\nLEASE DATE: APRIL 21, 1995
\n ———————————————————————-
\nLANDLORD: CARIBBEAN\/GENEVA INVESTORS
\n ———————————————————————-
\n A CALIFORNIA PARTNERSHIP<\/p>\nMANAGING AGENT: THE MOZART DEVELOPMENT COMPANY<\/p>\n
LANDLORD’S AND MANAGING AGENT’S ADDRESS:
\n C\/O THE MOZART DEVELOPMENT COMPANY
\n 1068 EAST MEADOW CIRCLE
\n PALO ALTO, CA 94303<\/p>\n
TENANT: MACROVISION CORPORATION
\n ———————————————————————-
\nTENANT’S ADDRESS: FOR NOTICE & BILLING PRIOR TO COMMENCEMENT DATE
\n ———————————————————————-
\n 1341 ORLEANS DRIVE 700 EL CAMINO REAL EAST, SUITE 200
\n ———————————————————————-
\n SUNNYVALE, CA 94089 MOUNTAIN VIEW, CA 94040
\n ———————————————————————-<\/p>\n
BUILDING: 1341 ORLEANS DRIVE, SUNNYVALE
\n ———————————————————————-
\nPROJECT: 1327 & 1341 ORLEANS DRIVE, SUNNYVALE
\n ———————————————————————-
\nSUITE: ENTIRE BUILDING
\n ———————————————————————-
\nLAND: APPROXIMATELY 2.89 ACRES
\n ———————————————————————-
\nRENTABLE AREA OF THE PREMISES: 43,960 SQUARE FEET
\n ———————————————————————-
\nRENTABLE AREA OF THE BUILDING: 43,960 SQUARE FEET
\n ———————————————————————-
\nPARKING SPACES: APPROXIMATELY 158 SPACES
\n ———————————————————————-
\nTENANT’S USE OF THE PREMISES: ADMINISTRATION, SALES & MARKETING, RESEARCH & DEVELOPMENT,
\n ———————————————————————-
\n ELECTRONICS ASSEMBLY, TESTING AND RELATED SERVICE, DISTRIBUTION,
\n ———————————————————————-
\n WAREHOUSING AND OTHER RELATED LEGAL USES.
\n ——————————————
\nLEASE TERM: SEVEN(7) YEARS, COMMENCING ON JULY 1, 1995 AND ENDING ON JUNE 30, 2002.
\n ————– ———— ————-
\nTENANT ALLOWANCE: $175,840 ($4 PER SQUARE FOOT) – SEE EXHIBIT B FOR CLARIFICATION.
\n ———————————————————————-
\nTENANT’S PLAN DELIVERY DATE: MARCH 20, 1995
\n ———————————————————————-
\nRENT:
\nMONTHLY BASE RENT: $29,892.80 ($.68 PER SQUARE FOOT NNN)
\n ———————————————————————-
\nANNUAL BASE RENT: $358,713.60
\n ———————————————————————-
\nBASE RENT ADJUSTMENT SEE PARAGRAPH 3(b) FOR CHANGES AT BEGINNING OF MONTHS 37 AND 73.
\n ———————————————————————-
\nTENANT’S SHARE OF EXPENSES AND TAXES (“ADDITIONAL CHARGES”): 100.00%
\n —————————————–
\nSECURITY DEPOSIT: $29,892,80
\n ———————————————————————-
\nGUARANTOR OF LEASE: NA
\n ———————————————————————-
\nBROKER: COLLIERS PARRISH INTERNATIONAL INC.- JEFFRY NOCHIMSON\/CYNTHIA ROTWEIN
\n ———————————————————————-
\nBROKER’S FEE OR COMMISSION, IF ANY, PAID BY: LANDLORD
\n ————————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n
The foregoing Basic Lease Information is hereby incorporated into and made a
\npart of this Lease. Each reference in this Lease to any of the Basic Lease
\nInformation shall mean the respective information hereinabove set forth and
\nshall be construed to incorporate all of the terms provided under the
\nparticular paragraph pertaining to such information. In the event of any
\nconflict between any Basic Lease Information and the Lease, the latter shall
\ncontrol.
\n BASIC LEASE INFORMATION – Page i<\/p>\n
LANDLORD:
\n ———<\/p>\n
CARIBBEAN\/GENEVA INVESTORS
\n A CALIFORNIA PARTNERSHIP<\/p>\n
BY: [ILLEGIBLE]
\n ———————————
\n ITS: [ILLEGIBLE]
\n ———————————<\/p>\n
TENANT:
\n ——-<\/p>\n
MACROVISION CORPORATION
\n —————————————
\n A CALIFORNIA CORPORATION
\n —————————————<\/p>\n
BY: \/s\/Robert J. Netter, Jr.
\n ———————————<\/p>\n
ITS: VICE PRESIDENT OF FINANCE
\n ———————————<\/p>\n
BASIC LEASE INFORMATION – Page ii<\/p>\n
LEASE AGREEMENT<\/p>\n
THIS LEASE AGREEMENT is made and entered into this 21st day of April, 1995,
\nby and between CARIBBEAN\/GENEVA INVESTORS, a California partnership, (herein
\ncalled, “Landlord”), and MACROVISION CORPORATION, a CALIFORNIA CORPORATION
\n(herein called “Tenant”).<\/p>\n
Upon and subject to the terms, convenants and conditions hereinafter set
\nforth, Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
\nthose premises (the “Premises”) comprising the area substantially as outlined in
\nred on attached EXHIBIT “A”, in the building (hereinafter referred to as the
\n“Building”) specified in the Basic Lease Information attached hereto. The
\nBuilding, together with the associated land, park, etc., may be more broadly
\nreferred to as “Project.”<\/p>\n
1. OCCUPANCY AND USE. Tenant shall use and occupy the Premises for
\nthe purpose specified in the Basic Lease Information and for no other use or
\npurpose without the prior written consent of Landlord. Landlord shall have the
\nright to grant or withhold consent to a proposed change of use in its sole
\ndiscretion.<\/p>\n
2. TERMS AND POSSESSION.<\/p>\n
(a) The term of this Lease (the “Term”) shall be for the period
\nspecified in the Basic Lease Information (or until sooner terminated as herein
\nprovided). If Landlord, for any reason whatsoever, cannot deliver possession of
\nthe Premises to Tenant on the date specified in the Basic Lease Information for
\nthe commencement of the Term, this Lease shall not be void or voidable, nor
\nshall Landlord be liable to Tenant for any loss or damage resulting therefrom.
\nIn that event, however, Tenant shall not be liable for any Rent or Additional
\nCharges (as hereinafter defined) until Landlord delivers possession of the
\nPremises to Tenant. If Landlord tenders possession of the Premises to Tenant
\nprior to the commencement of the Term, then the Term and Tenant’s obligations
\nhereunder shall commence on the date that it accepts such possession. If
\nsubstantial completion of the Premises is delayed beyond the scheduled
\ncommencement of the Term for any reason other than a delay of Tenant or its
\nagents, representatives or contractors, the Term, scheduled commencement date
\nand scheduled expiration date shall be extended by the amount of such delay.
\nNotwithstanding the above, in the event that substantial completion is delayed
\nbeyond June 30, 1995, then Tenant shall not be obligated to accept the Premises
\n(and have the Term commence) until August 1, 1995. In the event that the delay
\nin substantial completion beyond June 30, 1995 is related to the existing
\ntenant, Lockheed, holding over in the Premises after April 30, 1995 and Tenant
\nelects to accept the Premises prior to August 1, 1995, then Landlord shall
\ncredit toward Tenant’s rent an amount equal to one day’s rent and holdover
\npenalties paid by Lockheed for the Premises during May of 1995 (estimated at
\n$1,482 per day) for each day during July of 1995 for which Tenant is paying rent
\nin both the Premises and its current premises at 700 El Camino Real East in
\nMountain View. Notwithstanding the above, in the event that substantial
\ncompletion of the Premises has not occurred on or before September 30, 1995,
\nthen Tenant shall have the right to terminate this lease by providing written
\nnotice to Landlord of its decision to terminate the lease no later than October
\n15, 1995. The preceding three provisions shall be subject to Force Majeure
\ndelays (as defined below) and Tenant delays, including, but not limited to,
\nchanges in the plans for Tenant’s improvements. Force Majeure Delays shall mean
\nand refer to a period of delay or delays encountered by Landlord because of:
\nfire, earthquake, flooding or other acts of God; acts of the public enemy, riot,
\nor insurrection; governmental regulations enacted after this Lease is executed
\nand beyond the control of Landlord; strikes or boycotts, shortages of unique
\nmaterials or any other industry or area-wide cause beyond the control of
\nLandlord. The dates upon which the Term shall commence and terminate pursuant to
\nthis Paragraph 2(a) are herein called the “Commencement Date” and the
\n“Expiration Date,” respectively.<\/p>\n
(b) Completion of the improvements to the Premises shall be
\ngoverned by the terms and conditions of the separate work letter (“Work
\nLetter”), attached hereto as EXHIBIT “B”.<\/p>\n
(c) The Premises shall be deemed completed and possession
\ndelivered when Landlord has substantially completed the work to be constructed
\nor installed by Landlord (“Landlord’s Work”) pursuant to the provisions of the
\nWork Letter subject only to the completion of items on Landlord’s architect’s
\npunch list (and exclusive of the installation of all telephone and other
\ncommunications facilities and equipment and other finish work or decorating work
\nto be performed by or for Tenant). Tenant shall accept the Premises upon notice
\nfrom Landlord that Landlord’s Work has been so substantially completed (and
\nprovided that Tenant has had a reasonable opportunity to verify the same) and
\nTenant’s obligation to pay rent hereunder shall commence on the earlier to
\noccur of: (i) the date on which Landlord’s Work is substantially completed; or
\n(ii) the date on which Tenant takes possession of, or commences the operation
\nof its business in, any or all of the Premises. However, in no event shall
\nTenant be required to accept the Premises prior to July 1, 1995. By occupying
\nthe Premises, Tenant shall be deemed to have accepted the same as suitable for
\nthe purpose herein intended and to have acknowledged that the same comply fully
\nwith Landlord’s obligations, notwithstanding that certain “punch list” type
\nitems may not have been completed. However, acceptance of the space by, Tenant
\nshall not relieve Landlord of its obligation to complete outstanding punch-list
\nitems which are Landlord’s responsibility. Within five (5) days after written
\nrequest of Landlord, Tenant agrees to<\/p>\n
Lease Agreement – Page 1<\/p>\n
give Landlord a letter confirming the Commencement Date and certifying that
\nTenant has accepted delivery of the Premises (latent defects expected) and that
\nthe condition of the Premises complies with Landlord’s obligations hereunder, or
\nin the event the condition of the Premises does not comply, stating how it does
\nnot comply. The Premises shall be substantially completed when (i) Tenant has
\nsafe and direct access to the Premises from the sidewalk and parking area
\nadjacent to the Building, (ii) the work to be completed by Landlord, pursuant to
\nthe Work Letter, is completed subject only to completion of items on Landlord’s
\nArchitect’s punch list, which do not materially interfere with Tenant’s use of
\nthe Premises, and (iii) a Certificate of Occupancy or its equivalent has been
\nissued by the City or other applicable governmental agency for the Premises.
\nLandlord shall use its best efforts to advise Tenant of the anticipated date of
\ncompletion at least fifteen (15) days prior to such date, but the failure to
\ngive such notice shall not constitute a default hereunder by Landlord.
\nNotwithstanding the above, at no cost to Tenant, in the event that substantial
\ncompletion of the Premises occurs prior to June 26, 1996, Landlord shall provide
\nTenant with access to the space one (1) week prior to the commencement date to
\ninstall partition systems, install phone and data cabling and otherwise set up
\nthe office. However, as much as is possible, Tenant’s cabling contractors will
\nwork with Landlord’s contractor to install cabling prior to this period if
\nrequested by Landlord.<\/p>\n
(d) Tenant shall, no later than thirty (30) days after the date of
\nissuance by the appropriate governmental agency of a Certificate of Occupancy or
\nits equivalent concerning the Improvements, go into actual physical occupancy of
\nthe Premises and open the Premises for business in accordance with the uses
\nspecified in Paragraph 4 below. Time is of essence. In the event Tenant fails to
\nperform its obligations pursuant to this Section 2(d), Tenant shall indemnify
\nand hold Landlord harmless from any loss or liability arising from Tenant’s
\nfailure to occupy the Premises and open the Premises for business.<\/p>\n
3. RENT; RENT ADJUSTMENTS; ADDITIONAL CHARGES FOR EXPENSES AND TAXES.<\/p>\n
(a) MONTHLY BASE RENT. Tenant shall pay to Landlord
\nthroughout the Term the annual rental specified in the Basic Lease
\nInformation (“Rent”), which sum shall be payable by Tenant in equal monthly
\ninstallments on or before the first day of each month, in advance, with the
\nfirst month’s rent due upon execution of this Lease Agreement, in lawful
\nmoney of the United States, without any prior demand therefor and without
\ndeduction or offset whatsoever, to Landlord or its managing agent at the
\naddress specified in the Basic Lease Information or to such other firm or to
\nsuch other place as Landlord or its Managing Agent may from time to time
\ndesignate in writing. Tenant shall pay to Landlord all charges and other
\namounts whatsoever as provided in this Lease (“Additional Charges”) at the
\nplace where the Rent is payable and Landlord shall have the same remedies for
\na default in the payment of Additional Charges as for a default in the
\npayment of Rent. If the Commencement Date should occur on a day other than
\nthe first day of a calendar month, or the Expiration Date should occur on a
\nday other than first day of a calendar month, or the Expiration Date should
\noccur on a day other than the last day of a calendar month, then the Rent and
\nAdditional Charges for such fractional month shall be prorated on a daily
\nbasis.<\/p>\n
(b) ADJUSTMENTS IN RENT. The monthly base rent under Paragraph
\n3(a) shall be adjusted at the beginning of months 37 and 73 of the Term reflect
\nany increase in the cost of living. The amount of such increase in the monthly
\nbase rent, if any, shall be determined by multiplying $29,892.80 by a fraction,
\nthe denominator of which shall be the most recent Consumer Price Index (as
\nhereinafter defined) figure published prior to the Commencement Date, and the
\nnumerator of which shall be the most recent Consumer Price Index figure
\npublished prior to the date of such adjustment; provided, however, in no event
\nshall the increase in Rent over the Rent in place immediately before the
\nincrease be less than ten percent (10%) nor greater than fifteen percent (15%).
\nAs used herein, the term “Consumer Price Index” shall mean the United States
\nDepartment of Labor, Bureau of Labor Statistics, Consumer Price Index, All
\nUrban Consumers, All Items, San Francisco-Oakland, California (1982-84 equals
\n100). If, during the Term, the aforesaid Index is no longer published,
\nLandlord shall, for the purposes of computation of any adjustments in Rent,
\nsubstitute such other Index as is then generally recognized as most
\ncomparable to the aforementioned Index and accepted for similar
\ndeterminations. Should Landlord lack sufficient data to make the
\ndetermination specified in this Paragraph 3(b) on the date of any such
\nadjustment, Tenant shall continue to pay the monthly Rent payable immediately
\nprior to such adjustment date. As soon as Landlord obtains the necessary
\ndata, it shall determine the Rent payable from and after such adjustment date
\nand notify Tenant of the adjustment in writing. If the monthly Rent for the
\nperiod following such adjustment date exceeds the amount previously paid by
\nTenant for such period, Tenant shall forthwith pay the difference to Landlord.<\/p>\n
(c) ADDITIONAL CHARGES FOR EXPENSES AND TAXES.<\/p>\n
(1) For purposes of this Paragraph 3(c), the following terms shall
\nhave the meanings hereinafter set forth:<\/p>\n
(A) “Tax Year” shall mean each twelve (12) consecutive
\n month period commencing January 1st of the calendar year during which the
\n Commencement Date of this Lease occurs, provided that Landlord, upon notice
\n to Tenant, may change the Tax Year from time to time to any other twelve
\n (12) consecutive month period and, in the event of any such change,
\n Tenant’s Share of<\/p>\n
Lease Agreement – Page 2<\/p>\n
Real Estate Taxes (as hereinafter defined) shall be equitably adjusted for
\n the Tax Years involved in any such change.<\/p>\n
(B) “Tenant’s Share” shall mean the percentage figure so
\n specified in the Basic Lease Information.<\/p>\n
(C) “Real Estate Taxes” shall mean all taxes, assessments
\n and charges levied upon or with respect to the Project or any personal
\n property of Landlord used in the operation of thereof, or Landlord’s
\n interest in the Project or such personal property. Real Estate Taxes shall
\n include, without limitation, all general real property taxes and general
\n and special assessments, charges, fees or assessments for transit, housing,
\n police, fire or other governmental services or purported benefits to the
\n Building, service payments in lieu of taxes, and any tax, fee or excise on
\n the act of entering into this Lease, or any other lease of space in the
\n Building, or on the use or occupancy of the Building or any part thereof,
\n or on the rent payable under any lease or in connection with the business
\n of renting space in the Building, that are now or hereafter levied or
\n assessed against Landlord by the United States of America, the State
\n of California, or any political subdivision, public corporation, district
\n or any other political or public entity, and shall also include any other
\n tax, fee or other excise, however described, that may be levied or assessed
\n as a substitute for, or as an addition to, in whole or in part, any other
\n Real Estate Taxes, whether or not now customary or in the contemplation
\n of the parties on the date of this Lease. Real Estate Taxes shall not
\n include franchise, transfer, inheritance or capital stock taxes or
\n income taxes measured by the net income of Landlord from all sources
\n unless, due to a change in the method of taxation, any of such taxes is
\n levied or assessed against Landlord as a substitute for, or as an
\n addition to, in whole or in part, any other tax that would otherwise
\n constitute a Real Estate Tax. Real Estate Taxes shall also include
\n reasonable legal fees, costs and disbursements incurred in connection
\n with proceedings to contest, determine or reduce Real Estate Taxes (such
\n proceedings to be those from which a reasonable person would anticipate
\n that savings would actually result and with which Tenant reasonably
\n agrees). Notwithstanding anything to the contrary set forth above,
\n Tenant shall not be responsible for increases in Real Estate Taxes which
\n are related to an increase in the assessed value of the property in
\n excess of the “Agreed Upon Assessed Value.” The Agreed Upon Assessed
\n Value shall be $4,567,000 for the period from July 1, 1994 through June 30,
\n 1995, and shall increase at a rate of five percent (5%) during each
\n succeeding twelve (12) month period.<\/p>\n
(D) “Expenses” shall mean the total direct costs
\n and reasonable expenses paid or incurred by Landlord in connection with
\n the management, operation, maintenance and repair of the Building,
\n including, without limitation (i) the cost of air conditioning,
\n electricity, steam, heating, mechanical, ventilating, elevator systems
\n and all other utilities and the cost of supplies and equipment and
\n maintenance and service contracts in connection therewith; (ii) the cost
\n of repairs and general maintenance and cleaning; (iii) the cost of fire,
\n extended coverage, boiler, sprinkler, public liability, property damage,
\n rent, earthquake (if available at commercially reasonable rates) and
\n other insurance; (iv) fees, charges and other costs, including
\n management fees, consulting fees, legal fees (which are allowed
\n elsewhere in the Lease) and accounting fees, of all independent
\n contractors engaged by Landlord directly related to the operation of the
\n Building or reasonably charged by Landlord if Landlord performs
\n management services in connection with the Building; (v) the cost of any
\n membership fees, expenses or charges imposed by any owner’s or tenant’s
\n association created to manage and\/or maintain the common areas or public
\n areas of the Project in which the Building is located and the Building’s
\n Share of all costs of such common or public area management and
\n maintenance; (vi) the cost of any capital improvements made to the
\n Building after completion of its construction as a labor saving device or
\n to effect other economies in the operation or maintenance of the Building
\n (from which a reasonable person would anticipate that savings would
\n actually result and with which Tenant agrees), or that are made to the
\n Building after the date of this Lease and are required under any
\n governmental law or regulation that was not applicable to the Building
\n at the time that permits for the construction thereof of Tenant’s
\n improvements were obtained, such cost to be amortized over such
\n reasonable period as defined under generally accepted accounting
\n principles (“GAAP”), together with interest on the unamortized balance at
\n the rate of ten percent (10%) per annum or such higher rate as may have
\n been paid by Landlord on funds borrowed for the purpose of constructing
\n such capital improvements; and (viii) any other reasonable expenses of
\n any other kind whatsoever reasonably incurred in managing, operating,
\n maintaining and repairing the Building.<\/p>\n
Notwithstanding anything to the contrary herein contained, Expenses
\n shall not include (aa) the initial construction cost of the Project or
\n real property on which the Building is located; (bb) the cost of
\n providing tenant improvements to Tenant or any other tenant; (cc) debt
\n service (including, but without limitation, interest, principal and any
\n impound payments) required to be made on any mortgage or deed of trust
\n recorded with respect to the Building and\/or the real property on which
\n the Building is located other than debt service and financing charges
\n imposed pursuant to Paragraph 3(c)(1)(D)(vi) above; (dd) the cost of
\n special services, goods or materials provided to any tenant, (ff) the
\n portion of a management fee paid to Landlord or affiliate in excess of
\n two percent (2%) of Rent and Additional Charges; costs to maintain the
\n Building’s foundations, exterior walls, and structural roof. In no event
\n shall Landlord be entitled to collect in excess of one hundred percent<\/p>\n
Lease Agreement – Page 3<\/p>\n
(100%) of the total Expenses from all of the tenants in the Building
\n including Tenant. All costs and expenses shall be determined in
\n accordance with generally accepted accounting principles which shall be
\n consistently applied (with accruals appropriate to Landlord’s business).
\n Expenses shall not include specific costs incurred for the account of,
\n separately billed to and paid by specific tenants.<\/p>\n
(E) “Expense Year” shall mean each twelve (12) consecutive
\n month period commencing January 1 of the calendar year during which the
\n Commencement Date of the Lease occurs, provided that Landlord, upon
\n notice to Tenant, may change the Expense Year from time to time to any
\n other twelve (12) consecutive month period, and, in the event of any
\n such change, Tenant’s Share of Expenses shall be equitably adjusted for
\n the Expense Years involved in any such change.<\/p>\n
(2) Tenant shall pay to Landlord as Additional Charges one-twelfth
\n(1\/12th) of Tenant’s Share of Real Estate Taxes for each Tax Year on or
\nbefore the first day of each month during such Tax Year, in advance, in an
\namount reasonably estimated by Landlord and billed by Landlord to Tenant, and
\nLandlord shall have the right initially to determine monthly estimates and to
\nrevise such estimates from time to time. With reasonable promptness after
\nLandlord has received the tax bills for any Tax Year, Landlord shall furnish
\nTenant with a statement (herein called “Landlord’s Tax Statement”) setting
\nforth the amount of Real Estate Taxes for such Tax Year, and Tenant’s Share
\nthereof. If the actual Real Estate Taxes for such Tax Year exceed the
\nestimated Real Estate Taxes paid by Tenant for such Tax Year, Tenant shall
\npay to Landlord the difference between the amount paid by Tenant and the
\nactual Real Estate Taxes within fifteen (15) days after the receipt of
\nLandlord’s Tax Statement, and if the total amount paid by Tenant for any such
\nTax Year shall exceed the actual Real Estate Taxes for such Tax Year, such
\nexcess shall be credited against the next installment of Real Estate Taxes
\ndue from Tenant to Landlord hereunder.<\/p>\n
(3) Tenant shall pay to Landlord as Additional Charges one-twelfth
\n(1\/12th) of Tenant’s Share of the Expenses for each Expense Year on or before
\nthe first day of each month of such Expense Year, in advance, in an amount
\nreasonably estimated by Landlord and billed by Landlord to Tenant, and
\nLandlord shall have the right initially to determine monthly estimates and to
\nrevise such estimates from time to time. With reasonable promptness after the
\nexpiration of each Expense Year, Landlord shall furnish Tenant with a
\nstatement (herein called “Landlord’s Expense Statement”), setting forth in
\nreasonable detail the Expenses for such Expense Year and Tenant’s Share
\nthereof. If the actual Expenses for such Expense Year exceed the estimated
\nExpenses paid by Tenant for such Expense Year, Tenant shall pay to Landlord
\nthe difference between the amount paid by Tenant and the actual Expenses
\nwithin fifteen (15) days after the receipt of Landlord’s Expense Statement,
\nand if the total amount paid by Tenant for any such Expense Year shall exceed
\nthe actual Expenses for such Expense Year, such excess shall be credited
\nagainst the next installment of the estimated Expenses due from Tenant to
\nLandlord hereunder returned to Tenant within thirty (30) days, unless Tenant
\nis delinquent on its rent.<\/p>\n
(4) To the extent any item of Real Estate Taxes or Expenses is
\npayable by Landlord in advance of the period to which it is applicable (e.g.
\ninsurance), Landlord may (i) include Tenant’s share of such items in
\nLandlord’s estimate for periods prior to the date such item is payable by
\nLandlord and (ii) to the extent Landlord has not collected the full amount of
\nsuch item prior to the date such item is payable by Landlord, Landlord may
\ninclude Tenant’s Share of the balance of such full amount in a revised
\nmonthly estimate for additional charges. If the Commencement Date or
\nExpiration Date shall occur on a date other than the first day of a Tax Year
\nand\/or Expense Year, Tenant’s share of Real Estate Taxes and Expenses, for
\nthe Tax Year and\/or Expense Year in which the Commencement Date occurs shall
\nbe prorated.<\/p>\n
(5) Within ninety (90) days after receipt of any Expense Statement
\nor Tax Statement from Landlord, Tenant shall have the right to examine
\nLandlord’s books and records relating to such Expense Statements and Tax
\nStatements, or cause an independent audit thereof to be conducted by an
\naccounting firm to be selected by Tenant and subject to the reasonable
\napproval of Landlord.<\/p>\n
(d) LATE CHARGES. Tenant recognizes that late payment of any Rent or
\nAdditional Charges will result in administrative expenses to Landlord, the
\nextent of which additional expense is extremely difficult and economically
\nimpractical to ascertain. Tenant therefore agrees that if any Rent or
\nAdditional Charges remain unpaid ten (10) days after the amount is due and
\nwritten notice has been given, the amount of such unpaid Rent or Additional
\nCharges shall be increased by a late charge to be paid to Landlord by Tenant
\nin an amount equal to four percent (4%) of the amount of the delinquent Rent
\nor Additional Charges. After the initial late charge is imposed for Rent,
\nAdditional Charges and other outstanding amounts for any specific month, late
\ncharges on the Rent, Additional Charges and other outstanding amounts for
\nthat specific month shall accrue interest during future months at an
\nannualized rate of Prime rate (as set by the Bank of America) plus five
\npercent (5%) until paid to Landlord. Tenant agrees that such amount is a
\nreasonable estimate of the loss and expense to be suffered by Landlord as a
\nresult of such late payment by Tenant and may be charged by Landlord to
\ndefray such loss and expense. The provisions of this Paragraph 3(d) in no way
\nrelieve Tenant of the obligation to pay Rent or Additional Charges on or
\nbefore the date on which they <\/p>\n
Lease Agreement – Page 4<\/p>\n
are due, nor do the terms of this Paragraph 3(d) in any way affect Landlord’s
\nremedies pursuant to Paragraph 19 in the event any Rent or Additional Charges
\nare unpaid after the date due.<\/p>\n
4. RESTRICTIONS ON USE. Tenant shall not do or permit anything to be
\ndone in or about the Premises which will obstruct or interfere with the
\nrights of other tenants or occupants of the Building or the Project or injure
\nor annoy them, nor use or allow the Premises to be used for any improper,
\nimmoral, unlawful or objectionable purpose, nor shall Tenant cause or
\nmaintain or permit any nuisance in, on or about the Premises. Tenant shall
\nnot commit or suffer the commission of any waste in, on or about the Premises.<\/p>\n
5. COMPLIANCE WITH LAWS. Tenant shall not use the Premises or permit
\nanything to be done in or about the Premises which will in any way conflict
\nwith any law, statute, ordinance or governmental rule or regulation,
\nincluding all Environmental Laws as hereinafter defined in Paragraph 42,
\nrelating to the use of the Premises now in force or which may hereafter be
\nenacted or promulgated. Tenant shall not do or permit anything to be done in
\nor about the Premises or bring or keep anything therein which will in any way
\nincrease the rate of any insurance upon the Project (unless Tenant agrees to
\npay for such increases) or any of its contents or cause a cancellation of
\nsuch insurance or otherwise affect such insurance in any manner, and Tenant
\nshall at its sole cost and expense promptly comply with all laws, statutes,
\nordinances and governmental rules, regulations or requirements now in force
\nor which may hereafter be in force including, without limitation, all
\nEnvironmental Laws and with the requirements of any board of fire
\nunderwriters or other similar body now or hereafter constituted relating to
\nor affecting the condition, use or occupancy of the Premises, excluding
\nstructural changes not related to or affected by Tenant’s unique use of the
\nPremises or alterations or improvements made by or for Tenant or Tenant’s
\nacts. The judgment of any court of competent jurisdiction or the admission of
\nTenant in an action against Tenant, whether Landlord be a party thereto or not,
\nthat Tenant has so violated any such law, statute, ordinance, rule,
\nregulation or requirement, shall be conclusive of such violation as between
\nLandlord and Tenant.<\/p>\n
6. ADDITIONAL ALTERATIONS. After completion of the improvements
\ndescribed in or contemplated by the Work Letter, Tenant shall not make or
\nsuffer to be made any additional alterations, additions or improvements
\n(“Alterations”) in, on or to the Premises or any part thereof without the
\nprior written consent of Landlord (excepting painting, carpeting,
\nwallcovering, light fixtures, electrical outlets, other communications ports
\nand computer wiring, cabinets and bookshelves, and warehouse racks which are
\nconsistent with improvements and finishes previously approved by Landlord);
\nand any Alterations in, on or to the Premises, except for Tenant’s movable
\nfurniture and equipment (including equipment such as shelving, antennas,
\nsatellite dishes or other similar equipment typically bolted down for safety
\npurposes), shall immediately become Landlord’s property and, at the end of
\nthe Term, shall remain on the Premises without compensation to Tenant.
\nLandlord shall not unreasonably withhold its consent to Alterations that (i)
\ndo not affect the structure of the Building or its electrical, plumbing,
\nHVAC, security or other systems, (ii) are not visible from the exterior of
\nthe Premises, and (iii) are consistent with Tenant’s permitted use hereunder.
\nIn the event Landlord consents to the making of any Alterations by Tenant,
\nthe same shall be made by Tenant, at Tenant’s sole cost and expense, in
\naccordance with plans and specifications reasonably approved by Landlord, and
\nany contractor or person selected by Tenant to make the same must first be
\nreasonably approved in writing by Landlord or, at Landlord’s option, the
\nAlterations shall be made by Landlord for Tenant’s account and Tenant shall
\nreimburse Landlord for the competitively bid cost thereof (including a
\nreasonable charge for Landlord’s overhead) within twenty (20) days after
\nreceipt of a statement from Landlord therefor. Upon the expiration or sooner
\ntermination of the Term, Tenant shall upon demand by Landlord, at Tenant’s
\nsole cost and expense, forthwith and with all due diligence remove any
\nAlterations made by or for the account of Tenant, designated by Landlord to
\nbe removed (provided, however, that upon the written request of Tenant prior
\nto installation of such Alterations, Landlord shall advise Tenant at that
\ntime whether or not such Alterations must be removed upon the expiration or
\nsooner termination of this Lease), and Tenant shall forthwith and with all
\ndue diligence, at its sole cost and expense, repair and restore the Premises
\nto its original condition, subject to normal wear and tear and the rights and
\nobligations of Tenant concerning casualty damage pursuant to Paragraph 20.<\/p>\n
7. REPAIR AND MAINTENANCE.<\/p>\n
(a) Landlord shall be responsible for the following repair and
\nmaintenance obligations: (i) maintenance and repair of the exterior, roof and
\nstructural portions of the Building, (ii) repairs and maintenance of the
\nBuilding systems for electrical, mechanical, HVAC or plumbing and all
\ncontrols appurtenant thereto, and (iii) parking areas, courtyards, sidewalks,
\nentry ways, lawns, landscaping and other similar facilities of the Project.
\nIn the event that Tenant desires to directly manage the maintenance of the
\nmechanical and HVAC systems or the plumbing and all controls appurtenant
\nthereto, then Landlord agrees to not unreasonably withhold its approval so
\nlong as Tenant adequately maintains such equipment, as <\/p>\n
Lease Agreement – Page 5<\/p>\n
reasonably determined by Landlord. Tenant shall have the authority to
\ncommunicate directly with Landlord’s roof maintenance company. In emergency
\nsituations, Tenant shall have the authority to contact directly any venders
\napproved by Landlord and order repairs. In the event that Landlord fails to
\npursue its duties as noted above within thirty (30) days of written request
\nfrom Tenant, excepting structural changes, then Tenant shall have the right
\nto contact any venders approved by Landlord and directly contract for said
\nrepairs and maintenance provided that Tenant agrees to pay for the cost of
\nsaid repairs and maintenance.<\/p>\n
(b) Tenant shall maintain and repair the interior portion of the
\nPremises and any additional tenant improvements, alterations or additions
\ninstalled by or on behalf of Tenant within the Premises, however, excluding
\nany portions thereof which are structural in nature or which are a part of
\nthe electrical, mechanical, HVAC or plumbing systems of the Premises. Tenant
\nshall be responsible for the expense of installation, operation, and
\nmaintenance of its telephone and other communications cabling from the point
\nof entry into the Building to the Premises and throughout the Premises;
\nthough Landlord shall have the right to perform such work on behalf of Tenant
\nin Building Common Areas. Tenant hereby waives and releases its right to make
\nrepairs at Landlord’s expense under Sections 1941 and 1942 of the California
\nCivil Code or under any similar law, statute or ordinance now or hereafter in
\neffect. In addition, Tenant hereby waives and releases its right to terminate
\nthis Lease under Section 1932(1) of the California Civil Code or under any
\nsimilar law, statute or ordinance now or hereafter in effect. If Tenant fails
\nafter ten (10) days’ written notice by Landlord to proceed with due diligence
\nto make repairs required to be made by Tenant, the same may be made by
\nLandlord at the expense of Tenant and the expenses thereof incurred by
\nLandlord shall be reimbursed immediately as Additional Rent within thirty
\n(30) days after submission of a bill or statement therefor.<\/p>\n
(c) The purpose of Section 7(a) and 7(b) is to define the
\nobligations of Landlord and Tenant to perform various repair and maintenance
\nfunctions; the allocation of the costs therefore are covered under this
\nSection 7(c) and Section 3. Tenant shall bear the full cost of repairs or
\nmaintenance interior or exterior, excluding structural changes, to preserve
\nthe Premises and the Building in good working order and condition, arising
\nout of (i) the performance or existence of any alteration or modification to
\nthe Premises made by Tenant; (ii) the installation, use or operation of
\nTenant’s property or fixtures; (iii) the moving of Tenant’s property or
\nfixtures in or out of the Building or in and about the Premises; or (iv) the
\nacts, omissions or negligence of Tenant or any person claiming or acting
\nthrough or under Tenant, or any of its servants, employees, contractors,
\nagents, visitors, or licensees, or the use or occupancy or manner of use or
\noccupancy of the Premises by Tenant or any such person.<\/p>\n
(d) Except as provided in Paragraph 20, there shall be no abatement
\nof Rent with respect to, and except for Landlord’s gross negligence or
\nwillful misconduct, Landlord shall not be liable for any injury to or
\ninterference with Tenant’s business arising from, any repairs, maintenance,
\nalteration or improvement in or to any portion of the Building, including the
\nPremises, or in or to the fixtures, appurtenances and equipment therein.<\/p>\n
8. LIENS. Tenant shall keep the Premises free from any liens arising out
\nof any work performed, material furnished or obligations incurred by Tenant.
\nIn the event that Tenant shall not, within ten (10) days following the
\nimposition of any such lien, cause the same to be released of record by
\npayment or posting of a proper bond, Landlord shall have, in addition to all
\nother remedies provided herein and by law, the right, but not the obligation,
\nto cause the 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
\nby Landlord and all expenses incurred by it in connection therewith shall be
\nconsidered Additional Charges and shall be payable to it by Tenant on demand
\nwith interest at the maximum rate permitted by law. Landlord shall have the
\nright at all times to post and keep posted on the Premises any notices
\npermitted or required by law, or which Landlord shall deem proper, for the
\nprotection of Landlord, the Premises, the Building and any other party
\nhaving an interest therein, from mechanics’ and materialsmen’s liens, and
\nTenant shall give notice to Landlord at least five (5) business days’ prior
\nnotice of commencement of any construction on the Premises.<\/p>\n
9. ASSIGNMENT AND SUBLETTING.<\/p>\n
(a) Tenant shall not directly or indirectly, voluntarily or by
\noperation of law, sell, assign, encumber, pledge or otherwise transfer or
\nhypothecate all or any part of the Premises or Tenant’s leasehold estate
\nhereunder (collectively, “Assignment”), or permit the Premises to be occupied
\nby anyone other than the Tenant or sublet the Premises (collectively,
\n“Sublease”) or any portion thereof without Landlord’s prior written consent
\nin each instance, which consent shall not be unreasonably withheld by
\nLandlord. Without otherwise limiting the criteria upon which Landlord may
\nwithhold its consent to any proposed Sublease or Assignment, if Landlord
\nwithholds its consent where either (i) the proposed Subleasee’s or Assignee’s
\nnet<\/p>\n
Lease Agreement – Page 6<\/p>\n
worth (according to generally accepted accounting principles) is less than
\nthe net worth of Tenant at the time this Lease is executed, or (ii) the
\nproposed Sublessee’s or Assignee’s use of the Premises is not in compliance
\nwith the allowed Tenant’s Use of the Premises as described in the Basic Lease
\nInformation, such withholding of consent shall be presumptively reasonable.
\nIf Landlord consents to the Sublease or Assignment, Tenant may thereafter
\nenter into a valid Sublease or Assignment upon the terms and condition set
\nforth in this Section 9.<\/p>\n
(b) If Tenant desires at any time to enter into an Assignment of
\nthis Lease or a Sublease of the Premises or any portion thereof, it shall
\nfirst give written notice to Landlord of its desire to do so, which notice
\nshall contain (i) the name of the proposed assignee, subtenant or occupant;
\n(ii) the name of the proposed assignee’s, subtenant, or occupant’s business
\nto be carried on in the Premises; (iii) the terms and provisions of the
\nproposed Assignment or Sublease; and (iv) such financial information as
\nLandlord may request concerning the proposed assignee, subtenant or occupant.<\/p>\n
(c) At any time within fifteen (15) days after Landlord’s receipt
\nof the notice specified in Paragraph 9(b), Landlord shall by written notice
\nto Tenant elect to (i) sublease itself the portion of the Premises specified
\nin Tenant’s notice of intended Sublease; (ii) take an Assignment of Tenant’s
\nleasehold estate specified in Tenant’s notice hereunder; (iii) terminate this
\nLease as to the portion (including all) of the Premises that is specified in
\nTenant’s notice of intended Assignment, with a proportionate abatement in
\nRent and Additional Charges; (iv) consent to the Sublease or Assignment; or
\n(v) disapprove the Sublease or Assignment. In the event Landlord elects to
\nSublease or take an Assignment from Tenant as described in clauses (i) and
\n(ii) above, the rent payable by Landlord shall be the lower of that set forth
\nin Tenant’s notice or the Rent payable by Tenant under this Lease at the time
\nof the Assignment of Sublease (or a proportionate amount thereof representing
\nthe portion of the Premises subject to the Assignment or Sublease if less
\nthan the entire Premises is subject to the Assignment or Sublease). In the
\nevent Landlord elects any of the options set forth in clauses (i), (ii), or
\n(iii) above, with respect to a portion of the Premises, Tenant shall at all
\ntimes provide reasonable and appropriate access to such portion of the
\nPremises and use of any common facilities, and Landlord shall have the right
\nto use such portion of the Premises for any legal purpose in its sole
\ndiscretion and the right to further assign or sublease the portion of the
\nPremises subject to Landlord’s election without the consent of Tenant. If
\nLandlord consents to the Sublease or Assignment within said fifteen (15) day
\nperiod, Tenant may thereafter within thirty (30) days after Landlord’s
\nconsent, but not later than the expiration of said thirty (30) days, enter
\ninto such Assignment or Sublease of the Premises or portion thereof, upon the
\nterms and conditions set forth in the notice furnished by Tenant to Landlord
\npursuant to Paragraph 9(b). Failure by Landlord to either consent or refuse
\nsuch consent to a proposed assignment, encumbrance or sublease within the
\nfifteen (15) day time period specified above shall be deemed to be Landlord’s
\nconsent thereto.<\/p>\n
(d) No consent by Landlord to any Assignment or Sublease by Tenant
\nshall relieve Tenant of any obligation to be performed by Tenant under this
\nLease, whether arising before or after the Assignment or Sublease. The
\nconsent by Landlord to any Assignment or Sublease shall not relieve Tenant
\nfrom the obligation to obtain Landlord’s express written consent to any other
\nAssignment or Sublease. Any Assignment or Sublease that is not in compliance
\nwith this Paragraph 9 shall be void and, at the option of Landlord, shall
\nconstitute a material default by Tenant under this Lease. The acceptance of
\nRent or Additional Charges by Landlord from a proposed assignee or sublessee
\nshall not constitute the consent to such Assignment or Sublease by Landlord.<\/p>\n
(e) The following shall be deemed a voluntary assignment of
\nTenant’s interest in this Lease: (i) any dissolution, merger, consolidation,
\nor other reorganization of Tenant; and (ii) if the capital stock of Tenant is
\nnot publicly traded, the sale or transfer to one person or entity stock
\npossessing more than fifty percent (50%) of the total combined voting power
\nof all classes of Tenant’s capital stock issued, outstanding and entitled to
\nvote for the election of directors. Notwithstanding anything to the contrary
\ncontained in this paragraph 9, Tenant may enter into any of the following
\ntransfers (a “Permitted Transfer”) without Landlord’s prior written consent:<\/p>\n
(1) Tenant may assign its interest in the Lease to a
\ncorporation which results from a merger, consolidation or other
\nreorganization, so long as the surviving corporation has a net worth
\nimmediately following such transaction that is equal to or greater than the
\nnet worth of Tenant immediately prior to such transaction; and<\/p>\n
(2) Tenant may assign this Lease to a corporation which
\npurchases or otherwise acquires all or substantially all of the assets of
\nTenant, so long as such acquiring corporation has a net worth immediately
\nfollowing such transaction that is equal to or greater than the net worth of
\nTenant immediately prior to such transaction.<\/p>\n
(f) Each assignee, sublessee or other transferee, other than
\nLandlord, shall assume, as provided in this Paragraph 9(f), all obligations
\nof Tenant under this Lease and shall be and remain liable jointly and
\nseverally with Tenant for the payment of Rent and Additional Charges, and for
\nthe performance of all the terms, covenants, conditions and agreements herein
\ncontained on Tenant’s part to be performed for<\/p>\n
Lease Agreement – Page 7<\/p>\n
the Term; provided, however, that the assignee, sublessee, mortgagee, pledgee
\nor other transferee shall be liable to Landlord for rent only in the amount
\nset forth in the Assignment or Sublease. No Assignment shall be binding on
\nLandlord unless the assignee or Tenant shall deliver to Landlord a
\ncounterpart of the Assignment and an instrument in recordable form that
\ncontains a covenant of assumption by the assignee satisfactory in substance
\nand form to Landlord, consistent with the requirements of this Paragraph
\n9(f), but the failure or refusal of the assignee to execute such instrument
\nof assumption shall not release or discharge the assignee from its liability
\nas set forth above.<\/p>\n
(g) Landlord will approve within ten (10) days of receipt of
\nwritten notice the assignment of Tenant’s interest in the lease or sublease
\nof the Premises by Tenant to an affiliate provided that (i) the affiliate
\ndelivers to the Landlord concurrent with such assignment a written notice of
\nthe assignment and an assumption agreement whereby the affiliate assumes to
\nperform, observe and abide by the terms, conditions, obligations, and
\nprovisions of this lease, and (ii) the entity remains an affiliate. No
\nsubletting or assignment by Tenant made pursuant to this Section shall
\nrelieve Tenant of Tenant’s obligations under this Lease. As used herein, the
\nterm “affiliate” shall mean and collectively refer to a corporation or other
\nentity in which Tenant, (the “parent”) owns directly or indirectly at least a
\n51 percent ownership interest.<\/p>\n
10. INSURANCE AND INDEMNIFICATIONS.<\/p>\n
(a) Landlord shall indemnify and hold Tenant harmless from and
\nagainst any and all claims or liability for any injury or damage to any
\nperson or property (but excluding any consequential damages or loss of
\nbusiness) occurring in, on, or about the Building to the extent such injury or
\ndamage is caused by the negligence or willful misconduct of Landlord, its
\nagents, servants, or employees (“Landlord Parties”).<\/p>\n
(b) Landlord shall not be liable to Tenant, and Tenant hereby
\nwaives all claims against Landlord Parties for any injury or damage to any
\nperson or property in or about the Premises by or from any cause whatsoever
\n(other than the negligence or willful misconduct of Landlord Parties,
\nincluding Landlord’s negligence or willful misconduct as related to
\nconstruction or property management), and without limiting the generality of
\nthe foregoing, whether caused by water leakage of any character from the
\nroof, walls, basement, or other portion of the Premises or the Building, or
\ncaused by gas, fire, oil, electricity, or any cause whatsoever, in, on, or
\nabout the Premises, the Building or any part thereof (other than that caused
\nby the negligence or willful misconduct of Landlord parties). Tenant
\nacknowledges that any casualty insurance carried by Landlord will not cover
\nloss of income to Tenant or damage to the alterations in the Premises
\ninstalled by Tenant or Tenant’s personal property located within the
\nPremises. Tenant shall be required to maintain the insurance described in
\nsubparagraph (d) below during the Term.<\/p>\n
(c) Tenant shall indemnify and hold Landlord harmless from and
\ndefend Landlord against any and all claims or liability for any injury or
\ndamage to any person or property whatsoever: (i) occurring in, on, or about
\nthe Premises; or (ii) occurring in, on, or about any other portion of the
\nProject when such injury or damage shall be caused in whole or in part by the
\nnegligence or willful misconduct by Tenant, its agents, servants, employees,
\nor invitees (“Tenant Parties”), except to the extent caused by negligence or
\nwillful misconduct of Landlord Parties. Tenant further agrees to indemnify
\nand hold Landlord harmless from, and defend Landlord against, any and all
\nclaims, losses, or liabilities (including damage to Landlord’s property)
\narising from (x) any breach of this Lease by Tenant and\/or (y) the conduct of
\nany work or business of Tenant Parties in or about the Project, including,
\nbut not limited to any release, discharge, storage or use of any hazardous
\nsubstance, hazardous waste, toxic substance, oil, explosives, asbestos, or
\nsimilar material.<\/p>\n
(d) Tenant shall procure at its cost and expense and keep in effect
\nduring the Term the following insurance: (i) commercial general liability
\ninsurance including contractual liability with a minimum combined single
\nlimit of liability of Two Million Dollars ($2,000,000). Such insurance shall
\nname Landlord as an additional insured, shall specifically include the
\nliability assumed hereunder by Tenant, and shall provide that it is primary
\ninsurance, and not excess over or contributory with any other valid, existing
\nand applicable insurance in force for or on behalf of Landlord, and shall
\nprovide that Landlord shall receive thirty (30) days’ written notice from the
\ninsurer prior to any cancellation or change of coverage; (ii) “all risk”
\nproperty insurance (including without limitation, boiler and machinery (if
\napplicable); sprinkler damage, vandalism and malicious mischief) on all
\nleasehold improvements installed in the Premises by Tenant at its expense (if
\nany), and on all Tenant’s personal property. Such insurance shall be an
\namount equal to full replacement cost of the aggregate of the foregoing and
\nshall provide coverage comparable to the coverage in the standard ISO All
\nRisk form, when such form is supplemented with the coverages required above;
\n(iii) worker’s compensation insurance; and (iv) such other insurance as may
\nbe required by the law. Tenant shall deliver policies of such insurance or
\ncertificates thereof to Landlord on or before the Commencement Date, and
\nthereafter at least thirty (30) days before the expiration dates of expiring
\npolicies; and, in the event Tenant shall fail to procure such insurance, or
\nto deliver such policies or certificates, Landlord may, at its option,
\nprocure same for the account of Tenant, and the cost thereof shall be paid to
\nLandlord as Additional Charges within five (5) days after delivery to Tenant
\nof bills therefor.<\/p>\n
Lease Agreement – Page 8<\/p>\n
(e) The provisions of this paragraph 10 shall survive the
\nexpiration or termination of this Lease with respect to any claims or
\nliability occurring prior to such expiration or termination.<\/p>\n
11. WAIVER OF SUBROGATION. Landlord and Tenant (“Claiming Party”) each
\nwaive (i) their right against the other party (“Other Party”) and any party
\nwho would have a claim against the Other Party, and (ii) any subrogation
\nright of their insurance company, to recover for any damages in respect of
\ninjury to persons or property, or for loss of rents or business interruption,
\nto the extent of receipt by the Claiming Party of proceeds of insurance in
\nrespect of such damages. Landlord and Tenant shall each obtain from their
\nrespective insurers under all policies of fire, theft, and other property
\ninsurance maintained by either of them at any time during the Term insuring
\nor covering the Building or any portion thereof of its contents therein, a
\nwaiver of all rights of subrogation which the insurer of one party might
\notherwise, if at all, have against the other party, and Landlord and Tenant
\nshall each indemnify the other against any loss or expense, including
\nreasonable attorney’s fees, resulting from the failure to obtain such waiver.<\/p>\n
12. SERVICES AND UTILITIES.<\/p>\n
(a) Landlord shall provide the maintenance and repairs described in
\nparagraph 7(a), except for damage occasioned by the act of Tenant, which
\ndamage shall be repaired by Landlord at Tenant’s expense.<\/p>\n
(b) Subject to the provisions elsewhere herein contained and to the
\nrules and regulations of the Building, Tenant shall be responsible for
\narranging for, and direct payment of the cost of, garbage pickup, janitorial,
\nwater, electricity, gas, telephone and any and all other utilities and
\nservices; and, Landlord shall cooperate with Tenant’s efforts to arrange such
\nservices. Tenant agrees at all times to cooperate fully with Landlord and to
\nabide by all the reasonable regulations and requirements which Landlord may
\nprescribe for the proper functioning and protection of the heating,
\nventilating and air conditioning system.<\/p>\n
(c) Tenant will not without the written consent of Landlord, which
\nconsent shall not be unreasonably withheld or delayed, use any apparatus or
\ndevice in the Premises which, when used, puts an excessive load on the
\nBuilding or its structure or systems.<\/p>\n
(d) Landlord shall not be in default hereunder or be liable for any
\ndamages directly or indirectly resulting from, nor shall the rental herein
\nreserved be abated by reason of (i) the installation, use or interruption of
\nuse of any equipment in connection with the foregoing utilities and services;
\n(ii) failure to furnish or delay in furnishing any services to be provided by
\nLandlord when such failure or delay is caused by Acts of God or the elements,
\nlabor disturbances of any character, any other accidents or other conditions
\nbeyond the reasonable control of Landlord, or by the making of repairs or
\nimprovements to the Premises or to the Building; or (iii) the limitation,
\ncurtailment, rationing or restriction on use of water or electricity, gas or
\nany other form of energy or any other service or utility whatsoever serving
\nthe Premises or the Building. Furthermore, Landlord shall be entitled to
\ncooperate voluntarily in a reasonable manner with the efforts of national,
\nstate or local governmental agencies or utilities suppliers in reducing
\nenergy or other resources consumption.<\/p>\n
13. TENANTS CERTIFICATES. Tenant, at any time and from time to time,
\nwithin ten (10) days from receipt of written notice from Landlord, will
\nexecute, acknowledge and deliver to Landlord and, at Landlord’s request, to
\nany prospective tenant, purchaser, ground or underlying lessor or mortgagee
\nof any part of the Building or the land upon which the Building is located or
\nany other party acquiring an interest in Landlord, a certificate of Tenant in
\nthe form attached as EXHIBIT “D” and also containing any other information
\nthat may reasonably be required by any of such persons. It is intended that
\nany such certificate of Tenant delivered pursuant to this Paragraph 13 may be
\nrelied upon by Landlord and any prospective tenant, purchaser, ground or
\nunderlying lessor or mortgage of any part of the Building or the land upon
\nwhich the Building is located, or such other party.<\/p>\n
14. HOLDING OVER. Any holding over after the expiration of the Term with
\nthe consent of Landlord shall be construed to be a tenancy from month to
\nmonth at one hundred twenty-five percent (125%) of the Rent herein specified
\nunless Landlord shall specify a different rent in its sole discretion,
\ntogether with an amount estimated by Landlord for the monthly Rent and
\nAdditional Charges payable under this Lease, and shall otherwise be on the
\nterms and conditions herein specified so far as applicable. Any holding over
\nwithout Landlord’s consent shall constitute a default by Tenant and entitle
\nLandlord to re-enter the Premises as provided in Paragraph 19.<\/p>\n
15. SUBORDINATION. Without the necessity of any additional document
\nbeing executed by Tenant for the purpose of effecting a subordination, this
\nLease shall be subject and subordinate at all times to: (i) all ground leases
\nor underlying leases which may now exist or hereafter be executed affecting
\nthe Building or the land upon which the Building is situated or both; and
\n(ii) the lien of any mortgage or deed of trust which may now exist or
\nhereafter be executed in any amount for which the Building, land, ground
\nleases or underlying leases, or Landlord’s interest or estate in any of said
\nitems, is specified as security. Notwithstanding the foregoing, Landlord
\nshall have the right to subordinate or cause to be subordinated any such
\nground leases or underlying leases or any such liens to this Lease. In the
\nevent that any ground lease or underlying lease terminates for any reason or
\nany mortgage or deed of trust is foreclosed or a conveyance in lieu of
\nforeclosure is made for any reason, Tenant shall, notwithstanding any<\/p>\n
Lease Agreement – Page 9<\/p>\n
subordination, attorn to and become the Tenant of the successor in interest
\nto Landlord at the option of such successor in interest, and Tenant shall be
\nentitled to continue in possession of the Premises on the terms and
\nconditions of this Lease if and for so long as Tenant fully performs all of
\nits obligations hereunder. Tenant covenants and agrees to execute and deliver
\nupon demand by Landlord and in the form requested by Landlord, any additional
\ndocuments evidencing the priority or subordination of this Lease with respect
\nto any such ground leases or underlying leases or the lien of any such
\nmortgage or deed of trust so long as Tenant is provided with a reasonable
\nnon-disturbance provision. Tenant hereby irrevocably appoints Landlord as
\nattorney-in-fact of Tenant to execute, deliver and record any such documents
\nin the name of and on behalf of Tenant if Tenant has not executed the same
\nwithin twenty (20) days after Landlord’s written request.<\/p>\n
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
\nwith the rules and regulations attached to this Lease as EXHIBIT “C” and all
\nreasonable modifications thereof and additions thereto from time to time put
\ninto effect by Landlord. Landlord shall not be responsible for the
\nnonperformance by any other Tenant or occupant of the Building or the Project
\nof any said rules and regulations. In the event of an express and direct
\nconflict between the terms, covenants, agreements and conditions of this
\nLease and those set forth in the rules and regulations, as modified and
\namended from time to time by Landlord, this Lease shall control.<\/p>\n
17. RE-ENTRY BY LANDLORD. Except in the case of emergency and upon
\nreasonable advance notice to Tenant, Landlord reserves and shall at all times
\nhave the right to re-enter the Premises to inspect the same, to supply
\njanitor service and any other service to be provided by Landlord to Tenant
\nhereunder, to show the Premises to prospective purchasers, mortgagees or
\ntenants, to post notices of nonresponsibility or as otherwise required or
\nallowed by this Lease or by law, and to alter, improve or repair the Premises
\nand any portion of the Building and may for that purpose erect, use, and
\nmaintain scaffolding, pipes, conduits, and other necessary structures in and
\nthrough the Premises where reasonably required by the character of the work
\nto be performed. Landlord shall not be liable in any manner for any
\ninconvenience, disturbance, loss of business, nuisance or other damage
\narising from Landlord’s entry and reasonable acts pursuant to this Paragraph
\nand Tenant shall not be entitled to an abatement or reduction of rent or
\nAdditional Charges if Landlord exercises any rights reserved in this
\nparagraph. Tenant hereby waives any claim for damages for any injury or
\ninconvenience to or interference with Tenant’s business, any loss of
\noccupancy or quiet enjoyment of the Premises, and any other loss occasioned
\nthereby, except for Landlord’s gross negligence or willful misconduct. For
\neach of the aforesaid purposes, Landlord shall at all times have and retain a
\nkey with which to un-lock all of the doors, in upon and about the Premises,
\nexcluding Tenant’s vaults and safes, or special security areas (designated in
\nadvance), and Landlord shall have the right to use any and all means which
\nLandlord may deem necessary or proper to open said doors in an emergency, in
\norder to obtain entry to any portion of the Premises, and any entry to the
\nPremises, or portion thereof obtained by Landlord by any of said means, or
\notherwise, shall not under any emergency circumstances be construed or deemed
\nto be a forcible or unlawful entry into, or a detainer of, the Premises, or
\nan eviction, actual or constructive, of Tenant from the Premises or any
\nportions thereof.<\/p>\n
18. INSOLVENCY OR BANKRUPTCY. The appointment of a receiver to take
\npossession of all or substantially all of the assets of Tenant, or an
\nassignment of Tenant for the benefit of creditors, or any action taken or
\nsuffered by Tenant under any insolvency, bankruptcy, reorganization or other
\ndebtor relief proceedings, whether now existing or hereafter amended or
\nenacted, shall at Landlord’s option constitute a breach of this Lease by
\nTenant. Upon the happening of any such event or at any time thereafter, this
\nLease shall terminate five (5) days after written notice of termination from
\nLandlord to Tenant. In no event shall this Lease be assigned or assignable
\nby operation of law or by voluntary or involuntary bankruptcy proceedings or
\notherwise and in no event shall this Lease or any rights or privileges
\nhereunder be an asset of Tenant under any bankruptcy, insolvency,
\nreorganization or other debtor relief proceedings.<\/p>\n
19. DEFAULT. The failure to perform or honor any covenant, condition
\nor representation made under this Lease shall constitute a default hereunder
\nby Tenant upon expiration of the appropriate grace period hereinafter
\nprovided. Tenant shall have a period of three (3) business days from the date
\nof written notice from Landlord within which to cure any default in the
\npayment of Rent or Additional Charges. Tenant shall have a period of thirty
\n(30) days from the date of written notice from Landlord within which to cure
\nany other default under this Lease; provided, however, that with respect to
\nany default other than the payment of Rent or Additional Charges that cannot
\nreasonably be cured within thirty (30) days, the default shall not be deemed
\nto be uncured if Tenant commences to cure within thirty (30) days from
\nLandlord’s notice and continues to prosecute diligently the curing thereof.
\nUpon an uncured default of this Lease by Tenant, Landlord shall have the
\nfollowing rights and remedies in addition to any other rights or remedies
\navailable to Landlord at law or in equity:<\/p>\n
(a) The rights and remedies provided by California Civil Code, Section
\n1951.2, including but not limited to, recovery of the worth at the time of
\naward of the amount by which the unpaid Rent and Additional Charges for the
\nbalance of the Term after the time of award exceeds the amount of rental loss
\nfor the same period that the Tenant proves could be reasonably avoided, as
\ncomputed pursuant to subsection (b) of said Section 1951.2;<\/p>\n
Lease Agreement – Page 10<\/p>\n
(b) The rights and remedies provided by California Civil Code, Section
\n1951.4, that allows Landlord to continue this Lease in effect and to enforce
\nall of its rights and remedies under this Lease, including the right to
\nrecover Rent and Additional Charges as they become due, for so long as
\nLandlord does not terminate Tenant’s right to possession; provided, however,
\nif Landlord elects to exercise its remedies described in this Paragraph 19(b)
\nand Landlord does not terminate this Lease, and if Tenant requests Landlord’s
\nconsent to an assignment of this Lease or a sublease of the Premises at such
\ntime as Tenant is in default, Landlord shall not unreasonably withhold its
\nconsent to such assignment or sublease. Acts of maintenance or preservation,
\nefforts to relet the Premises or the appointment of a receiver upon
\nLandlord’s initiative to protect its interest under this Lease shall not
\nconstitute a termination of Tenant’s rights to possession;<\/p>\n
(c) The right to terminate this Lease by giving notice to Tenant in
\naccordance with applicable law;<\/p>\n
(d) The right and power, as attorney-in-fact for Tenant, to enter
\nthe Premises and remove therefrom all persons and property and, to store such
\nproperty in a public warehouse or elsewhere at the cost of and for the
\naccount of Tenant, and to sell such property and apply such proceeds
\ntherefrom pursuant to applicable California law. Landlord, as
\nattorney-in-fact for Tenant, may from time to time sublet the Premises or any
\npart thereof for such term or terms (which may extend beyond the Term) and at
\nsuch rent and such other terms as Landlord in its sole discretion may deem
\nadvisable, with the right to make alterations and repairs to the Premises.
\nUpon each such subletting, (i) Tenant shall be immediately liable to pay to
\nLandlord, in addition to indebtedness other than Rent and Additional Charges
\ndue hereunder, the cost of such subletting and such reasonable alterations
\nand repairs incurred by Landlord and the amount, if any, by which the Rent
\nand Additional Charges due hereunder for the period of such subletting (to
\nthe extent such period does not exceed the Term) exceeds the amount to be
\npaid as Rent and Additional Charges for the Premises for such period; or (ii) at
\nthe option of Landlord, rents received from such subletting shall be applied
\nfirst, to payment of any indebtedness other than Rent and Additional Charges
\ndue hereunder from Tenant to Landlord, second, to the payment of any costs of
\nsuch subletting and of such alterations and repairs, third, to payment of
\nRent and Additional Charges due, and unpaid hereunder; and the residue, if
\nany, shall be held by Landlord and applied in payment of future Rent and
\nAdditional Charges as the same becomes due hereunder. If Tenant has been
\ncredited with any rentals to be received by such subletting under option (i) and
\nsuch rentals shall not be promptly paid to Landlord by the subtenant(s),
\nor if such rentals received from such subletting under option (ii) during any
\nmonth be less than that to be paid during that month by Tenant hereunder,
\nTenant shall pay any such deficiency to Landlord. Such deficiency shall be
\ncalculated and paid monthly. For all purposes set forth in this paragraph
\n(d), Landlord is hereby irrevocably appointed attorney-in-fact for Tenant,
\nwith power of substitution. The taking possession of the Premises by
\nLandlord, as attorney-in-fact for Tenant, shall not be construed as an
\nelection on its part to terminate this Lease unless a written notice of such
\nintention be given to Tenant. Notwithstanding any such subletting without
\ntermination, Landlord may at any time thereafter elect to terminate this
\nLease for such previous breach; and,<\/p>\n
(e) The right to have receiver appointed for Tenant, upon
\napplication by Landlord, to take possession of the Premises and to apply any
\nrental collected from the Premises and to exercise all other rights and
\nremedies granted to Landlord as attorney-in-fact for Tenant pursuant to
\nsubparagraph (d) above.<\/p>\n
Landlord shall have a period of thirty (30) days from the date of written
\nnotice from Tenant within which to cure any default under this Lease;
\nprovided, however, that with respect to any default that cannot reasonably be
\ncured within thirty (30) days, the default shall not be deemed to be uncured
\nif Landlord commences to cure within thirty (30) days from Tenant’s notice
\nand continues to prosecute diligently the curing thereof. Tenant agrees to
\ngive any Mortgagee and\/or Trust Deed Holders (“Mortgagee”), by Registered
\nMail, a copy of any Notice of Default served upon the Landlord, provided that
\nprior to such notice Tenant has been notified in writing, (by way of Notice
\nof Assignment of Rents and Leases, or otherwise) of the address of such
\nMortgagee. Tenant further agrees that if Landlord shall have failed to cure
\nsuch default within the time provided for in this Lease, then the Mortgagee
\nshall have an additional thirty (30) days within which to cure such default
\nor if such default cannot be cured within that time, then such additional
\ntime as may be necessary to cure such default shall be granted if within such
\nthirty (30) days Mortgagee has commenced and is diligently pursuing the
\nremedies necessary to cure such default (including, but not limited to,
\ncommencement of foreclosure proceedings, if necessary to effect such cure),
\nin which event the Lease shall not be terminated while such remedies are
\nbeing diligently pursued.<\/p>\n
20. DAMAGE BY FIRE, ETC. If the Premises or the Building are damaged
\nby fire or other casualty, Landlord shall forthwith repair the same, provided
\nthat such repairs can be made within one hundred eighty (180) days after the
\ndate of such damage under the laws and regulations of the federal, state and
\nlocal governmental authorities having jurisdiction thereof. In such event,
\nthis Lease shall remain in full force and effect except that Tenant shall be
\nentitled to a proportionate reduction of Rent and Additional Charges while
\nsuch repairs to be made hereunder by Landlord are being made. Such reduction
\nof rent, if any, shall be based upon the proportion that the area of the
\nPremises rendered untenantable by such damage bears to the total area of the
\nPremises. Within twenty (20) days after the date of such damage, Landlord <\/p>\n
Lease Agreement – Page 11<\/p>\n
shall notify Tenant whether or not such repairs can be made within one
\nhundred eighty (180) days after the date of such damage and Landlord’s
\ndetermination thereof shall be binding on Tenant. If such repairs cannot be
\nmade within one hundred eighty (180) days from the date of such damage,
\nLandlord shall have the option within thirty (30) days after the date of such
\ndamage either to: (i) notify Tenant of Landlord’s intention to repair such
\ndamage and diligently prosecute such repairs, in which event this Lease shall
\ncontinue in full force and effect and the Rent and Additional Charges shall
\nbe reduced as provided herein; or (ii) notify Tenant of Landlord’s election
\nto terminate this Lease as of a date specified in such notice, which date
\nshall not be less than thirty (30) days nor more that sixty (60)days after
\nnotice is given. In the event that such notice to terminate is given by
\nLandlord, this Lease shall terminate on the date specified in such notice. If
\nLandlord cannot make such repairs within one hundred eighty (180) days, then
\nTenant shall have the right to terminate the lease by providing written notice
\nto Landlord of such termination within the later of thirty (30) days following
\nTenant’s receipt of Landlord’s notice of the time to repair or five (5) days
\nafter Landlord’s notice of its intent to repair, or not to repair, the
\nPremises. Such notice of intent to repair may be conditional upon Tenant’s
\nagreement not to terminate the lease. In case of termination by either event,
\nthe Rent and Additional Charges shall be reduced by a proportionate amount
\nbased upon the extent to which such damage interfered with the business
\ncarried on by Tenant in the Premises, and Tenant shall pay such reduced Rent
\nand Additional Charges up to the date of termination. Landlord agrees to
\nrefund to Tenant any Rent and Additional Charges previously paid for any
\nperiod of time subsequent to such date of termination. The repairs to be made
\nhereunder by Landlord shall not include, and Landlord shall not be
\nrequired to repair, any damage by fire or other cause to the property of
\nTenant or any repairs or replacements of any paneling, decorations, railings,
\nfloor coverings or any alterations, additions, fixtures or improvements
\ninstalled on the Premises by or at the expense of Tenant. Tenant hereby
\nwaives the provisions of Section 1932.2, and Section 1933.4, of the Civil
\nCode of California. Notwithstanding anything contained herein to the
\ncontrary, if a Major Casualty occurs with respect to any portion of the
\nBuilding, and the net insurance proceeds obtained as a result of such casualty
\nare ninety percent (90%) or a lesser percentage of the cost of restoration,
\nrebuilding or replacement, then Landlord shall not be obligated to undertake
\nsuch restoration, rebuilding or replacement unless Landlord elects to do so
\nin writing. For the purpose of this Lease, a “Major Casualty” shall mean a
\ncasualty that renders unusable twenty percent (20%) or more of the Net
\nRentable Area of the Building or which materially adversely affects the use
\nof such Building.<\/p>\n
21. EMINENT DOMAIN. If any part over 15% of the Premises shall be
\ntaken or appropriated under the power of eminent domain or conveyed in lieu
\nthereof, either party shall have the right to terminate this Lease at its
\noption. If any part of the Building shall be taken or appropriated under
\npower of eminent domain or conveyed in lieu thereof, Landlord may terminate
\nthis Lease at its option. In either of such events, Landlord shall receive
\n(and Tenant shall assign to Landlord upon demand from Landlord) any income,
\nrent, award or any interest therein which may be paid in connection with the
\nexercise of such power of eminent domain, and Tenant shall have no claim
\nagainst Landlord for any part of sum paid by virtue of such proceedings,
\nwhether or not attributable to the value of the unexpired term of this Lease,
\nexcept that Tenant shall be entitled to petition the condemning authority for
\nthe following: (i) the unamortized cost of any tenant improvements paid for
\nby Tenant (and not reimbursed by Landlord); (ii) the value of Tenant’s trade
\nfixtures; and, (iii) Tenant’s relocation costs. If a part of the Premises
\nshall be so taken or appropriated or conveyed and neither party hereto shall
\nelect to terminate this Lease and the Premises have been damaged as a
\nconsequence of such partial taking or appropriation or conveyance, Landlord
\nshall restore the Premises continuing under this Lease at Landlord’s cost and
\nexpense; provided, however, that Landlord shall not be required to repair or
\nrestore any injury or damage to the property of Tenant or to make any repairs
\nor restoration of any Alterations installed on the Premises by or at the
\nexpense of Tenant. Thereafter, the Rent and Additional Charges to be paid
\nunder this Lease for the remainder of the Term shall be proportionately
\nreduced, such that thereafter the amounts to be paid by Tenant shall be in
\nthe ratio that they are of the portion of the Premises not so taken bears to
\nthe total area of the Premises prior to such taking. Notwithstanding anything
\nto the contrary contained in this Paragraph 21, if the temporary use or
\noccupancy of any part of the Premises shall be taken or appropriated under
\npower of eminent domain during the Term, this Lease shall be and remain
\nunaffected by such taking or appropriation and Tenant shall continue to pay
\nin full all Rent and Additional Charges payable hereunder by Tenant during
\nthe term; in the event of any such temporary appropriation or taking. Tenant
\nshall be entitled to receive that portion of any award which represents
\ncompensation for the use of or occupancy of the Premises during the Term, and
\nLandlord shall be entitled to receive that portion of any award which
\nrepresents the cost of restoration of the Premises and the use and occupancy
\nof the Premises after the end of the Term.<\/p>\n
22. SALE BY LANDLORD. In the event of a sale or conveyance by
\nLandlord of the Building, any such sale or conveyance shall operate to
\nrelease Landlord from any future liability upon any of the covenants or
\nconditions, express or implied, herein contained in favor of Tenant, and in
\nsuch event Tenant agrees to look solely to the successor in interest of
\nLandlord in and to this Lease. This Lease shall not be affected by any such
\nsale, and Tenant agrees to attorn to the purchaser or assignee.<\/p>\n
Lease Agreement – Page 12<\/p>\n
23. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
\nperformed by Tenant under any of the terms of this Lease shall be performed
\nby Tenant at Tenant’s sole cost and expense and without any abatement of rent
\nor additional charges. If Tenant shall fail to pay any sum of money, other
\nthan rent or additional charges, required to be paid by it hereunder or shall
\nfail to perform any other act on its part to be performed hereunder, and such
\nfailure shall continue for thirty (30) days after notice thereof by Landlord,
\nLandlord may, but shall not be obligated so to do, and without waiving or
\nreleasing Tenant from any obligations of Tenant, make any such payment or
\nperform any such act on Tenant’s part to be made or performed as provided in
\nthis Lease. All sums so paid by Landlord and all necessary incidental costs
\ntogether with interest thereon at the maximum rate permitted by law, from the
\ndate of such payment by Landlord shall be payable as additional charges to
\nLandlord on demand.<\/p>\n
24. SURRENDER OF PREMISES.<\/p>\n
(a) At the end of the Term or any renewal thereof or other sooner
\ntermination of this Lease, Tenant will peaceably deliver to Landlord
\npossession of the Premises, together with all improvements or additions upon
\nor belonging to the same, by whomsoever made, in the same condition as
\nreceived, or first installed, subject to normal wear and tear and the rights
\nand obligation of Tenant concerning casualty damage pursuant to Paragraph
\n20, damage by fire, earthquake, Act of God, or the elements alone excepted.
\nTenant may, upon the termination of this Lease, remove all movable furniture
\nand equipment belonging to Tenant, at Tenant’s sole cost, title to which
\nshall be in Tenant until such termination, provided that Tenant repairs any
\ndamage caused by such removal. Property not so removed shall be deemed
\nabandoned by Tenant, and title to the same shall thereupon pass to Landlord.
\nUpon request by Landlord, and unless otherwise agreed to in writing by
\nLandlord, Tenant shall remove, at Tenant’s sole cost, any or all Alterations
\nto the Premises installed by or at the expense of Tenant and all movable
\nfurniture and equipment belonging to Tenant which may be left by Tenant and
\nrepair any damage resulting from such removal.<\/p>\n
(b) The voluntary or other surrender of this Lease by Tenant, or a
\nmutual cancellation thereof, shall not work a merger, and shall, at the
\noption of Landlord, terminate all or any existing subleases or subtenancies,
\nor may, at the option of Landlord, operate as an assignment to it of any or
\nall such subleases or subtenancies.<\/p>\n
25. WAIVER. If either Landlord or Tenant waives the performance of any
\nterm, covenant or condition contained in this Lease, such waiver shall not be
\ndeemed to be a waiver of any subsequent breach of the same or any other term,
\ncovenant or condition contained herein. Furthermore, the acceptance of Rent
\nor Additional Charges by Landlord shall not constitute a waiver of any
\npreceding breach by Tenant of any term, covenant or condition of this Lease,
\nregardless of Landlord’s knowledge of such preceding breach at the time
\nLandlord accepted such Rent or Additional Charges. Failure by Landlord to
\nenforce any of the terms, covenants or conditions of this Lease for any
\nlength of time shall not be deemed to waive or to decrease the right of
\nLandlord to insist thereafter upon strict performance by Tenant. Waiver by
\nLandlord or any term, covenant or condition contained in this Lease may only
\nbe made by a written document signed by Landlord.<\/p>\n
26. NOTICES. Except as otherwise expressly provided in this Lease, any
\nbills, statements, notices, demands, requests or other communications given or
\nrequired to be given under this Lease shall be effective only if rendered or
\ngiven in writing, sent by registered or certified mail or delivered
\npersonally, (i) to Tenant (A) at Tenant’s address set forth in the Basic
\nLease Information, if sent prior to Tenant’s taking possession of the
\nPremises, or (B) at the Premises if sent subsequent to Tenant’s taking
\npossession of the Premises, or (C) at any place where Tenant may be found if
\nsent subsequent to Tenant’s vacating, deserting, abandoning or surrendering
\nthe Premises; or (ii) to Landlord at Landlord’s address set forth in the
\nBasic Lease Information; or (iii) to such other address as either Landlord or
\nTenant may designate as its new address for such purpose by notice given to
\nthe other in accordance with the provisions of this Paragraph 27. Any such
\nbill, statement, notice, demand, request or other communication shall be
\ndeemed to have been rendered or given two (2) days after the date when it
\nshall have been mailed as provided in this Paragraph 27 if sent by registered
\nor certified mail, or upon the date personal delivery is made. If Tenant is
\nnotified of the identity and address of Landlord’s mortgagee or ground or
\nunderlying lessor, Tenant shall give to such mortgagee or ground or
\nunderlying lessor notice of any default by Landlord under the terms of this
\nLease in writing sent by registered or certified mail, and such mortgagee or
\nground or underlying lessor shall be given a reasonable opportunity to cure
\nsuch default prior to Tenant exercising any remedy available to it.<\/p>\n
27. TAXES PAYABLE BY TENANT. <\/p>\n
At lease ten (10) days prior to delinquency Tenant shall pay all taxes
\nlevied or assessed upon Tenant’s equipment, furniture, fixtures and other
\npersonal property located in or about the Premises. If the assessed value of
\nLandlord’s property is increased by the inclusion therein of a value placed
\nupon Tenant’s equipment, furniture, fixtures or other personal property,
\nTenant shall pay to Landlord, upon written demand, the taxes so levied
\nagainst Landlord, or the proportion thereof resulting from said increase in
\nassessment.<\/p>\n
28. ABANDONMENT. Tenant shall not abandon the Premises at any time
\nduring the Term, and if Tenant shall abandon or surrender the Premises or be
\ndispossessed by process of law, or otherwise, any personal property belonging
\nto Tenant and left on the Premises shall, at the option of <\/p>\n
Lease Agreement – Page 13<\/p>\n
Landlord, be deemed to be abandoned and title thereto shall thereupon pass to
\nLandlord, except such property as may be mortgaged to Landlord.
\nNotwithstanding anything to the contrary contained herein, Tenant shall not
\nbe allowed to vacate the Premises is such would result in a termination of
\nLandlord’s insurance. Upon receiving Tenants request for such, Landlord shall
\nrequest that its insurer notify Tenant whether vacating the Premises will
\nresult in a cancellation of the Building’s insurance for the current policy
\nyear.<\/p>\n
29. SUCCESSORS AND ASSIGNS. Subject to the provisions of Paragraph 9,
\nthe terms, covenants and conditions contained herein shall be binding upon
\nand insure to the benefit of the parties hereto and their respective legal
\nand personal representatives, successors and assigns.<\/p>\n
30. ATTORNEY’S FEES. If Tenant or Landlord brings any action for any
\nrelief against the other, declaratory or otherwise, arising out of this
\nLease, including any suit by Landlord for the recovery of Rent or Additional
\nCharges or possession of the Premises, the losing party shall pay to the
\nprevailing party a reasonable sum for attorney’s fees, which shall be deemed
\nto have accrued on the commencement of such action and shall be paid whether
\nor not the action is prosecuted to judgment.<\/p>\n
31. LIGHT AND AIR. Tenant covenants and agrees that no diminution of
\nlight, air or view by any structure which may hereafter be erected (whether
\nor not by Landlord) shall entitle Tenant to any reduction of rent under this
\nLease, result in any liability of Landlord to Tenant, or in any other way
\naffect this Lease or Tenant’s obligations hereunder.<\/p>\n
32. SECURITY DEPOSIT. Concurrently with Tenant’s execution of this
\nLease, Tenant shall deposit with Landlord the sum specified in the Basic
\nLease Information, which sum shall be held by Landlord as a security deposit
\nfor the faithful performance by Tenant of all the terms, covenants and
\nconditions of this Lease to be kept and performed by Tenant. Tenant agrees
\nthat Landlord may apply the security deposit to remedy any failure by Tenant
\nto repair or maintain the Premises or to perform any other terms, covenants
\nand conditions contained herein. If Tenant is in compliance with all terms,
\ncovenants and conditions of this lease at the expiration of the Term,
\nLandlord will, within thirty (30) days after the termination hereof, promptly
\nreturn the security deposit to Tenant or the last permitted assignee of
\nTenant’s interest hereunder at the expiration of the Term. Should Landlord
\nuse any portion of the security deposit to cure any default by Tenant
\nhereunder, Tenant shall within ten (10) days replenish the security deposit
\nto the original amount; Tenant’s failure to do so shall be a material breach
\nof this Lease. Landlord shall not be required to keep the security deposit
\nseparate from its general funds, and Tenant shall not be entitled to interest
\non any such deposit. Upon the occurrence of any events of default described
\nin Paragraph 19 of this Lease the security deposit may be applied by Landlord
\nto the extent required to compensate Landlord for damages incurred, or to
\nreimburse Landlord as provided herein, in connection with any such event of
\ndefault.<\/p>\n
33. CORPORATE AUTHORITY: FINANCIAL INFORMATION. If Tenant signs as a
\ncorporation each of the persons executing this Lease on behalf of Tenant does
\nhereby covenant and warrant that Tenant is a duly authorized and existing
\ncorporation, that Tenant has and is qualified to do business in California,
\nthat the corporation has full right and authority to enter into this Lease,
\nand that each and both of the persons signing on behalf of the corporation
\nwere authorized to do so. Upon Landlord’s request, Tenant shall provide
\nLandlord with evidence reasonably satisfactory to Landlord confirming the
\nforegoing covenants and warranties. Tenant hereby further covenants and
\nwarrants to Landlord that all financial information and other descriptive
\ninformation regarding Tenant’s business, which has been or shall be furnished
\nto Landlord, is and shall be accurate and complete.<\/p>\n
34. PARKING. Tenant shall have the right to use the number of the
\nBuilding’s parking spaces as noted in the Basic Lease Information. These
\nspaces shall be used in common with other tenants or occupants of the
\nBuilding, if any, subject to the rules and regulations of Landlord for such
\nparking facilities which may be established or altered by Landlord at any
\ntime or from time to time during the term.<\/p>\n
35. MISCELLANEOUS. <\/p>\n
(a) The term “Premises” wherever it appears herein includes and
\nshall be deemed or taken to include (except where such meaning would be
\nclearly repugnant to the context) the office space demised and improvements
\nnow or at any time hereafter comprising or built in the space hereby demised.
\nThe paragraph headings herein are for convenience of reference and shall in
\nno way define, increase, limit or describe the scope or intent of any
\nprovision of this Lease. The term “Landlord” shall include Landlord and its
\nsuccessors and assigns. In any case where this Lease is signed by more than
\none person, the obligations hereunder shall be joint and several. The term
\n“Tenant” or any pronoun used in place thereof shall indicate and include the
\nmasculine or feminine, the singular or plural number, individuals, firms or
\ncorporations, and their and each of their respective successors, executors,
\nadministrators, and permitted assigns, according to the context hereof.<\/p>\n
(b) Time is of the essence of this Lease and all of its provisions.
\nThis Lease shall in all respects be governed by he laws of the State of
\nCalifornia. This Lease, together with its exhibits, contains all the
\nagreements to the parties hereto and supersedes and previous negotiations.
\nThere have been no representations made by the Landlord or understandings
\nmade between the parties other than those set forth <\/p>\n
Lease Agreement – Page 14<\/p>\n
in this Lease and its exhibits. This Lease may not be modified except by a
\nwritten instrument by the parties hereto.<\/p>\n
(c) If for any reason whatsoever any of the provisions hereof shall be
\nunenforceable or ineffective, all of the other provisions shall be and remain
\nin full force and effect.<\/p>\n
(d) Upon Tenant paying the Rent and Additional Charges and performing
\nall of the Tenant’s obligations under this Lease, Tenant may peacefully and
\nquietly enjoy the Premises during the Term as against all persons or entities
\nlawfully claiming by or through Landlord; subject, however, to the provisions
\nof this Lease.<\/p>\n
36. TENANT’S REMEDIES. Tenant shall look solely to Landlord’s interest
\nin the Building for the recovery of any judgment from Landlord. Landlord, or
\nif Landlord is a partnership, its partners whether general or limited, or if
\nLandlord is a corporation, its directors, officers or shareholders, shall
\nnever be personally liable for any such judgment. Any lien obtained to
\nenforce any such judgment and any levy of execution thereon shall be subject
\nand subordinate to any lien, mortgage or deed of trust.<\/p>\n
37. REAL ESTATE BROKERS. Each party represents that it has not had
\ndealings with any real estate broker, finder or other person with respect to
\nthis Lease in any manner, except for any broker named in the Basic Lease
\nInformation, whose fees or commission, if earned, shall be paid as provided
\nin the Basic Lease Information. Each party shall hold harmless the other
\nparty from all damages resulting from any claims that may be asserted against
\nthe other party by any other broker, finder or other person with whom the
\nother party has or purportedly has dealt.<\/p>\n
38. LEASE EFFECTIVE DATE. Submission of this instrument for examination
\nor signature by Tenant does not constitute a reservation of or option for
\nlease, and it is not effective as a lease or otherwise until execution and
\ndelivery by both Landlord and Tenant.<\/p>\n
39. SIGNAGE. Tenant shall be allowed to place a company sign(s) in a
\nmanner similar to current tenants (Formtek and Lockheed). Any sign must
\nconform to all applicable codes, ordinances, and C,C&R’s and be approved by
\nLandlord (size, color, placement, style, etc.) prior to installation.<\/p>\n
40. OPTION TO RENEW. Upon the condition that Tenant is not then in
\ndefault under the Lease beyond any applicable grace period, Tenant shall have
\ntwo (2) options to renew the Lease for a period of five (5) years each
\n(“Extension Terms”). The exercise of said options shall require not less than
\ntwelve (12) months prior written notice from Tenant to Landlord prior to the
\nexpiration of the term preceding said Extension Term. In such written notice,
\nTenant must unconditionally elect to extend the Term. The Monthly Base Rent
\nfor the Extension Term shall be the greater of (i) the Fair Market Rental
\nValue or (ii) the rental rate in effect during the last month of the Term
\nimmediately preceding the Extension Term. The Fair Market Rental Value shall
\nbe determined as noted below:<\/p>\n
41. FAIR MARKET RENTAL VALUE. For the purposes of the Lease, the term
\n“Fair Market Rental Value” shall mean the annual amount per rentable square
\nfoot that Landlord has accepted in current transactions between
\nnon-affiliated parties from new, non-expansion, non-renewal and non-equity
\ntenants of comparable credit-worthiness, for comparable space, for a
\ncomparable use for a comparable period of time (“Comparable Transactions”) in
\nthe Building, of if there are not a sufficient number of Comparable
\nTransactions in the Building, what a comparable landlord of a comparable
\nbuilding in the vicinity of the Building in Moffett Park area of Sunnyvale
\nwould accept in Comparable Transactions. In any determination of Comparable
\nTransactions appropriate consideration shall be given to the annual rental
\nrates per rentable square foot, the standard of measurement by which the
\nrentable square footage is measured, the ratio of rentable square footage to
\nuseable square footage, the type of escalation clause, the efficiency of the
\nspace (i.e. whether increases in additional rent are determined on a net or
\ngross basis, and if gross, whether such increases are determined according to
\na base year or base dollar expense stop), the extent of Tenant’s liability
\nunder the Lease, abatement provisions reflecting free rent, length of the
\nlease term, size and location of the premises being leased, level and
\nsuitability of tenant improvements (and reflecting the restoration allowance
\nprovided for in Paragraph 5), extent of service provided, and other generally
\napplicable conditions of tenancy for such Comparable Transactions. The intent
\nis that Tenant will pay the same rent that would otherwise be paid in
\nComparable Transactions.<\/p>\n
Landlord shall provide written notice of Tenant of Landlord’s opinion of Fair
\nMarket Rental Value within thirty (30) days after Tenant provides the notice
\nto Landlord exercising Tenant’s option rights which require a calculation of
\nthe Fair Market Rental Value; provided, however, Landlord shall not be
\nobligated to provide such notice more than twelve (12) months before the date
\nwhen the Fair Market Rental Value is to become effective. Tenant shall have
\nfifteen (15) days (“Tenant’s Review Period”) after receipt of Landlord’s
\nnotice of the new rental within which to accept such rental. In the event
\nTenant fails to accept in writing such rental proposed by Landlord then such
\nproposal shall be deemed rejected, and Landlord and Tenant shall attempt to
\nagree upon such Fair Market Rental Value, using their best good faith
\nefforts. If Landlord and Tenant fail to reach agreement within fifteen (15)
\ndays following Tenant’s Review Period (“Outside Agreement Date”), then each
\nparty shall place in a separate sealed envelope their final proposal as to
\nFair Market Rental Value and such determination shall be submitted to
\narbitration in accordance with subsections (a) through (e) below.<\/p>\n
Lease Agreement – Page 15<\/p>\n
In the event that Landlord fails to timely generate the initial written
\nnotice of Landlord’s opinion of the Fair Market Rental Value which triggers
\nthe negotiation period of this Paragraph, then Tenant may commence such
\nnegotiations by providing the initial notice, in which event Landlord shall
\nhave fifteen (15) days (“Landlord’s Review Period”) after receipt of Tenant’s
\nnotice of the new rental within which to accept such rental. In the event
\nLandlord fails to accept in writing such rental proposed by Tenant, then such
\nproposal shall be deemed rejected, and Landlord and Tenant shall attempt in
\ngood faith to agree upon such Fair Market Rental Value, using their best good
\nfaith efforts. If Landlord and Tenant fail to reach agreement within fifteen
\n(15) days following Landlord’s Review Period (which shall be, in such event,
\nthe “Outside Agreement Date” in lieu of the above definition of such date),
\nthen each party shall place in a separate sealed envelope their final
\nproposal as to Fair Market Rental Value and such determination shall be
\nsubmitted to arbitration in accordance with subsections (a) through (e) below.<\/p>\n
(a) Landlord and Tenant shall meet with each other within five (5)
\nbusiness days of the Outside Agreement Date and exchange the sealed envelopes
\nand then open such envelopes in each other’s presence. If Landlord and Tenant
\ndo not mutually agree upon the Fair Market Rental Value within one (1)
\nbusiness day of the exchange and opening of envelopes, then, within ten (10)
\nbusiness days of the exchange and opening of the envelopes Landlord and
\nTenant shall agree upon and jointly appoint a single arbitrator who shall by
\nprofession be a real estate lawyer or broker who shall have been active over
\nthe five (5) year period ending on the date of such appointment in the
\nleasing of commercial office properties in the vicinity of the Building.
\nNeither Landlord nor Tenant shall consult with such broker or lawyer as to
\nhis or her opinion as to Fair Market Rental Value prior to the appointment.
\nThe determination of the arbitrator shall be limited solely to the issue of
\nwhether Landlord’s or Tenant’s submitted Fair Market Rental Value for the
\nLeased Premises is the closest to the actual Fair Market Value for the Leased
\nPremises as determined by the arbitrator, taking into account the
\nrequirements of this Paragraph. Such arbitrator may hold such hearings and
\nrequire such briefs as the arbitrator, in his or her sole discretion, determines
\nis necessary. In addition, Landlord or Tenant may submit to the arbitrator
\nwith a copy to the other party within five (5) business days after the
\nappointment of the arbitrator any market data and additional information that
\nsuch party deems relevant to the determination of Fair Market Rental Value
\n(“FMRV Data”) and the other party may submit a reply in writing within five
\n(5) business days after receipt of such FMRV Data.<\/p>\n
(b) The arbitrator shall, within thirty (30) days of his or her
\nappointment, reach a decision as to whether the parties shall use Landlord’s
\nor Tenant’s submitted Fair Market Rental Value, and shall notify Landlord and
\nTenant of such determination.<\/p>\n
(c) The decision of the arbitrator shall be binding upon Landlord and
\nTenant.<\/p>\n
(d) If Landlord and Tenant fail to agree upon and appoint an arbitrator,
\nthen the appointment of the arbitrator shall be made by the Presiding Judge
\nof the Santa Clara Superior Court, or, if he or she refuses to act, by any
\nstate or federal judge in whose court venue would be proper to adjudicate a
\ndispute over this Lease.<\/p>\n
(e) Landlord and Tenant shall each pay any and all costs incurred by
\neither Landlord or Tenant, respectively, in connection with this arbitration;
\nprovided, however, that the cost of the arbitrator shall be paid by Landlord
\nand Tenant equally.<\/p>\n
From and after the commencement of the Extension Term, all of the other
\nterms, covenants and conditions of the Lease shall also apply; provided,
\nhowever, that (i) Rent shall be revised as herein provided; and (ii) Tenant
\nshall have no further rights to extend the Term.<\/p>\n
42. HAZARDOUS SUBSTANCE LIABILITY: Landlord has delivered to Tenant the
\nfollowing reports which were prepared by Harding Lawson Associates concerning
\nthe Building and the adjacent properties: (i) Report – Phase I Environmental
\nSite Assessment Amendment for 1327 Orleans Drive, Sunnyvale, California,
\ndated March 16, 1995, (ii) Phase I Environmental Site Assessment for 1327
\nOrleans Drive, Sunnyvale, California, dated December 16, 1994, and (iii)
\nReport – Phase I Preliminary Hazardous Materials, Site Assessment for Orleans
\nDrive and Crossman Avenue Properties, Sunnyvale, California, dated May 7,
\n1990. The Landlord represents and warrants that to its actual knowledge,
\nexcept as set forth in the reports noted in the preceding sentence, the
\nPremises and Project are presently free of underground storage tanks and
\nHazardous Substances, the presence of which would require remediation under
\nany applicable Environmental Laws (as hereinafter defined). Landlord’s actual
\nknowledge is limited to the knowledge as included in the reports listed
\nabove, without any duty of inquiry or investigation. Except as set forth in
\nthis Paragraph 42, Landlord has made absolutely no representations or
\nwarranties to Tenant regarding Hazardous Substances. Landlord represents that
\nit has received no written notice of any violation or claimed violation with
\nrespect to the presence of toxic or Hazardous Substances on, in or under the
\nProject or of any pending or contemplated investigation or other action
\nrelating thereto.<\/p>\n
(a) DEFINITIONS.<\/p>\n
DEFINITION OF HAZARDOUS SUBSTANCES. For the purpose of this Lease,
\n“Hazardous Substances” shall be defined, collectively, as oil, flammable
\nexplosives, asbestos, radioactive materials, hazardous wastes, toxic or
\ncontaminated substances or similar materials, including, without limitations,
\nany substances which are “hazardous substances,” “hazardous wastes,”
\n“hazardous materials” or “toxic substances” or words of similar import under
\napplicable Environmental Laws.<\/p>\n
Lease Agreement – Page 16<\/p>\n
DEFINITION OF ENVIRONMENTAL LAWS. For purposes of this Lease,
\n“Environmental Laws” shall be defined as any and all present and future
\nfederal, state or local statutes, laws, regulations, rules, ordinances, codes,
\nlicenses, permits, orders, approvals, plans, consent decrees, authorizations,
\ninjunctions, duties under the common law, and similar items, of all
\ngovernmental agencies, departments, commissions, boards, bureaus or
\ninstrumentalities of governing jurisdictions relating to protection of human
\nhealth and safety (including health and safety in the workplace) and the
\nindoor or outdoor environment, including without limitation, all requirements
\nrelating to emissions, discharges or Releases (as defined under the
\nEnvironmental Laws) or threatened Releases of Hazardous Substances into the
\nenvironment, including without limitation, ambient air, surface water,
\ngroundwater, or land or otherwise relating to Hazardous Substance activities,
\nor the clean-up or other remediation thereof.<\/p>\n
(b) TENANT INDEMNITY. Tenant hereby releases Landlord from any liability
\nfor, waives all claims against Landlord and hereby agrees to indemnify,
\ndefend and hold harmless Landlord, its employees, partners, agents, lenders,
\nsubsidiaries and affiliate organizations, and the respective directors,
\nofficers, agents, attorneys and employees of each of the foregoing, against
\nany and all claims, suits, loss, costs (including costs of investigation,
\nclean up, monitoring, restoration and reasonable attorney fees), damage or
\nliability, whether foreseeable or unforeseeable, by reason of property damage
\n(including diminution in the value of the property of Landlord), personal
\ninjury or death directly arising from or related to Hazardous Substances
\nreleased, manufactured, discharged, disposed, used or stored on, in, or under
\nthe Property or Premises during the initial Term and any extensions of this
\nLease, regardless of who caused the same, except for Hazardous Substance (i)
\n(A) originating on property which is not leased, owned or otherwise used or
\ncontrolled by Tenant and (B) which migrates through the air, groundwater or
\notherwise to the Premises, or (ii) which was present on the Premises prior to
\nTenant’s first occupancy of the Premises and was not caused by Tenant, its
\nemployees, contractors, invitees, guests, sublessees, agents, assignees,
\nlicensees or servants. The provisions of this Tenant Indemnity regarding
\nHazardous Substances shall survive the termination of the Lease. In the event
\nthat Tenant is required to undertake remediation of Hazardous Substances in,
\non or under the Premises or Property, then Landlord shall have the right to
\nreasonably approve of any and all contractors hired by Tenant to perform such
\nremedial work. All such remedial work shall be performed in compliance with
\nall applicable laws, ordinances and regulations and to the reasonable
\nsatisfaction of Landlord. Appearance of a Hazardous Substance in, on or under
\nthe Premise or Property as a result of Tenant’s or its employees,
\ncontractors, guests, invitees, sublessees, agents, assignees, licenses or
\nservants acts or omissions shall not be deemed an occurrence of damage or
\ndestruction subject to the terms of the Lease.<\/p>\n
(c) LANDLORD INDEMNITY. Landlord hereby releases Tenant from any
\nliability for, waives all claims against Tenant and hereby agrees to
\nindemnify, defend and hold harmless Tenant, its officers, employees, and
\nagents to the extent of Landlord’s interest in the Project, against any and
\nall actions by any governmental agency for clean up of Hazardous Substances
\non or under the Premises or Property, including costs of legal proceedings,
\ninvestigation, clean up, monitoring, and restoration associated therewith,
\nincluding reasonable attorney fees, if, and to the extent, the Hazardous
\nSubstances occur on the Property or Premises under the following
\ncircumstances: (i) the contamination of the Premises or Property was caused
\nby the migration of Hazardous Substances from any off-site property during
\nthe Term of this Lease and in violation of any Environmental Laws; provided,
\nhowever, that this subparagraph (i) and subparagraph (ii) below shall not
\napply to require any lender acquiring the Landlord’s interest in the Premises
\nor Property through foreclosure or deed in lieu of foreclosure to indemnify,
\ndefend or hold harmless Tenant, its officers, employees, and agents (but such
\na lender would continue to release Tenant from any liability for and would
\nwaive all such claims relating to this subparagraph (i) against Tenant);
\n(ii) Hazardous Substances were released or disposed of on, in, or under the
\nPremises or Property prior to Tenant’s first occupancy unless caused by
\nTenant, its employees, contractors, guests, invitees, sublessees, agents,
\nassignees, licensees or servants, or; (iii) the contamination of the Premises
\nor Property was caused by the release, disposal, use or storage of Hazardous
\nSubstances in, on or about the Premises by Landlord, its employees,
\ncontractors, invitees, guests, agents, licensees or servants. The provisions
\nof this Landlord Indemnity regarding Hazardous Substances shall survive the
\ntermination of the Lease.<\/p>\n
(d) OBLIGATION TO INFORM. If either party shall receive written notice
\nor other written communication concerning any actual, alleged, suspected, or
\nthreatened violation of contamination or site response in connection with the
\nPremises, Building and\/or Project or past or present activities of any person
\nthereon, including, without limitation, notice or other written communication
\nconcerning any actual or threatened investigation, inquiry, lawsuit, claim,
\ncitation, directive, summons, proceeding, complaint, notice, order, writ or
\ninjunction, relating to the same, then such party shall deliver to the other
\nparty, as soon as reasonably possible, but in any event within ten days of
\nthe receipt of such written notice, copies of any documents evidencing the
\nsame. <\/p>\n
(e) Tenant shall not use, without Landlord’s reasonable approval, any
\nHazardous Substances within the Building, except for very immaterial amounts
\nof Hazardous Substances incidental to its office use, including, but not
\nlimited to, copier toner, cleaning fluids, and ink. To the extent that Tenant
\nuses Hazardous Substances incidental to its office use, it shall comply with
\nany Environmental Laws. <\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
\nthe date first above written.<\/p>\n
LANDLORD<\/p>\n
Lease Agreement – Page 17<\/p>\n
CARIBBEAN\/GENEVA INVESTORS
\n a California partnership<\/p>\n
By: [ILLEGIBLE]
\n ———————————–<\/p>\n
Its:[ILLEGIBLE]
\n ———————————–<\/p>\n
TENANT<\/p>\n
MACROVISION CORPORATION
\n a California corporation<\/p>\n
By: \/s\/ Robert J. Netter, Jr.
\n ———————————–<\/p>\n
Its: Vice President of Finance\/CFO
\n ———————————–<\/p>\n
Lease Agreement – Page 18<\/p>\n
EXHIBIT “A”
\n——————————————————————————-<\/p>\n
[MAP]<\/p>\n
EXHIBIT “B”
\n——————————————————————————-<\/p>\n
WORK LETTER<\/p>\n
1. Landlord shall furnish and install the Base Building provided for in
\nParagraph 2 at Landlord’s expense and, at Tenant’s expense, the additional
\nwork to complete the Premises (“Tenant Improvements”) normally performed by
\nthe construction trades, required by the plans and specifications approved by
\nLandlord and Tenant pursuant to this Work Letter. The quantities, character
\nand manner of installation of all of the foregoing work shall be subject to
\nthe limitations imposed by any applicable regulations, laws, ordinance, codes
\nand rules.<\/p>\n
2. The Landlord shall present, and the tenant shall accept, the Building
\non an “as-is” basis except with regard to Landlord’s obligations concerning
\ncode related upgrades, as described in Paragraph 10 hereof, and as otherwise
\nprovided in the Lease.<\/p>\n
3. Tenant shall provide Landlord’s architect and engineers with
\nsufficient instructions (see Exhibit B-1) to enable Landlord’s architect and
\nengineers to prepare complete plans and specifications for the Tenant
\nImprovements. The cost of space planning and preparing the working drawings
\nfor Tenant Improvements or any change to the original instruction and\/or plans
\nand specifications shall be paid by Tenant.<\/p>\n
4. Subject to the terms of Paragraph 10 hereof, Tenant shall bear the
\ncost of Tenant Improvements. Any modifications requested by Tenant to Base
\nbuilding work shall be at Tenant’s expense.<\/p>\n
5. Landlord and Tenant shall diligently pursue the preparation of all
\nplans and specifications for Tenant Improvements. All such plans and
\nspecifications shall be performed by Landlord’s architect and be subject to
\napproval by Landlord.<\/p>\n
6. When the plans and specifications are complete and approved by
\nLandlord and Tenant, which shall be accomplished on or before Tenant’s Plan
\nDelivery Date, as specified on the Basic Lease Information, Landlord shall
\nobtain a cost estimate for Tenant Improvements from Landlord’s contractor, the
\ncosts and quality of which are within industry standards. If the cost
\nestimate exceeds any allowance given by Landlord to Tenant for Tenant
\nImprovements and Tenant is obligated to pay for such excess costs, the cost
\nestimate shall be submitted to Tenant. Tenant shall approve or disapprove
\nsuch estimate within three (3) business days. Failure to approve within such
\nperiod shall constitute approval. If disapproved, Tenant shall provide new
\nsufficient instruction within such three (3) business days for the revision of
\nplans and cost estimates for approval by Tenant. Failure to provide such
\ninstruction within such period shall entitle Landlord to terminate this
\nLease. Tenant shall be obligated to approve the cost estimate if the cost is
\nwithin any allowance provide by Landlord or any greater budget approved by
\nTenant. If the cost estimate is in excess of the allowance or such greater
\nbudget, Tenant shall provide new sufficient instruction which will reduce the
\ncost estimate for Tenant Improvements to a level acceptable to Tenant and
\nwithin any allowance provided by Landlord within ten (10) days after receipt
\nof the cost estimate (or one revision thereof, if Tenant requests a change in
\nplans and specifications to reduce costs).<\/p>\n
7. After receipt and approval of Tenant’s plans, specifications and cost
\nestimate, Landlord shall administer the construction of Tenant Improvements
\nin accordance with the plans and specifications; provided, however, that
\nLandlord shall not be required to install any Tenant Improvements which do
\nnot conform to the plans and specifications for the Building, or do not
\nconform to any applicable regulations, laws, ordinances, codes and rules;
\nsuch conformity shall be the obligation of Tenant. All Tenant Improvements
\nshall be constructed by Landlord’s contractor except telephone equipment and
\nwiring, security systems, communications cabling and office equipment wiring,
\nwhich shall be installed by Tenant and shall conform with Landlord’s
\ncontractor’s schedule and work of installation and shall be handled in such a
\nmanner as to maintain harmonious labor relations and as not to interfere with
\nor delay the work of Landlord’s contractors. All such Tenant Improvements
\nfurnished and installed by Tenant shall not cause Landlord’s contractor to be
\ndependent upon Tenant’s work in order for Landlord’s contractor to complete
\nhis work. Tenant’s contractors, subcontractors and labor shall be subject to
\napproval by Landlord and shall be subject to the administrative supervision
\nof Landlord’s general contractor and rules of the site. Contractors and
\nsubcontractors engaged by Tenant shall employ men and means to insure, so far
\nas may be possible, the progress of the work without interruption on account
\nof strikes, work stoppage or similar causes for delay. Landlord shall give
\naccess and entry to the Leased Premises to Tenant; provided, however, that if
\nsuch entry such entry is prior to the first day of the Term such entry shall
\nbe subject to all of the terms and conditions of this Lease except payment of
\nRent and Additional Charges. All delays or noncompliance to the Landlord’s
\ncontractor’s schedule shall be the responsibility of Tenant.<\/p>\n
8. Subject to Paragraph 2(c) of the Lease, Tenant’s obligation
\nhereunder to pay Rent and Additional Charges shall not commence until
\nLandlord has substantially completed all work to be performed by Landlord
\nsubject only to the completion or correction of items on Landlord’s
\narchitect’s punch list (and exclusive of the installation of all telephone
\nand other communications facilities and equipment and other finish work or
\ndecoration work to be performed by or for Tenant). If Landlord shall be
\ndelayed in<\/p>\n
Exhibits – Page 2<\/p>\n
substantial completion as a result of: (a) Tenant’s failure to submit
\napproved plans, specifications and cost estimates on or before the dates or
\ntime periods called for; or (b) Tenant’s change(s) in plans and
\nspecifications after said dates; or (c) Tenant’s request for materials,
\nfinishes or installations which require a longer time than customary to
\ncomplete; or (d) Tenant’s failure to comply with Landlord’s contractor
\nschedule or delays caused by Tenant in construction, then Tenant shall pay to
\nLandlord as Additional Rent (for purpose of reimbursing Landlord for
\nadditional expenses which will be incurred by Landlord because of inability
\nto proceed with the work as scheduled), one day’s Rent and Additional Charges
\non the Premises for each day’s delay caused by the above actions.<\/p>\n
9. Tenant shall pay to Landlord all amounts payable by Tenant within ten
\n(10) days after billing by Landlord. Bills may be rendered during the
\nprogress of the work so as to enable Landlord to pay its general contractor,
\narchitect or engineers without advancing Landlord’s funds for Tenant
\nImprovements.<\/p>\n
10. Landlord shall provide Tenant an allowance of the amount specified on
\nthe Basic Lease Information, for the cost of the following items in respect
\nof the Tenant Improvements: Architectural and engineering fees, space
\nplanning, building permits or other governmental fees, cost of labor materials
\nand other charges included in the construction contract for construction of
\nTenant Improvements or remodeling of existing improvements, including, but not
\nlimited to partitions, carpeting, bathrooms, lobbies, HVAC, electrical,
\npermits, signage and architectural drawings. The Tenant Allowance may not be
\napplied toward Tenant’s personal property, communications equipment,
\nfurnishings, computers, etc. Any costs related to Tenant’s Improvements and
\napproved by Tenant in excess of the Tenant Allowance shall be borne by
\nTenant. Tenant shall pay such costs within fifteen (15) days of receiving an
\ninvoice for such. Any amounts in excess of the allowance shall be paid by
\nTenant in the manner provided in Paragraph 9; provided, however, if (i) Tenant
\nis in default hereunder or under the Lease, or (ii) Landlord otherwise
\nreasonably requires, Landlord may require Tenant to deposit with Landlord up
\nto the full amount of such excess prior to or during construction of the
\nTenant Improvements. In addition to the amount noted in the Basic Lease
\nInformation, Landlord shall be obligated to share equally with Tenant in the
\ncost of upgrades to the existing improvements in the Building required in
\norder to bring such improvements into compliance with applicable codes and
\nlaws at the time that building permits are obtained for Tenant’s Improvements
\ninstalled prior to the commencement of the term – Landlord acknowledges that
\nit may be required to share in costs to bring existing improvements into
\ncompliance as a result of new improvements constructed in the Building.
\nAdditionally, Landlord shall be obligated to indemnify Tenant for its share
\nof such costs to the extent that Tenant’s share of such costs exceed $25,000
\n(ie. the total costs exceed $50,000). the Building.<\/p>\n
11. Tenant shall be entitled to the benefits of warrantees applicable to
\nthe construction of Tenant’s Improvements.<\/p>\n
Exhibits – Page 3<\/p>\n
EXHIBIT “B-1”
\n——————————————————————————
\n MINIMUM INFORMATION REQUIRED<\/p>\n
FLOOR PLANS INDICATING:<\/p>\n
1. Location and type of all partitions;<\/p>\n
2. Location and type of all doors. Indicate hardware and provide keying
\n schedule;<\/p>\n
3. Location and type of glass partitions, windows and doors. Indicate
\n framing if not Building Standard;<\/p>\n
4. Location of telephone equipment room, accompanied by an approval of
\n the telephone company;<\/p>\n
5. Indicate critical dimensions necessary for construction;<\/p>\n
6. Location of all Building Standard electrical items (outlets, switches,
\n telephone outlets). Building Standard lighting will be determined by
\n Landlord’s architect;<\/p>\n
7. Location and type of all non-Building Standard electrical items,
\n including lighting.<\/p>\n
8. Location and type of equipment that will require special electrical
\n requirements. Provide manufacturer’s specifications for use and
\n operation;<\/p>\n
9. Location, weight per square foot, and description of any exceptionally
\n heavy equipment or filing system exceeding 50 lbs. psf live load;<\/p>\n
10. Requirements for special air conditioning or ventilation;<\/p>\n
11. Type and color of floor covering;<\/p>\n
12. Location, type, and color of wall covering;<\/p>\n
13. Locations, type and color of Building Standard and non-Building
\n Standard paint or finishes;<\/p>\n
14. Location and type of plumbing;<\/p>\n
15. Location and type of kitchen equipment.<\/p>\n
DETAILS SHOWING:<\/p>\n
1. All millwork with verified dimensions and dimensions of all equipment
\n to be built in;<\/p>\n
2. Corridor entrance;<\/p>\n
3. Bracing or support of special walls, glass partitions, etc., if
\n desired. If not included with the space plan, the Landlord’s architect
\n will design all support or bracing required at Tenant’s expense.<\/p>\n
Exhibits – Page 4<\/p>\n
EXHIBIT “C”
\n RULES AND REGULATIONS
\n——————————————————————————
\nLANDLORD ACKNOWLEDGES THAT THE FOLLOWING RULES AND REGULATIONS ARE WRITTEN TO
\nAPPLY TO A BROAD RANGE OF BUILDINGS. WHERE A RULE IS SPECIFICALLY INTENDED
\nTO APPLY TO A MULTI-TENANT OR FULL-SERVICE BUILDING, LANDLORD AGREES TO
\nREASONABLY RE-INTERPRET THE RULE TO APPLY TO A SINGLE TENANT, NNN TYPE
\nBUILDING.<\/p>\n
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators
\nand stairways shall not be obstructed by Tenant or used by Tenant for any
\npurpose other than for ingress to and egress from the Premises. Except to
\nmake emergency repairs and service antennas as previously agreed to by
\nLandlord, Tenant, and Tenant’s employees or invitees, shall not go upon the
\nroof of the Building, except as authorized by Landlord.<\/p>\n
2. No sign, placard, picture, name, advertisement or notice visible
\nfrom the exterior of the Premises shall be inscribed, painted, affixed,
\ninstalled or otherwise displayed by Tenant either on the Premises or any
\npart of the Building without the prior written consent of Landlord, and
\nLandlord shall have the right to remove any such sign, placard, picture,
\nname, advertisement or notice without notice to and at the expenses of Tenant.<\/p>\n
In the case of signage on the interior of the Building, Landlord shall not
\nunreasonably withhold its consent to such signage.<\/p>\n
If Landlord shall have given such consent to Tenant at any time, whether
\nbefore or after the execution of the Lease, such consent shall not in any way
\noperate as a waiver or release of any of the provisions hereof or of the
\nLease, and shall be deemed to relate only to the particular sign, placard,
\npicture, name, advertisement or notice so consented to by Landlord and shall
\nnot be construed as dispensing with the necessity of obtaining the specific
\nwritten consent of Landlord with respect to any other such sign, placard,
\npicture, name, advertisement or notice. All approved signs or lettering on
\ndoors and walls shall be printed, painted, affixed or inscribed at the
\nexpense of Tenant by a person reasonably approved by Landlord.<\/p>\n
3. [Intentionally Deleted]<\/p>\n
4. No curtains, draperies, blinds, shutters, shades, screens or other
\ncoverings, awnings, hangings or decorations visible from the exterior of the
\nPremises shall be attached to, hung or placed in, or used in connection with,
\nany window, door or patio on the Premises without the prior written consent
\nof the Landlord which consent shall not be unreasonably withheld or delayed.
\nIn any event with the prior written consent of Landlord, all such items shall
\nbe installed inboard of Landlord’s window coverings and shall not in any way
\nbe visible from the exterior of the Building. No articles shall be placed or
\nkept on the window sills so as to be visible from the exterior of the
\nBuilding. No articles shall be placed against glass partitions or doors
\nwhich appear unsightly from outside the Building.<\/p>\n
5. During the continuance of any invasion, mob, riot, public excitement
\nor other similar circumstance rendering such action advisable in Landlord’s
\nreasonable opinion, Landlord reserves the right in cooperation with Tenant to
\nprevent access to the Building by closing the doors, or otherwise, for the
\nsafety of tenants and protection of the Building and property in the Building.<\/p>\n
6. Landlord shall not in any way be responsible to Tenant for any loss
\nof property on the Premises, however occurring, or for any damage done to the
\neffects of Tenant by the janitor or any other employee or any other person
\nexcept to the extent caused by the negligence or willful misconduct of
\nLandlord, its agents or its employees.<\/p>\n
7. Tenant may have a Lunchroom\/Breakroom in the Premises that has a
\nrefrigerator and microwave and other such appliances as is customary.<\/p>\n
8. Tenant shall see that the exterior doors of the Premises are closed
\nand securely locked and must observe strict care and caution that all water
\nfaucets or water apparatus are entirely shut off before Tenant or its
\nemployees leave such Premises, and that all utilities shall likewise be
\ncarefully shut off, so as to prevent waste or damage, and of any default or
\ncarelessness the Tenant shall make good all injuries sustained by other
\ntenants or occupants of the Building or Landlord. On multiple-tenancy
\nfloors, all tenants shall keep the door or doors to the Building corridors
\nclosed at all times except for ingress and egress.<\/p>\n
9. [Intentionally Deleted].<\/p>\n
10. [Intentionally Deleted]<\/p>\n
11. Tenant shall not alter any lock or access device or install a new
\nor additional lock or access device or any bolt on any exterior door of the
\nPremises without the prior written consent of Landlord which consent shall
\nnot be unreasonably withheld or delayed. If Landlord shall give its consent,
\nTenant shall in each case furnish Landlord with a key for any such lock.<\/p>\n
Exhibits – Page 5<\/p>\n
12. Tenant, upon the termination of the tenancy, shall deliver to
\nLandlord all the keys or access devices for the Building, offices, rooms and
\ntoilet rooms which shall have been furnished to Tenant or which Tenant shall
\nhave had made. In the event of the loss of any keys or access devices so
\nfurnished by Landlord, Tenant shall pay Landlord therefor.<\/p>\n
13. The toilet rooms, toilets, urinals, wash bowls and other apparatus
\nshall not be used for any purpose other than that for which they were
\nconstructed and no foreign substance of any kind whatsoever shall be thrown
\ntherein, and the expense of any breakage, stoppage or damage resulting from
\nthe violation of this rule by Tenant or Tenant’s employees or invitees shall
\nbe borne by Tenant.<\/p>\n
14. Tenant shall not use or keep in the Premises or the Building any
\nkerosene, gasoline or inflammable or combustible fluid or material other than
\nlimited quantities necessary for the operation or maintenance of office or
\noffice equipment. Tenant shall not use any method of heating or air
\nconditioning other than supplied by Landlord. Tenant shall be allowed to use
\nsmall, electric heaters in the Premises which are approved by the
\nUnderwriters Laboratories for personal use.<\/p>\n
15. Tenant shall not use, keep or permit to be used or kept in the
\nPremises any foul or noxious gas or substance or permit or suffer the Premises
\nto be occupied or used in a manner reasonably offensive or objectionable to
\nLandlord or other occupants of the Project by reason of noise, odors and\/or
\nvibrations or interfere in any unreasonable way with other tenants or those
\nhaving business therein, nor shall any animals or birds be brought or kept in
\nor about the Premises or the Building.<\/p>\n
16. No cooking for the general public shall be done or permitted by
\nTenant on the Premises (except that use by the Tenant of Underwriter’s
\nLaboratory approved equipment for the preparation of coffee, tea, hot
\nchocolate and similar beverages for Tenant and its employees shall be
\npermitted, provided that such equipment and use in relation thereto are in
\naccordance with all applicable federal, state and city laws, codes,
\nordinances, rules and regulations), nor shall Premises be used for lodging.
\nSee Paragraph 7. Notwithstanding the above, Tenant shall be allowed to have
\na lunchroom and use a refrigerator, toaster oven, microwave oven, dishwasher,
\nvending machines, etc. as are customary in lunchrooms for employees.<\/p>\n
17. Except with the prior written consent of Landlord, Tenant shall not
\nsell, or permit the sale, at retail, of newspapers, magazines, periodicals,
\ntheater tickets or any other goods or merchandise in or on the Premises, nor
\nshall Tenant carry on, or permit or allow any employee or other person to
\ncarry on, the business of stenography, typewriting or any similar business in
\nor from the Premises for the service or accommodation of occupants of any
\nother portion of the Building, nor small the Premises be used for the storage
\nof merchandise or for manufacturing which is in excess of such reasonable
\namount incidental to Tenant’s Use of the Premises, or the business of a
\npublic barber shop or beauty parlor, nor shall the Premises be used for any
\nunreasonably objectionable purpose, or any business or activity other than
\nthat specifically provided for in Tenant’s Lease.<\/p>\n
18. If Tenant requires telegraphic, telephonic, burglar alarm or similar
\nservices, it shall first obtain and comply with Landlord’s reasonable
\ninstructions in their installation.<\/p>\n
19. Landlord will direct electricians as to where and how telephone,
\ntelegraph and electrical wires are to be introduced or installed. No boring
\nor cutting for wires will be allowed without the prior written consent of
\nLandlord which consent shall not be unreasonably withheld or delayed. The
\nlocation of burglar alarms, telephones, call boxes or other office equipment
\naffixed to the Premises shall be subject to the written approval of Landlord,
\nwhich shall not be unreasonably withheld.<\/p>\n
20. Tenant shall not install any radio or television antenna,
\nloudspeaker or any other device on the exterior walls or the roof of the
\nBuilding without Landlord’s prior written approval. Landlord agrees to
\nrespond promptly to Tenant’s request for approval of the placement of
\nantennas upon the roof and to cooperate with Tenant in obtaining approval
\nfrom applicable governing authorities relating thereto. Tenant shall not
\ninterfere with radio or television broadcasting or reception from or in the
\nBuilding or elsewhere.<\/p>\n
21. Except as allowed in Paragraph 6 of the Lease, Tenant shall not lay
\nlinoleum, tile, carpet or any other floor covering so that the same shall be
\naffixed to the floor of the Premises in any manner except as approved in
\nwriting by Landlord. The expense of repairing any damage resulting from a
\nviolation of this rule the Tenant or Tenant’s contractors, employees or
\ninvitees or the removal of any floor covering shall be borne by Tenant.
\nTenant shall use chair pads if needed to avoid excess wear and tear to floor
\ncoverings.<\/p>\n
22. Landlord shall have the right to prescribe the weight, size, and
\nposition of all safes, unreasonably heavy furniture or other heavy equipment
\nbrought into the Building. Safes or other heavy objects shall, if considered
\nreasonably necessary by Landlord, stand on wood strips so such thickness as
\ndetermined by Landlord to be reasonably necessary to properly distribute
\nthe weight thereof. Landlord will not be responsible for loss of or damage
\nto any such safe, equipment or property from any cause, and all damage done
\nto the Building by moving or maintaining any such safe, equipment or other
\nproperty shall be repaired at the expense of Tenant.<\/p>\n
Exhibits – Page 6<\/p>\n
Business machines and mechanical equipment belonging to Tenant which
\ncause noise or vibration that may be transmitted to the structure of the
\nBuilding or to any space therein to such a degree as to be unreasonably
\nobjectionable to Landlord or to any tenants in the Project shall be placed
\nand maintained by Tenant, at Tenant’s expense, on vibration eliminators or
\nother devices sufficient to eliminate noise or vibration. The persons
\nemployed to move such equipment in or out of the Building must be acceptable
\nto Landlord.<\/p>\n
23. Tenant shall not place a load upon any floor of the Premises which
\nexceeds the load per square foot which such floor was designed to carry and
\nwhich is allowed by law. Tenant shall not mark, use double-sided adhesive
\ntape on, the partitions, woodwork or plaster or in any unreasonable way
\ndeface the Premises or any part thereof unless Tenant agrees to repair such
\ndamage upon termination of the Lease. Tenant may hang pictures on walls in
\nthe Premises. Any damage to the walls caused by molley bolts, or like hanging
\nmaterials, will be repaired by Tenant upon expiration or earlier termination
\nof the Lease.<\/p>\n
24. Tenant shall not install, maintain or operate upon the Premises any
\nvending machine, except for the use of its employees and business invitees,
\nwithout the written consent of Landlord.<\/p>\n
25. There shall not be used in any space, or in the public areas of the
\nBuilding, either by Tenant or others, any hand trucks except those equipped
\nwith rubber tires and side guards or such other material-handling equipment
\n(e.g. forklift) as Landlord may reasonably approve. No other vehicles of any
\nkind shall be brought by Tenant into or kept in or about the Premises.<\/p>\n
26. Tenant shall store all trash and garbage within the interior of the
\nPremises or in a customary dumpster located behind the Building. No material
\nshall be placed in the trash boxes or receptacles if such material is of such
\nnature that it may not be disposed of in the ordinary and customary manner of
\nremoving and disposing of trash and garbage in the jurisdiction in which the
\nPremises is located, without violation of any law or ordinance governing such
\ndisposal. All trash, garbage and refuse disposal shall be properly removed
\nfrom the Premises and Project<\/p>\n
27. [Intentionally Omitted]<\/p>\n
28. Landlord shall have the right, exercisable with notice and without
\nliability to Tenant, to change the name and address of the Building. In the
\nevent the Landlord chooses to change the name or address of the Building (and
\nis not required to by some governmental authority, etc., Landlord will
\nreimburse Tenant for the cost of replacement stationery, replacement signage,
\nmailing notices, etc.<\/p>\n
29. [Intentionally Omitted]<\/p>\n
30. Without the prior written consent of Landlord, Tenant shall not use
\nthe name of the Building in connection with or in promoting or advertising
\nthe business of Tenant except as Tenant’s address. Tenant may use Project’s
\nname on its stationery and business cards.<\/p>\n
31. Tenant shall comply with all safety, fire protection and evacuation
\nprocedures and regulations established by Landlord or any appropriate
\ngovernmental agency.<\/p>\n
32. Tenant assumes any and all responsibility for protecting the Premises
\nfrom theft, robbery and pilferage, which includes keeping doors locked and
\nother means of entry to the Premises closed, unless caused by the negligence
\nor willful misconduct of Landlord, its agents, servants, or employees
\n(“Landlord Parties”).<\/p>\n
33. The requirements of Tenant will be attended to only upon application
\nat the office of the Landlord by an authorized individual. Employees of
\nLandlord shall not perform any work or do anything outside of their regular
\nduties unless under special instructions from Landlord, and no employees will
\nadmit any person (Tenant or otherwise) to any office without specific
\ninstructions from Landlord.<\/p>\n
34. Landlord may reasonably waive any one or more of these Rules and
\nRegulations for the benefit of any particular tenant or tenants, but no such
\nwaiver by Landlord shall be construed as a waiver of such Rules and
\nRegulations in favor of any other tenant or tenants, nor prevent Landlord
\nfrom thereafter enforcing any such Rules and Regulations against any or all
\ntenants of the Building.<\/p>\n
35. Landlord reserves the right to make such other reasonable rules and
\nregulations as in its judgment may from time to time be needed for safety and
\nsecurity, for care and cleanliness of the Building and for the preservation
\nof good order therein. Tenant agrees to abide by all such Rules and
\nRegulations hereinafter stated and any additional rules and regulations which
\nare adopted. No new Rule or Regulation shall be designed to discriminate
\nsolely against Tenant.<\/p>\n
36. Tenant shall be responsible for the observance of all of the
\nforegoing Rules and Regulations by Tenant’s employees, agents, clients,
\ncustomers, invitees and guests.<\/p>\n
Exhibits – Page 7<\/p>\n
37. Unless otherwise defined, terms used in these Rules and Regulations
\nshall have the same meaning as in the Lease.<\/p>\n
Exhibits – Page 8<\/p>\n
EXHIBIT “D”
\n—————————————————————————–<\/p>\n
FORM OF TENANT ESTOPPEL CERTIFICATE<\/p>\n
TO: _____________________________, or Assignee (“Lendor”), and\/or whom else
\n it may concern:<\/p>\n
THIS IS TO CERTIFY THAT:<\/p>\n
1. The undersigned in the lessee (“Tenant”) under that certain lease dated
\n __________, 19__, (“Lease”), by and between _____________________________
\n as lessor (“Landlord”) and _________________________________ as Tenant,
\n covering those certain premises commonly known and designated as
\n __________________________ (“Premises”).<\/p>\n
2. The Lease has not been modified, changed, altered, assigned, supplemented
\n or amended in any respect (except as indicated below; if none, state
\n “none”). The Lease is not in default and is valid and in full force and
\n effect on the date hereof. The Lease is the only Lease or agreement
\n between the Tenant and the Landlord affecting or relating to the Premises.
\n The Lease represents the entire agreement between the Landlord and the
\n Tenant with respect to the Premises. ____________.<\/p>\n
3. The Tenant is not entitled to, and has made no agreement(s) with the
\n Landlord or its agents or employees concerning free rent, partial rent,
\n rebate of rent payments, credit or offset or deduction in rent, or any
\n other type of rental concession, including, without limitation, lease
\n support payments or lease buy-outs (except as indicated below; if none,
\n state “none”). __________________________________________________________
\n _________________________________________________________________________.<\/p>\n
4. The Tenant has accepted and now occupies the Premises, and is and has been
\n open for business since ________________, 19____. The Lease term began
\n _________________, 19____. The termination date of the present term of the
\n Lease, excluding unexercised renewals, is _________________, 19____.<\/p>\n
5. The Tenant has paid rent for the Premises for the period up to and
\n including __________________, 19____. The fixed minimum rent and any
\n additional rent (including the Tenant’s share of tax increases and cost
\n of living increases) payable by the Tenant presently is $________ per
\n month. No such rent has been paid more than two (2) months in advance of
\n its due date, except as indicated below (if none, state “none”). The
\n Tenant’s security deposit is $______________.
\n _____________________________________________________________<\/p>\n
6. No event has occurred and no condition exists which,, with the giving
\n notice or the lapse of time or both, will constitute a default under the
\n Lease. The Tenant has no existing defenses or offsets against the
\n enforcement of this Lease by the Landlord.<\/p>\n
7. The Tenant has received or will receive payment or credit for tenant
\n improvement work in the total amount of $______________________ (or if
\n other than cash, describe below; if none, state “none”). All conditions
\n under this Lease to be performed by the Landlord have been satisfied. All
\n required contributions by the Landlord to the Tenant on account of the
\n Tenant’s tenant improvements have been received by the Tenant. ____________
\n ___________________________________________________________________________.<\/p>\n
8. The Lease contains, and the Tenant has, no outstanding options or rights
\n of first refusal to purchase the Premises or any part thereof or all or
\n any part of the real property of which the Premises are a part.<\/p>\n
9. No actions, whether voluntary or otherwise, are pending against the Tenant
\n or any general partner of the Tenant under the bankruptcy laws of the
\n United States or any state thereof.<\/p>\n
10. The Tenant has not sublet the Premises to any sublessee and has not
\n assigned any of its rights under the Lease, except as indicated below (if
\n none, state “none”). No one except the Tenant and its employees occupies
\n the Premises. ____________________________________________________________.<\/p>\n
11. The address for notices to be sent to the Tenant is as set forth in the
\n Lease.<\/p>\n
12. To the best of Tenant’s knowledge, the use, maintenance or operation of
\n the Premises complies with, and will at all times comply with, all
\n applicable federal, state, county or local statutes, laws, rules and
\n regulations of any governmental authorities relating to environmental,
\n health or safety matters (being hereinafter collectively referred to as
\n the Environmental Laws).<\/p>\n
13. The Premises have not been used and the Tenant does not plan to use the
\n Premises for any activities which, directly or indirectly, involve the
\n use, generation, treatment, storage, transportation <\/p>\n
Exhibits – Page 9<\/p>\n
or disposal of any petroleum product or any toxic or hazardous chemical,
\n material, substance, pollutant or waste.<\/p>\n
14. Tenant has not received any notices, written or oral, of violation of any
\n Environmental Law or of any allegation which, if true, would contradict
\n anything contained herein and there are not writs, injunctions, decrees,
\n orders or judgements outstanding, no lawsuits, claims, proceedings or
\n investigations pending or threatened, relating to the use, maintenance or
\n operation of the Premises, nor is Tenant aware of a basis for any such
\n proceeding.<\/p>\n
15. (INCLUDE THIS PARAGRAPH FOR LOAN TRANSACTIONS.) The Tenant acknowledges
\n that all the interest of the Landlord in and to the Lease is being duly
\n assigned to Lendor, and that pursuant to the terms thereof, all rent
\n payments under the Lease shall continue to be paid to the Landlord in
\n accordance with the terms of the Lease unless and until the Tenant is
\n notified otherwise in writing by Lendor or its successors or assigns.<\/p>\n
It is particularly noted that:<\/p>\n
(a) Under the provisions of this assignment, the Lease cannot be
\n terminated (either directly or by the exercise of any option which
\n could lead to termination) or modified in any of its terms, or
\n consent be given to the release of any party having liability
\n thereon, without the prior written consent of Lendor or it successors
\n or assigns, and without such consent, no rent may be collected or
\n accepted more than two (2) months in advance.<\/p>\n
(b) The interest of the Landlord in the Lease has been assigned to Lendor
\n for the purposes specified in the assignment. Lendor, or its
\n successors or assigns, assumes no duty, liability or obligation
\n whatsoever under the Lease or any extension or renewal thereof.<\/p>\n
(c) Any notices sent to Lendor or its affiliates should be sent by
\n registered mail and addressed as follows: ____________________________
\n _____________________________________________________________________.<\/p>\n
16. Tenant agrees to give any Mortgagee and\/or Trust Deed Holders
\n (“Mortgagee”), by registered mail, a copy of any notice of default served
\n upon the Landlord, provided that prior to such notice Tenant has been
\n notified in writing (by way of Notice of Assignment of Rents and Leases,
\n or otherwise), of the address of such Mortgagee. Tenant further agrees
\n that if Landlord shall have failed to cure such default within the time
\n provided for in this Lease, then the Mortgagee shall have an additional
\n sixty (60) days within which to cure such default of it such default
\n cannot be cured within that time, then such additional time as may be
\n necessary to cure such default shall be granted if within such sixty (60)
\n days Mortgagee has commenced and is diligently pursuing the remedies
\n necessary to cure such default (including, but not limited to,
\n commencement of foreclosure proceedings, if necessary to effect such
\n cure), in which event the Lease shall not be terminated while such
\n remedies are being so diligently pursued.<\/p>\n
17. This certification is made to induce Lendor to make certain fundings,
\n knowing that Lendor relies upon the truth of this certification in
\n disbursing said funds.<\/p>\n
18. The undersigned is authorized to execute this Tenant Estoppel Certificate
\n on behalf of the Tenant.<\/p>\n
DATED THIS ____________________ DAY OF ________________, 19 ____.<\/p>\n
______________________________________________
\n (Tenant)<\/p>\n
By: ________________________________________<\/p>\n
Its: __________________________________<\/p>\n
Date: __________________________________<\/p>\n
The undersigned hereby certifies that the certifications set forth above are
\ntrue as of the date hereof.<\/p>\n
______________________________________________
\n (Owner\/Landlord)<\/p>\n
By: ________________________________________<\/p>\n
Its: __________________________________<\/p>\n
Date: __________________________________<\/p>\n
Exhibits – Page 10<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8106],"corporate_contracts_industries":[9466],"corporate_contracts_types":[9583,9579],"class_list":["post-41783","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-macrovision-corp","corporate_contracts_industries-media__movies","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\/41783","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=41783"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41783"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41783"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41783"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}