California-Palo Alto-470 San Antonio Road Lease - Nearon Enterprises LLC and Ciphergen Biosystems Inc.
STANDARD OFFICE LEASE - FULL SERVICE
1. BASIC LEASE PROVISIONS ("Basic Lease Provisions"):
1.1 DATE AND EFFECTIVE DATE: This Lease is dated MARCH 15, 1996, for
reference purposes only. The Effective Date shall the date inserted below by
Lessor and shall be the date this Lease is executed by Lessor. PRIOR TO THE
EFFECTIVE DATE THE TERMS OF THIS LEASE SHALL NOT BE BINDING ON THE LESSOR AND,
UNTIL SIGNED BY LESSOR, THIS DOCUMENT SHALL BE CONSTRUED ONLY AS AN OFFER BY
LESSEE TO LEASE THE PREMISES. UNTIL SIGNED BY LESSOR, LESSOR SHALL HAVE NO
OBLIGATION OF ANY KIND TO ANY OF THE PARTIES INVOLVED IN MAKING THIS OFFER TO
LEASE THE PREMISES.
1.2 PARTIES: This Lease is made by and between NEARON ENTERPRISES, LLC
(herein called "Lessor") and CIPHERGEN BIOSYSTEMS, INC., (herein called
"Lessee").
1.3 PREMISES: Suite Number(s) B, consisting of approximately 1,700
square feet, more or less, as defined in paragraph 2 and as shown on Exhibit
"A" hereto (the "Premises"). The rentable area of the Premises as stated in
the preceding sentence is based on (i) the area of the Premises measured to
the lease line for street elevations (which shall extend to the property line
and/or to the public area boundary line with respect to the interior
frontage, if any, of the "Premises") and to the center line of interior
walls, (without deduction for level changes or openings in the floor, or for
stairs and stair openings which connect levels within the Premises), and
shall include structural elements, stairs, elevators, escalators, display
areas and other interior construction or equipment (the "usable area"), plus
(ii) amounts equal to portions of the area of the receiving and trash areas,
elevators and elevator lobbies, vestibules, restrooms, exit and access
corridors, parking areas, loading areas, electrical, mechanical and telephone
rooms and other areas designated by Lessor as necessary to the Building. The
Base Rent may have been calculated based on this square footage, however, the
square footage figure used in this lease is a rough approximation. Lessor and
Lessee agree that the Base Rent is derived from the beneficial use of the
Premises as described and not from any mathematical calculation involving
square footage. Neither Lessor nor Lessee shall be entitled to have the Base
Rent adjusted, recalculated, raised or lowered as a result of any discrepancy
between the square footage approximation contained in this Lease and any
measurement that may be determined to be the actual square footage of the
premises.
1.4 BUILDING: Commonly described as being located at 470 San Antonio
Road in the City of Palo Alto, County of Santa Clara, State of California.
1.5 USE: Business Office/Storage/R&D of bioanalytical
instrumentation systems, subject to paragraph 6.
1.6 TERMS: Twenty four (24) months, commencing April 1, 1996
("Commencement Date" and ending March 31, 1998, with an option to renew for
one (1) year given five (5) months prior written notice at the rate of $1.28
per square foot per month, as defined in paragraph 3.
1.7 BASE RENT: $2,091.00 per month, payable on or before the first
(1st day of each month, per paragraph 4.1.
1.8 BASE RENT INCREASE: N/A
1.9 RENT PAID UPON EXECUTION: $2,091.00 for April 1-30, 1996.
1.10 SECURITY DEPOSIT: $2,091.00 of which Lessee has already
deposited $1,434.00 The balance of $657.00 is to be paid upon execution.
2. PREMISES, PARKING AND COMMON AREAS.
2.1 PREMISES: The Premises are a portion of a building herein
sometimes referred to as the "Building" identified in paragraph 1.4 of the
Basic Lease Provisions. "Building" shall include adjacent parking structures
used in connection therewith. The Premises, the Building, the Common Areas,
the land upon which the same are located, along with all other buildings and
improvements thereon or thereunder, are herein collectively referred to as
the "Office Building Project". Lessor hereby leases to Lessee and Lessee
leases from Lessor for the term, at the rental, and upon all of the
conditions set forth herein, the real property referred to in the Basic Lease
Provisions, paragraph 1.3, as the "Premises", including rights to the Common
Areas as hereinafter specified.
2.2 VEHICLE PARKING: So long as Lessee is not in default, and
subject to the rules and regulations attached hereto and as established by
Lessor from time to time, Lessee shall be entitled to non-exclusive use of
available parking at the Office Building Project, proportionate to Lessee's
pro-rata share of total building space.
2.2.1 If Lessee commits, permits or allows any of the
prohibited activities described in the Lease or the rules then in effect,
then Lessor shall have the right, without notice, in addition to such other
rights and remedies that it may have, to remove or tow away the vehicle
involved and charge the cost to Lessee, which cost shall be immediately
payable upon demand by Lessor.
2.3 COMMON AREAS-DEFINITION: The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the exterior
boundary line of the Office Building Project that are provided and designated
by the Lessor from time to time for general non-exclusive use of Lessor,
Lessee and of other lessees of the Office Building Project and their
respective employees, suppliers, shippers, customers, and invitees, including
but not limited to common entrances, lobbies, corridors, stairways and
stairwells, public rest rooms, elevators, escalators, parking areas to the
extent not otherwise prohibited by this Lease, loading and unloading areas,
trash areas, roadways, sidewalks, walkways, parkways, ramps, driveways,
landscaped areas and decorative walls.
2.4 COMMON AREAS-RULES AND REGULATIONS: Lessee agrees to abide by
and conform to the rules and regulations attached hereto as Exhibit B with
respect to the Office Building Project and Common Areas and to cause its
employees, suppliers, shippers, customers, and invitees to so abide and
conform. Lessor or such other person(s) as Lessor may appoint shall have the
exclusive control and management of the Common Areas and shall have the
right, from time to time to modify, amend and enforce said rules and
regulations. Lessor shall not be responsible to Lessee for the non-compliance
with said rules and regulations by other lessees, their agents, employees,
and invitees of the Office Building Project.
2.5 COMMON AREAS-CHANGES: Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(a) To make changes to the Building interior and exterior
and Common Areas, including, without limitation changes in the location,
size, shape, number, and appearance thereof, including but not limited to the
lobbies, windows, stairways, air shafts, elevators, escalators, rest rooms,
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, decorative walls, landscaped
areas and walkways; provided, however, Lessor shall at all times provide
parking facilities required by applicable law;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(c) To designate other land and improvements outside the
boundaries of the Office Building Project to be part of the Common Areas,
provided that such other land and improvements have a reasonable and
functional relationship to the Office Building Project;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project, or any
portion thereof;
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Office Building Project
as Lessor may, in the exercise of sound business judgment deem to be
appropriate.
3. TERM.
3.1 TERM. The term and Commencement Date of this Lease shall be as
specified in paragraph 1.6 of the Basic Lease Provisions.
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3.2 DELAY IN POSSESSION. Notwithstanding said Commencement Date, if
for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date and subject to paragraph 3.2.2, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease or
the obligations of Lessee hereunder or extend the term of hereof; but,
in such case, Lessee shall not be obligated to pay rent or perform any other
obligation of Lessee under the terms of this Lease, except as may be
otherwise provided in this Lease, until possession of the Premises is tendered
to Lessee, as hereinafter defined, provided, however, that if Lessor shall not
have delivered possession of the Premises within ninety (90) days following
said Commencement Date, Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event
the parties shall be discharged from all obligations hereunder; provided,
however, that, as to Lessee's obligations, Lessee first reimburses Lessor for
all costs incurred for and, as to Lessor's obligations, Lessor shall return any
money previously deposited by Lessee (less any offsets due Lessor for any
improvements made by Lessor for Lessee in performance of the terms of this Lease
that are not ordinarily a part of the Building), and provided further that if
such written notice by Lessee is not received by Lessor within said ten (10)
day period, Lessee's right to cancel this Lease hereunder shall terminate and be
of no further force or effect.
3.2.1 POSSESSION TENDERED -- DEFINED. Possession of the
Premises shall be deemed tendered to Lessee ("Tender of Possession") when (1)
the improvements to be provided by Lessor under this Lease are substantially
completed, (2) the Building utilities are ready for use in the Premises, (3)
Lessee has reasonable access to the Premises, and (4) ten (10) days shall
have expired following advance written notice to the Lessee of the occurrence
of the matters described in (1), (2) and (3) above of this paragraph 3.2.1.
3.2.2 DELAYS CAUSED BY LESSEE. There shall be no abatement
of rent, and the ninety (90) day period following the Commencement Date
before which Lessee's right to cancel this Lease accrues under paragraph 3.2,
shall be deemed extended to the extent of any delays caused by acts or
omissions of Lessee, Lessee's agents, employees and contractors.
3.3 EARLY POSSESSION. If Lessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not change the termination date, and Lessee shall
pay rent for such occupancy.
3.3 UNCERTAIN COMMENCEMENT. In the event commencement of the Lease
term is defined as the completion of the improvements, Lessee and Lessor
shall execute an amendment to this Lease establishing the date of Tender of
Possession (as defined in paragraph 3.2.1) or the actual taking of possession
by Lessee, whichever first occurs, as the Commencement Date.
4. RENT.
4.1 BASE RENT. Subject to adjustment as hereinafter provided in
paragraph 4.2, and except as may be otherwise expressly provided in this
Lease, Lessee shall pay to Lessor the Base Rent for the Premises set forth in
paragraph 1.7 of the Basic Lease Provisions without offset or deduction.
Lessee shall pay Lessor upon execution hereof the advance Base Rent described
in paragraph 1.8 of the Basic Lease Provisions. Rent for any period during
the term hereof which is for less than one month shall be prorated based upon
the actual number of days of the calendar month involved. Rent shall be
payable in lawful money of the United States to Lessor at the address stated
herein or to such other persons or at such other places as Lessor may
designate in writing.
4.2 RENT INCREASE. N/A
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
the security deposit set forth in paragraph 1.9 of the Basic Lease Provisions
as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder or
otherwise defaults with respect to any provision of this Lease, Lessor may
use, apply or retain all or any portion of said deposit for the payment of
any rent or other charge in default for the payment of any other sum to which
Lessor may become obligated by reason of Lessee's default, or to compensate
Lessor for any loss or damage which Lessor may suffer thereby. If Lessor so
uses or applies all or any portion of said deposit, Lessee shall within ten
(10) days after written demand therefor deposit cash with Lessor in an amount
sufficient to restore said deposit to the full amount then required of
Lessee. If the monthly Base Rent shall, from time to time, increase during
the term of this Lease, Lessee shall, at the time of such increase, deposit
with Lessor additional money as a security deposit so that the total amount
of the security deposit held by the Lessor shall at all times bear the same
proportion to the then current Base Rent as the initial security deposit
bears to the initial Base Rent set forth in paragraph 1.7 of the Basic Lease
Provisions. Lessor shall not be required to keep said security deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not heretofore
been applied by Lessor, shall be returned, without payment of interest or
other increment for its use, to Lessee (or, at Lessor's option, to the last
assignee, if any, of Lessee's interest hereunder) at the expiration of the
term hereof, and after Lessee has vacated the Premises. No trust relationship
is created herein between Lessor and Lessee with respect to said Security
Deposit.
6. USE
6.1 USE. The Premises shall be used and occupied only for the purpose
set forth in paragraph 1.5 of the Basic Lease Provisions and for no other
purpose.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "Hazardous
Substance" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or
effect, either by itself or in combination with other materials expected to
be on the Premises, is either: (i) potentially injurious to the public
health, safety or welfare, the environment, or the Premises; (ii) regulated
or monitored by any governmental authority; or (iii) a basis for potential
liability of Lessor to any governmental agency or third party under the
applicable statute or common law theory. Hazardous Substance shall include,
but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any
products or by-products thereof. Lessee shall not engage in activity in or
about the Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior written consent of
Lessor and compliance in a timely manner (at Lessee's sole cost and expense)
with all Applicable Requirements (as defined in Paragraph 6.3). "Reportable
Use" shall mean (i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use, transportation,
or disposal of a Hazardous Substance that requires permit from, or with
respect to which a report, notice, registration or business plan is required
to be filed with, any governmental authority, and (iii) the presence in, on
or about the Premises of a Hazardous Substance with respect to which any
Applicable Laws require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the
foregoing, Lessee may, without Lessor's prior consent, but upon notice to
Lessor and in compliance with all Applicable Requirements, use any ordinary
and customary materials reasonably required to be used by Lessee in the
normal course of the Permitted Use, so long as such use is not a Reportable
Use and does not expose the Premises or neighboring properties to any
meaningful risk of contamination or damage or expose Lessor to any liability
therefor. In addition, Lessor may (but without any obligation to do so)
condition its consent to any Reportable Use of any Hazardous Substance by
Lessee upon Lessee's giving Lessor such additional assurances Lessor, in its
reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefor, including but not limited to the installation (and, at
Lessor's option, removal on or before Lease expiration or earlier termination)
of reasonably necessary protective modification to the Premises (such as
concrete encasements) and/or the deposit of an additional Security Deposit
under Paragraph 5 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has
reasonable cause to believe, that a Hazardous Substance has come to be
located in, on, under or about the Premises or the Building, other than as
previously consented to by Lessor, Lessee shall immediately give Lessor
written notice thereof, together with a copy of any statement, report,
notice, registration, application, permit, business plan, license, claim,
action, or proceeding given to, or received from, any governmental authority
or private party concerning the presence, spill, release, discharge of, or
exposure to, such Hazardous Substance including but not limited to all such
documents as may be involved in any Reportable Use involving the Premises.
Lessee shall not cause or permit any Hazardous Substance to be spilled or
released in, on, under or about the Premises (including, without limitation,
through the plumbing or sanitary sewer system).
Initials: /s/ WER
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/s/ [ILLEGIBLE]
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(c) DUTY TO INFORM LESSEE. If Lessor knows, or has
reasonable cause to believe, that a Hazardous Substance has come to be
located in, on, under or about the Premises or the Building, Lessor shall
immediately give Lessee written notice thereof, together with a copy of any
statement, report, notice, registration, application, permit, business plan,
license, claim, action, or proceeding given to, or received from, any
governmental authority or private party concerning the presence, spill,
release, discharge of, or exposure to, such Hazardous Substance including but
not limited to all such documents as may be involved in any Reportable Use
involving the Premises. Lessor shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under or about the Premises
(including, without limitation, through the plumbing or sanitary sewer
system).
(d) INDEMNIFICATION. Lessee shall indemnify, protect,
defend and hold Lessor, its agents, employees, lenders and ground lessor, if
any, and the Premises, harmless from and against any and all damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, loss of
permits and attorneys' and consultants' fees arising out of or involving any
Hazardous Substance brought onto the Premises by or for Lessee or by anyone
under Lessee's control. Lessee's obligations under this Paragraph 6.2(c)
shall include, but not be limited to, the effects of any contamination or
injury to person, property or the environment created or suffered by Lessee,
and the cost of investigation (including consultants' and attorneys' fees and
testing), removal, remediation, restoration and/or abatement thereof, or of
any contamination therein involved, and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or release
agreement entered into by Lessor and Lessee shall release Lessee from its
obligations under this Lease with respect to Hazardous Substances, unless
specifically so agreed by Lessor in writing at the time of such agreement.
6.3 LESSEE'S COMPLIANCE WITH REQUIREMENTS. Lessee shall, at Lessee's
sole cost and expense, fully, diligently and in a timely manner, comply with
all "Applicable Requirements," which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, and the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises
(including but not limited to matters pertaining to (i) industrial hygiene,
(ii) environmental conditions on, in, under or about the premises, including
soil and groundwater conditions, and (iii) the use, generation, manufacture,
production, installation, maintenance, removal, transportation, storage,
spill or release of any Hazardous Substance), now in effect or which may
hereafter come into effect. Lessee shall, within ten (10) days after receipt
of Lessor's written request, provide Lessor with copies of all documents and
information, including but not limited to permits, registrations, manifests,
applications, reports and certificates, evidencing Lessee's compliance with
any Applicable Requirements specified by Lessor, and shall immediately upon
receipt, notify Lessor in writing (with copies of any documents involved of
any threatened or actual claim, notice, citation, warning, complaint or
report pertaining to or involving failure by Lessee to the Premises to comply
with any Applicable Requirements.
Notwithstanding anything to the contrary contained herein, Lessee's
obligation to comply with Applicable Requirements, as set forth in Section
6.3 above, shall only apply if such compliance is required or necessitated by
Lessee's acts, use, or occupancy of the Premises. For example, if any
governmental authority should require the Building or the Premises to be
structurally strengthened against earthquake, or should require the removal
of asbestos from the Premises and such measures are imposed as a general
requirement applicable to all tenants rather than as a condition to Lessee's
specific use or occupancy of the Premises, such work shall be performed by
and at the sole cost of Lessor.
It is being expressly agreed that Lessee shall have no obligation or
liability of any kind or nature with respect to contamination or Hazardous
Substances that existed at, on or under the Premises and Building (which
shall be deemed to include the underlying soil and groundwater) prior to the
commencement of this Lease or that was not caused by Lessee's acts, use or
occupancy of the Premises.
To the best of Lessor's current actual knowledge, none of Lessor's
tenants at the Office Building Project are in violation or subject to any
existing, pending or threatened investigation or order by any governmental
authority under any applicable federal, state or local law, regulation or
ordinance pertaining to air and water quality, the handling, transportation,
storage, treatment, usage or disposal of Hazardous Substances, air emissions,
other environmental matters and all zoning and land use matters.
To the best of Lessor's current, actual knowledge, any handling,
transportation, storage, treatment or use of Hazardous Substances that has
occurred on the Premises to date is not in non-compliance with all Applicable
Requirements regulating same.
To the best of Lessor's current, actual knowledge, no leak, spill,
release, discharge, emission or disposal of Hazardous Substances has occurred
on the Premises. Building and Industrial Center to date and the soil,
groundwater and soil vapor on or under the Premises, Building and Industrial
Center is free of Hazardous Substances as of the date the term of this Lease
commences.
In the event of (i) a breach of the foregoing representations, or (ii)
the occurrence, release or threatened release of any Hazardous Substances on or
about the Premises, Building and Industrial Center during the term hereof that
is not caused by Lessee, Lessor, at Lessor's sole expense, shall (a) promptly
remove, eliminate or remediate said Hazardous Substances and/or take such other
action with respect thereto as is required by any federal, state or local
government agency having jurisdiction thereof.
6.4 COMPLIANCE WITH LAW.
(a) Lessee shall, at Lessee's expense, fully, diligently, and
in a timely manner, comply with all applicable laws, rules, regulations,
ordinances, directives, covenants, assessments, and restrictions of record,
permits, and the requirements of fire insurance underwriters or rating bureau,
relating in any manner to Lessee's use and occupancy of the Premises, now in
effect or which may hereafter come into effect, whether or not they reflect a
change in policy from that now existing, during the term or any part of the term
hereof, relating in any manner to the Premises and the occupation and use by
Lessee of the Premises. Without limiting the generality of the foregoing and as
it relates to the Premises, Lessee agrees to comply with all laws, orders and
regulations relating to the rights of individuals with disabilities, including
without limitation the Americans with Disabilities Act. Lessee shall conduct its
business in a lawful manner and shall not use or permit the use of the Premises
or the Common Areas in any manner that will tend to create waste or a nuisance
or shall tend to disturb other occupants of the Office Building Project.
(b) Lessor, Lessor's agents, employees, contractors and
designated representatives, and the holders of any mortgages, deeds of trust or
ground leases on the Premises ("Lenders") shall have the right to enter the
Premises at any time in the case of an emergency, and otherwise at reasonable
times, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease and all Applicable Requirements
(as defined in Paragraph 6.3), and Lessor shall be entitled to employ experts
and/or consultants in connection therewith to advise Lessor with respect to
Lessee's activities, including but not limited to Lessee's installation,
operation, use, monitoring, maintenance, or removal of any Hazardous Substance
on or from the Premises. The costs and expenses of any such inspections shall be
paid by the party requesting same, unless a Default or Breach of this Lease by
Lessee or a violation of Applicable Requirements or a contamination, caused or
materially contributed to by Lessee, is found to exist or to be imminent, or
unless the inspection is requested or ordered by a governmental authority as the
result of any such existing or imminent violation or contamination. In such
case, Lessee shall upon request, reimburse Lessor or Lessor's Lender, as the
case may be, for the costs and expenses of such inspections.
6.5 CONDITION OF PREMISES.
(a) Lessor shall deliver the Premises to Lessee in a clean
condition on the Lease Commencement Date (unless Lessee is already in
possession) and Lessor warrants to Lessee that the plumbing, lighting, air
conditioning, and heating system in the Premises shall be in good operating
condition. In the event that it is determined that this warranty has been
violated, then it shall be the obligation of Lessor, after receipt of written
notice from Lessee setting forth with specificity the nature of the violation,
to promptly, at Lessor's sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises and the Office Building Project in their condition existing
as of the Lease Commencement Date or the date that Lessee takes possession of
the Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any easements, covenants or restrictions of record, and
accepts this Lease subject thereto and to all matters disclosed thereby and by
any exhibits
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attached hereto. Lessee acknowledges that it has satisfied itself by its own
independent investigation that the Premises are suitable for its intended use
and that neither Lessor nor Lessor's agent or agents has made any representation
or warranty as to the present or future suitability of the Premises, Common
Areas, or Office Building Project for the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND COMMON AREA SERVICES.
7.1 LESSOR'S OBLIGATIONS. Lessor shall keep the Office Building
Project, including the Premises, interior and exterior walls, roof, and common
areas, and the equipment whether used exclusively for the Premises or in common
with other premises, in good condition and repair, provided, however, Lessor
shall not be obligated to paint, repair or replace wall coverings, or to repair
or replace any improvements that are not ordinarily a part of the Building or
are above then Building standards. Except as provided in paragraph 9.5, there
shall be no abatement of rent or liability of Lessee as a result of any injury
or interference with Lessee's business with respect to any improvements,
alterations or repairs made by Lessor to the Office Building, Project or any
part thereof. Lessee expressly waives the benefits of any statute now or
hereafter in effect that would otherwise afford Lessee the right to make repairs
at Lessor's expense or to terminate this Lease because of Lessor's failure to
keep the Premises in good order, conditions and repair. Lessee hereby waives and
releases its rights under California Civil Code Sections 1932(1) and 1942.
7.2 LESSEE'S OBLIGATIONS.
(a) Notwithstanding Lessor's obligation to keep the Premises
in good condition and repair, Lessee shall be responsible for payment of the
cost thereof to Lessor as additional rent for that portion of the cost of any
maintenance and repair of the Premises, or any equipment (wherever located) that
serves only Lessee or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear. Lessee shall be responsible for the cost of
painting, repairing or replacing wall coverings, and to repair or replace any
Premises improvements that are not ordinarily a part of the Building or that are
above then Building standards. Lessor may, at its option, upon reasonable
notice, elect to have Lessee perform any particular such maintenance or repairs
the cost of which is otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as received, ordinary wear and tear excepted, clean and free of
debris. Any damage or deterioration of the Premises shall not be deemed
ordinary wear and tear if the same could have been prevented by good
maintenance practices by Lessee. Lessee shall repair any damage to the
Premises occasioned by the installation or removal of Lessee's trade
fixtures, alterations furnishings and equipment. Except as otherwise stated
in this Lease, Lessee shall leave the air lines, power panels, electrical
distribution systems, lighting fixtures, air conditioning, window coverings,
wall coverings, carpets, wall paneling, ceilings and plumbing on the Premises
and in good operating condition.
7.3 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written
consent make any alterations, improvements, additions, Utility Installations
or repairs in, on or about the Premises, or the Office Building Project. As
used in this paragraph 7.3 the term "Utility Installation" shall mean
carpeting, window and wall coverings, power panels, electrical distribution
systems, lighting fixtures, air conditioning, plumbing, and telephone and
telecommunication wiring and equipment. At the expiration of the term, Lessor
may require the removal of any or all of said alterations, improvements,
additions or Utility Installations, and the restoration of the premises and
the Office Building Project to their prior condition, at Lessee's expense.
Should Lessor permit Lessee to make its own alterations, improvements
additions or Utility Installations, Lessee shall use only such contractor as
has been expressly approved by Lessor, and Lessor may require Lessee to
provide Lessor, at Lessee's sole cost and expense, a lien and completion bond
in an amount equal to one and one-half times the estimated cost of such
improvements, to insure Lessor against any liability for mechanic's and
material men's liens and to insure completion of the work. Should Lessee
make any alterations, improvements, additions or Utility Installations
without the prior approval of Lessor, or use a contractor not expressly
approved by Lessor, Lessor may at any time during the term of this Lease,
require that Lessee remove any part or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project that
Lessee shall desire to make shall be presented to Lessor in written form,
with proposed detailed plans. If Lessor shall give its consent to Lessee's
making such alteration, improvement, addition or Utility Installation, the
consent shall be deemed conditioned upon Lessee acquiring a permit to do so
from the applicable governmental agencies, furnishing a copy thereof to
Lessor prior to the commencement of the work, and compliance by Lessee with
all conditions of said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanic's or
material men's lien against the Premises, the Building or the Office Building
Project, or any interest therein.
(d) Lessee shall give Lessor not less than ten (10) days
notice prior to the commencement of any work in the Premises by Lessee, and
Lessor shall have the right to post notices of non responsibility in or on
the Premises or the Building as provided by law. If Lessee shall in good
faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at its sole expense defend itself and Lessor against the same and
shall pay and satisfy any such adverse judgement that may be rendered thereon
before the enforcement thereof against the Lessor or the Premises the
Building or the Office Building Project, upon the condition that if Lessor
shall require, Lessee shall furnish to Lessor's surety bond satisfactory to
Lessor in an amount equal to such contested lien claim or demand indemnifying
Lessor against liability for the same and holding the Premises, the Building
and the Office Building Project free from the effect of such lien or claim.
In addition, Lessor may require Lessee to pay Lessor's reasonable attorneys'
fees and costs in participating in such action if Lessor shall decide it is
to Lessor's best interest so to do.
(e) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee, including but
not limited to, floor coverings, paneling, doors, drapes, built-ins, moldings,
sound attenuation, and lighting and telephone or communication systems, conduit,
wiring and outlets, shall be made and done in a good and workmanlike manner and
of good and sufficient quality and materials and shall be the property of Lessor
and remain upon and be surrendered with the Premises at the expiration of the
Lease term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Provided Lessee is not in default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee's personal property and equipment, other than that
which is affixed to the Premises so that it cannot be removed without material
damage to the Premises or the Building, and other than Utility Installations,
shall remain the property of Lessee and may be removed by Lessee subject to the
provisions of paragraph 7.2.
(f) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 UTILITY ADDITIONS. Lessor reserves the right to install now or
additional utility facilities throughout the Office Building Project for the
benefit of Lessor or Lessee, or any other lessee of the Office Building Project,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, communication systems, and fire protection and detection systems, so
long as such installations do not unreasonably interfere with Lessee's use of
the Premises.
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE-LESSEE. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a policy of Comprehensive
General Liability insurance utilizing an Insurance Services Office standard form
with Broad Form General Liability Endorsement (GL0404), or equivalent, in an
amount not less than $1,000,000 per occurrence of bodily injury and property
damage combined or in greater amount as reasonably determined by Lessor and
shall insure Lessee with Lessor as an additional insured against liability
arising out of the use, occupancy or maintenance of the Premises. Compliance
with the above requirement shall not, however, limit the liability of Lessee
hereunder.
8.2 LIABILITY INSURANCE-LESSOR. Lessor shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Broad Form Property Damage Insurance, plus coverage against such other risks
Lessor deems advisable from time to
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time, insuring Lessor, but not Lessee, against liability arising out of the
ownership, use, occupancy or maintenance of the Office Building Project in an
amount not less than $1,000,000.00 per occurrence.
8.3 PROPERTY INSURANCE - LESSEE. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease for the benefit of
Lessee, replacement cost fire and extended coverage insurance, with vandalism
and malicious mischief, sprinkler leakage and earthquake sprinkler leakage
endorsements, if applicable, in an amount sufficient to cover not less than 100%
of the full replacement cost, as the same may exist from time to time, of all of
Lessee's personal property, fixtures, equipment and tenant improvements.
8.4 PROPERTY INSURANCE - LESSOR. Lessor shall obtain and deep in force
during the term of this Lease a policy or policies of insurance covering loss or
damage to the Office Building Project improvements, but not Lessee's personal
property, fixtures, equipment or tenant improvements, in the amount of the full
replacement cost thereof, as the same may exist from time to time, utilizing
Insurance Services Office standard form or equivalent providing protection
against all perils included within the classification of fire, extended
coverage, vandalism, malicious mischief, plate glass, and such other perils as
Lessor deems advisable or may be required by a lender having a lien on the
Office Building Project. In addition, Lessor shall obtain and keep in force,
during the term of this Lease, a policy of rental value insurance covering a
period of one year, with loss payable to Lessor, which insurance shall also
cover all Operating Expenses for said period. Lessee will not be named in any
such policies carried by Lessor and shall have no right to any proceeds
therefrom. The policies required by these paragraphs 8.2 and 8.4 shall contain
such deductibles as Lessor or the aforesaid lender may determine. In the event
that the Premises shall suffer an insured loss as defined in paragraph 9.1(f)
hereof, the deductible amounts under the applicable insurance policies shall be
deemed an Operating Expense. Lessee shall not do or permit to be done anything
that shall invalidate the insurance policies carried by Lessor. Lessee shall pay
the entirety of any increase in the property insurance premium for the Office
Building Project over what it was immediately prior to the commencement of the
term of this Lease if the increase is specified by Lessor's insurance carrier as
being caused by the nature of Lessee's occupancy or any act or omission of
Lessee.
8.5 INDEMNITY. Lessee shall indemnify and hold harmless Lessor and its
agents, partners and lenders, from and against any and all claims for damage to
the person or property of anyone or any entity arising from the following:
(1.) Lessee's use of the Office Building Project, or from the
conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere.
(2.) Any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease.
(3.) Any act or omission of Lessee, or any of Lessee's agents,
contractors, employees, or invitees, and from and against all costs, attorney's
fees, expenses and liabilities incurred by Lessor as the result of any such use,
conduct, activity, work, things done, permitted or suffered, breach, default or
negligence and dealing reasonably therewith, including but not limited to the
defense or pursuit of any claim or any action or proceeding involved therein.
In case any action or proceeding be brought against Lessor by reason of
any such matter, Lessee upon notice from Lessor shall defend the same at
Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall
cooperate with Lessee in such defense.
Lessor need not have first paid any such claim in order to be so
indemnified.
Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property of Lessee or injury to persons, in, upon
or about the Office Building Project arising from any cause and Lessee hereby
waives all claims in respect thereof against Lessor.
For the purposes of this paragraph 8.5 "claims" means claims, demands,
losses, damages, liability, costs, and expenses, including without limitation
attorney's fees, court costs, expenses and other costs of investigation and
preparation, including attorney's fees and costs and expenses incurred in
connection with any appeal.
The foregoing indemnification obligations shall not apply to any claims
arising from the sole negligence or willful misconduct of the party seeking
indemnification.
The foregoing indemnification obligations shall survive the expiration
or earlier termination of this Lease to and until the date permitted by law for
the bringing of any claim with respect to which indemnification may be claimed
under this paragraph.
8.6 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of income
therefrom or for loss of or damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other person
in or about the Premises or the Office Building Project, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees agents or
contractors, whether such damage or injury is caused by or results from theft,
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether said
damage or injury results from conditions arising upon the Premises or upon other
portions of the Office Building Project, or from other sources or places, or
from new construction or the repair, alteration or improvement of any part of
the Office Building Project, or of the equipment, fixtures or appurtenances
applicable thereto, and regardless of whether the cause of such damage or injury
or the means of repairing the same is inaccessible. Lessor shall not be liable
for any damages arising from any act or neglect of any other lessee, occupant or
user of the Office Building Project, nor from the failure of Lessor to enforce
the provisions of any other lease of any other lessee of the Office Building
Project.
The exemption of Lessor from liability shall not apply if loss arises
from Lessor's negligence in fulfilling his obligations as stated in 7.1.
8.7 NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes no
representation that the limits or forms of coverage of insurance specified in
this paragraph 8 are adequate to cover Lessee's property or obligations under
this Lease.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "Premises Damage" shall mean if the Premises are damaged
or destroyed to any extent.
(b) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is less than fifty percent (50%) of the then Replacement
Cost of the building.
(c) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is fifty percent (50%) or more of the then Replacement
Cost of the Building.
(d) "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
(e) "Office Building Project Buildings Total Destruction"
shall mean if the Office Building Project Buildings are damaged or destroyed to
the extent that the cost of repair is fifty percent (50%) or more of the then
Replacement Cost of the Office Building Project Buildings.
(f) "Insured Loss" shall mean damage or destruction that was
caused by an event required to be covered by the insurance described in
paragraph 8. The fact that an Insured Loss has a deductible amount shall not
make the loss an uninsured loss.
(g) "Replacement Cost" shall mean the amount of money
necessary to be spent in order to repair or rebuild the damaged area to the
condition that existed immediately prior to the damage occurring, excluding all
improvements made by lessees, other than those installed by Lessor at Lessee's
expense.
9.2 PREMISES DAMAGE; PREMISES BUILDING PARTIAL DAMAGE.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is damage which is
an Insured Loss and which falls into the classification of either Premises
Damage or Premises Building Partial Damage, then Lessor shall, as soon as
reasonably possible and to the extent the required materials and labor are
readily available through usual commercial
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channels, at Lessor's expense, repair such damage (but not Lessee's fixtures,
equipment or tenant improvements originally paid for by Lessee) to its condition
existing at the time of the damage, and this Lease shall continue in full force
and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs
9.4 and 9.5, if at any time during the term of this Lease there is damage
which is not an Insured Loss and which falls within the classification of
Premises Damage or Premises Building Partial Damage, unless caused by a
negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), which damage prevents Lessee from making any
substantial use of the Premises, Lessor may at Lessor's option either (i)
repair such damage as soon as reasonably possible at Lessor's expense in
which event this Lease shall continue in full force and effect, or (ii) give
written notice to Lessee within thirty (30) days after the date of the
occurrence of such damage of Lessee's intention to cancel and terminate this
Lease as of the date of the occurrence of such damage, in which event this
Lease shall terminate as of the date of the occurrence of such damage.
9.3 PREMISES BUILDING TOTAL DESTRUCTION; OFFICE BUILDING PROJECT TOTAL
DESTRUCTION. Subject to the provisions of paragraphs 9.4 and 9.5 if at any time
during the term of this Lease there is damage, whether or not it is an Insured
Loss, which falls into the classifications of either (i) Premises Building Total
Destruction, or (ii) Office Building Project Total Destruction, then Lessor may
at Lessor's option either (i) repair such damage or destruction as soon as
reasonably possible at Lessor's expense (to the extent the required materials
are readily available through usual commercial channels) to its condition
existing at the time of the damage, but not Lessee's fixtures equipment or
tenant improvements, and this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) days after the date of
occurrence of such damage of Lessor's intention to cancel and terminate this
Lease, in which case this Lease shall terminate as of the date of the occurrence
of such damage.
9.4 DAMAGE NEAR END OF TERM.
(a) Subject to paragraph 9.4(b), if at any time during the
last twelve (12) months of the term of this Lease there is substantial damage to
the Premises, Lessor may at Lessor's option cancel and terminate this Lease as
of the date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within 30 days after the date of occurrence of such
damage.
(b) Notwithstanding paragraph 9.4(a), in the event that
Lessee has an option to extend or renew this Lease, and the time within which
said option may be exercised has not yet expired, Lessee shall exercise such
option, if it is to be exercised at all, no later than twenty (20) days after
the occurrence of an Insured Loss falling within the classification of
Premises Damage during the last twelve (12) months of the term of this Lease.
If Lessee duly exercises such option during said twenty (20) day period,
Lessor shall, at Lessor's expense, repair such damage, but not Lessee's
fixtures, equipment or tenant improvements, as soon as reasonably possible
and this Lease shall continue in full force and effect. If Lessee fails to
exercise such option during said twenty (20) day period, then Lessor may at
Lessor's option terminate and cancel this Lease as of the expiration of said
twenty (20) day period by giving written notice to Lessee of Lessor's
election to do so within ten (10) days after the expiration of said twenty
(20) day period, notwithstanding any term or provision in the grant of option
to the contrary.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event Lessor repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part of the
Premises are not usable (including loss of use due to loss of access or
essential services), the rent payable hereunder (including Lessee's Share of
Operating Expense Increase) for the period during which such damage, repair or
restoration continues shall be abated, provided (1) the damage was not the
result of the negligence of Lessee, and (2) such abatement shall only be to the
extent the operation and profitability of Lessee's business as operated from the
Premises is adversely affected. Except for said abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises or the Building under the provisions of this Paragraph 9 and shall not
commence such repair or restoration within ninety (90) days after such
occurrence or if Lessor shall not complete the restoration and repair within six
(6) months after such occurrence Lessee may at Lessee' option cancel and
terminate this Lease by giving Lessor written notice of Lessee's election to do
so at any time prior to the commencement or completion, respectively, of such
repair or restoration. In such event this Lease shall terminate as of the date
of such notice.
(c) Lessee agrees to cooperate with Lessor in connection with
any such restoration and repair, including but not limited to the approval
and/or execution of plans and specifications required.
9.6 TERMINATION-ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
therefore been applied by Lessor.
9.7 WAIVER. Lessor and Lessee waive the provisions of any statute that
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease. Any statute or
regulation of the State of California or any other governmental authority or
body, including, without limitation, California Civil Code Sections 1932(2) and
1933 (4) with respect to any rights or obligations concerning any damage or
destruction to the Premises or the Office Building Project in the absence of an
express agreement between the parties, and any other statute or regulation
relating to damage or destruction of leased premises, now or hereafter in
effect, shall have no application to this Lease or any damage or destruction to
all or any part of the Premises or any other portion of the Office Building
Project.
10. UTILITIES
10.1 SERVICES PROVIDED BY LESSOR. Lessor shall provide heating,
ventilation, air conditioning, and janitorial services as reasonably required,
reasonable amounts of electricity for normal lighting and office machines, water
for reasonable and normal drinking and lavatory use, and replacement light bulbs
and/or fluorescent tubes and ballasts for standard overhead fixtures.
10.2 SERVICES EXCLUSIVE TO LESSEE. Lessee shall pay for all water, gas,
heat, light, power, telephone and other utilities and services specially or
exclusively supplied and/or metered exclusively to the Premises or to Lessee,
together with any taxes thereon. If any such services are not separately metered
to the Premises, Lessee shall pay at Lessor's option, either Lessee's Share or a
reasonable proportion to be determined by Lessor of all charges jointly metered
with other premises of the Building.
10.3 HOURS OF SERVICE. Said services and utilities shall be provided
during generally accepted business days and hours or such other days or hours as
may hereafter be set forth. Utilities and services required at other times shall
be subject to advance request and reimbursement by Lessee to Lessor of the cost
thereof.
10.4 EXCESS USAGE BY LESSEE. Lessee shall not make connection to the
utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that causes extra burden upon the
utilities or services, including but not limited to security services, over
standard office usage for the Office Building Project. Lessor shall require
Lessee to reimburse Lessor for any excess expenses or costs that may arise out
of a breach of this subparagraph by Lessee. Lessor may, in its sole discretion,
install at Lessee's expense supplemental equipment and/or separate metering
applicable to Lessee's excess usage or loading.
10.5 INTERRUPTIONS. There shall be not abatement of rent and Lessor
shall not be liable in any respect whatsoever for the inadequacy, stoppage,
interruption or discontinuance of any utility or service due to riot, strike,
labor dispute, breakdown, accident, repair or other cause beyond Lessor's
reasonable control or in cooperation with governmental request or directions.
11. ASSIGNMENT AND SUBLETTING. LESSOR'S CONSENT REQUIRED. Lessee shall not
voluntarily or by operation of law assign, transfer, mortgage, sublet, or
otherwise transfer or encumber all or any part of Lessee's interest in the Lease
or in the Premises, without Lessor's prior written consent.
12. DEFAULT; REMEDIES.
12.1 DEFAULT. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
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(a) The vacation or abandonment of the Premises by Lessee.
Vacation of the Premises shall include the failure to occupy the Premises for a
continuous period of sixty (60) days or more, whether or not the rent is paid.
(b) The breach by Lessee of any of the covenants, conditions
or provisions, of paragraphs 7.3(a), (b) or (d) (alterations), 12 (assignment or
subletting, 12.1 (a) (vacation or abandonment), 12.1. (e) (insolvency), 13 (f)
(false statement), 14 (a) (estoppel certificate), 27.2 (b) (subordination) 30
(auctions), or 38.1 (easements), all of which are hereby deemed to be material,
non curable defaults without the necessity of any notice by Lessor to Lessee
thereof.
(c) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due, where
such failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes
such Notice to Pay Rent or Quit shall also constitute the notice required by
this subparagraph.
(d) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee other than those referenced in subparagraphs (b) and (c), above, where
such failure shall continue for a period of thirty (30) days after written
notice thereof from Lessor to Lessee; provided, however, that if the nature of
Lessee's noncompliance is such that more than thirty (30) days are reasonably
required for its cure, then Lessee shall not be deemed to be in default if
Lessee commenced such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion. To the extent permitted by law, such
thirty (30) day notice shall constitute the sole and exclusive notice required
to be given to Lessee under applicable Unlawful Detainer statutes.
(e) (i) The making by Lessee of any general arrangement or
general assignment for the benefit of creditors; (ii) Lessee becoming a "debtor"
as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease where possession is not restored to Lessee within thirty
(30) days, or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. In the event that any provision of this paragraph 12.1(c) is contrary to
any applicable law, such provision shall be of no force or effect.
(f) The discovery by Lessor that any financial statement given
to Lessor by Lessee, or its successor in interest or by any guarantor of
Lessee's obligation hereunder, was materially false.
12.2 REMEDIES. In the event of any material default or breach of this
Lease by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease and the term hereof shall terminate
and Lessee shall immediately surrender possession of the Premises to Lessor. In
such event Lessor shall be entitled to recover from Lessee all damages incurred
by Lessor by reason of Lessee's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided.
(b) Maintain Lessee's right to possession in which case this
Lease shall continue in effect whether or not Lessee shall have vacated or
abandoned the Premises. In such event Lessor shall be entitled to enforce all of
Lessor's rights and remedies under this Lease, including the right to recover
the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary obligations
of Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
(d) In addition to the remedies set forth in paragraph 12.2(a)
through (c) and in addition to all other rights and remedies available to Lessor
at law or in equity, Lessor shall have the following rights and remedies:
(i) the rights and remedies provided by California
Civil Code Section 1951.2, including, but not limited to, the right to terminate
Lessee's right to possession of the Premises and to recover (i) "the worth at
the time of award" (as defined in Section 12.2(d)(vi) below) of the unpaid Base
Rent which shall have been earned after termination; plus (ii) the worth at
the time of award of the amount by which the unpaid Base Rent which would
have been earned after termination until the time of award shall exceed the
amount of loss of such Base Rent that Lessee proves could have been reasonably
avoided; plus (iii) the worth at the time of award of the amount by which the
unpaid Base Rent for the balance of the Term after the time of award shall
exceed the amount of loss of such Base Rent that Lessee proves could be
reasonably avoided; plus (iv) any other amount necessary to compensate Lessor
for all the detriment proximately caused by Lessee's failure to perform its
obligations under this Lease or which would be likely to result therefrom
(including without limitation attorneys' and accountants' fees, costs of
alterations of the Premises, interest costs and brokers' fees incurred upon any
reletting of the Premises);
(ii) the rights and remedies described in California
Civil Code Section 1951.4 (Lessor may continue the Lease in effect after
Lessee's breach and abandonment and recover Base Rent and Operating Expenses as
they become due, since Lessee, pursuant to the provisions of paragraph 11 may
sublet or assign, subject only to reasonable limitations). Acts of maintenance
or preservation, efforts to relet the Premises or the appointment of a receiver
upon Lessor's initiative to protect its interest under this Lease shall not of
themselves constitute a termination of Lessee's right to possession;
(iii) the right to enter the Premises and remove
therefrom all persons and property, to store such property in a public warehouse
or elsewhere at the cost of and for the account of Lessee, and to sell such
property and apply the proceeds therefrom pursuant to applicable California law
and subject to the prior rights of third party owners with respect to consigned
property or secured creditors having a claim prior in right. In such event
Lessor may from time to time sublet the Premises or any part thereof for such
term or terms (which may extend beyond the Term) and at such rent and such other
terms as Lessor in its sole discretion may deem advisable, with the right to
make alterations an repairs to the Premises. Upon each such subletting, rents
received from such subletting shall be applied by Lessor, first, to payment of
any indebtedness other than Base Rent due hereunder from Lessee to Lessor;
second, to the payment of any costs of such subletting (including without
limitation attorneys' and accountants' fees, costs of alterations of the
Premises, interest costs, and brokers' fees) and of any such alterations and
repairs; third, to payment of Base Rent due and unpaid hereunder; and the
residue, if any, shall be held by Lessor and applied in payment of future Base
Rent as it becomes due hereunder. If any rental or other charges due under such
sublease shall not be promptly paid to Lessor by the sublessee(s), or if such
rentals received from such subletting during any month are less than Base Rent
to be paid during that month by Lessee hereunder, Lessee shall pay any such
deficiency to Lessor, as well as any unpaid indebtedness other than Base Rent
due hereunder from Lessee to Lessor and the costs of such subletting (including
without limitation attorneys' and accountants' fees, costs of alterations of the
Premises, interest costs, and brokers' fees), and any other amounts due Lessor
under this Section 12.2. Such deficiency shall be calculated and paid monthly.
No taking possession of the Premises by Lessor shall be construed as an election
on its part to terminate this Lease unless a written notice of such intention is
given to Lessee. Lessor's subletting the Premises without termination shall not
constitute a waiver of Lessor's right to elect to terminate this Lease for such
previous breach;
(iv) The right to have a receiver appointed for
Lessee, upon application by Lessor, to take possession of the Premises, to apply
any rental collected from the Premises and to exercise all other rights and
remedies granted to Lessor pursuant to paragraph 12.2(d)(iii); and
(v) the right to specific performance of any or all
of Lessee's obligations hereunder, and to damages for delay in or failure of
such performance.
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(e) For purposes of paragraph 12.2(d) the "worth at the time
of award" of the amounts referred to in subparagraphs (i) and (ii) shall be
computed with interest at the lesser of the maximum rate then allowed by law or
a rate which is five percent (5%) per annum plus the rate from time to time,
established by the Federal Reserve Bank of San Francisco on advances to member
banks under Sections 13 and 13(a) of the Federal Reserve Act as now in effect or
hereafter from time to time amended; the "worth at the time of award" of the
amount referred to in subparagraph (iii) shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
dime of award plus one percent(1%).
12.2.1 REMEDIES CUMULATIVE. The exercise of any remedy
provided by law or the provisions of this Lease shall not exclude any other
remedies unless they are expressly excluded by this Lease. Any notice of default
given or required to be given by Lessor to Lessee hereunder may be combined
with, serve as or include any statutory notice required in connection with the
exercise by Lessor of any of its remedies. Lessee hereby waives any right of
redemption or relief from forfeiture following termination of, or exercise of
any remedy by Lessor with respect to, this Lease.
12.2.2 RECOVERY AGAINST LESSOR. Lessee shall look solely to
Lessor's interest in the Office Building Project for the recovery of any
judgment against Lessor. Lessor, or if Lessor is a partnership, its partners
whether general or limited, or if Lessor is a corporation, its directors,
officers and shareholders, shall never be personally liable for any such
judgment.
12.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, bit in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have the theretofore been furnished to Lessee in
writing, specifying wherein Lessor has failed to perform such obligation
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30 day period and thereafter
diligently pursues the same to completion.
12.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, or other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges that may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Office Building
Project. Accordingly, if any installment of Base Rent, Operating Expense
Increase, or any other sum due from Lessee shall not be received by Lessor or
Lessor's designee within five (5) days after such amount shall be due, then,
without any requirement for notice to Lessee, Lessee shall pay to Lessor a late
charge equal to 6% of such overdue amount. The parties hereby agree that such
later charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of late payment by Lessee and shall be paid as Additional Rent.
Acceptance of such late charge by Lessor shall in no event constitute a waiver
of Lessee's default with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder.
12.5 RETURNED CHECKS. If any check for payment by Lessee to Lessor of
Base Rent or other sums due hereunder shall be returned to Lessor by Lessee's
bank for any reason, all payments made by Lessee, for the period of six (6)
months following, shall be made with certified funds or upon demonstration of
good credit at Lessor's sole discretion. A returned check charge in the amount
of $20.00 in addition to any sums due hereunder including late charges.
13. CONDEMNATION. If the Premises or any portion thereof or the Office Building
Project are taken under the power of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs; provided that if so
much of the Premises or the Office Building Project are taken by such
condemnation as would substantially and adversely affect the operation or
profitability of Lessee's business conducted from the Premises, Lessee shall
have the option, to be exercised only in writing within thirty (30) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within thirty (30) days after the condemning
authority shall have taken possession), to terminate this Lease as of the date
the condemning authority takes such possession. If Lessee does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent and Lessee's Share of Operating Expense Increase shall be reduced in the
proportion that the floor area of the Premises taken bears to the total floor
area of the Premises. Common Areas taken shall be excluded from the Common Areas
usable by Lessee and no reduction of rent shall occur with respect thereto or by
reason thereof. Lessor shall have the option in its sole discretion to terminate
this Lease as of the taking of possession by the condemning authority by giving
written notice to Lessee of such election within thirty (30) days after receipt
of notice of a taking by condemnation of any part of the Premises or the Office
Building Project. Any award for the taking of all or any part of the Premises or
the Office Building Project under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the property of Lessor,
whether such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any separate award for loss of or
damage to Lessee's trade fixtures, removable personal property and unamortized
tenant improvements that have been paid for by Lessee. For that purpose the cost
of such improvements shall be amortized over the original term of this Lease
excluding any options. In the event that this Lease is not terminated by reason
of such condemnation, Lessor shall to the extent of severance damages received
by Lessor in connection with such condemnation, repair any damage to the
Premises caused by such condemnation except to the extent that Lessee has been
reimbursed therefor by the condemning authority. Lessee shall pay any amount in
excess of such severance damages required to complete such repair.
14. ESTOPPEL CERTIFICATE.
14.1 Each party (as "responding party") shall at any time upon not less
than ten (10) days' prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the responding party's knowledge, any
uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective purchaser or encumbrancer of the Office Building Project or
of the business of Lessee.
14.2 At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such part that (i) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are no uncured defaults in the requesting party's performance, and (iii)
if Lessor is the requesting party, not more than one month's rent has been paid
in advance.
15. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean only the
owner or owners, at the time in question, of the fee title or a lessee's
interest in a ground lease of the Office Building Project, in the event of any
transfer of such title or interest, Lessor herein named (and in case of any
subsequent transfers then the grantor) shall be relieved from and after the date
of such transfer of all liability as respects Lessor's obligations thereafter to
be performed, provided that any funds in the hands of Lessor or the then grantor
at the time of such transfer, in which Lessee has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Lessor shall, subject as aforesaid, be binding on Lessor's
successors and assigns, only during their respective periods of ownership.
16. SEVERABILITY. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
17. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided, any
amount due to Lessor not paid when due shall bear interest at the maximum rate
then allowable by law or judgments from the date due. Payment of such interest
shall not excuse or cure any default by Lessee under this Lease; provided,
however, that interest shall not be payable on late charges incurred by Lessee
nor on any amounts upon which late charges are paid by Lessee.
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18. TIME OF ESSENCE. Time is of the essence with respect to the obligations to
be performed under this Lease.
19. ADDITIONAL RENT. All monetary obligations of Lessee to Lessor under the
terms of this Lease, including, but not limited to Late Charges, Lessee's Share
of Operating Expense Increase and any other expenses payable by Lessee hereunder
shall be deemed to be rent.
20. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this Lease, Lessee hereby acknowledges that Lessor or any employee or agents
of any said persons has made any oral or written warranties or representations
to Lessee relative to the condition or use by Lessee of the Premises or the
Office Building Project and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the term of this Lease.
21. NOTICES. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified or registered
mail, and shall be deemed sufficiently given if delivered or addressed to Lessee
or to Lessor at the address noted below or adjacent to the signature of the
respective parties, as the case may be. Mailed notices shall be deemed given
upon actual receipt at the address required, or forty-eight hours following
deposit in the mail, postage prepaid, whichever first occurs. Either party may
by notice to the other specify a different address for notice purposes except
that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for notice purposes. A copy of all notices required
or permitted to be given to Lessor hereunder shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee. Lessee acknowledges that service of any
notice on one Lessee constitutes service on all Parties herein called Lessee.
22. WAIVERS. No waiver by Lessor by Lessor of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to, or approval of,
any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be waiver of any preceding breach by Lessee of any
provision hereof.
23. HOLDING OVER. If Lessee, with Lessor's consent, remains in possession of the
Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, except that the rent payable
shall be one hundred twenty percent (120%) of the rent payable immediately
preceding the termination date of this Lease, and all Options, if any, granted
under the terms of this Lease shall be deemed terminated and be of no further
effect during said month to month tenancy.
24. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
25. COVENANTS AND CONDITIONS. Each provision of this Lease performable by Lessee
shall be deemed both a covenant and a condition.
26. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to the provisions of paragraph
11, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
27. SUBORDINATION.
27.1 This Lease, and any Option or right of first refusal granted
hereby, at Lessor's option, shall be subordinate to any ground lease, mortgage
deed of trust, or any other hypothecation or security now or hereafter placed
upon the Office Building Project and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Lessee's right to quiet possession of the Premises shall not be disturbed if
Lessee is not in default and so long as Lessee shall pay the rent and observe
and perform all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground lessor
shall elect to have this Lease and any Options granted hereby prior to the lien
of its mortgage, deed or trust or ground lease, and shall give written notice
thereof to Lessee, this Lease and such Options shall be deemed prior to such
mortgage, deed of trust or ground lease, whether this Lease or such Options are
dated prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof.
27.2 Lessee agrees to execute any documents required to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Lessee's failure to execute such documents within ten (10) days after
written demand shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option lessor shall execute such
documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does hereby
make, constitute and irrevocably appoint Lessor as Lessee's attorney in fact and
in Lessee's name, place and stead, to execute such documents in accordance with
this paragraph 27.2.
28. ATTORNEY'S FEES.
28.1 If either party bring and action to enforce the terms hereof or
declare rights hereunder, the prevailing party in any such action, trial or
appeal thereon, shall be entitled to his reasonable attorneys' fees to be paid
by the losing party as fixed by the court in the same or a separate suit, and
whether or not such action is pursued to decision or judgment.
28.2 The attorneys' fee award shall not be computed in accordance with
any court fee schedule, but shall be such as to fully reimburse all attorney's
fees reasonably incurred in good faith.
28.3 Lessor shall be entitled to reasonable attorneys' fees and all
other costs and expenses incurred in the preparation and service of notice of
default and consultations in connection therewith, whether or not a legal
transaction is subsequently commenced in connection with such default.
29. LESSOR'S ACCESS.
29.1 LESSOR. Lessor's agents, employees, contractors, and designated
representatives shall have the right to enter the Premises at reasonable times
for the purpose of inspecting the same, performing and services required of
Lessor, showing the same to prospective purchasers, lenders or lessees, taking
such safety measures, erecting such scaffolding or other necessary structures,
making such alterations, repairs, improvements or additions to the Premises or
to the Office Building Project as Lessor may reasonably deem necessary or
desirable and the erecting, using and maintaining of utilities, services, pipes
and conduits through the Premises and/or other premises as long as there is no
material adverse effect to Lessee's use of the Premises. Lessor may at any time
place on or about the Premises or the Building any ordinary "For Sale" signs and
Lessor may at any time during the last 120 days of the term hereof place on or
about the Premises any ordinary "For Lease" signs.
29.2 All activities of Lessor pursuant to this paragraph shall be
without abatement of rent, nor shall Lessor have any liability to Lessee for the
same.
29.3 Lessor shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and safes,
and in the case of emergency to enter the Premises by any reasonably appropriate
means, and any such entry shall not be deemed a forcible or unlawful entry or
detainer of the Premises or an eviction. Lessee waives any charges for damages
or injuries or interference with Lessee's property or business in connection
therewith.
30. AUCTIONS. Lessee shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises or the
Common Areas without first having obtained Lessor's prior written consent.
Notwithstanding anything to the contrary in this Lease, Lessor shall not be
obligated to exercise any standard of reasonableness in determining whether
to grant such consent. The holding of any auction on the Premises or Common
Areas in violation of this paragraph shall constitute a material default of
this Lease.
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31. SIGNS. Lessee shall not place any sign upon the Premises or the Office
Building Project without Lessor's prior written consent. Under no
circumstances shall Lessee place a sign on any roof of the Office Building
Project.
32. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
33. CONSENTS. Except for paragraphs 30 (auctions) and 31 (signs) hereof,
wherever in this Lease the consent of one party is required to an act of the
other party such consent shall not be unreasonably withheld or delayed.
34. GUARANTOR. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
35. QUIET POSSESSION. Upon Lessee paying the rent for the Premises and observing
and performing all of the covenants, conditions and provisions on Lessee's part
to be observed and performed hereunder, Lessee shall have quiet possession of
the Premises for the entire term hereof subject to all of the provisions of this
Lease. The individuals executing this Lease on behalf of Lessor represent and
warrant to Lessee that they are fully authorized and legally capable of
executing this Lease on behalf of Lessor and that such execution is binding upon
all parties holding an ownership interest in the Office Building Project.
36. OPTIONS.
36.1 DEFINITION. As used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this Lease
or to renew this Lease or to extend or renew any lease that Lessee has on
other property of Lessor; (2) the option of first refusal to the lease the
Premises or the right of first offer to lease the Premises or the right of
first refusal to lease other space within the Office Building Project or
other property of Lessor or the right of first offer to lease other space
within the Office Building Project or other property of Lessor; (3) the right
or option to purchase the Premises or the Office Building Project, or the
right of first refusal to purchase the Premises or the Office Building
Project or the right of first offer to purchase the Premises or the Office
Building Project, or the right or option to purchase other property of
Lessor, or the right of first refusal to purchase other property of Lessor or
the right of first offer to purchase other property of Lessor.
36.2 Leases shall have no options whatsoever unless expressly granted
in an Exhibit to this Lease initiated by both parties.
36.3 Options Personal. Each Option granted to Lessee in this Lease
is personal to the original Lessee and may be exercised only by the original
Lessee while occupying the Premises who does so without the intent of
thereafter assigning this Lease or subletting the Premises or any portion
thereof, and may not be exercised or be assigned, voluntarily or
involuntarily, by or to any person or entity other than Lessee. The Options,
if any, herein granted to Lessee are not assignable separate and apart from
this Lease, nor may any Option be separated from this Lease in any manner,
either by reservation or otherwise.
36.4 MULTIPLE OPTIONS. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised unless
the prior option to extend or renew this Lease has been so exercised.
36.5 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary, (i) during
the time commencing from the date Lessor gives to Lessee a notice of default
pursuant to paragraph 12.1 (c) or 12.1 (d) and continuing until the
noncompliance alleged in said notice of default is cured, or (ii) during the
period of time commencing on the day after a monetary obligation to Lessor is
due from Lessee and unpaid (without any necessity for notice thereof to Lessee)
and continuing until the obligation is paid, or (iii) in the event that Lessor
has given to Lessee three or more notices of default under paragraph 12.1 (c),
or paragraph 12.1(d), whether or not the defaults are cured during the 12 month
period of time immediately prior to the time that Lessee attempts to exercise
the subject Option, (iv) if Lessee has committed any non-curable breach,
including without limitation those described in paragraph 12.1(b), or is
otherwise in default of any of the terms, covenants or conditions of this Lease.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of paragraph 36.5(a).
(c) All rights of Lessee under the provisions of an Option
shall terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of
Lessee for a period of thirty (30) days after such obligation becomes due
(without any necessity of Lessor to give notice thereof to Lessee), or (ii)
Lessee fails to commence to cure a default specified in paragraph 12.1 (d)
within thirty (3) days after the date that Lessor gives notice to Lessee of such
default and/or Lessee fails thereafter to diligently prosecute said cure to
completion or (iii) Lessor gives to Lessee three or more notices of default
under paragraph 12.1(c), or paragraph (d) whether or not the defaults are cured,
or (iv) if Lessee has committed any non-curable breach including without
limitation those described in paragraph 12.1 (b), or is otherwise in default of
any of the terms, covenants and conditions of this Lease.
37. SECURITY MEASURES-LESSOR'S RESERVATIONS.
37.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the benefit
of the Premises or the Office Building Project. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole option,
from providing security protection for the Office Building Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Operating Expenses, as set forth in paragraph 4.2(b).
37.2 Lessor shall have the following rights:
(a) To change the name, address or title of the Office
Building Project or building in which the Premises are located upon not less
than 90 days prior written notice;
(b) To, at Lessee's expense, provide and install Building
standard graphics on the door of the Premises and such portions of the Common
Areas as Lessor shall reasonably deem appropriate;
(c) To permit an lessee the exclusive right to conduct any
business as long as such exclusive does not conflict with any rights expressly
given herein;
(d) To place such signs, notices or displays as Lessor
reasonably deems necessary or advisable upon the roof, exterior of the buildings
or the Office Building Project or on post signs in the Common Areas;
37.3 Lessee shall not:
(a) Use a representation (photographic or otherwise) of the
Building or the Office Building Project or their name(s) in connection with
Lessee's business;
(b) Suffer or permit anyone, except in emergency, to go upon
the roof of the building.
38. EASEMENTS
38.1 Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or desirable
and to cause the recordation of Parcel Maps and restrictions, so long as such
easements, rights, dedications, Maps and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material default of this Lease by Lessee without the need for
further notice to Lessee.
38.2 The obstruction of Lessee's view, air, or light by any structure
erected in the vicinity of the Building, whether by Lessor or third parties,
shall in no way affect this Lease or impose any liability upon Lessor.
39. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of said party to institute suit
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for recovery of such sum. If it shall be adjudged that there was no legal
obligation on the part of said party to pay such sum or any part thereof, said
party shall be entitled to recover such sum or so much thereof as it was not
legally required to pay under the provisions of this Lease.
40. AUTHORITY. If Lessee is a corporation, trust, or general or limited
partnership, Lessee, and each individual executing this Lease on behalf of such
entity represent and warrant that such individual is duly authorized to execute
and deliver this Lease on behalf of said entity. If Lessee is a corporation,
trust or partnership, Lessee shall, within thirty (30) days after execution of
this Lease, deliver to Lessor evidence of such authority satisfactory to Lessor.
41. CONFLICT. Any conflict between the printed provisions, Exhibits or Addenda
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
42. NO OFFER. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to Lessee to lease.
This Lease shall become binding upon Lessor and Lessee only when fully executed
by both parties.
43. LENDER MODIFICATIONS. Lessee agrees to make such reasonable modifications to
this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.
44. MULTIPLE PARTIES. If more than one person or entity is named as either
Lessor or Lessee herein, except as otherwise expressly provided herein the
obligations of the Lessor or Lessee herein shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee,
respectively.
45. ACCEPTANCE: Upon occupancy of the Premises by Lessee, Lessee formally
accepts the Premises "as is". Unless and to the extent specified by both parties
in writing, Lessor has no obligation to perform any work or improvement to the
Premises.
46. ATTACHMENTS. Attached hereto are the following documents that constitute a
part of this Lease:
EXHIBIT A (FLOOR PLAN OF OFFICE BUILDING PROJECT)
EXHIBIT B (RULES AND REGULATIONS FOR STANDARD OFFICE LEASE)
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE REASONABLE AND EFFECTUATE THE
INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR APPROVAL. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY THE LESSOR OR ITS AGENTS OR
EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS
LEASE OR THE TRANSACTION RELATING THERETO; THE PARTIES SHALL RELY SOLELY UPON
THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF
THIS LEASE
LESSOR NEARON ENTERPRISES, LLC LESSEE CIPHERGEN BIOSYSTEMS, INC.
By Nearon Enterprises, a CA Corp. By William E. Rich
------------------------------- ------------------------------
Its Designated Manager Its President
--------------------- ----------------------
By /s/ David S. Christensen By
-------------------------------- --------------------------------
DAVID S. CHRISTENSEN
Its FVP and COO Its
--------------------- -----------------------
Executed at Danville, California Executed at
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on (date) 4-18-96 on (date) April 16,1996
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Address 30 Oak Court Address 470 San Antonio Rd.
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Danville, Ca 94526 Palo Alto, Ca 94306
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Initials: /s/ WER
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/s/ [ILLEGIBLE]
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PAGE 11 OF 13
<PAGE>
STANDARD OFFICE LEASE
FLOOR PLAN
[GRAPHIC]
470 SAN ANTONIO
Initials: /s/ WER
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/s/ [ILLEGIBLE]
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<PAGE>
EXHIBIT B
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common Areas,
including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in good
faith judges to be a threat to the safety, reputation, or property of the Office
Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or interfere
with other lessees or persons having business within the Office Building
Project.
4. Lessee shall not keep animals or birds within the Office Building Project,
and shall not bring bicycles, motorcycles or other vehicles into areas not
designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks or bolts.
7. Lessee shall be responsible for the inappropriate use of any toilet rooms,
plumbing or other utilities. No foreign substances of any kind are to be
inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the
premises or Office Building Project.
9. Lessee shall not suffer or permit anything in or around the Premises or
Building that causes excessive vibration or floor loading in any part of the
Office Building Project.
10. Furniture, significant freight and equipment shall be moved into or out of
the building only with the Lessor's knowledge and consent and subject to such
reasonable limitations, techniques and timing, as may be designated by Lessor.
Lessee shall be responsible for any damage to the Office Building Project
arising from any such activity.
11. Lessee shall not employ any service or contractor for services or work to be
performed in the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on Saturdays,
Sundays and legal holidays, and on other days between the hours of 5:00 p.m. and
8:00 a.m. It is Lessee's responsibility to keep the Building locked at all times
other than ordinary business hours. If Lessee uses the Premises during such
periods, Lessee shall be responsible for securely locking any doors it may have
opened for entry or exit.
13. Lessee shall be provided with two sets of keys upon occupancy. Lessee shall
return all keys at the termination of its tenancy and shall be responsible for
the cost of replacing any lost keys.
14. No window coverings, shades or awnings shall be installed or used by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the Building.
16. Lessee shall not suffer or permit smoking or carrying of lighted cigars or
cigarettes anywhere inside the Building.
17. Lessee shall not use any method of heating or air conditioning other than as
provided by Lessor.
18. Lessee shall not install, maintain or operate any vending machines upon the
Premises without Lessor's written consent.
19. The Premises shall not be used for lodging or manufacturing, cooking or food
preparation.
20. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor any applicable governmental agency.
21. Lessor reserves the right to waive any one of these rules or regulations,
and/or as to any particular Lessee, and any such waiver shall not constitute a
waiver of any other rule or regulation or any subsequent application thereof to
such Lessee.
22. Lessee assumes all risks from theft of vandalism and agrees to keep its
Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and its occupants. Lessee
agrees to abide by and these and such rules and regulations.
PARKING RULES
1. Parking Areas shall be used only for parking by vehicles no longer than full
size, passenger automobiles herein called "Permitted Size Vehicles". Vehicles
other than Permitted Size Vehicles are herein referred to as "Oversized
Vehicles".
2. Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Lessor for such activities.
3. Lessor reserves the right to relocate all or a part of parking spaces from
floor to floor, within one floor, and/or to reasonably adjacent off site
location(s), and to reasonably allocate them between compact and standard size
spaces, as long as the same complies with applicable laws, ordinances and
regulations.
4. Users of the parking area will obey all posted signs and park only in the
areas designated for vehicle parking.
5. Unless otherwise instructed, every person using the parking area is required
to park and lock his own vehicle. Lessor will not be responsible for any damage
to vehicles, injury to persons or loss of property, all of which risks are
assumed by the party using the parking area.
6. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure of Common Area is prohibited.
7. Lessee shall be responsible for seeing that all of its employees, agents and
invitees comply with the applicable parking rules, regulations, laws and
agreements.
8. Lessor reserves the right to modify these rules and/or adopt such other
reasonable and nondiscriminatory rules and regulations as it may deem necessary
for the proper operation of the parking area.
9. Such parking used herein provided is intended merely as a license only and no
bailment is intended or shall be created hereby.
Initials: /s/ WER
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/s/ [ILLEGIBLE]
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PAGE 13 OF 13 PAGES
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EXTENSION AND AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE is entered into as of January 6, 1999, by and between
NEARON ENTERPRISES, LLC, Lessor, and CIPHERGEN BIOSYSTEMS, INC., Lessee.
WITNESSETH
WHEREAS, under a Lease dated MARCH 15, 1995 [sic] and as previously amended
on MAY 13, 1996, Lessor is leasing and Lessee is hiring from Lessor that
certain Premises situated at 470 SAN ANTONIO ROAD, SUITE B, PALO ALTO,
CALIFORNIA, together with non-exclusive use of parking areas and public
facilities appurtenant to said Premises;
WHEREAS, Lessor and Lessee wish to amend, modify, and change the terms,
covenants, and conditions of said Lease;
NOW, THEREFORE, the following portions of the aforementioned Lease shall be
amended as follows:
1.6 TERM: The EXPIRATION DATE (Also see paragraph 3.) shall be
extended to DECEMBER 31, 1999. Provided Lessee is not in
default of any of the terms of this Lease and by giving
written notice on or before August 31, 1999, Lessee has the
option to renew for Six (6) Months. The monthly rental for
Suite B shall be $2.27 per square foot gross. [ILLEGIBLE]
1.8 BASE RENT: $3,655.00 per month BASE RENT, payable on the first day of
each month Commencing April 1, 1999.
All other terms and conditions of said Lease shall remain unchanged.
LESSOR: LESSEE:
NEARON ENTERPRISES, LLC CIPHERGEN BIOSYSTEMS, INC.
BY: Nearon Enterprises, BY: /s/ William E. Rich
a California Corporation --------------------------
William E. Rich
Its: Designated Manager Its: President/CEO
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BY: /s/ Randolph N. Saar Date: 1/13/99
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Randolph N. Saar
Operations Manager
Date: 1/14/99
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EXTENSION AND AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE is entered into as of February 24, 1999 by and
between NEARON ENTERPRISES, LLC Lessor, and CIPHERGEN BIOSYSTEMS, INC.,
Lessee.
WITNESSETH
WHEREAS, under a Lease dated MARCH 15, 1996, AND AMENDED ON MAY 13, 1996 AND
JANUARY 6, 1999, Lessor is leasing and Lessee is hiring from Lessor that
certain Premises situated at 470 SAN ANTONIO ROAD, SUITE B, PALO ALTO,
CALIFORNIA, together with non-exclusive use of parking areas and public
facilities appurtenant to said Premises;
WHEREAS, Lessor and Lessee wish to amend, modify, and change the terms,
covenants, and conditions of said Lease;
NOW, THEREFORE, the following portions of the aforementioned Lease shall be
amended effective MARCH 1, 1999, as follows:
1.3 PREMISES:
<TABLE>
<CAPTION>
<S> <C> <C>
FROM: SUITE NUMBER(S) B CONSISTING OF APPROXIMATELY 1,700 SQUARE FEET
TO: SUITE NUMBER B CONSISTING OF APPROXIMATELY 1,700 SQUARE FEET
SUITE NUMBER 103 CONSISTING OF APPROXIMATELY 200 SQUARE FEET
SUITE NUMBER 201 CONSISTING OF APPROXIMATELY 2,307 SQUARE FEET
SUITE NUMBER 203 CONSISTING OF APPROXIMATELY 1,100 SQUARE FEET
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TOTAL SQUARE FOOTAGE APPROXIMATELY 5,307 SQUARE FEET
</TABLE>
1.6 TERM
FROM: THE EXPIRATION DATE (ALSO SEE PARAGRAPH 3) SHALL BE EXTENDED TO
DECEMBER 31, 1999. PROVIDED LESSEE IS NOT IN DEFAULT OF ANY OF THE
TERMS OF THIS LEASE AND BY GIVING WRITTEN NOTICE ON OR BEFORE
AUGUST 31, 1999, LESSEE HAS THE OPTION TO RENEW FOR SIX (6) MONTHS.
THE MONTHLY RENTAL FOR SUITE B SHALL BE $2.27 PER SQUARE FOOT, GROSS.
TO: THE EXPIRATION DATE (ALSO SEE PARAGRAPH 3) SHALL BE EXTENDED TO
DECEMBER 31, 1999. PROVIDED LESSEE IS NOT IN DEFAULT OF ANY OF THE
TERMS OF THIS LEASE AND BY GIVING WRITTEN NOTICE ON OR BEFORE
AUGUST 31, 1999, LESSEE HAS THE OPTION TO RENEW FOR SIX (6) MONTHS.
THE MONTHLY RENTAL RATE FOR SUITES B, 103, 201 AND 203 SHALL BE
$12,047.00, FULL SERVICE.
<PAGE>
1.7 BASE RENT
FROM: $2,176.00 PER MONTH, PAYABLE ON THE FIRST DAY OF EACH MONTH.
TO: $10,292.00 PER MONTH, PAYABLE ON THE FIRST DAY OF EACH MONTH.
1.8 BASE RENT INCREASE
FROM: N/A
TO: $11,771.00 EFFECTIVE APRIL 1, 1999.
All other terms and conditions of said Lease shall remain unchanged.
LESSOR: LESSEE:
NEARON ENTERPRISES, LLC CIPHERGEN BIOSYSTEMS, INC.
By: Nearon Enterprises, By: /s/ WILLIAM E. RICH
a California Corporation ----------------------------
William E. Rich
Its: DESIGNATED MANAGER Its: PRESIDENT/CEO
By: /s/ RANDOLPH N. SAAR Date: 3-3-99
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Randolph N. Saar
Operations Manager
Date: 3/3/99
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<PAGE>
FOURTH EXTENSION AND AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE is entered into as of January 6, 1999, by and between
NEARON ENTERPRISES, LLC, Lessor, and CIPHERGEN BIOSYSTEMS, INC., Lessee.
WITNESSETH
WHEREAS, under a Lease dated MARCH 20, 1996 and as previously amended on MAY
19, 1997 AND OCTOBER 31, 1997 AND NOVEMBER 7, 1997, Lessor is leasing and
Lessee is hiring from Lessor that certain Premises situated at 490 SAN
ANTONIO ROAD, SUITES 201 AND 202, PALO ALTO, CALIFORNIA, together with
non-exclusive use of parking areas and public facilities appurtenant to said
Premises;
WHEREAS, Lessor and Lessee wish to amend, modify, and change the terms,
covenants, and conditions of said Lease;
NOW, THEREFORE, the following portions of the aforementioned Lease shall be
amended as follows:
1.6 TERM: The EXPIRATION DATE (Also see paragraph 3.) shall be
extended to DECEMBER 31, 1999. Provided Lessee is not
in default of any of the terms of this Lease and by
giving written notice on or before August 31, 1999,
Lessee has the option to renew for Six (6) Months.
The monthly rental rate for Suites 201 and 202 shall
be $2.17 per square foot, gross.
1.8 BASE RENT: $22,960.00 per month BASE RENT, payable on the first
day of each month Commencing April 1, 1999.
All other terms and conditions of said Lease shall remain unchanged.
LESSOR: LESSEE:
NEARON ENTERPRISES, LLC CIPHERGEN BIOSYSTEMS, INC.
By: Nearon Enterprises, By: /s/ WILLIAM E. RICH
a California Corporation ---------------------
William E. Rich
Its: DESIGNATED MANAGER Its: PRESIDENT/CEO
By: /s/ RANDOLPH N. SAAR Date: 1-13-99
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Randolph N. Saar
Operations Manager
Date: 1/14/99
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