be required by Landlord’s
\ninsurance carriers, Laws (as hereinafter defined) or otherwise.<\/p>\n
(8) Management and Administration. All costs for management and
\nadministration of the Premises, the Building and\/or the Project or any part
\nthereof, including, without limitation, a property management fee not to exceed
\non an annual basis five percent (5%) of the gross income of the Building,
\naccounting, auditing, billing, postage, salaries and benefits for clerical and
\nsupervisory employees, whether located on the Project or off-site, payroll taxes
\nand legal and accounting costs and fees for licenses and permits related to the
\nownership and operation of the Project.<\/p>\n
Notwithstanding the foregoing, the following shall not constitute
\nExpenses for the purposes of this Lease, and nothing contained herein shall be
\ndeemed to require Tenant to pay any of the following: (i) legal fees, brokerage
\ncommissions, advertising costs and other related expenses incurred in connection
\nwith the leasing of the Building or Project; (ii) damage and repairs
\nattributable to condemnation, fire or other casualty; (iii) damage and repairs
\ncovered under any warranty or insurance policy carded by Landlord in connection
\nwith the Building or Project, but solely to the extent of proceeds actually
\ncollected by Landlord under such warranty or policy; (iv) executive salaries of
\nLandlord at or above the level of senior vice president; (v) salaries of service
\npersonnel to the extent that such service personnel perform services not solely
\nin connection with the management, operation, repair or maintenance of the
\nBuilding, Project or Common Areas (in which case the salaries of such personnel
\nshall be allocated by Landlord to the Building, Project or Common Areas, on the
\none hand, and the other properties serviced<\/p>\n
6<\/p>\n
by such personnel, on the other hand, based upon the relative proportion of the
\ntime of such personnel devoted to the Building. Project or Common Areas and such
\nother properties, and only the portion of the salaries of such personnel devoted
\nto the Building, Project or Common Areas shall be considered “Expenses” for
\npurposes of this Lease); (vi) Landlord’s general overhead expenses not related
\nto the Building; (vii) payments of principal or interest on any mortgage or
\nother encumbrance including ground lease payments and points, commissions and
\nlegal fees associated with financing; (viii) depreciation; (ix) legal fees,
\naccountants fees and other expenses incurred in connection with disputes with
\nTenant or other tenants or occupants of the Building or Project or associated
\nwith the enforcement of any leases or defense of Landlord’s title to or interest
\nin the Building or any part thereof; (x) costs (including permit, license and
\ninspection fees) incurred in renovating or otherwise improving, decorating,
\npainting or altering space for other tenants or other occupants or vacant space
\n(excluding the Common Areas) in the Building or Project; (xi) costs incurred due
\nto violation by any other tenant in the Building of the terms and conditions of
\nany lease; (xii) costs incurred as a result of Landlord’s gross negligence or
\nwillful misconduct in the operation of the Property; (xiii) the cost of any
\nservice provided to Tenant or other occupants of the Building or Project for
\nwhich Landlord is entitled to be reimbursed, but solely to the extent of the
\nactual reimbursement received by Landlord; (xiv) charitable or political
\ncontributions; (xv) any cost or expense related to the testing for, removal,
\ntransportation or storage of Hazardous Materials from the Project, Building or
\nPremises, except to the extent of any testing performed at the request of Tenant
\n(in which case Tenant shall be solely responsible for the costs of such tests);
\nand (xvi) interest, penalties or other costs arising out of Landlord’s failure
\nto make timely payments of its obligations (except to the extent such failure is
\ndue to Tenant’s failure to pay sums due under Lease to Landlord). Nothing
\ncontained in this paragraph shall be deemed to limit the payment obligations of
\nTenant under any other provision of this Lease, except for the obligations
\narising under Paragraph 4(b).<\/p>\n
Landlord shall not collect in excess of one hundred percent (100%)
\nof Expenses, or any item of cost more than once.<\/p>\n
Notwithstanding anything in this Section 4(b) to the contrary, with
\nrespect to all sums payable by Tenant as Additional Rent under this Section 4(b)
\nfor the repair or replacement of any item or the construction of any new item in
\nconnection with the physical operation of the Premises, the Building or the
\nProject (i,e., HVAC, roof membrane or coverings and parking area) which is a
\ncapital item the repair or replacement of which properly would be capitalized
\nUnder generally accepted accounting principles, Tenant shall be required to pay
\nonly the prorata share of the cost of the item falling due within the Term based
\nupon the amortization of the same over the useful life of such item, as
\nreasonably determined by Landlord.<\/p>\n
7<\/p>\n
(c) Payment of Additional Rent.<\/p>\n
(1) Prior to the Initial Premises Commencement Date, Landlord shall
\nsubmit to Tenant an estimate of monthly Additional Rent for the Initial Premises
\nfor the period between the Initial Premises Commencement Date and the following
\nDecember 31 and Tenant shall pay such estimated Additional Rent on a monthly
\nbasis, in advance, on the first day of each month. Prior to the Subsequent
\nPremises Commencement Date, Landlord shall submit to Tenant an estimate of
\nmonthly Additional Rent for the Subsequent Premises for the period between the
\nSubsequent Premises Commencement Date and the following December 31 and Tenant
\nshall pay such estimated Additional Rent on a monthly basis, in advance, on the
\nfirst day of each month. Tenant shall continue to make said monthly payments
\nuntil notified by Landlord of a change therein. By April 1 of each calendar
\nyear, Landlord shall endeavor to provide to Tenant a statement showing in
\nreasonable detail the actual Additional Rent due to Landlord for the prior
\ncalendar year, to be prorated during the first year from the respective
\nCommencement Date(s). If the total of the monthly payments of Additional Rent
\nthat Tenant has made for the prior calendar year is less than the actual
\nAdditional Rent chargeable to Tenant for such prior calendar year, then Tenant
\nshall pay the difference in a lump sum within ten (10) business days after
\nreceipt Of such statement from Landlord. Any overpayment by Tenant of Additional
\nRent for the prior calendar year shall be credited towards the Additional Rent
\nnext due or, in the case such overpayment is determined subsequent to the
\nexpiration or earlier termination of this Lease, paid to Tenant promptly upon
\ndiscovery thereof.<\/p>\n
(2) Landlord’s then-current annual operating and capital budgets for
\nthe Building and the Project or the pertinent part thereof shall be used for
\npurposes of calculating Tenant’s monthly payment of estimated Additional Rent
\nfor the current year, subject to adjustment as provided above. Landlord shall
\nmake the final determination of Additional Rent for the year in which this Lease
\nterminates as soon as possible after termination of such year. Even though the
\nTerm has expired and Tenant has vacated the Premises, Tenant shall remain liable
\nfor payment of any amount due to Landlord in excess of the estimated Additional
\nRent previously paid by Tenant, and, conversely, Landlord shall promptly return
\nto Tenant any overpayment. Failure of Landlord to submit statements as called
\nfor herein shall not be deemed a waiver of Tenant’s obligation to pay Additional
\nRent as herein provided.<\/p>\n
(3) With respect to Expenses which Landlord allocates to the
\nBuilding, Tenant’s “Proportionate Share” shall be the percentage set forth in
\nthe Basic Lease Information as Tenant’s Proportionate Share of the Building, as
\nadjusted by Landlord from time to time for a remeasurement of or changes in the
\nphysical size of the Premises or the Building, whether such changes in size are
\ndue to an addition to or a sale or conveyance of a portion of the Building or
\notherwise. With respect to Expenses which Landlord allocates to the Project as a
\nwhole or to only a portion of the Project, Tenant’s “Proportionate Share” shall
\nbe, with respect to Expenses which Landlord allocates to the<\/p>\n
8<\/p>\n
Project as a whole, the percentage set forth in the Basic Lease Information as
\nTenant’s Proportionate Share of the Project and, with respect to Expenses which
\nLandlord allocates to only a portion of the Project, a percentage calculated by
\nLandlord from time to time in its sole discretion and furnished to Tenant in
\nwriting, in either case as adjusted by Landlord from time to time for a
\nremeasurement of or changes in the physical size of the Premises or the Project,
\nwhether such changes in size are due to an addition to or a sale or conveyance
\nof a portion of the Project or otherwise. Notwithstanding the foregoing,
\nLandlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of
\nany item of expense or cost reimbursable by Tenant that relates to a repair,
\nreplacement, or service that benefits only the Premises or only a portion of the
\nBuilding and\/or the Project or that varies with the occupancy of the Building
\nand\/or the Project. Without limiting the generality of the foregoing, Tenant
\nunderstands and agrees that Landlord shall have the right to adjust Tenant’s
\nProportionate Share(s) of any Utility Expenses based upon Tenant’s use of the
\nUtilities or similar services as reasonably estimated and determined by Landlord
\nbased upon factors such as size of the Premises and intensity of use of such
\nUtilities by Tenant such that Tenant shall pay the portion of such charges
\nreasonably consistent with Tenant’s use of such Utilities and similar services.
\nIf Tenant disputes any such estimate or determination of Utility Expenses, then
\nTenant shall either pay the estimated amount or cause the Premises to be
\nseparately metered at Tenant’s sole expense.<\/p>\n
(d) General Payment Terms. The Base Rent, Additional Rent and all other
\nsums payable by Tenant to Landlord hereunder, including, without limitation, any
\nlate charges assessed pursuant to Paragraph 6 below and any interest assessed
\npursuant to Paragraph 45 below, are referred to as the “Rent”. All Rent shall be
\npaid without deduction, offset or abatement in lawful money of the United States
\nof America. Checks are to be made payable to Moffett Park Properties Company
\n#317 and shall be mailed to ALIC SA87 IODCG AAF REI 3261, Moffett Park
\nProperties, Lock Box 66268, El Monte, California 91735-6268 or to such other
\nperson or place as Landlord may, from time to time, designate to Tenant in
\nwriting. The Rent for any fractional part of a calendar month at the
\ncommencement or termination of the Lease term shall be a prorated amount of the
\nRent for a full calendar month based upon a thirty (30) day month.<\/p>\n
5. UTILITY EXPENSES<\/p>\n
(a) Tenant shall pay the cost of all water, sewer use, sewer discharge
\nfees and permit costs and sewer connection fees, gas, heat, electricity, refuse
\npick-up, janitorial service, telephone and all materials and services or other
\nutilities (collectively, “Utilities”) billed or metered separately to the
\nPremises and\/or Tenant, together with all taxes, assessments, charges and
\npenalties (but solely to the extent such penalties are attributable to Tenant’s
\nfailure to timely pay sums due hereunder) added to or included within such cost.
\nPromptly after the execution of this Lease by Landlord and Tenant, Landlord
\nshall cause all Utilities furnished to the Premises to be separately metered to
\nthe extent commercially practicable. Tenant acknowledges that the Premises, the
\nBuilding<\/p>\n
9<\/p>\n
and\/or the Project may become subject to the rationing of Utility services or
\nrestrictions on Utility use as required by a public utility company,
\ngovernmental agency or other similar entity having jurisdiction thereof. Tenant
\nacknowledges and agrees that its tenancy and occupancy hereunder shall be
\nsubject to such rationing or restrictions as may be imposed upon Landlord by
\nsuch utility company, governmental agency or other entity, Tenant, the Premises,
\nthe Building and\/or the Project, and Tenant shall in no event be excused or
\nrelieved from any covenant or obligation to be kept or performed by Tenant by
\nreason of any such rationing or restrictions. Tenant agrees to comply with
\nenergy conservation programs reasonably implemented by Landlord by reason of
\nrationing, restrictions or Laws.<\/p>\n
(b) Landlord shall not be liable for any loss, injury or damage to
\nproperty caused by or resulting from any variation, interruption, or failure of
\nUtilities, or from failure to make any repairs or perform any maintenance,
\nunless such loss, injury or damage is caused by Landlord’s gross negligence or
\nwillful misconduct. No temporary interruption or failure of such services
\nincident to the making of repairs, alterations, improvements, or due to
\naccident, strike, or conditions or other events shall be deemed an eviction of
\nTenant or relieve Tenant from any of its obligations hereunder. In no event
\nshall Landlord be liable to Tenant for any damage to the Premises or for any
\nloss, damage or injury to any property therein or thereon occasioned by
\nbursting, rupture, leakage or overflow of any plumbing or other pipes
\n(including, without limitation, water, steam, and\/or refrigerant lines),
\nsprinklers, tanks, drains, drinking fountains or washstands, or other similar
\ncause in, above, upon or about the Premises, the Building, or the Project,
\nunless caused by Landlord’s gross negligence or willful misconduct.<\/p>\n
6. LATE CHARGE<\/p>\n
Notwithstanding any other provision of this Lease, Tenant hereby
\nacknowledges that late payment to Landlord of Rent, or other amounts due
\nhereunder will cause Landlord to incur costs not contemplated by this Lease, the
\nexact amount of which will be extremely difficult to ascertain. If any Rent or
\nother sums due from Tenant are not received by Landlord or by Landlord’s
\ndesignated agent within five (5) days after their due date, then Tenant shall
\npay to Landlord a late charge equal to five percent (5%) of such overdue amount,
\nplus any costs and attorneys’ fees incurred by Landlord by reason of Tenant’s
\nfailure to pay Rent and\/or other charges when due hereunder. Landlord and Tenant
\nhereby agree that such late charges represent a fair and reasonable estimate of
\nthe cost that Landlord will incur by reason of Tenant’s late payment and shall
\nnot be construed as a penalty. Landlord’s acceptance of such late charges shall
\nnot constitute a waiver of Tenant’s default with respect to such overdue amount
\nor estop Landlord from exercising any of the other rights and remedies granted
\nunder this Lease.<\/p>\n
Initials: Landlord [Illegible] Tenant [Illegible]<\/p>\n
10<\/p>\n
7. SECURITY DEPOSIT<\/p>\n
Concurrently with Tenant’s execution of the Lease, Tenant shall deposit
\nwith Landlord the Security Deposit specified in the Basic Lease Information as
\nsecurity for the full and faithful performance of each and every term, covenant
\nand condition of this Lease. Landlord may use, apply or retain the whole or any
\npart of the Security Deposit as may be reasonably necessary (a) to remedy
\nTenant’s default in the payment of any Rent, (b) to repair damage to the
\nPremises caused by Tenant, (c) to clean the Premises upon termination of this
\nLease, (d) to reimburse Landlord for the payment of any amount which Landlord
\nmay reasonably spend or be required to spend by reason of Tenant’s default, or
\n(e) to compensate Landlord for any other loss or damage which Landlord may
\nsuffer by reason of Tenant’s default. Should Tenant faithfully and fully comply
\nwith all of the terms, covenants and conditions of this Lease, within thirty
\n(30) days following the expiration of the Term, the Security Deposit or any
\nbalance thereof shall be returned to Tenant or, at the option of Landlord, to
\nthe last assignee of Tenant’s interest in this Lease. Landlord shall not be
\nrequired to keep the Security Deposit separate from its general funds and Tenant
\nshall not be entitled to any interest on such deposit. If Landlord so uses or
\napplies all or any portion of said deposit, within ten (10) business days after
\nwritten demand therefor Tenant shall deposit cash with Landlord in an amount
\nsufficient to restore the Security Deposit to the full extent of the above
\namount, and Tenant’s failure to do so shall be a default under this Lease. In
\nthe event Landlord transfers its interest in this Lease, Landlord shall transfer
\nthe then remaining amount of the Security Deposit to Landlord’s successor in
\ninterest, and thereafter Landlord shall have no further liability to Tenant with
\nrespect to such Security Deposit.<\/p>\n
8. POSSESSION<\/p>\n
(a) Tenant’s Right of Possession. Subject to Paragraph 8(b), Tenant shall
\nbe entitled to possession of the Initial Premises upon the Initial Premises
\nCommencement Date and the Subsequent Premises upon the Subsequent Premises
\nCommencement Date. Tenant shall lease the Initial Premises and the Subsequent
\nPremises in their “as is” condition on the Initial Premises Commencement Date
\nand the Subsequent Premises Commencement Date, respectively, and Landlord shall
\nhave no obligation to improve, remodel or otherwise alter the Premises either
\nprior to or after the commencement of the Term.<\/p>\n
(b) Delay in Delivering Possession. If for any reason whatsoever, Landlord
\ncannot deliver possession of the Initial Premises or the Subsequent Premises to
\nTenant on or before the respective Estimated Commencement Date specified in the
\nBasic Lease Information, then except as expressly provided in Paragraph 8(d)
\nbelow, this Lease shall not be void or voidable, nor shall Landlord, or
\nLandlord’s agents, advisors, employees, partners, shareholders, directors,
\ninvitees or independent contractors (collectively, “Landlord’s Agents”), be
\nliable to Tenant for any loss or damage resulting therefrom. Tenant shall not be
\nliable for Rent for the Initial Premises or the Subsequent Premises<\/p>\n
11<\/p>\n
until Landlord delivers possession of the particular Premises to Tenant. The
\nExpiration Date shall be extended by the same number of days that Tenant’s
\npossession of the Initial Premises was delayed beyond the Estimated Initial
\nPremises Commencement Date specified in the Basic Lease Information.<\/p>\n
(c) Early Occupancy. Notwithstanding anything to the contrary contained
\nin Paragraph 8(a), and subject to the vacation of the Initial Premises by the
\nexisting tenant thereof, Tenant shall have the right to enter upon the Initial
\nPremises at such times as shall be reasonably acceptable to Landlord during the
\nperiod between November 4, 1996 and the Initial Premises Commencement Date for
\nthe sole purpose of installing Tenant’s fixtures and equipment and preparing the
\nInitial Premises for its business operations, provided, however, that such entry
\nshall be subject to all of the terms and provisions of this Lease, excepting
\nonly the obligation to pay Rent and, provided further, that Tenant shall not
\nconduct business in the Initial Premises during such period.<\/p>\n
(d) Late Delivery. Notwithstanding anything in this Paragraph 8 to the
\ncontrary, if possession of the Initial Premises is not delivered to Tenant on or
\nbefore February 15, 1997 or possession of the Subsequent Premises is not
\ndelivered to Tenant on or before May 1, 1997, then Tenant may, in either case
\nwithin ten (10) days of the relevant deadline, as Tenant’s sole remedy,
\nterminate this Lease by providing written notice thereof to Landlord. In such
\ncase Landlord shall immediately deliver to Tenant the Security Deposit and any
\nand all prepaid Rent or other amounts prepaid by Tenant to Landlord.<\/p>\n
9. USE OF PREMISES<\/p>\n
(a) Permitted Use. The use of the Premises by Tenant and Tenant’s agents,
\nadvisors, employees, partners, shareholders, directors, invitees and independent
\ncontractors (collectively, “Tenant’s Agents”) shall be solely for the Permitted
\nUse specified in the Basic Lease Information and for no other use. Tenant shall
\nnot permit any objectionable or unpleasant odor, smoke, dust, gas, noise or
\nvibration to emanate from or near the Premises. The Premises shall not be used
\nto create any nuisance or trespass, for any illegal purpose, for any purpose not
\npermitted by Laws, for any purpose that would invalidate the insurance or
\nincrease the premiums for insurance on the Premises, the Building or the Project
\nor for any purpose or in any manner that would interfere with other tenant’s use
\nor occupancy of the Project. Tenant agrees to pay to Landlord, as Additional
\nRent, any increases in premiums on policies resulting from Tenant’s Permitted
\nUse or any other use or action by Tenant or Tenant’s Agents which increases
\nLandlord’s premiums or requires additional coverage by Landlord to insure the
\nPremises. Tenant agrees not to overload the floor(s) of the Building.<\/p>\n
(b) Compliance With Governmental Regulations and Private Restrictions.
\nTenant and Tenant’s Agents shall, at Tenant’s expense, faithfully observe and
\ncomply with (1) all municipal, state and federal laws, statutes, codes, rules,
\nregulations, ordinances,<\/p>\n
12<\/p>\n
requirements, and orders (collectively, “Laws”), now in force or which may
\nhereafter be in force pertaining to the Premises or Tenant’s use of the
\nPremises, the Building or the Project, whether substantial in cost or otherwise,
\nprovided, however, that except as provided in Paragraph 9(c) below, Tenant shall
\nnot be required to make or, except as provided in Paragraph 4 above, pay for,
\nstructural changes to the Premises or the Building, including, without
\nlimitation, the installation of fire sprinkler systems, seismic reinforcement
\nand related alterations, and, except as provided in Paragraph 32 below, the
\nremoval of asbestos or other Hazardous Materials (as hereinafter defined), not
\nrelated to Tenant’s specific use of the Premises unless the requirement for such
\nchanges is imposed as a result of any improvements or additions made or proposed
\nto be made at Tenant’s request; (2) all recorded covenants, conditions and
\nrestrictions affecting the Project (“Private Restrictions”) now in force or
\nwhich may hereafter be in force; and (3) any and all rules and regulations set
\nforth in Exhibit D and any other rules and regulations now or hereafter
\npromulgated by Landlord related to parking or the operation of the Premises, the
\nBuilding and\/or the Project (collectively, the “Rules and Regulations”). The
\njudgment of any court of competent jurisdiction, or the admission of Tenant in
\nany action or proceeding against Tenant, whether Landlord be a party thereto or
\nnot, that Tenant has violated any such Laws or Private Restrictions, shall be
\nconclusive of that fact as between Landlord and Tenant.<\/p>\n
(c) Compliance with Americans with Disabilities Act. Landlord and Tenant
\nhereby agree and acknowledge that the Premises, the Building and\/or the Project
\nmay be subject to, among other Laws, the requirements of the Americans with
\nDisabilities Act, a federal law codified at 42 U.S.C. 12101 et seq., including,
\nbut not limited to Title III thereof, and all regulations and guidelines related
\nthereto, together with any and all laws, rules, regulations, ordinances, codes
\nand statutes now or hereafter enacted by local or state agencies having
\njurisdiction thereof, including all requirements of Title 24 of the State of
\nCalifornia, as the same may be in effect on the date of this Lease and may be
\nhereafter modified, amended or supplemented (collectively, the “ADA”). Subject
\nto reimbursement pursuant to Paragraph 4 above, if any barrier removal work or
\nother work is required to the Building, the Common Areas or the Project under
\nthe ADA, then such work shall be the responsibility of Landlord; provided, if
\nsuch work is required under the ADA as a result of Tenant’s use of the Premises
\nor any work or Alteration (as hereinafter defined) made to the Premises by or on
\nbehalf of Tenant, then such work shall be performed by contractors selected by
\nLandlord (the “ADA Contractors”) at the sole cost and expense of Tenant.
\nLandlord shall consult with Tenant concerning the selection of the ADA
\nContractors, provided, however, that in the event of any dispute between
\nLandlord and Tenant concerning such selection, the final decision shall be made
\nby Landlord. Except as otherwise expressly provided in this provision, Tenant
\nshall be responsible at its sole cost and expense for fully and faithfully
\ncomplying with all applicable requirements of the ADA, including without
\nlimitation, not discriminating against any disabled persons in the operation of
\nTenant’s business in or about the Premises, and offering or otherwise providing
\nauxiliary aids and services as, and when, required by the ADA. Within ten (10)
\ndays after Tenant’s receipt thereof, Tenant shall<\/p>\n
13<\/p>\n
advise Landlord in writing, and provide Landlord with copies of (as applicable),
\nany notices alleging violation of the ADA relating to any portion of the
\nPremises, the Building or the Project; any claims made or threatened orally or
\nin writing regarding noncompliance with the ADA and relating to any portion of
\nthe Premises, the Building, or the Project (excluding any claim made orally
\nwhich are reasonably determined by Tenant to be frivolous and which are not
\nreasonably likely to result in any action being taken by the party making such
\nclaim); or any governmental or regulatory actions or investigations instituted
\nor threatened regarding noncompliance with the ADA and relating to any portion
\nof the Premises, the Building or the Project.<\/p>\n
10. ACCEPTANCE OF PREMISES<\/p>\n
Landlord shall cause the HVAC, electrical and plumbing systems serving the
\nInitial Premises and the Subsequent Premises to be in good working order and the
\nroof on the Initial Premises and the Subsequent Premises to be in good condition
\non the Initial Premises Commencement Date and the Subsequent Premises
\nCommencement Date, respectively. Subject to the foregoing, by entry hereunder,
\nTenant accepts the Premises as suitable for Tenant’s intended use and as being
\nin good and sanitary operating order, condition and repair, AS IS, and without
\nrepresentation or warranty by Landlord as to the condition, use or occupancy
\nwhich may be made thereof. Any exceptions to the foregoing must be by written
\nagreement executed by Landlord and Tenant.<\/p>\n
11. SURRENDER<\/p>\n
Tenant agrees that on the last day of the Term, or on the sooner
\ntermination of this Lease, Tenant shall surrender the Premises to Landlord (a)
\nin good condition and repair (damage by acts of God, fire, acts of Landlord or
\nLandlord’s Agents, and normal wear and tear excepted), but with all interior
\nwalls painted or cleaned so they appear painted, any carpets cleaned, all floors
\ncleaned and waxed, all non-working light bulbs and ballasts replaced and all
\nroll-up doors and plumbing fixtures in good condition and working order, and (b)
\notherwise in accordance with Paragraph 32(h). Normal wear and tear shall not
\ninclude any damage or deterioration to the floors of the Premises arising from
\nthe use of forklifts in, on or about the Premises (including, without
\nlimitation, any marks or stains on any portion of the floors), and any damage or
\ndeterioration that would have been prevented by proper maintenance by Tenant, or
\nTenant otherwise performing all of its obligations under this Lease. On or
\nbefore the expiration or sooner termination of this Lease, (i) Tenant shall
\nremove all of Tenant’s Property (as hereinafter defined) and Tenant’s signage
\nfrom the Premises, the Building and the Project and repair any damage caused by
\nsuch removal, and (ii) Landlord may, by notice to Tenant given not later than
\nninety (90) days prior to the Expiration Date (except in the event of a
\ntermination of this Lease prior to the scheduled Expiration Date, in which event
\nno advance notice shall be required), require Tenant at Tenant’s expense to
\nremove any or all Alterations (as hereinafter defined) and to repair any damage
\ncaused by such removal. Any of Tenant’s Property not so removed by Tenant as
\nrequired herein shall be deemed abandoned and<\/p>\n
14<\/p>\n
may be stored, removed, and disposed of by Landlord at Tenant’s expense, and
\nTenant waives all claims against Landlord for any damages resulting from
\nLandlord’s retention and disposition of such property; provided, however, that
\nTenant shall remain liable to Landlord for all costs incurred in storing and
\ndisposing of such abandoned property of Tenant. All Alterations except those
\nwhich Landlord requires Tenant to remove shall remain in the Premises as the
\nproperty of Landlord. If the Premises are not surrendered at the end of the Term
\nor sooner termination of this Lease, and in accordance with the provisions of
\nthis Paragraph 11 and Paragraph 32(h) below, Tenant shall continue to be
\nresponsible for the payment of Rent (as the same may be increased pursuant to
\nParagraph 35 below) until the Premises are so surrendered in accordance with
\nsaid Paragraphs, and Tenant shall indemnify, defend and hold Landlord harmless
\nfrom and against any and all loss or liability resulting from delay by Tenant in
\nso surrendering the Premises including, without limitation, any loss or
\nliability resulting from any claim against Landlord made by any succeeding
\ntenant or prospective tenant founded on or resulting from such delay and losses
\nto Landlord due to lost opportunities to lease any portion of the Premises to
\nany such succeeding tenant or prospective tenant, together with, in each case,
\nactual attorneys’ fees and costs. In furtherance of the foregoing, Tenant agrees
\nto give Landlord at least sixty (60) days’ prior notice of its intention to
\nvacate the Premises so that Landlord will have an opportunity to perform an
\ninspection of the Premises and surrounding areas as contemplated under Paragraph
\n32(f) below prior to such vacation.<\/p>\n
12. ALTERATIONS AND ADDITIONS<\/p>\n
(a) Tenant shall not make, or permit to be made, any alteration, addition
\nor improvement (hereinafter referred to individually as an “Alteration” and
\ncollectively as the “Alterations”) to the Premises or any part thereof without
\nthe prior written consent of Landlord, which consent shall not be unreasonably
\nwithheld; provided, however, that Landlord shall have the right in its sole and
\nabsolute discretion to consent or to withhold its consent to any Alteration
\nwhich affects the structural portions of the Premises, the Building or the
\nProject or the Systems serving the Premises, the Building and\/or the Project or
\nany portion thereof. Notwithstanding anything to the contrary in this Section
\n12, Tenant shall have the right, without the prior written consent of Landlord,
\nto make Alterations which (i) do not affect the Systems or the structural
\ncomponents of the Building, and (ii) cost less than Five Thousand Dollars
\n($5,000) on an individual basis or for a series of related alterations and do
\nnot exceed Twenty-Five Thousand Dollars ($25,000) in the aggregate over the Term
\nof this Lease (collectively, “Permitted Alterations”), provided that each such
\nPermitted Alteration is otherwise performed in accordance with the provisions of
\nSections 12(b) through (f) of the Lease.<\/p>\n
(b) Any Alteration to the Premises shall be at Tenant’s sole cost and
\nexpense, in compliance with all applicable Laws and all requirements reasonably
\nrequested by Landlord, including, without limitation, the requirements of any
\ninsurer providing coverage for the Premises or the Project or any part thereof,
\nand in accordance with plans<\/p>\n
15<\/p>\n
and specifications approved in writing by Landlord, and shall be constructed and
\ninstalled by a contractor approved in writing by Landlord. Before Alterations
\nmay begin, valid building permits or other permits or licenses required must be
\nfurnished to Landlord, and, once the Alterations begin, Tenant will diligently
\nand continuously pursue their completion. Landlord may monitor construction of
\nthe Alterations and Tenant shall reimburse Landlord for its reasonable
\nout-of-pocket costs (including, without limitation, the costs of any third party
\nconstruction manager retained by Landlord) in reviewing plans and documents and
\nin monitoring construction. Tenant shall maintain during the course of
\nconstruction, at its sole cost and expense, builders risk insurance for the
\namount of the completed value of the Alterations on an all-risk non-reporting
\nform covering all improvements under construction, including building materials,
\nand other insurance in amounts and against such risks as Landlord shall
\nreasonably require in connection with the Alterations. In addition to and
\nwithout limitation on the generality of the foregoing, Tenant shall ensure that
\nits contractor(s) procure and maintain in full force and effect during the
\ncourse of construction a “broad form” commercial general liability and property
\ndamage policy of insurance naming Landlord, Tenant and Landlord’s lenders as
\nadditional insureds. The minimum limit of coverage of the aforesaid policy shall
\nbe in the amount of not less than Two Million Dollars ($2,000,000.00) for injury
\nor death of one person in any one accident or occurrence and in the amount of
\nnot less than Two Million Dollars ($2,000,000.00) for injury or death of more
\nthan one person in any one accident or occurrence, and shall contain a
\nseverability of interest clause or a cross liability endorsement. Such insurance
\nshall further insure Landlord and Tenant against liability for property damage
\nof at least One Million Dollars ($1,000,000.00).<\/p>\n
(c) All Alterations, including, but not limited to, heating, lighting,
\nelectrical, air conditioning, fixed partitioning, drapery, wall covering and
\npaneling, built-in cabinet work and carpeting installations made by Tenant,
\ntogether with all property that has become an integral part of the Premises or
\nthe Building, shall at once be and become the property of Landlord, and shall
\nnot be deemed trade fixtures or Tenant’s Property. If requested by Landlord,
\nTenant will pay, prior to the commencement of construction, an amount determined
\nby Landlord necessary to cover the costs of demolishing such Alterations and\/or
\nthe cost of returning the Premises and any damage resulting from such removal
\nrepaired.<\/p>\n
(d) No private telephone systems and\/or other related computer or
\ntelecommunications equipment or lines may be installed without Landlord’s prior
\nwritten consent. If Landlord gives such consent, all equipment must be installed
\nwithin the Premises and, at the request of Landlord made at any time prior to
\nthe expiration of the Term, removed upon the expiration or sooner termination of
\nthis Lease and the Premises restored to the same condition as before such
\ninstallation.<\/p>\n
(e) Notwithstanding anything herein to the contrary, before installing any
\nequipment or lights which generate an undue amount of heat in the Premises, or
\nif Tenant plans to use any high-power usage equipment in the Premises, Tenant
\nshall obtain the<\/p>\n
16<\/p>\n
written permission of Landlord. Landlord may refuse to grant such permission
\nunless Tenant agrees to pay the costs to Landlord for installation of
\nsupplementary air conditioning capacity or electrical systems necessitated by
\nsuch equipment.<\/p>\n
(f) Tenant agrees not to proceed to make any Alterations, notwithstanding
\nconsent from Landlord to do so, until Tenant notifies Landlord in writing of the
\ndate Tenant desires to commence construction or installation of such Alterations
\nand Landlord has approved such date in writing, in order that Landlord may post
\nappropriate notices to avoid any liability to contractors or material suppliers
\nfor payment for Tenant’s improvements. Tenant will at all times permit such
\nnotices to be posted and to remain posted until the completion of work.<\/p>\n
13. MAINTENANCE AND REPAIRS OF PREMISES<\/p>\n
(a) Maintenance by Tenant. Throughout the Term, Tenant shall, at its sole
\nexpense, (1) keep and maintain in good order and condition the Premises, and
\nrepair and replace every part thereof, including glass, windows, interior
\ndoors, interior door frames and interior door closers, interior lighting
\n(including, without limitation, light bulbs and ballasts), Tenant’s signage,
\ninterior demising walls and partitions, equipment, interior painting and
\ninterior walls and floors (excepting only those portions of the Building or the
\nProject to be maintained by Landlord, as provided in Paragraph 13(b) below), (2)
\nfurnish all expendables, including light bulbs, paper goods and soaps, used in
\nthe Premises, and (3) keep and maintain in good order and condition, repair and
\nreplace all of Tenant’s security systems in or about or serving the Premises.
\nTenant shall not do nor shall Tenant allow Tenant’s Agents to do anything to
\ncause any damage, deterioration or unsightliness to the Premises, the Building
\nor the Project. In no event shall Tenant’s obligation to repair under this
\nsubsection extend to (i) damage caused in whole or in part by the gross
\nnegligence or willful misconduct of Landlord or Landlord’s Agents, (ii) repairs
\ncovered under Expenses or Taxes, or (iii) damage by fire and other casualties or
\nacts of God and the elements. In the event of any damage to the Premises which
\nTenant is required to repair under this Paragraph 13(a) and which is not covered
\nby any insurance required to be maintained by Tenant under this Lease, but which
\nis covered by insurance required to be maintained by Landlord hereunder.
\nLandlord shall make a claim on the applicable insurance policy and shall use the
\nproceeds, if any, actually received to reimburse Tenant for the actual
\nreasonable costs and expenses incurred by Tenant in repairing such damage,
\nsubject to Landlord’s review and approval of invoices and other data documenting
\nsuch costs and expenses.<\/p>\n
(b) Maintenance by Landlord. Subject to the provisions of Paragraphs
\n13(a), 22 and 23, and further subject to Tenant’s obligation under Paragraph 4
\nto reimburse Landlord, in the form of Additional Rent, for Tenant’s
\nProportionate Share(s) of the cost and expense of the following items, Landlord
\nagrees to repair and maintain the following items: the roof coverings (provided
\nthat Tenant installs no additional air conditioning or other equipment on the
\nroof that damages the roof coverings, in which event Tenant shall<\/p>\n
17<\/p>\n
pay all costs resulting from the presence of such additional equipment); window
\nframes, window casements, skylights, exterior doors, exterior door frames and
\nexterior door closers; master the Systems serving the Premises and the Building;
\nthe parking areas, pavement, landscaping, sprinkler systems, sidewalks,
\ndriveways, curbs, and lighting systems in the Common Areas; and the roll-up
\ndoors, ramps and dock equipment, including, without limitation, dock bumpers,
\ndock plates, dock seals, dock levelers and dock lights located in or on the
\nPremises. Subject to the provisions of Paragraphs 13(a), 22 and 23, Landlord, at
\nits own cost and expense, agrees to repair and maintain the following items: the
\nstructural portions of the roof (specifically excluding the roof coverings), the
\nfoundation, the footings, the floor slab, the load bearing walls and exterior
\nwalls of the Building (excluding any glass and any routine maintenance,
\nincluding, without limitation, any painting, sealing, patching and waterproofing
\nof such walls), the structural supports, the subfloors and floors (specifically
\nexcluding the floor coverings), and any damage to the Premises caused by the
\nwillful act or the gross negligence of the Landlord or its Agents.
\nNotwithstanding anything in this Paragraph 13 to the contrary, Landlord shall
\nhave the right to either repair or to require Tenant to repair any damage to any
\nportion of the Premises, the Building and\/or the Project caused by or created
\ndue to any act, omission, negligence or willful misconduct of Tenant or Tenant’s
\nAgents and to restore the Premises, the Building and\/or the Project as
\napplicable, to the condition existing prior to the occurrence of such damage;
\nprovided, however, that in the event Landlord elects to perform such repair and
\nrestoration work, Tenant shall reimburse Landlord upon demand for all costs and
\nexpenses incurred by Landlord in connection therewith. Landlord’s obligation
\nhereunder to repair and maintain is subject to the condition precedent that
\nLandlord shall have received written notice of the need for such repairs and
\nmaintenance and a reasonable time to perform such repair and maintenance. Tenant
\nshall promptly report in writing to Landlord any defective condition which
\nLandlord is required to repair, and failure to so report such defects shall make
\nTenant responsible to Landlord for the costs and expenses of repairing any
\nadditional damage or deterioration occurring after the date Tenant obtains
\nknowledge of such defective condition and any liability incurred by Landlord by
\nreason of Tenant’s failure to notify Landlord of such defective condition in a
\ntimely manner as provided herein.<\/p>\n
(c) Tenant’s Waiver of Rights. Tenant hereby expressly waives all rights
\nto make repairs at the expense of Landlord or to terminate this Lease, as
\nprovided for in California Civil Code Sections 1941 and 1942, and 1932(1),
\nrespectively, and any similar or successor statute or law in effect or any
\namendment thereof during the Term.<\/p>\n
14. LANDLORD’S INSURANCE<\/p>\n
Landlord shall purchase and keep in force fire, extended coverage and “all
\nrisk” insurance covering the Building and the Project. Tenant shall, at its sole
\ncost and expense, comply with any and all reasonable requirements pertaining to
\nthe Premises, the Building and the Project of any insurer necessary for the
\nmaintenance of reasonable fire and commercial general liability insurance,
\ncovering the Building and the Project.<\/p>\n
18<\/p>\n
Landlord, at Tenant’s cost, may maintain “Loss of Rents” insurance, insuring
\nthat the Rent will be paid in a timely manner to Landlord for a period of up to
\ntwelve (12) months if the Premises, the Building or the Project or any portion
\nthereof are destroyed or rendered unusable or inaccessible by any cause insured
\nagainst under this Lease.<\/p>\n
15. TENANT’S INSURANCE<\/p>\n
(a) Commercial General Liability Insurance. Tenant shall, at Tenant’s
\nexpense, secure and keep in force a “broad form” commercial general liability
\ninsurance and property damage policy covering the Premises, insuring Tenant, and
\nnaming Landlord and its lenders as additional insureds, against any liability
\narising out of the ownership, use, occupancy or maintenance of the Premises. The
\nminimum limit of coverage of such policy shall be in the amount of not less than
\nTwo Million Dollars ($2,000,000.00) for injury or death of one person in any one
\naccident or occurrence and in the amount of not less than Two Million Dollars
\n($2,000,000.00) for injuries or death of more than one person in any one
\naccident or occurrence, shall include an extended liability endorsement
\nproviding contractual liability coverage (which shall include coverage for
\nTenant’s indemnification obligations in this Lease), and shall contain a
\nseverability of interest clause or a cross liability endorsement. Such insurance
\nshall further insure Landlord and Tenant against liability for property damage
\nof at least Two Million Dollars ($2,000,000.00). Landlord may from time to time
\nrequire reasonable increases in any such limits if Landlord believes that
\nadditional coverage is necessary or desirable. The limit of any insurance shall
\nnot limit the liability of Tenant hereunder. No policy maintained by Tenant
\nunder this Paragraph 15(a) shall contain a deductible greater than Two Thousand
\nFive Hundred Dollars ($2,500.00). No policy shall be cancelable or subject to
\nreduction of coverage without ten (10) days prior written notice to Landlord,
\nand loss payable clauses shall be subject to Landlord’s approval. Such policies
\nof insurance shall be issued as primary policies and not contributing with or in
\nexcess of coverage that Landlord may carry, by an insurance company authorized
\nto do business in the State of California for the issuance of such type of
\ninsurance coverage and rated A:XIII or better in Best’s Key Rating Guide.<\/p>\n
(b) Personal Property Insurance. Tenant shall maintain in full force and
\neffect on all of its personal property, furniture, furnishings, trade or
\nbusiness fixtures and equipment (collectively, “Tenant’s Property”) on the
\nPremises, a policy or policies of fire and extended coverage insurance with
\nstandard coverage endorsement to the extent of the full replacement cost
\nthereof. No such policy shall contain a deductible greater than Two Thousand
\nFive Hundred Dollars ($2,500.00). During the term of this Lease the proceeds
\nfrom any such policy or policies of insurance shall be used for the repair or
\nreplacement of the fixtures and equipment so insured. Landlord shall have no
\ninterest in the insurance upon Tenant’s equipment and fixtures and will sign all
\ndocuments reasonably necessary in connection with the settlement of any claim or
\nloss by Tenant. Landlord will not carry insurance on Tenant’s Property.<\/p>\n
19<\/p>\n
(c) Worker’s Compensation Insurance; Employer’s Liability Insurance.
\nTenant shall, at Tenant’s expense, maintain in full force and effect worker’s
\ncompensation insurance with not less than the minimum limits required by law,
\nand employer’s liability insurance with a minimum limit of coverage of One
\nMillion Dollars ($1,000,000).<\/p>\n
(d) Evidence of Coverage. Tenant shall deliver to Landlord certificates of
\ninsurance and true and complete copies of any and all endorsements required
\nherein for all insurance required to be maintained by Tenant hereunder at the
\ntime of execution of this Lease by Tenant. Tenant shall, at least fifteen (15)
\ndays prior to expiration of each policy, furnish Landlord with certificates of
\nrenewal or “binders” thereof. Each certificate shall expressly provide that such
\npolicies shall not be cancelable or otherwise subject to modification except
\nafter ten (10) days prior written notice to Landlord and the other parties named
\nas additional insureds as required in this Lease.<\/p>\n
16. INDEMNIFICATION<\/p>\n
(a) Of Landlord. Tenant shall indemnify and hold harmless Landlord and
\nLandlord’s Agents against and from any and all damages, claims, losses,
\nliabilities, penalties, judgments, costs, demands, causes of action and expenses
\n(including, without limitation, reasonable attorneys’ fees) arising from (1) the
\nuse of the Premises, the Building or the Project by Tenant or Tenant’s Agents,
\nor from any activity done, permitted or suffered by Tenant or Tenant’s Agents in
\nor about the Premises, the Building or the Project, and (2) any act, neglect,
\nfault, willful misconduct or omission of Tenant or Tenant’s Agents, or from any
\nbreach or default in the terms of this Lease by Tenant or Tenant’s Agents, and
\n(3) any violation or alleged violation of the ADA by Tenant or Tenant’s Agents,
\nand (4) any action or proceeding brought on account of any matter in items (l),
\n(2) or (3). If any action or proceeding is brought against Landlord by reason of
\nany such claim, upon notice from Landlord, Tenant shall defend the same at
\nTenant’s expense by counsel reasonably satisfactory to Landlord. Notwithstanding
\nthe foregoing, nothing herein shall be deemed to require Tenant to indemnify or
\nhold harmless Landlord or Landlord’s Agents from claims, liabilities, judgments,
\ncosts, demands, causes of action or expenses arising from the negligence or
\nwillful misconduct of Landlord or Landlord’s Agents. As a material part of the
\nconsideration to Landlord, Tenant hereby releases Landlord and Landlord’s Agents
\nfrom responsibility for, waives its entire claim of recovery for and assumes all
\nrisk of (i) damage to property or injury to persons in or about the Premises,
\nthe Building or the Project from any cause whatsoever (except that which is
\ncaused by the gross negligence or willful misconduct of Landlord or Landlord’s
\nAgents or by the failure of Landlord to observe any of the terms and conditions
\nof this Lease, if such failure has persisted for an unreasonable period of time
\nafter written notice of such failure), or (ii) loss resulting from business
\ninterruption or loss of income at the Premises. The obligations of Tenant under
\nthis Paragraph 16(a) shall survive any termination of this Lease.<\/p>\n
20<\/p>\n
(b) Of Tenant. Landlord shall indemnify and hold harmless Tenant and
\nTenant’s Agents against and from any and all damages, claims, losses,
\nliabilities, penalties, judgments, costs, demands, causes of action and expenses
\n(including, without limitation, reasonable attorneys’ fees) arising from the (1)
\ngross negligence or willful misconduct of Landlord or the property manager of
\nthe Building, and (2) failure of Landlord to observe any of the terms and
\nconditions of this Lease, if such failure has persisted for an unreasonable
\nperiod of time after written notice of such failure, or any breach of any
\nrepresentation or warranty of Landlord contained in Paragraph 47(b) below, and
\n(3) any action or proceeding brought on account of any matter in items (1) and
\n(2). If any action or proceeding is brought against Tenant by reason of any such
\nclaim, upon notice from Tenant, Landlord shall defend the same at Landlord’s
\nexpense by counsel reasonably satisfactory to Tenant. The obligations of
\nLandlord under this Paragraph 16(b) shall survive any termination of this Lease.<\/p>\n
(c) No Impairment of Insurance. The foregoing indemnities shall not
\nrelieve any insurance carrier of its obligations under any policies required to
\nbe carried by either party pursuant to this Lease, to the extent that such
\npolicies cover the peril or occurrence that results in the claim that is subject
\nto the foregoing indemnity.<\/p>\n
17. SUBROGATION<\/p>\n
Landlord and Tenant hereby mutually waive any claim against the other and
\nits Agents for any loss or damage to any of their property located on or about
\nthe Premises, the Building or the Project that is caused by or results from
\nperils covered by property insurance carried by the respective parties, to the
\nextent of the proceeds of such insurance actually received with respect to such
\nloss or damage, whether or not due to the negligence of the other party or its
\nAgents. Because the foregoing waivers will preclude the assignment of any claim
\nby way of subrogation to an insurance company or any other person, each party
\nnow agrees to immediately give to its insurer written notice of the terms of
\nthese mutual waivers and shall have their insurance policies endorsed to prevent
\nthe invalidation of the insurance coverage because of these waivers. Nothing in
\nthis Paragraph 17 shall relieve a party of liability to the other for failure to
\ncarry insurance required by this Lease.<\/p>\n
18. SIGNS<\/p>\n
Tenant shall not place or permit to be placed in, upon, or about the
\nPremises, the Building or the Project any exterior lights, decorations,
\nballoons, flags, pennants, banners, advertisements or notices, or erect or
\ninstall any signs, windows or door lettering, placards, decorations, or
\nadvertising media of any type which can be viewed from the exterior the Premises
\nwithout obtaining Landlord’s prior written consent or without complying with
\nLandlord’s signage criteria specified on Exhibit D hereto, as the same may be
\nmodified by Landlord from time to time (the “Signage Criteria”), nor conduct, or
\npermit to be conducted, any sale by auction on the Premises or otherwise on the
\nProject;<\/p>\n
21<\/p>\n
provided, however, that Tenant shall have the right to install identification
\nsignage on the Building’s monument sign located on West Maude Avenue, provided
\nthat Landlord shall have the right to approve the size, design and style of such
\nidentification signage and such identification signage shall comply with the
\nSignage Criteria and all applicable laws. Tenant shall remove any sign,
\nadvertisement or notice placed on the Premises, the Building or the Project by
\nTenant upon the expiration of the Term or sooner termination of this Lease, and
\nTenant shall repair any damage or injury to the Premises, the Building or the
\nProject caused thereby, all at Tenant’s expense. If any signs are not removed,
\nor necessary repairs not made, Landlord shall have the right to remove the signs
\nand repair any damage or injury to the Premises, the Building or the Project at
\nTenant’s sole cost and expense.<\/p>\n
19. FREE FROM LIENS<\/p>\n
Tenant shall keep the Premises, the Building and the Project free from any
\nliens arising out of any work performed, material furnished or obligations
\nincurred by or for Tenant. In the event that Tenant shall not, within ten (10)
\ndays following the imposition of any such lien, cause the lien to be released of
\nrecord by payment or posting of a proper bond, Landlord shall have in addition
\nto all other remedies provided herein and by law the right but not the
\nobligation to cause same to be released by such means as it shall deem proper,
\nincluding payment of the claim giving rise to such lien. All such sums paid by
\nLandlord and all expenses incurred by it in connection therewith (including,
\nwithout limitation, attorneys’ fees) shall be payable to Landlord by Tenant upon
\ndemand. Landlord shall have the right at all times to post and keep posted on
\nthe Premises any notices permitted or required by law or that Landlord shall
\ndeem proper for the protection of Landlord, the Premises, the Building and the
\nProject, from mechanics’ and materialmen’s liens. Tenant shall give to Landlord
\nat least five (5) business days’ prior written notice of commencement of any
\nrepair or construction on the Premises.<\/p>\n
20. ENTRY BY LANDLORD<\/p>\n
Tenant shall permit Landlord and Landlord’s Agents to enter into and upon
\nthe Premises at all reasonable times, upon notice reasonably in advance (except
\nin the case of an emergency, for which no notice shall be required), and subject
\nto Tenant’s reasonable security arrangements, for the purpose of inspecting the
\nsame or showing the Premises to prospective purchasers, lenders or tenants or to
\nalter, improve, maintain and repair the Premises or the Building as required or
\npermitted of Landlord under the terms hereof, or for any other business purpose,
\nwithout any rebate of Rent and without any liability to Tenant for any loss of
\noccupation or quiet enjoyment of the Premises thereby occasioned (except for
\nactual damages resulting from the gross negligence or willful misconduct of
\nLandlord or the property manager of the Building); and Tenant shall permit
\nLandlord to post notices of non-responsibility and ordinary “for sale” or “for
\nlease” signs, provided, however, that said “for lease” signs shall be posted on
\nthe Premises only during the last twelve (12) months of the Term. No such entry
\nshall be construed to be a forcible or<\/p>\n
22<\/p>\n
unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant
\nfrom the Premises. Landlord may temporarily close entrances, doors, corridors,
\nelevators or other facilities without liability to Tenant by reason of such
\nclosure in the case of an emergency and when Landlord otherwise deems such
\nclosure necessary.<\/p>\n
21. DESTRUCTION AND DAMAGE<\/p>\n
(a) If the Premises are damaged by fire or other perils covered by
\nextended coverage insurance, Landlord shall, at Landlord’s option:<\/p>\n
(1) In the event of total destruction (which shall mean destruction
\nor damage in excess of thirty-three percent (33%) of the full insurable value
\nthereof) of the Premises, elect either to commence promptly to repair and
\nrestore the Premises and prosecute the same diligently to completion, in which
\nevent this Lease shall remain in full force and effect; or not to repair or
\nrestore the Premises, in which event this Lease shall terminate. Landlord shall
\ngive Tenant written notice of its intention within sixty (60) days after the
\ndate (the “Casualty Discovery Date”) Landlord obtains actual knowledge of such
\ndestruction. If Landlord elects not to restore the Premises, this Lease shall be
\ndeemed to have terminated as of the date of such total destruction.<\/p>\n
(2) In the event of a partial destruction (which shall mean
\ndestruction or damage to an extent not exceeding thirty-three percent (33%) of
\nthe full insurable value thereof) of the Premises for which Landlord will
\nreceive insurance proceeds sufficient to cover the cost to repair and restore
\nsuch partial destruction and, if the damage thereto is such that the Premises
\nmay be substantially repaired or restored to its condition existing immediately
\nprior to such damage or destruction within two hundred seventy (270) days from
\nthe Casualty Discovery Date, Landlord shall commence and proceed diligently with
\nthe work of repair and restoration, in which event the Lease shall continue in
\nfull force and effect. If such repair and restoration requires longer than two
\nhundred seventy (270) days or if the insurance proceeds therefor (plus any
\namounts Tenant may elect or is obligated to contribute) are not sufficient to
\ncover the cost of such repair and restoration, Landlord may elect either to so
\nrepair and restore, in which event the Lease shall continue in full force and
\neffect, or not to repair or restore, in which event the Lease shall terminate.
\nIn either case, Landlord shall give written notice to Tenant of its intention
\nwithin sixty (60) days after the Casualty Discovery Date. If Landlord elects not
\nto restore the Premises, this Lease shall be deemed to have terminated as of the
\ndate of such partial destruction.<\/p>\n
(3) Notwithstanding anything to the contrary contained in this
\nParagraph, in the event of damage to the Premises occurring during the last
\ntwelve (12) months of the Term which will take more than thirty (30) days to
\nrepair, either party may elect to terminate this Lease by written notice of
\nsuch election given to the other party within thirty (30) days after the
\nCasualty Discovery Date.<\/p>\n
23<\/p>\n
(b) If the Premises are damaged by any peril not covered by extended
\ncoverage insurance, and the cost to repair such damage exceeds any amount Tenant
\nmay agree to contribute, Landlord may elect either to commence promptly to
\nrepair and restore the Premises and prosecute the same diligently to completion,
\nin which event this Lease shall remain in full force and effect; or not to
\nrepair or restore the Premises, in which event this Lease shall terminate.
\nLandlord shall give Tenant written notice of its intention within sixty (60)
\ndays after the Casualty Discovery Date. If Landlord elects not to restore the
\nPremises, this Lease shall be deemed to have terminated as of the date on which
\nTenant surrenders possession of the Premises to Landlord, except that if the
\ndamage to the Premises materially impairs Tenant’s ability to continue its
\nbusiness operations in the Premises, then this Lease shall be deemed to have
\nterminated as of the date such damage occurred.<\/p>\n
(c) Notwithstanding anything to the contrary in this Paragraph 22,
\nLandlord shall have the option to terminate this Lease, exercisable by notice to
\nTenant within sixty (60) days after the Casualty Discovery Date, in each of the
\nfollowing instances:<\/p>\n
(1) If more than twenty-five percent (25%) of the full insurable
\nvalue of the Building or the Project is damaged or destroyed, regardless of
\nwhether or not the Premises are destroyed.<\/p>\n
(2) If the Building or the Project or any portion thereof is damaged
\nor destroyed and the repair and restoration of such damage requires longer than
\ntwo hundred seventy (270) days from the Casualty Discovery Date.<\/p>\n
(3) If the Building or the Project or any portion thereof is damaged
\nor destroyed and the insurance proceeds therefor are not sufficient to cover the
\ncosts of repair and restoration.<\/p>\n
(d) If the Premises is damaged or destroyed to the extent that the
\nPremises cannot with reasonable diligence be fully repaired or restored by
\nLandlord within two hundred seventy (270) days after the Casualty Discovery
\nDate, Tenant may terminate this Lease immediately upon notice thereof to
\nLandlord, which notice shall be given, if at all, not later than fifteen (15)
\ndays after Landlord notifies Tenant of Landlord’s estimate of the period of time
\nrequired to repair such damage or destruction.<\/p>\n
(e) In the event of repair and restoration as herein provided, the monthly
\ninstallments of Base Rent shall be abated proportionately in the ratio which
\nTenant’s use of the Premises is impaired during the period of such repair or
\nrestoration; provided, however, that Tenant shall not be entitled to such
\nabatement to the extent that such damage or destruction resulted from the acts
\nor inaction of Tenant or Tenant’s Agents and rental abatement insurance proceeds
\nare not available therefor. Except as expressly provided in the immediately
\npreceding sentence with respect to abatement of Base Rent, Tenant shall have no
\nclaim against Landlord for, and hereby releases Landlord and Landlord’s Agents
\nfrom responsibility for and waives its entire claim of recovery for any<\/p>\n
24<\/p>\n
cost, loss or expense suffered or incurred by Tenant as a result of any damage
\nto or destruction of the Premises, the Building or the Project or the repair or
\nrestoration thereof, including, without limitation, any cost, loss or expense
\nresulting from any loss of use of the whole or any part of the Premises, the
\nBuilding or the Project and\/or any inconvenience or annoyance occasioned by such
\ndamage, repair or restoration.<\/p>\n
(f) If Landlord is obligated to or elects to repair or restore as herein
\nprovided, Landlord shall have no obligation to repair Tenant’s Alterations, if
\nany, and Tenant shall promptly repair and restore, at Tenant’s expense, such
\nAlterations.<\/p>\n
(g) Tenant hereby waives the provisions of California Civil Code Section
\n1932(2) and Section 1933(4) which permit termination of a lease upon destruction
\nof the leased premises, and the provisions of any similar law now or hereinafter
\nin effect, and the provisions of this Paragraph 22 shall govern exclusively in
\ncase of such destruction.<\/p>\n
22. CONDEMNATION<\/p>\n
(a) If twenty-five percent (25%) or more of either the Premises, the
\nBuilding or the Project or the parking areas for the Building or the Project is
\ntaken for any public or quasi-public purpose by any lawful governmental power or
\nauthority, by exercise of the right of appropriation, inverse condemnation,
\ncondemnation or eminent domain, or sold to prevent such taking (each such event
\nbeing referred to as a “Condemnation”), Landlord may, at its option, terminate
\nthis Lease as of the date title vests in the condemning party. If twenty-five
\npercent (25%) or more of the Premises is taken, Tenant shall have the right to
\nterminate this Lease as of the date title vests in the condemning party. If
\neither party elects to terminate this Lease as provided herein, such election
\nshall be made by written notice to the other party given within thirty (30) days
\nafter the nature and extent of such Condemnation have been finally determined.
\nIf neither Landlord nor Tenant elects to terminate this Lease to the extent
\npermitted above, Landlord shall promptly proceed to restore the Premises, to the
\nextent of any Condemnation award received by Landlord, to substantially the same
\ncondition as existed prior to such Condemnation, allowing for the reasonable
\neffects of such Condemnation, and a proportionate abatement shall be made to the
\nBase Rent corresponding to the time during which, and to the portion of the
\nfloor area of the Premises (adjusted for any increase thereto resulting from any
\nreconstruction) of which, Tenant is deprived on account of such Condemnation and
\nrestoration, as reasonably determined by Landlord. Except as expressly provided
\nin the immediately preceding sentence with respect to abatement of Base Rent,
\nTenant shall have no claim against Landlord for, and hereby releases Landlord
\nand Landlord’s Agents from responsibility for and waives its entire claim of
\nrecovery for any cost, loss or expense suffered or incurred by Tenant as a
\nresult of any Condemnation or the repair or restoration of the Premises, the
\nBuilding or the Project or the parking areas for the Building or the Project
\nfollowing such Condemnation, including, without limitation, any cost, loss or
\nexpense resulting from any loss of use of the whole or any part of the Premises,
\nthe Building, the Project or the parking areas and\/or any inconvenience or<\/p>\n
25<\/p>\n
annoyance occasioned by such Condemnation, repair or restoration. The provisions
\nof California Code of Civil Procedure Section 1265.130, which allows either
\nparty to petition the Superior Court to terminate the Lease in the event of a
\npartial taking of the Premises, the Building, or the Project or the parking
\nareas for the Building or the Project, and any other applicable law now or
\nhereafter enacted, are hereby waived by Tenant.<\/p>\n
(b) Landlord shall be entitled to any and all compensation, damages,
\nincome, rent, awards, or any interest therein whatsoever which may be paid or
\nmade in connection with any Condemnation, and Tenant shall have no claim against
\nLandlord for the value of any unexpired term of this Lease or otherwise;
\nprovided, however, that Tenant shall be entitled to receive any award separately
\nallocated by the condemning authority to Tenant for (i) Tenant’s relocation
\nexpenses, (ii) the value of Tenant’s Property (specifically excluding fixtures,
\nAlterations and other components of the Premises which under this Lease or by
\nlaw are or at the expiration of the Term will become the property of Landlord),
\n(iii) Tenant’s loss of goodwill, and (iv) Tenant’s loss of business and business
\ninterruption.<\/p>\n
23. ASSIGNMENT AND SUBLETTING<\/p>\n
(a) Except as expressly set forth below, Tenant shall not voluntarily or
\nby operation of law, (1) mortgage, pledge, hypothecate or encumber this Lease or
\nany interest herein, (2) assign or transfer this Lease or any interest herein,
\nsublease the Premises or any part thereof, or any right or privilege appurtenant
\nthereto, or allow any other person (the employees, contractors and invitees of
\nTenant excepted) to occupy or use the Premises, or any portion thereof, without
\nfirst obtaining the written consent of Landlord, which consent shall not be
\nwithheld unreasonably provided that (i) Tenant is not then in Default under this
\nLease nor is any event then occurring which with the giving of notice or the
\npassage of time, or both, would constitute a Default hereunder, and (ii) Tenant
\nhas not previously assigned or transferred this Lease or any interest herein or
\nsubleased the Premises or any part thereof. When Tenant requests Landlord’s
\nconsent to such assignment or subletting, it shall notify Landlord in writing of
\nthe name and address of the proposed assignee or subtenant and the nature and
\ncharacter of the business of the proposed assignee or subtenant and shall
\nprovide current and prior financial statements for the proposed assignee or
\nsubtenant prepared in accordance with generally accepted accounting principles
\n(“GAAP Financials”) or, if GAAP Financials are not available for such assignee
\nor subtenant, financial statements in an alternate form approved by Landlord.
\nTenant shall also provide Landlord with a copy of the proposed sublease or
\nassignment agreement, including all material terms and conditions thereof.
\nExcept in the case of an assignment or sublease to a Tenant Affiliate (as
\nhereinafter defined), Landlord shall have the option, to be exercised as soon as
\nreasonably practicable, but in no event more than twenty (20) days of receipt of
\nthe foregoing, to (1) terminate this Lease as of the commencement date stated in
\nthe proposed sublease or assignment; provided, however, that in the case of a
\nsublease, Landlord shall have the right to terminate this Lease under this
\nclause (l) only if Tenant proposes to sublease fifty percent (50%) or<\/p>\n
26<\/p>\n
more of the Premises (taking into account the aggregate of the premises to be
\ncovered by such sublease and all other subleases entered into by Tenant and then
\nin effect), (2) sublease or take an assignment, as the case may be, from Tenant
\nof the interest, or any portion thereof, in this Lease and\/or the Premises that
\nTenant proposes to assign or sublease, on the same terms and conditions as
\nstated in the proposed sublet or assignment agreement, (3) consent to the
\nproposed assignment or sublease, or (4) refuse its consent to the proposed
\nassignment or sublease, providing that such consent shall not be unreasonably
\nwithheld so long as Tenant is not then in Default under this Lease nor is any
\nevent then occurring which with the giving of notice or the passage of time, or
\nboth, would constitute a Default hereunder. In the event Landlord elects to
\nterminate this Lease or sublease or take an assignment from Tenant of the
\ninterest, or portion thereof, in the Lease and\/or the Premises that Tenant
\nproposes to assign or sublease as provided in the foregoing clauses (1) and (2),
\nrespectively, then Landlord shall have the additional right to negotiate
\ndirectly with Tenant’s proposed assignee or subtenant and to enter into a direct
\nlease or occupancy agreement with such party on such terms as shall be
\nacceptable to Landlord in its sole and absolute discretion, and Tenant hereby
\nwaives any claims against Landlord related thereto, including, without
\nlimitation, any claims for any compensation or profit related to such lease or
\noccupancy agreement.<\/p>\n
(b) Notwithstanding anything to the contrary contained in Paragraph 23(a)
\nabove, Tenant shall have the right with the consent of Landlord, which consent
\nshall not be unreasonably withheld, to assign this Lease or to sublease the
\nPremises or any part thereof to a Tenant Affiliate. In the event Tenant proposes
\nto enter into an assignment or sublease with a Tenant Affiliate, then Tenant
\nshall provide Landlord with the information required to be delivered pursuant to
\nsaid Paragraph 23(a). Landlord shall have the option, to be exercised as soon as
\nreasonably practicable, but in no event more than twenty (20) days of receipt of
\nthe foregoing, to (1) consent to the proposed assignment or sublease, or (2)
\nrefuse its consent to the proposed assignment or sublease, providing that such
\nconsent shall not be unreasonably withheld. For purposes of this Paragraph 23, a
\n“Tenant Affiliate” shall mean an entity that controls, is controlled by or is
\nunder common control with, Tenant; and a party shall be deemed to “control”
\nanother party for purposes of the aforesaid definition only if the first party
\nowns more than fifty percent (50%) of the stock or other beneficial interests of
\nthe second party.<\/p>\n
(c) Without otherwise limiting the criteria upon which Landlord may
\nwithhold its consent under Paragraphs 23(a) and (b) above, Landlord shall be
\nentitled to consider all reasonable criteria including, but not limited to, the
\nfollowing: (1) whether or not the proposed subtenant or assignee is engaged in a
\nbusiness which, and the use of the Premises will be in a manner which, is in
\nkeeping with the then character and nature of all other tenancies in the
\nProject, (2) whether the use to be made of the Premises by the proposed
\nsubtenant or assignee will conflict with any so called “exclusive” use then in
\nfavor of any other tenant of the Building or the Project, and whether such use
\nwould be prohibited by any other portion of this Lease, including, but not
\nlimited to, any rules and regulations then in effect, or under applicable Laws,
\nand whether such use imposes an<\/p>\n
27<\/p>\n
unacceptable load upon the Premises and the Building and Project services, as
\nreasonably determined by Landlord, (3) the business reputation of the proposed
\nindividuals who will be managing and operating the business operations of the
\nassignee or subtenant, and the long-term financial and competitive business
\nprospects of the proposed assignee or subtenant, and (4) the creditworthiness
\nand financial stability of the proposed assignee or subtenant in light of the
\nresponsibilities involved. In any event, Landlord may withhold its consent to
\nany assignment or sublease, if (i) the actual use proposed to be conducted in
\nthe Premises or portion thereof conflicts with the provisions of Paragraph 9(a)
\nor (b) above or with any other lease which restricts the use to which any space
\nin the Building or the Project may be put, or (ii) the proposed assignment or
\nsublease requires Alterations to the Premises or portions thereof except for
\nPermitted Alterations and Alterations which are approved by Landlord in
\naccordance with Paragraph 12 above. In the event that Landlord withholds its
\nconsent to an assignment or sublease, it shall notify Tenant of the criteria
\nupon which such consent was withheld.<\/p>\n
(d) If Landlord approves an assignment or subletting as herein provided,
\nTenant shall pay to Landlord, as Additional Rent, the difference, if any,
\nbetween (1) the Base Rent plus Additional Rent allocable to that part of the
\nPremises affected by such assignment or sublease pursuant to the provisions of
\nthis Lease, and (2) the rent and any additional rent payable by the assignee or
\nsublessee to Tenant, less reasonable legal fees and customary market-based
\nleasing commissions, if any, incurred by Tenant in connection with such
\nassignment or sublease. The assignment or sublease agreement, as the case may
\nbe, after approval by Landlord, shall not be amended without Landlord’s prior
\nwritten consent, and shall contain a provision directing the assignee or
\nsubtenant to pay the rent and other sums due thereunder directly to Landlord
\nupon receiving written notice from Landlord that Tenant is in default under this
\nLease with respect to the payment of Rent. In the event that, notwithstanding
\nthe giving of such notice, Tenant collects any rent or other sums from the
\nassignee or subtenant, then Tenant shall hold such sums in trust for the benefit
\nof Landlord and shall immediately forward the same to Landlord. Landlord’s
\ncollection of such rent and other sums shall not constitute an acceptance by
\nLandlord of attornment by such assignee or subtenant. A consent to one
\nassignment, subletting, occupation or use shall not be deemed to be a consent to
\nany other or subsequent assignment, subletting, occupation or use, and consent
\nto any assignment or subletting shall in no way relieve Tenant of any liability
\nunder this Lease. Any assignment or subletting without Landlord’s consent shall
\nbe void, and shall, at the option of Landlord, constitute a Default under this
\nLease.<\/p>\n
(e) Notwithstanding any assignment or subletting, Tenant and any guarantor
\nor surety of Tenant’s obligations under this Lease shall at all times remain
\nfully responsible and liable for the payment of the Rent and for compliance with
\nall of Tenant’s other obligations under this Lease (regardless of whether
\nLandlord’s approval has been obtained for any such assignment or subletting).<\/p>\n
28<\/p>\n
(f) Tenant shall pay Landlord’s reasonable fees (including. without
\nlimitation, the fees of Landlord’s counsel), incurred in connection with
\nLandlord’s review and processing of documents regarding any proposed assignment
\nor sublease.<\/p>\n
(g) Notwithstanding anything in this Lease to the contrary, in the event
\nLandlord consents to an assignment or subletting by Tenant in accordance with
\nthe terms of this Paragraph 24, Tenant’s assignee or subtenant shall have no
\nright to further assign this Lease or any interest therein or thereunder or to
\nfurther sublease all or any portion of the Premises. In furtherance of the
\nforegoing, Tenant acknowledges and agrees on behalf of itself and any assignee
\nor subtenant claiming under it (and any such assignee or subtenant by accepting
\nsuch assignment or sublease shall be deemed to acknowledge and agree) that no
\nsub-subleases or further assignments of this Lease shall be permitted at any
\ntime.<\/p>\n
(h) Tenant acknowledges and agrees that the restrictions, conditions and
\nlimitations imposed by this Paragraph 23 on Tenant’s ability to assign or
\ntransfer this Lease or any interest herein, to sublet the Premises or any part
\nthereof, to transfer or assign any right or privilege appurtenant to the
\nPremises, or to allow any other person to occupy or use the Premises or any
\nportion thereof, are, for the purposes of California Civil Code Section 1951.4,
\nas amended from time to time, and for all other purposes, reasonable at the time
\nthat the Lease was entered into, and shall be deemed to be reasonable at the
\ntime that Tenant seeks to assign or transfer this Lease or any interest herein,
\nto sublet the Premises or any part thereof, to transfer or assign any right or
\nprivilege appurtenant to the Premises, or to allow any other person to occupy or
\nuse the Premises or any portion thereof.<\/p>\n
24. TENANT’S DEFAULT<\/p>\n
The occurrence of any one of the following events shall constitute an
\nevent of default on the part of Tenant (“Default”):<\/p>\n
(a) The vacation or abandonment of the Premises by Tenant for a period of
\nfifteen (15) consecutive days or any vacation or abandonment of the Premises by
\nTenant which would cause any insurance policy to be invalidated or otherwise
\nlapse, or the failure of Tenant to continuously operate Tenant’s business in the
\nPremises for a period of fifteen (15) consecutive days, in each of the foregoing
\ncases irrespective of whether or not Tenant is then in monetary default under
\nthis Lease. Tenant agrees to notice and service of notice as provided for in
\nthis Lease and waives any right to any other or further notice or service of
\nnotice which Tenant may have under any statute or law now or hereafter in
\neffect;<\/p>\n
(b) Failure to pay any installment of Rent or any other monies due and
\npayable hereunder, said failure continuing for a period of five (5) business
\ndays after the same is due;<\/p>\n
29<\/p>\n
(c) A general assignment by Tenant or Guarantor (as hereinafter defined)
\nfor the benefit of creditors;<\/p>\n
(d) The filing of a voluntary petition in bankruptcy by Tenant or
\nGuarantor, the filing by Tenant or Guarantor of a voluntary petition for an
\narrangement, the filing by or against Tenant or Guarantor of a petition,
\nvoluntary or involuntary, for reorganization, or the filing of an involuntary
\npetition by the creditors of Tenant or Guarantor, said involuntary petition
\nremaining undischarged for a period of sixty (60) days;<\/p>\n
(e) Receivership, attachment, or other judicial seizure of substantially
\nall of Tenant’s assets on the Premises, such attachment or other seizure
\nremaining undismissed or undischarged for a period of sixty (60) days after the
\nlevy thereof;<\/p>\n
(f) The failure by Tenant to maintain its legal existence, if Tenant is a
\ncorporation, partnership, limited liability company, trust or other legal
\nentity;<\/p>\n
(g) Failure of Tenant to execute and deliver to Landlord any estoppel
\ncertificate, subordination agreement, or lease amendment within the time periods
\nand in the manner required by Paragraphs 30 or 31 or 42;<\/p>\n
(h) An assignment or sublease of this Lease or the Premises by Tenant
\ncontrary to the provision of Paragraph 23, unless such assignment or sublease is
\nexpressly conditioned upon Tenant having received Landlord’s consent thereto;<\/p>\n
(i) Failure of Tenant to restore the Security Deposit to the amount and
\nwithin the time period provided in Paragraph 7 above;<\/p>\n
(j) Failure in the performance of any of Tenant’s covenants, agreements or
\nobligations hereunder (except those failures specified as events of Default in
\nsubparagraphs (b), (1) or (m) above or any other subparagraphs of this Paragraph
\n24, which shall be governed by such other Paragraphs), which failure continues
\nfor thirty (30) days after written notice thereof from Landlord to Tenant,
\nprovided that, if Tenant has exercised reasonable diligence to cure such failure
\nand such failure cannot be cured within such thirty (30) day period despite
\nreasonable diligence, Tenant shall not be in default under this subparagraph so
\nlong as Tenant thereafter diligently and continuously prosecutes the cure to
\ncompletion and actually completes such cure within ninety (90) days after the
\ngiving of the aforesaid written notice;<\/p>\n
(k) Chronic delinquency by Tenant in the payment of Rent, or any other
\nperiodic payments required to be paid by Tenant under this Lease. “Chronic
\ndelinquency” shall mean failure by Tenant to pay Rent, or any other payments
\nrequired to be paid by Tenant under this Lease within three (3) days after
\nwritten notice thereof for any three (3) months (consecutive or nonconsecutive)
\nduring any period of twelve (12) months. In the event of a Chronic Delinquency,
\nin addition to Landlord’s other remedies for Default provided in<\/p>\n
30<\/p>\n
this Lease, at Landlord’s option, Landlord shall have the right to require that
\nRent be paid by Tenant quarterly, in advance;<\/p>\n
(l) Chronic overuse by Tenant or Tenant’s Agents of the number of
\nundesignated parking spaces set forth in the Basic Lease Information. “Chronic
\nOveruse” shall mean use by Tenant or Tenant’s Agents of a number of parking
\nspaces greater than the number of parking spaces set forth in the Basic Lease
\nInformation more than three (3) times during the Term after written notice by
\nLandlord;<\/p>\n
(m) Any insurance required to be maintained by Tenant pursuant to this
\nLease shall be canceled or terminated or shall expire or be reduced or
\nmaterially changed, except as permitted in this Lease; provided, however, that
\nif such insurance is canceled or terminated for reasons outside of the control
\nof, and not as a result of any act or omission on the part of, Tenant, then
\nTenant shall not be in Default hereunder provided that Tenant obtains
\nreplacement insurance acceptable to Landlord within five (5) days after the
\ncancellation or termination of the aforesaid coverage; and<\/p>\n
(n) Any failure by Tenant to discharge any lien or encumbrance placed on
\nthe Project or any part thereof in violation of this Lease within ten (10) days
\nafter the date such lien or encumbrance is filed or recorded against the Project
\nor any part thereof.<\/p>\n
Tenant agrees that any notice given by Landlord pursuant to Paragraph
\n24(j), (k) or (l) above shall satisfy the requirements for notice under
\nCalifornia Code of Civil Procedure Section 1161, and Landlord shall not be
\nrequired to give any additional notice in order to be entitled to commence an
\nunlawful detainer proceeding.<\/p>\n
25. LANDLORD’S REMEDIES<\/p>\n
(a) Termination. In the event of any Default by Tenant, then in addition
\nto any other remedies available to Landlord at law or in equity and under this
\nLease, Landlord shall have the immediate option to terminate this Lease and all
\nrights of Tenant hereunder by giving written notice of such intention to
\nterminate. In the event that Landlord shall elect to so terminate this Lease
\nthen Landlord may recover from Tenant:<\/p>\n
(1) the worth at the time of award of any unpaid Rent and any other
\nsums clue and payable which have been earned at the time of such termination;
\nplus<\/p>\n
(2) the worth at the time of award of the amount by which the unpaid
\nRent and any other sums due and payable which would have been earned after
\ntermination until the time of award exceeds the amount of such rental loss
\nTenant proves could have been reasonably avoided; plus<\/p>\n
(3) the worth at the time of award of the amount by which the unpaid
\nRent and any other sums due and payable for the balance of the term of this
\nLease after the time of<\/p>\n
31<\/p>\n
award exceeds the amount of such rental loss that Tenant proves could be
\nreasonably avoided; plus<\/p>\n
(4) any other amount necessary to compensate Landlord for all the
\ndetriment proximately caused by Tenant’s failure to perform its obligations
\nunder this Lease or which in the ordinary course would be likely to result
\ntherefrom, including, without limitation, (A) any costs or expenses incurred by
\nLandlord (1) in retaking possession of the Premises; (2) in maintaining,
\nrepairing, preserving, restoring, replacing, cleaning, altering, remodeling or
\nrehabilitating the Premises or any affected portions of the Building or the
\nProject, including such actions undertaken in connection with the reletting or
\nattempted reletting of the Premises to a new tenant or tenants; (3) for leasing
\ncommissions, advertising costs and other expenses of reletting the Premises; or
\n(4) in carrying the Premises, including taxes, insurance premiums, utilities and
\nsecurity precautions; (B) any unearned brokerage commissions paid in connection
\nwith this Lease; (C) reimbursement of any previously waived or abated Base Rent
\nor Additional Rent or any free rent or reduced rental rate granted hereunder;
\nand (D) any concession made or paid by Landlord to the benefit of Tenant in
\nconsideration of this Lease including, but not limited to, any moving
\nallowances, contributions or assumptions by Landlord of any of Tenant’s previous
\nlease obligations; plus<\/p>\n
(5) such reasonable attorneys’ fees incurred by Landlord as a result
\nof a Default, and costs in the event suit is filed by Landlord to enforce such
\nremedy; and plus<\/p>\n
(6) at Landlord’s election, such other amounts in addition to or in
\nlieu of the foregoing as may be permitted from time to time by applicable law.<\/p>\n
As used in subparagraphs (1) and (2) above, the “worth at the time of award” is
\ncomputed by allowing interest at an annual rate equal to ten percent (10%) per
\nannum or the maximum rate permitted by law, whichever is less. As used in
\nsubparagraph (3) above, the “worth at the time of award” is computed by
\ndiscounting such amount at the discount rate of the Federal Reserve Bank of San
\nFrancisco at the time of award, plus one percent (1%). Tenant waives redemption
\nor relief from forfeiture under California Code of Civil Procedure Sections 1174
\nand 1179, or under any other pertinent present or future Law, in the event
\nTenant is evicted or Landlord takes possession of the Premises by reason of any
\nDefault of Tenant hereunder.<\/p>\n
(b) Continuation of Lease. In the event of any Default by Tenant, then in
\naddition to any other remedies available to Landlord at law or in equity and
\nunder this Lease, Landlord shall have the remedy described in California Civil
\nCode Section 1951.4 (Landlord may continue this Lease in effect after Tenant’s
\nDefault and abandonment and recover Rent as it becomes due, provided Tenant has
\nthe right to sublet or assign, subject only to reasonable limitations). In such
\nevent, Landlord shall not be liable in any way whatsoever for its failure or
\nrefusal to relet the Premises. For purposes of this<\/p>\n
32<\/p>\n
Paragraph 25(b), the following acts by Landlord will not constitute the
\ntermination of Tenant’s right to possession of the Premises:<\/p>\n
(1) Acts of maintenance or preservation or efforts to relet the
\nPremises, including, but not limited to, alterations, remodeling, redecorating,
\nrepairs, replacements and\/or painting as Landlord shall consider advisable for
\nthe purpose of reletting the Premises or any, part thereof; or<\/p>\n
(2) The appointment of a receiver upon the initiative of Landlord to
\nprotect Landlord’s interest under this Lease or in the Premises.<\/p>\n
(c) Re-entry. In the event of any Default by Tenant, Landlord shall also
\nhave the right, with or without terminating this Lease, in compliance with
\napplicable law, to re-enter the Premises and remove all persons and property
\nfrom the Premises; such property may be removed and stored in a public warehouse
\nor elsewhere at the cost of and for the account of Tenant.<\/p>\n
(d) Reletting. In the event of the abandonment of the Premises by Tenant
\nor in the event that Landlord shall elect to re-enter as provided in Paragraph
\n25(c) or shall take possession of the Premises pursuant to legal proceeding or
\npursuant to any notice provided by law, then if Landlord does not elect to
\nterminate this Lease as provided in Paragraph 25(a). Landlord may from time to
\ntime, without terminating this Lease, relet the Premises or any part thereof for
\nsuch term or terms and at such rental or rentals and upon such other terms and
\nconditions as Landlord in its sole discretion may deem advisable with the right
\nto make alterations and repairs to the Premises in Landlord’s sole discretion.
\nIn the event that Landlord shall elect to so relet, then rentals received by
\nLandlord from such reletting shall be applied in the following order: (1) to
\nreasonable attorneys’ fees incurred by Landlord as a result of a Default and
\ncosts in the event suit is filed by Landlord to enforce such remedies; (2) to
\nthe payment of any indebtedness other than Rent due hereunder from Tenant to
\nLandlord; (3) to the payment of any costs of such reletting; (4) to the payment
\nof the costs of any alterations and repairs to the Premises; (5) to the payment
\nof Rent due and unpaid hereunder; and (6) the residue, if any, shall be held by
\nLandlord and applied in payment of future Rent and other sums payable by Tenant
\nhereunder as the same may become due and payable hereunder. Should that portion
\nof such rentals received from such reletting during any month, which is applied
\nto the payment of Rent hereunder, be less than the Rent payable during the month
\nby Tenant hereunder, then Tenant shall pay such deficiency to Landlord. Such
\ndeficiency shall be calculated and paid monthly. Tenant shall also pay to
\nLandlord, as soon as ascertained, any costs and expenses incurred by Landlord in
\nsuch reletting or in making such alterations and repairs not covered by the
\nrentals received from such reletting.<\/p>\n
(e) Termination. No re-entry or taking of possession of the Premises by
\nLandlord pursuant to this Paragraph 25 shall be construed as an election to
\nterminate this Lease unless a written notice of such intention is given to
\nTenant or unless the termination<\/p>\n
33<\/p>\n
thereof is decreed by a court of competent jurisdiction, Notwithstanding any
\nreletting without termination by Landlord because of any Default by Tenant,
\nLandlord may at any time after such reletting elect to terminate this Lease for
\nany such Default.<\/p>\n
(f) Cumulative Remedies. The remedies herein provided are not exclusive
\nand Landlord shall have any and all other remedies provided herein or by law or
\nin equity.<\/p>\n
(g) No Surrender. No act or conduct of Landlord, whether consisting of the
\nacceptance of the keys to the Premises, or otherwise, shall be deemed to be or
\nconstitute an acceptance of the surrender of the Premises by Tenant prior to the
\nexpiration of the Term, and such acceptance by Landlord of surrender by Tenant
\nshall only flow from and must be evidenced by a written acknowledgment of
\nacceptance of surrender signed by Landlord. The surrender of this Lease by
\nTenant, voluntarily or otherwise, shall not work a merger unless Landlord
\nelects in writing that such merger take place, but shall operate as an
\nassignment to Landlord of any and all existing subleases, or Landlord may, at
\nits option, elect in writing to treat such surrender as a merger terminating
\nTenant’s estate under this Lease, and thereupon Landlord may terminate any or
\nall such subleases by notifying the sublessee of its election so to do within
\nfive (5) days after such surrender.<\/p>\n
26. LANDLORD’S RIGHT TO PERFORM TENANT’S OBLIGATIONS<\/p>\n
(a) Without limiting the rights and remedies of Landlord contained in
\nParagraph 25 above, if Tenant shall be in Default in the performance of any of
\nthe terms, provisions, covenants or conditions to be performed or complied with
\nby Tenant pursuant to this Lease, then Landlord may at Landlord’s option,
\nwithout any obligation to do so, and without notice to Tenant perform any such
\nterm, provision, covenant, or condition, or make any such payment and Landlord
\nby reason of so doing shall not be liable or responsible for any loss or damage
\nthereby sustained by Tenant or anyone holding under or through Tenant or any of
\nTenant’s Agents. In the event Landlord performs any obligations of Tenant under
\nthis Lease pursuant to this Paragraph 26(a), Landlord shall endeavor to provide
\nnotice thereof to Tenant promptly after such performance by Landlord, provided,
\nhowever, that Landlord shall have no liability for any failure to provide such
\nnotice to Tenant.<\/p>\n
(b) Without limiting the rights of Landlord under Paragraph 26(a) above,
\nLandlord shall have the right at Landlord’s option, without any obligation to do
\nso, to perform any of Tenant’s covenants or obligations under this Lease without
\nnotice to Tenant in the case of an emergency, as determined by Landlord in its
\nsole and absolute judgment, or if Landlord otherwise determines in its sole
\ndiscretion that such performance is necessary or desirable for the proper
\nmanagement and operation of the Building or the Project or for the preservation
\nof the rights and interests or safety of other tenants of the Building or the
\nProject.<\/p>\n
34<\/p>\n
(c) If Landlord performs any of Tenant’s obligations hereunder in
\naccordance with this Paragraph 26, the full amount of the cost and expense
\nincurred or the payment so made or the amount of the loss so sustained shall
\nimmediately be owing by Tenant to Landlord, and Tenant shall promptly pay to
\nLandlord upon demand, as Additional Rent, the full amount thereof with interest
\nthereon from the date of payment by Landlord at the lower of (l) ten percent
\n(10%) per annum, or (2) the highest rate permitted by applicable law.<\/p>\n
27. ATTORNEY’S FEES<\/p>\n
(a) If either party hereto fails to perform any of its obligations under
\nthis Lease or if any dispute arises between the parties hereto concerning the
\nmeaning or interpretation of any provision of this Lease, then the defaulting
\nparty or the party not prevailing in such dispute, as the case may be, shall pay
\nany and all costs and expenses incurred by the other party on account of such
\ndefault and\/or in enforcing or establishing its rights hereunder, including,
\nwithout limitation, court costs and reasonable attorneys’ fees and
\ndisbursements. Any such attorneys’ fees and other expenses incurred by either
\nparty in enforcing a judgment in its favor under this Lease shall be recoverable
\nseparately from and in addition to any other amount included in such judgment,
\nand such attorneys’ fees obligation is intended to be severable from the other
\nprovisions of this Lease and to survive and not be merged into any such
\njudgment.<\/p>\n
(b) Without limiting the generality of Paragraph 27(a) above, if Landlord
\nutilizes the services of an attorney for the purpose of collecting any Rent due
\nand unpaid by Tenant or in connection with any other breach of this Lease by
\nTenant, Tenant agrees to pay Landlord actual attorneys’ fees as determined by
\nLandlord for such services, regardless of the fact that no legal action may be
\ncommenced or filed by Landlord.<\/p>\n
28. TAXES<\/p>\n
Tenant shall be liable for and shall pay, prior to delinquency, all taxes
\nlevied against Tenant’s Property. If any Alteration installed by Tenant pursuant
\nto Paragraph 12 or any of Tenant’s Property is assessed and taxed with the
\nProject or Building, Tenant shall pay such taxes to Landlord within ten (10)
\nbusiness days after delivery to Tenant of a statement therefor.<\/p>\n
29. EFFECT OF CONVEYANCE<\/p>\n
The term “Landlord” as used in this Lease means, from time to time, the
\nthen current owner of the Building or the Project containing the Premises, so
\nthat, in the event of any sale of the Building or the Project, Landlord shall be
\nand hereby is entirely freed and relieved of all covenants and obligations of
\nLandlord hereunder, and it shall be deemed and construed, without further
\nagreement between the parties and the purchaser at any<\/p>\n
35<\/p>\n
such sale that the purchaser of the Building or the Project has assumed and
\nagreed to carry out any and all covenants and obligations of Landlord hereunder.<\/p>\n
30. TENANT’S ESTOPPEL CERTIFICATE<\/p>\n
From time to time, upon written request of Landlord, Tenant shall execute,
\nacknowledge and deliver to Landlord or its designee, a written certificate
\nstating (a) the date this Lease was executed, the Initial Premises Commencement
\nDate and the Subsequent Premises Commencement Date and the Expiration Date; (b)
\nthe date Tenant entered into occupancy of the Initial Premises and the
\nSubsequent Premises; (c) the amount of Rent and the date to which such Rent has
\nbeen paid; (d) that this Lease is in full force and effect and has not been
\nassigned, modified, supplemented or amended in any way (or, if assigned,
\nmodified, supplemented or amended, specifying the date and terms of any
\nagreement so affecting this Lease); (e) that this Lease represents the entire
\nagreement between the parties with respect to Tenant’s right to use and occupy
\nthe Premises (or specifying such other agreements, if any); (f) that all
\nobligations under this Lease to be performed by Landlord as of the date of such
\ncertificate have been satisfied (or specifying those as to which Tenant claims
\nthat Landlord has yet to perform); (g) that all required contributions by
\nLandlord to Tenant on account of Tenant’s improvements have been received (or
\nstating exceptions thereto); (h) that on such date there exist no defenses or
\noffsets that Tenant has against the enforcement of this Lease by Landlord (or
\nstating exceptions thereto); (i) that no Rent or other sum payable by Tenant
\nhereunder has been paid more than one (1) month in advance (or stating
\nexceptions thereto); (j) that security has been deposited with Landlord, stating
\nthe original amount thereof and any increases thereto; and (k) any other matters
\nevidencing the status of this Lease that may be reasonably required either by a
\nlender making a loan to Landlord to be secured by a deed of trust covering the
\nBuilding or the Project or by a purchaser of the Building or the Project. Any
\nsuch certificate delivered pursuant to this Paragraph 30 may be relied upon by a
\nprospective purchaser of Landlord’s interest or a mortgagee of Landlord’s
\ninterest or assignee of any mortgage upon Landlord’s interest in the Premises.
\nIf Tenant shall fail to provide such certificate within fifteen (15) days of
\nreceipt by Tenant of a written request by Landlord as herein provided, such
\nfailure shall, at Landlord’s election, constitute a Default under this Lease,
\nand Tenant shall be deemed to have given such certificate as above provided
\nwithout modification and shall be deemed to have admitted the accuracy of any
\ninformation supplied by Landlord to a prospective purchaser or mortgagee.<\/p>\n
31. SUBORDINATION<\/p>\n
Landlord shall have the right to cause this Lease to be and remain subject
\nand subordinate to any and all mortgages, deeds of trust and ground leases, if
\nany (“Encumbrances”) that are now or may hereafter be executed covering the
\nPremises, or any renewals, modifications, consolidations, replacements or
\nextensions thereof, for the full amount of all advances made or to be made
\nthereunder and without regard to the time or character of such advances,
\ntogether with interest thereon and subject to all the terms<\/p>\n
36<\/p>\n
and provisions thereof; provided only that in the event of termination of any
\nsuch ground lease or upon the foreclosure of any such mortgage or deed of trust,
\nso long as Tenant is not in Default, the holder thereof (“Holder”) shall agree
\nto recognize Tenant’s rights under this Lease as long as Tenant shall pay the
\nRent and observe and perform all the provisions of this Lease to be observed and
\nperformed by Tenant. Within fifteen (15) days after Landlord’s written request,
\nTenant shall execute, acknowledge and deliver any and all reasonable documents
\nrequired by Landlord or the Holder to effectuate such subordination. If Tenant
\nfails to do so, such failure shall constitute a Default by Tenant under this
\nLease. Notwithstanding anything to the contrary set forth in this Paragraph 31,
\nTenant hereby attorns and agrees to attorn to any person or entity purchasing or
\notherwise acquiring the Premises at any sale or other proceeding or pursuant to
\nthe exercise of any other rights, powers or remedies under such Encumbrance.<\/p>\n
32. ENVIRONMENTAL COVENANTS<\/p>\n
(a) Prior to executing this Lease, Tenant has completed, executed and
\ndelivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial
\nDisclosure Certificate”), a fully completed copy of which is attached hereto as
\nExhibit E and incorporated herein by this reference. Tenant represents and
\nwarrants to Landlord that the information on the Initial Disclosure Certificate
\nis true and correct and accurately describes the Hazardous Materials which will
\nbe manufactured, treated, used or stored on or about the Premises by Tenant or
\nTenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and
\nat such other times as Tenant desires to manufacture, treat, use or store on or
\nabout the Premises new or additional Hazardous Materials which were not listed
\non the Initial Disclosure Certificate, complete, execute and deliver to Landlord
\nan updated Disclosure Certificate (each, an “Updated Disclosure Certificate”)
\ndescribing Tenant’s then current and proposed future uses of Hazardous Materials
\non or about the Premises, which Updated Disclosure Certificates shall be in the
\nsame format as that which is set forth in Exhibit E or in such updated format as
\nLandlord may require from time to time. Tenant shall deliver an Updated
\nDisclosure Certificate to Landlord not less than thirty (30) days prior to the
\ndate Tenant intends to commence the manufacture, treatment, use or storage of
\nnew or additional Hazardous Materials on or about the Premises, and Landlord
\nshall have the right to approve or disapprove such new or additional Hazardous
\nMaterials in its sole and absolute discretion. Tenant shall make no use of
\nHazardous Materials on or about the Premises except as described in the Initial
\nDisclosure Certificate or as otherwise approved by Landlord in writing in
\naccordance with this Paragraph 32(a).<\/p>\n
(b) As used in this Lease, the term “Hazardous Materials” shall mean and
\ninclude any substance that is or contains (1) any “hazardous substance” as now
\nor hereafter defined in ss. 101(14) of the Comprehensive Environmental Response,
\nCompensation, and Liability Act of 1980, as amended (“CERCLA”) (42 U.S.C. ss.
\n9601 et seq.) or any regulations promulgated under CEPCLA; (2) any “hazardous
\nwaste” as now or hereafter defined in the Resource Conservation and Recovery
\nAct, as amended (“RCRA”) (42 U.S.C. ss. 6901 et seq.) or any regulations
\npromulgated under RCRA; (3) any<\/p>\n
37<\/p>\n
substance now or hereafter regulated by the Toxic Substances Control Act, as
\namended (“TSCA”) (15 U.S.C. ss. 2601 et seq.) or any regulations promulgated
\nunder TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or
\nother petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in
\nany form, whether friable or non-friable; (6) polychlorinated biphenyls; (7)
\nlead and lead-containing materials; or (8) any additional substance, material or
\nwaste (A) the presence of which on or about the Premises (i) requires reporting,
\ninvestigation or remediation under any Environmental Laws (as hereinafter
\ndefined), (ii) causes or threatens to cause a nuisance on the Premises or any
\nadjacent area or property or poses or threatens to pose a hazard to the health
\nor safety of persons on the Premises or any adjacent area or property, or (iii)
\nwhich, if it emanated or migrated from the Premises, could constitute a
\ntrespass, or (B) which is now or is hereafter classified or considered to be
\nhazardous or toxic under any Environmental Laws.<\/p>\n
(c) As used in this Lease, the term “Environmental Laws” shall mean and
\ninclude (1) CERCLA, RCRA and TSCA; and (2) any other federal, state or local
\nlaws, ordinances, statutes, codes, rules, regulations, orders or decrees now or
\nhereinafter in effect relating to (A) pollution, (B) the protection or
\nregulation of human health, natural resources or the environment, (C) the
\ntreatment, storage or disposal of Hazardous Materials, or (D) the emission,
\ndischarge, release or threatened release of Hazardous Materials into the
\nenvironment.<\/p>\n
(d) Tenant agrees that during its use and occupancy of the Premises it
\nwill (1) not (A) permit Hazardous Materials to be present on or about the
\nPremises except in a manner and quantity necessary for the ordinance performance
\nof Tenant’s business or (B) release, discharge or dispose of any Hazardous
\nMaterials on, in, at, under, or emanating from, the Premises, the Building or
\nthe Project; provided, however, that Tenant shall have the right to use and
\ndispose of (and to permit Tenant’s employees and independent contractors
\nproviding janitorial services to the Premises to use and dispose of) de minimis
\namounts of cleaning materials, toner fluids and other office and janitorial
\nsupplies, provided that the same are necessary for the conduct of Tenant’s
\nbusiness operations in the Premises and are used and disposed of at all times in
\nfull compliance with all Environmental Laws; (2) comply with all Environmental
\nLaws relating to the Premises and the use of Hazardous Materials on or about the
\nPremises and not engage in or permit others to engage in any activity at the
\nPremises in violation of any Environmental Laws; and (3) immediately notify
\nLandlord, upon gaining actual knowledge, of (A) any inquiry, test, investigation
\nor enforcement proceeding by any governmental agency or authority against
\nTenant, Landlord or the Premises, Building or Project relating to any Hazardous
\nMaterials or under any Environmental Laws or (B) the occurrence of any event or
\nexistence of any condition that would cause a breach of any of the covenants set
\nforth in this Paragraph 32.<\/p>\n
(e) If Tenant’s use of Hazardous Materials on or about the Premises
\nresults in a release, discharge or disposal of Hazardous Materials on, in, at,
\nunder, or emanating from,<\/p>\n
38<\/p>\n
the Premises, the Building or the Project, Tenant agrees to investigate, clean
\nup, remove or remediate such Hazardous Materials in full compliance with (1) the
\nrequirements of (A) all Environmental Laws and (B) any governmental agency or
\nauthority responsible for the enforcement of any Environmental Laws; and (2) any
\nadditional requirements of Landlord that are reasonably necessary to protect the
\nvalue of the Premises, the Building or the Project.<\/p>\n
(f) Upon reasonable notice to Tenant, Landlord may inspect the Premises
\nand surrounding areas for the purpose of determining whether there exists on or
\nabout the Premises any Hazardous Material or other condition or activity that is
\nin violation of the requirements of this Lease or of any Environmental Laws.
\nSuch inspections may include, but are not limited to, entering the Premises or
\nadjacent property with drill rigs or other machinery for the purpose of
\nobtaining laboratory samples. Landlord shall not be limited in the number of
\nsuch inspections during the Term of this Lease. In the event (1) such
\ninspections reveal the presence of any such Hazardous Material or other
\ncondition or activity in violation of the requirements of this Lease or of any
\nEnvironmental Laws, or (2) Tenant or its Agents contribute or knowingly consent
\nto the presence of any Hazardous Materials in, on, under, through or about the
\nPremises, the Building or the Project or exacerbate the condition of or the
\nconditions caused by any Hazardous Materials in, on, under, through or about the
\nPremises, the Building or the Project, Tenant shall reimburse Landlord for the
\ncost of such inspections within ten (l0) days of receipt of a written statement
\ntherefor. Tenant will supply to Landlord such historical and operational
\ninformation regarding the Premises and surrounding areas as may be reasonably
\nrequested to facilitate any such inspection and will make available for meetings
\nappropriate personnel having knowledge of such matters. The right granted to
\nLandlord herein to perform inspections shall not create a duty on Landlord’s
\npart to inspect the Premises, or liability on the part of Landlord for Tenant’s
\nuse, storage, treatment or disposal of Hazardous Materials, it being understood
\nthat Tenant shall be solely responsible for all liability in connection
\ntherewith.<\/p>\n
(g) Landlord shall have the right, but not the obligation, prior or
\nsubsequent to a Default, without in any way limiting Landlord’s other rights and
\nremedies under this Lease, to enter upon the Premises, or to take such other
\nactions as it deems necessary or advisable, to investigate, clean up, remove or
\nremediate any Hazardous Materials or contamination by Hazardous Materials
\npresent on, in, at, under, or emanating from, the Premises, the Building or the
\nProject in violation of Tenant’s obligations under this Lease or under any
\nEnvironmental Laws. Notwithstanding any other provision of this Lease, Landlord
\nshall also have the right, at its election, in its own name or as Tenant’s
\nagent, to negotiate, defend, approve and appeal, at Tenant’s expense, any action
\ntaken or order issued by any governmental agency or authority with regard to any
\nsuch Hazardous Materials or contamination by Hazardous Materials. All costs and
\nexpenses paid or incurred by Landlord in the exercise of the rights set forth in
\nthis Paragraph 32 shall be payable by Tenant upon demand.<\/p>\n
39<\/p>\n
(h) Tenant shall surrender the Premises to Landlord upon the expiration or
\nearlier termination of this Lease free of debris, waste or Hazardous Materials
\nplaced on, about or near the Premises by Tenant or Tenant’s Agents. and in a
\ncondition which complies with all Environmental Laws and any additional
\nrequirements of Landlord that are reasonably necessary to protect the value of
\nthe Premises, the Building or the Project, including, without limitation, the
\nobtaining of any closure permits or other governmental permits or approvals
\nrelated to Tenant’s use of Hazardous Materials in or about the Premises.
\nTenant’s obligations and liabilities pursuant to the provisions of this
\nParagraph 32 shall survive the expiration or earlier termination of this Lease.
\nIf it is determined by Landlord that the condition of all or any portion of the
\nPremises, the Building, and\/or the Project is not in compliance with the
\nprovisions of this Lease with respect to Hazardous Materials, including, without
\nlimitation, all Environmental Laws, at the expiration or earlier termination of
\nthis Lease, then at Landlord’s sole option, Landlord may require Tenant to hold
\nover possession of the Premises until Tenant can surrender the Premises to
\nLandlord in the condition in which the Premises existed as of the Commencement
\nDate and prior to the appearance of such Hazardous Materials except for normal
\nwear and tear, including, without limitation, the conduct or performance of any
\nclosures as required by any Environmental Laws. The burden of proof hereunder
\nshall be upon Tenant. For purposes hereof, the term “normal wear and tear” shall
\nnot include any deterioration in the condition or diminution of the value of any
\nportion of the Premises, the Building, and\/or the Project in any manner
\nwhatsoever related to directly, or indirectly, Hazardous Materials. Any such
\nholdover by Tenant will be with Landlord’s consent, will not be terminable by
\nTenant in any event or circumstance and will otherwise be subject to the
\nprovisions of Paragraph 35 of this Lease.<\/p>\n
(i) Tenant agrees to indemnify and hold harmless Landlord from and against
\nany and all claims, losses (including, without limitation, loss in value of the
\nPremises, the Building or the Project, liabilities and expenses (including
\nattorney’s fees)) sustained by Landlord attributable to (1) any Hazardous
\nMaterials placed on or about the Premises, the Building or the Project by Tenant
\nor Tenant’s Agents, or (2) Tenant’s breach of any provision of this Paragraph
\n32.<\/p>\n
(j) Notwithstanding anything in this Paragraph 32 to the contrary, Tenant
\nshall not be responsible for the clean up or remediation of, and shall not
\nrequired to indemnify Landlord against, any costs or liabilities attributable
\nto, Hazardous Materials placed on or about the Premises (i) prior to the
\nCommencement Date by third parties not related to Tenant or its Agents, or (ii)
\nby Landlord at any time, except in either case to the extent that Tenant or its
\nAgents have contributed to or exacerbated the presence of such Hazardous
\nMaterials.<\/p>\n
(k) The provisions of this Paragraph 32 shall survive the expiration or
\nearlier termination of this Lease.<\/p>\n
40<\/p>\n
33. NOTICES<\/p>\n
All notices and demands which are required or may be permitted to be given
\nto either party by the other hereunder shall be in writing and shall be sent by
\nUnited States mail, postage prepaid, certified, or by personal delivery or
\novernight courier, addressed to the addressee at Tenant’s Address or Landlord’s
\nAddress as specified in the Basic Lease Information, or to such other place as
\neither party may from time to time designate in a notice to the other party
\ngiven as provided herein. Copies of all notices and demands given to Landlord
\nshall additionally be sent to Landlord’s property manager at the address
\nspecified in the Basic Lease Information or at such other address as Landlord
\nmay specify in writing from time to time. Notice shall be deemed given upon
\nactual receipt (or attempted delivery if delivery is refused ), if personally
\ndelivered, or one (1) business day following deposit with a reputable overnight
\ncourier that provides a receipt, or on the third (3rd) day following deposit in
\nthe United States mail in the mariner described above.<\/p>\n
34. WAIVER<\/p>\n
The waiver of any breach of any term, covenant or condition of this Lease
\nshall not be deemed to be a waiver of such term, covenant or condition or of any
\nsubsequent breach of the same or any other term, covenant or condition herein
\ncontained. The subsequent acceptance of Rent by Landlord shall not be deemed to
\nbe a waiver of any preceding breach by Tenant, other than the failure of Tenant
\nto pay the particular rental so accepted, regardless of Landlord’s knowledge of
\nsuch preceding breach at the time of acceptance of such Rent. No delay or
\nomission in the exercise of any right or remedy of Landlord in regard to any
\nDefault by Tenant shall impair such a right or remedy or be construed as a
\nwaiver. Any waiver by Landlord of any Default must be in writing and shall not
\nbe a waiver of any other Default concerning the same or any other provisions of
\nthis Lease. No delay or omission in the exercise of any right or remedy of
\nTenant in regard to any default by Landlord shall impair such a right or remedy
\nor be construed as a waiver. Any waiver by Tenant of any default by Landlord
\nmust be in writing and shall not be a waiver of any other default concerning the
\nsame or any other provisions of this Lease.<\/p>\n
35. HOLDING OVER<\/p>\n
Any holding over after the expiration of the Term, without the express
\nwritten consent of Landlord, shall constitute a Default and, without limiting
\nLandlord’s remedies provided in this Lease, such holding over shall be construed
\nto be a tenancy at sufferance, at a rental rate of one hundred fifty percent
\n(150%) of the Base Rent last due in this Lease, plus Additional Rent, and shall
\notherwise be on the terms and conditions herein specified, so far as applicable;
\nprovided, however, in no event shall any renewal or expansion option or other
\nsimilar right or option contained in this Lease be deemed applicable to any such
\ntenancy at sufferance. If the Premises are not surrendered at the<\/p>\n
41<\/p>\n
end of the Term or sooner termination of this Lease, and in accordance with the
\nprovisions of Paragraphs 11 and 32(h). Tenant shall indemnify, defend and hold,
\nLandlord harmless from and against any and all, loss or liability resulting from
\ndelay by Tenant in so surrendering the Premises including, without limitation,
\nany loss or liability resulting from any claim against Landlord made by any
\nsucceeding tenant or prospective tenant founded on or resulting from such delay
\nand losses to Landlord due to lost opportunities to lease any portion of the
\nPremises to any such succeeding tenant or prospective tenant, together with, in
\neach case, actual attorneys’ fees and costs.<\/p>\n
36. SUCCESSORS AND ASSIGNS<\/p>\n
The terms, covenants and conditions of this Lease shall, subject to the
\nprovisions as to assignment, apply to and bind the heirs, successors, executors,
\nadministrators and assigns of all of the parties hereto. If Tenant shall consist
\nof more than one entity or person, the obligations of Tenant under this Lease
\nshall be joint and several.<\/p>\n
37. TIME<\/p>\n
Time is of the essence of this Lease and each and every term, condition
\nand provision herein.<\/p>\n
38. BROKERS<\/p>\n
Landlord and Tenant each represents and warrants to the other that neither
\nit nor its officers or agents nor anyone acting on its behalf has dealt with any
\nreal estate broker except the Broker(s) specified in the Basic Lease Information
\nin the negotiating or making of this Lease, and each party agrees to indemnify
\nand hold harmless the other from any claim or claims, and costs and expenses,
\nincluding attorneys’ fees, incurred by the indemnified party in conjunction with
\nany such claim or claims of any other broker or brokers to a commission in
\nconnection with this Lease as a result of the actions of the indemnifying party.
\nLandlord shall pay a brokerage commission to Landlord’s Broker specified in the
\nBasic Lease Information with respect to this Lease pursuant to a separate
\nwritten agreement between Landlord and Landlord’s Broker, and Tenant shall have
\nno responsibility for such commission. Landlord’s Broker shall pay a brokerage
\ncommission to Tenant’s Broker specified in the Basic Lease Information with
\nrespect to this Lease pursuant to a separate agreement between those parties,
\nand neither Landlord nor Tenant shall have any responsibility for such
\ncommission.<\/p>\n
39. LIMITATION OF LIABILITY<\/p>\n
Tenant agrees that, in the event of any default or breach by Landlord with
\nrespect to any of the terms of the Lease to be observed and performed by
\nLandlord (a) Tenant shall look solely to the then-current landlord’s interest in
\nthe Project for the satisfaction of Tenant’s remedies for the collection of a
\njudgment (or other judicial process) requiring<\/p>\n
42<\/p>\n
the payment of money by Landlord; (b) no other property or assets of Landlord,
\nits partners, shareholders, officers, directors or any successor in interest
\nshall be subject to levy, execution or other enforcement procedure for the
\nsatisfaction of Tenant’s remedies; (c) no personal liability shall at any time
\nbe asserted or enforceable against Landlord’s partners or successors in interest
\n(except to the extent permitted in (a) above), or against Landlord’s
\nshareholders, officers or directors, or their respective partners, shareholders,
\nofficers, directors or successors in interest; and (d) no judgment shall be
\ntaken against any partner, shareholder, officer or director of Landlord. The
\nprovisions of this section shall apply only to the Landlord and the parties
\nherein described, and shall not be for the benefit of any insurer nor any other
\nthird party.<\/p>\n
40. FINANCIAL STATEMENTS<\/p>\n
Within ten (10) days after Landlord’s request, Tenant shall deliver to
\nLandlord the then current financial statements of Tenant (including interim
\nperiods following the end of the last fiscal year for which annual statements
\nare available), including a balance sheet and profit and loss statement for the
\nmost recent prior year, all prepared in accordance with generally accepted
\naccounting principles consistently applied. Such financial statements shall not
\nbe required to be prepared or compiled by a certified public accountant,
\nprovided, however, that if Tenant does retain a certified public accountant to
\nprepare or compile such statements, then Landlord shall have the right to review
\nsuch statements. Landlord shall keep Tenant’s financial statements confidential,
\nexcept that Landlord shall have the right to disclose such statements to
\nLandlord’s partners, lenders, consultants and advisors, including accountants
\nand attorneys, and otherwise as required by law or legal process.<\/p>\n
41. RULES AND REGULATIONS<\/p>\n
Tenant agrees to comply with such reasonable rules and regulations as
\nLandlord may adopt from time to time for the orderly and proper operation of the
\nBuilding and the Project, provided that the terms of such rules and regulations
\ndo not contradict the terms of this Lease. Such rules may include but shall not
\nbe limited to the following: (a) restriction of employee parking to a limited,
\ndesignated area or areas; and (b) regulation of the removal, storage and
\ndisposal of Tenant’s refuse and other rubbish at the sole cost and expense of
\nTenant. The then current rules and regulations shall be binding upon Tenant upon
\ndelivery of a copy of them to Tenant. Landlord shall not be responsible to
\nTenant for the failure of any other person to observe and abide by any of said
\nrules and regulations. Landlord’s current rules and regulations are attached to
\nthis Lease as Exhibit C.<\/p>\n
42. MORTGAGEE PROTECTION<\/p>\n
(a) Modifications for Lender. If, in connection with obtaining financing
\nfor the Project or any portion thereof, Landlord’s lender shall request
\nreasonable modifications to<\/p>\n
43<\/p>\n
this Lease as a condition to such financing. Tenant shall not unreasonably
\nwithhold, delay or defer its consent to such modifications, provided such
\nmodifications do not adversely affect Tenant’s rights or increase Tenant’s
\nobligations under this Lease, in the reasonable opinion of Tenant.<\/p>\n
(b) Rights to Cure. Tenant agrees to give to any trust deed or mortgage
\nholder (“Holder”), by registered mail, at the same time as it is given to
\nLandlord, a copy of any notice of default given to Landlord, provided that prior
\nto such notice Tenant has been notified, in writing, (by way of notice of
\nassignment of rents and leases, or otherwise) of the address of such Holder.
\nTenant further agrees that if Landlord shall have failed to cure such default
\nwithin the time provided for in this Lease, then the Holder shall have an
\nadditional twenty (20) days after expiration of such period, or after receipt of
\nsuch notice from Tenant (if such notice to the Holder is required by this
\nParagraph 42(b)), whichever shall last occur within which to cure such default
\nor if such default cannot be cured within that time, then such additional time
\nas may be necessary if within such twenty (20) days, any Holder has commenced
\nand is diligently pursuing the remedies necessary to cure such default
\n(including but not limited to commencement of foreclosure proceedings, if
\nnecessary to effect such cure), in which event this Lease shall not be
\nterminated.<\/p>\n
43. RIGHT OF FIRST NEGOTIATION<\/p>\n
During the Term of this Lease, Landlord shall not lease the portion of the
\nBuilding currently occupied by Konica Technology, Inc., a California corporation
\n(“Konica”) and consisting of approximately 10,060 rentable square feet, as more
\nparticularly shown on Exhibit F hereto (the “Negotiation Space”), except as
\nprovided in this Paragraph 43. Subject to the current rights of Konica, and
\nprovided that Tenant is not then in Default under this Lease (nor is any event
\nthen occurring which with the giving of notice or the passage of time, or both,
\nwould constitute a Default hereunder), if during the Term of this Lease the
\nKonica lease terminates and Konica vacates the Negotiation Space and Landlord
\ndetermines to lease the Negotiation Space to a third party or to market the
\nNegotiation Space for lease to third parties generally, Landlord shall notify
\nTenant of the availability of the Negotiation Space. Tenant shall have a period
\nof ten (10) days after the delivery of such notice (the “Negotiation Period”) to
\nnegotiate with Landlord for the lease of the Negotiation Space by Tenant. In the
\nevent Landlord and Tenant reach agreement during the Negotiation Period on the
\nterms and conditions on which Tenant shall lease the Negotiation Space from
\nLandlord (including, without limitation, the duration of the term and any
\nrenewal options, the Base Rent and Additional Rent payable by Tenant and the
\namount of any improvement allowance) (collectively, the “Relevant Terms”), then
\nthe parties shall immediately execute an amendment to this Lease stating the
\naddition of the Negotiation Space to the Premises on the Relevant Terms. If for
\nany reason whatsoever Landlord and Tenant, each in the exercise of its sole and
\nabsolute discretion, fail to agree on the Relevant Terms during the Negotiation
\nPeriod, then Tenant’s rights hereunder with respect to the Negotiation Space
\nshall terminate and Landlord shall thereafter have the right to lease the
\nNegotiation Space to any party on<\/p>\n
44<\/p>\n
terms and conditions deemed acceptable by Landlord in its sole and absolute
\ndiscretion. The right granted to Tenant under this Paragraph 43 shall be a
\none-time right effective during the Term only upon the termination of the Konica
\nlease and the vacation of the Negotiation Space by Konica.<\/p>\n
44. ENTIRE AGREEMENT<\/p>\n
This Lease, including the Exhibits and any Addenda attached hereto, which
\nare hereby incorporated herein by this reference, contains the entire agreement
\nof the parties hereto, and no representations, inducements, promises or
\nagreements, oral or otherwise, between the parties, not embodied herein or
\ntherein, shall be of any force and effect.<\/p>\n
45. INTEREST<\/p>\n
Any installment of Rent and any other sum due from Tenant under this Lease
\nwhich is not received by Landlord within ten (10) days from when the same is due
\nshall bear interest from the date such payment was originally due under this
\nLease until paid at a rate equal to the prime rate then established by Wells
\nFargo Bank plus two percent (2%) per annum. Payment of such interest shall not
\nexcuse or cure any Default by Tenant. In addition, Tenant shall pay all costs
\nand attorneys’ fees incurred by Landlord in collection of such amounts.<\/p>\n
46. CONSTRUCTION<\/p>\n
This Lease shall be construed and interpreted in accordance with the laws
\nof the State of California. The parties acknowledge and agree that no rule of
\nconstruction to the effect that any ambiguities are to be resolved against the
\ndrafting party shall be employed in the interpretation of this Lease, including
\nthe Exhibits and any Addenda attached hereto. All captions in this Lease are for
\nreference only and shall not be used in the interpretation of this Lease.
\nWhenever required by the context of this Lease, the singular shall include the
\nplural, the masculine shall include the feminine, and vice versa. If any
\nprovision of this Lease shall be determined to be illegal or unenforceable, such
\ndetermination shall not affect any other provision of this Lease and all such
\nother provisions shall remain in full force and effect.<\/p>\n
47. REPRESENTATIONS AND WARRANTIES<\/p>\n
(a) Tenant hereby makes the following representations and warranties, each
\nof which is material and being relied upon by Landlord, is true in all respects
\nas of the date of this Lease, and shall survive the expiration or termination of
\nthe Lease.<\/p>\n
(1) Each Tenant which is an entity represents and warrants that it
\nis duly organized, validly existing and in good standing under the laws of the
\nstate of its organization and the persons executing this Lease on its behalf
\nhave the full right and<\/p>\n
45<\/p>\n
authority to execute this Lease on its behalf and to bind it without the consent
\nor approval of any other person or entity. Each Tenant represents and warrants
\nthat it has full power, capacity, authority and legal right to execute and
\ndeliver this Lease and to perform all of its obligations hereunder and that this
\nLease is a legal, valid and binding obligation, enforceable in accordance with
\nits terms.<\/p>\n
(2) Each Tenant represents that it has not (A) made a general
\nassignment for the benefit of creditors, (B) filed any voluntary petition in
\nbankruptcy or suffered the filing of an involuntary petition by any creditors,
\n(C) suffered the appointment of a receiver to take possession of all or
\nsubstantially all of its assets, (D) suffered the attachment or other judicial
\nseizure of all or substantially all of its assets, (E) admitted in writing its
\ninability to pay its debts as they come due, or (F) made an offer of settlement,
\nextension or composition to its creditors generally.<\/p>\n
(b) Landlord hereby makes the following representations and warranties,
\neach of which is material and being relied upon by Tenant, is true in all
\nrespects as of the date of this Lease, and shall survive the expiration or
\ntermination of the Lease.<\/p>\n
(1) If Landlord is an entity, Landlord is duly organized, validly
\nexisting and in good standing under the laws of the state of its organization
\nand the persons executing this Lease on behalf of Landlord have the full right
\nand authority to execute this Lease on behalf of Landlord and to bind Landlord
\nwithout the consent or approval of any other person or entity. Landlord has full
\npower, capacity, authority and legal right to execute and deliver this Lease and
\nto perform all of its obligations hereunder. This Lease is a legal, valid and
\nbinding obligation of Landlord, enforceable in accordance with its terms.<\/p>\n
(2) Landlord has not (A) made a general assignment for the benefit
\nof creditors, (B) filed any voluntary petition in bankruptcy or suffered the
\nfiling of an involuntary petition by any creditors, (C) suffered the appointment
\nof a receiver to take possession of all or substantially all of its assets, (D)
\nsuffered the attachment or other judicial seizure of all or substantially all of
\nits assets, (E) admitted in writing its inability to pay its debts as they come
\ndue, or (F) made an offer of settlement, extension or composition to its
\ncreditors generally.<\/p>\n
48. SECURITY<\/p>\n
(a) Tenant acknowledges and agrees that, while Landlord may engage
\nsecurity personnel to patrol the Building or the Project, Landlord is not
\nproviding any security services with respect to the Premises, the Building or
\nthe Project and that Landlord shall not be liable to Tenant for, and Tenant
\nwaives any claim against Landlord with respect to, any loss by theft or any
\nother damage suffered or incurred by Tenant in connection with any unauthorized
\nentry into the Premises or any other breach of security with respect to the
\nPremises, the Building or the Project.<\/p>\n
46<\/p>\n
(b) Tenant hereby agrees to the exercise by Landlord and Landlord’s
\nAgents, within their sole discretion, of such security measures as, but not
\nlimited to, the evacuation of the Premises, the Building or the Project for
\ncause, suspected cause or for drill purposes, the denial of any access to the
\nPremises, the Building or the Project and other similarly related actions that
\nit deems necessary to prevent any threat of property damage or bodily injury.
\nThe exercise of such security measures by Landlord and Landlord’s Agents, and
\nthe resulting interruption of service and cessation of Tenant’s business, if
\nany, shall not be deemed an eviction or disturbance of Tenant’s use and
\npossession of the Premises, or any part thereof, or, except for damages caused
\nby the gross negligence or willful misconduct of Landlord or Landlord’s Agents,
\nrender Landlord or Landlord’s Agents liable to Tenant for any resulting damages
\nor relieve Tenant from Tenant’s obligations under this Lease.<\/p>\n
49. JURY TRIAL WAIVER<\/p>\n
Landlord and Tenant each hereby waive any right to trial by jury with
\nrespect to any action or proceeding (i) brought by Landlord or Tenant or any
\nother party, relating to (A) this Lease and\/or any understandings or prior
\ndealings between the parties hereto, or (B) the Premises, the Building or the
\nProject or any part thereof, or (ii) to which Landlord is a party. Landlord and
\nTenant each hereby agree that this Lease constitutes a written consent to waiver
\nof trial by jury pursuant to the provisions of California Code of Civil
\nProcedure Section 631.<\/p>\n
50. JOINT AND SEVERAL LIABILITY<\/p>\n
In the event more than one party is named as Tenant hereunder, each such
\nparty shall be jointly and severally liable for the obligations of the Tenant.<\/p>\n
Landlord and Tenant have executed and delivered this Lease as of the Lease
\nDate specified in the Basic Lease Information.<\/p>\n
47<\/p>\n
LANDLORD: TENANT:<\/p>\n
AETNA LIFE INSURANCE COMPANY, NAVIO COMMUNICATIONS,
\na Connecticut corporation a Delaware corporation<\/p>\n
By: Allegis Realty Investors LLC
\n Its Investment Advisor By: \/s\/ Wei Yen
\n ——————————–
\n Print Name: Wei Yen
\n ————————
\n Its: President & CEO
\n ——————————-
\n By: \/s\/ Cynthia Stevinin
\n ——————–
\n Cynthia Stevinin
\n Vice President
\n By:
\n ————————-
\n Print Name:
\n ————————
\n Its:
\n ——————————-<\/p>\n
NETSCAPE COMMUNICATIONS
\n CORPORATION,
\n a Delaware corporation<\/p>\n
By: \/s\/ Peter Currie
\n ————————-
\n Print Name: Peter Currie
\n ————————
\n Its: Vice President & CFO
\n ——————————-<\/p>\n
By:
\n ————————-
\n Print Name:
\n ————————
\n Its:
\n ——————————-<\/p>\n
48<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6587,8051,8328],"corporate_contracts_industries":[9513,9440],"corporate_contracts_types":[9583,9579],"class_list":["post-41759","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-aetna-inc","corporate_contracts_companies-liberate-technologies","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_industries-health__plans","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\/41759","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=41759"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41759"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41759"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41759"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}