California-Sunnyvale-740 East Arques Avenue Lease - Bianchi Joint Venture and Navigation Technologies Inc.
OFFICE LEASE
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THIS LEASE is made as of the day of October, 1991, by and between
THE BIANCHI JOINT VENTURE, a California General Partnership
(hereinafter called "Landlord"), and
NAVIGATION TECHNOLOGIES, a Delaware corporation
(hereinafter called "Tenant").
The parties hereto agree that said letting and hiring is upon and subject to the
terms, covenants and conditions herein set forth and Tenant covenants as a
material part of the consideration for this Lease to keep and perform each and
all of said terms, covenants and conditions by it to be kept and performed and
that this Lease is made upon the condition of such performance.
Witnesseth:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires
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and takes from Landlord those certain premises (the "Premises") outlined in red
on Exhibit "A", situated in Sunnyvale, County of Santa Clara, State of
California, and those more particularly described as follows:
That certain approximately 20,000 square feet of space outlined on the
floor plan attached hereto as on Exhibit "A" (the "Premises") located
within that certain concrete building (the "Building"), which building is
situated on that certain parcel of real property located on the
southwesterly corner of East Arques Avenue and San Geronimo Way, Sunnyvale,
California, commonly known as 740 East Arques Avenue, consisting of
approximately 1.811 acres of land.
The term "Premises" as used throughout this Lease is hereby defined to include
(i) any improvements now or hereafter installed therein or attached thereto, and
(ii) the reasonable exclusive use by Tenant, its agents, employees and invitees
of sidewalks and driveways in front of or adjacent to the Premises, and parking
areas located on the Parcel. The leased area of the Premises shall be measured
from outside of exterior walls to outside of exterior walls and shall include
any atriums, depressed loading docks, covered entrances or expresses, and
covered loading areas.
2. TERM. The term of this Lease shall be for four (4) years and one (1)
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month commencing on the 1st day of October, 1991, and ending on the 31st day of
October, 1995, unless the term of the Premises hereby demised shall be sooner
terminated as hereinafter provided.
3. POSSESSION. Tenant is currently in possession of the Premises under
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the terms of the lease dated September 1986 by and between Justin M. Jacobs Sr.,
as Landlord and Karlin and Collins Inc. as Tenant. Tenant and Landlord upon the
ratification of this Lease, agree to cancel said previous lease as of September
30, 1991 and Tenant agrees to take possession of the Premises in its current "as
is" condition.
4. RENT. Tenant agrees to pay to Landlord at such place as Landlord may
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from time to time designate without deduction, offset, abatement, prior notice,
or demand, and Landlord agrees to accept as Basic Rent for the leased Premises,
the total sum of SIX HUNDRED THIRTY-SIX THOUSAND DOLLARS and XX/100
($636,000.00) in lawful money of the United States of America, payable as
follows:
The sum of $8,750.00 payable each month from October 1, 1991 through
September 30, 1992,
The sum of $14,000.00 payable each month from October 1, 1992 through
September 30, 1994,
The sum of $15,000.00 payable each month from October 1, 1994 through
October 31, 1995.
(A) ???
(B) ???
(C) Additional Rent. Beginning with the commencement of the term
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of this Lease, Tenant shall pay to Landlord in addition to the Base Rent and as
Additional Rent the following:
(i) Taxes.
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(a) As Additional Rent and in accordance with Paragraph
40 of this Lease, Tenant shall pay to Landlord all Real Property Taxes. The term
"Real Property Taxes," as used herein, shall mean (i) all taxes, assessments,
levies and other charges of any kind or nature whatsoever, general and special,
foreseen and unforeseen (including all installments of principal and interest
required to pay any general or special assessments for public improvements and
any increases resulting from reassessments caused by any change in ownership of
the Complex) now or hereafter imposed by any governmental or quasi-governmental
authority or special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the value,
occupancy or use of, all or any portion of the Complex (as now constructed or as
may at any time hereafter be constructed, altered, or otherwise changed) or
Landlord's interest therein; any improvements located within the Complex
(regardless of ownership); the fixtures, equipment and other property of
Landlord, real or personal, that are an integral part of and located in the
Complex; or parking areas, public utilities, or energy within the Complex; (ii)
all charges, levies or fees imposed by reason of environmental regulation or
other governmental control of the Complex; and (iii) all costs and fees
(including attorneys' fees) incurred by Landlord in contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. If
at any time during the term of this Lease the taxation or assessment of the
Complex prevailing as of the commencement date of this Lease shall be altered so
that in lieu of or in addition to any Real Property tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Complex or Landlord's interest therein or (ii) on
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or measured by the gross receipts, income or rentals from the Complex, on
Landlord's business of leasing the Complex, or computed in any manner with
respect to the operation of the Complex, then any such tax or charge, however
designated, shall be included within the meaning of the term "Real Property
Taxes" for purposes of this Lease. If any Real Property Tax is based upon
property or rents unrelated to the Complex then only that part of such Real
Property Tax that is fairly allocable to the Complex shall be included within
the meaning of the term "Real Property Taxes." Notwithstanding the foregoing,
the term "Real Property Taxes" shall not include estate, inheritance, gift or
franchise taxes of Landlord or the federal or state net income tax imposed on
Landlord's income from all sources.
(b) Tenant shall have no obligation to pay any charges,
levies or fees imposed by reason of environmental regulations or other
government control of the Parcel relating to toxic wastes or damage to the
environment which Tenant does not create and, in the event Tenant does create
such toxic wastes or damage to the environment and is therefore obligated to pay
such charges, levies or fees, such obligation shall be limited to those charges
which are required to be paid for clean-up or otherwise by applicable law or
governmental authority. Furthermore, Landlord agrees to indemnify, defend and
hold Tenant harmless from any and all charges, levies, fees, and all other
claims and damages, including, without limitation, reasonable attorneys' fees,
sustained by Tenant ("Claims") resulting from environmental regulations or
government control of the Parcel relating to toxic wastes or damage to the
environment except to the extent caused by Tenant.
(c) Tenant shall have no obligation to pay tax increases
resulting from the sale, conveyance, assignment or transfer of the Building
and/or the Parcel (i.e., Proposition 13 increases).
(d) Tenant shall be liable for and shall pay ten days
before delinquency, taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based on
such increased assessment, which Landlord shall have the right to do regardless
of the validity thereof, but only under proper protest if requested by Tenant.
Tenant shall upon demand, as the case may be, repay to Landlord the taxes so
levied against Landlord, or the proportion of such taxes resulting from such
increase in the assessment; provided that in any such event Tenant shall have
the right, in the name of Landlord and with Landlord's full cooperation, to
bring suit in any court of competent jurisdiction to recover the amount of any
such taxes so paid under protest, and any amount so recovered shall belong to
Tenant, (ii) if the Tenant makes improvements in the Premises, whether
installed, and/or paid for by Landlord or Tenant and whether or not affixed to
the real property so as to become a part thereof, are assessed for real property
tax purposes at a valuation higher than the valuation at which standard office
improvements in other space in the Complex are assessed, then the real property
taxes and assessments levied against Landlord or the Complex by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of 3(C)(i)(a) above.
If the records of the County Assessor are available and sufficiently detailed to
serve as a basis for determining whether said Tenant improvements are assessed
at a higher valuation than standard office improvements in other space in the
Complex, such records shall be binding on both the Landlord and the Tenant. If
the records of the County Assessor are not available or sufficiently detailed to
serve as a basis for making said determination, the actual cost of construction
shall be used.
(ii) Property Insurance. Landlord shall purchase and keep in
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force and as Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord the cost of a policy or policies of insurance
covering loss or damage to the Premises and Complex in the amount of the full
replacement value thereof, providing protection against those perils included
within the classification of "all risks" insurance and flood and/or earthquake
insurance, if available, plus a policy of rental income insurance in the amount
of one hundred percent (100%) of twelve (12) months Basic Rent, plus sums paid
as Additional Rent. If such insurance cost is increased due to Tenant's use of
the Premises or the Complex, Tenant agrees to pay to Landlord the full cost of
such increase. Tenant shall have no interest in nor any right to the proceeds of
any insurance procured by Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other, to
the extent of insurance coverage of the releasing party, from any liability for
loss or damage caused by fire or any of the extended coverage casualties
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other party
thereof.
(iii) Expenses of Operation, Management and Maintenance of the
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Common Areas of the Complex and Building in which the Premises are Located.
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As Additional Rent, and notwithstanding the provisions of Paragraph 43 to the
contrary, Tenant shall pay directly or to Landlord all expenses of operating,
management, maintenance and repair of the Common Areas of the Complex including,
but not limited to, license, permit, and inspection fees; security; utility
charges associated with exterior landscaping and lighting (including water and
sewer charges); all charges incurred in the maintenance of landscaped areas,
lakes, parking lots, sidewalks, driveways; maintenance, repair and replacement
of all fixtures and electrical, mechanical, and plumbing systems; structural
elements and exterior surfaces of the buildings; salaries and employee benefits
of personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools, the cost of capital expenditures which have the effect of
reducing operating expenses; provided, however, that in the event Landlord makes
such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen percent (15%) per
annum on the unamortized balance) as an operating expense in accordance with
standard accounting practices; provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost for the installation of
partitioning or any other Tenant improvements; cost of attracting tenants;
depreciation; interest; or executive salaries.
As Additional Rent, and notwithstanding the provisions of Paragraph 43
to the contrary, Tenant shall pay the cost of operation (including common
utilities), management, maintenance, and repair of the Building (including
common areas such as lobbies, restrooms, janitor's closets, hallways, elevators,
mechanical and telephone rooms, stairwells, entrances, spaces above the ceilings
and janitorization of said common areas) in which the Premises are located. The
maintenance items herein referred to include, but are not limited to, all
windows, window frames, plate glass, glazing, truck doors, main plumbing systems
of the Building (such as water and drain lines, sinks, toilets, faucets, drains,
showers and water fountains), main electrical systems (such as panels and
conduits), heating and air conditioning systems (such as compressors, fans, air
handlers, ducts, boilers, heaters), store fronts, roofs, downspouts, building
common area interiors (such as wall coverings,
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window coverings, floor coverings and partitioning), ceilings, building exterior
doors, skylights (if any), automatic fire extinguishing systems, and elevators;
license, permit, and inspection fees; security; salaries and employee benefits
of personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect of
reducing operating expenses; provided, however, that in the event Landlord makes
such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen percent (15%) per
annum on the unamortized balance) as an operating expense in accordance with
standard accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses. Tenant hereby
waives all rights under, and benefits of, subsection 1 of Section 1932 and
Sections 1941 and 1942 of the California Civil Code and under any similar law,
statute or ordinance now or hereafter in effect.
(iv) Utilities of the Building in Which the Premises are
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Located. As Additional Rent, Tenant shall pay the cost of all utility charges
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such as water, gas, electricity, sewer service, waste pick-up and any other
utilities, materials or services furnished directly to the Building in which the
Premises are located, including, without limitation, any temporary or permanent
utility surcharge or other exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises which such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord; provided, however, that if such
interruption or failure lasts for forty hours or more all payments due hereunder
shall be reduced by 50% until such interruption or failure is cured.
Provided that Tenant is not in default in the performance or observance of
any of the terms, covenants, or conditions of this Lease to be performed or
observed by it. Landlord shall furnish to the Premises reasonable quantities of
water, gas and electricity suitable for the intended use of the Premises and
heat and air conditioning required in Landlord's judgment for the comfortable
use and occupation of the Premises for such purposes. Tenant agrees that at all
times it will cooperate fully with Landlord and abide by all regulations and
requirements that Landlord may prescribe for the proper functioning and
protection of the building heating, ventilating and air conditioning systems.
If Tenant shall require water, gas, or electric current in excess of that
usually furnished or supplied to premises being used as general office space.
Tenant shall first obtain the written consent of Landlord, which consent shall
not be unreasonably withheld and Landlord may cause an electric current, gas, or
water meter to be installed in the Premises in order to measure the amount of
electric current, gas or water consumed for any such excess repair thereof, all
charges for such excess water, gas and electric current consumed (as shown by
such meters and at the rates then charged by the furnishing public utility; and
any additional expense incurred by Landlord in keeping account of electric
current, gas, or so consumed shall be paid by Tenant, and Tenant agrees to pay
Landlord therefor promptly upon demand by Landlord.
The Additional Rent due hereunder shall be paid to Landlord (i) within five
(5) days after presentation of invoice from Landlord setting forth such
Additional Rent and/or (ii) at the option of Landlord. Tenant shall pay to
Landlord monthly, in advance, Tenant's pro rata share of an amount estimated by
Landlord to be Landlord's approximate average monthly expenditures for such
Additional Rent items, which estimated amount shall be reconciled at the end of
each calendar year as compared to Landlord's actual expenditure for said
Additional Rent items, with Tenant paying to Landlord, upon demand, any amount
of actual expenses expended by Landlord in excess of said estimated amount, or
Landlord refunding to Tenant (providing Tenant is not in default under this
Lease) any amount of estimated payments made by Tenant in excess of Landlord's
actual expenditures for said Additional Rent items, within ten (10) days of
notice of expenses.
The respective obligations of Landlord and Tenant under this paragraph
shall survive the expiration or other termination of this Lease, and if the term
hereof shall expire or shall otherwise terminate on a day other than the last
day of a calendar year, the actual Additional Rent incurred for the calendar
year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be pro rated in the proportion which the number
of days in such calendar year preceding such expiration or termination bears to
365.
(D) Time for Payment. In the event that the term of this Lease
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commences on a date other than the first day of a calendar month, on the date of
commencement of the term hereof Tenant shall pay to Landlord, as rent for the
period from such date of commencement to the first day of the next succeeding
calendar month, that proportion of the monthly rent hereof which the number of
days beyond such date of commencement and the first day of the next succeeding
calendar month bears to thirty (30). In the event that the term of this Lease,
for any reason, ends on a date other than the last day of a calendar month, on
the first day of the last calendar month of the term hereof, Tenant shall pay to
Landlord, as rent for the period from said first day of the last calendar month
to and including the last calendar day of the term hereof, that proportion of
the monthly rent hereof which the number of days beyond said first day of said
last calendar month and the last day of the term hereof bears to thirty (30).
(E) Late Charge. Notwithstanding any other provision of this Lease,
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if Tenant is in default in the payment of rental as set forth in this Paragraph
4 when due, or any part thereof, Tenant agrees to pay Landlord, in addition to
the delinquent rental due, a late charge fee for each rental payment in default
ten (10) days. Said later charge shall equal five percent (5%) of each rental
payment so in default.
(F) First Month's Rent. Lessor acknowledges receipt from Tenant on
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the execution hereof, the sum of Eight Thousand Seven Hundred Fifty Dollars and
Zero Cents ($8,750.00) consulting rent for the first month of the term hereof.
(G) Place of Payment of Rent and Direct Expenses. All rental
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hereunder and all payments hereunder for Operating Expenses and Taxes shall be
paid to Landlord, without deduction or offset, in lawful money of the United
States of America, at the office of Landlord at:
Deerfield Realty Corporation
1550 El Camino Real #260
Menlo Park, CA 94025
or to such other person or to such other place as Landlord may, from time to
time, designate in writing.
(H) Security Deposit. Under the terms of the previous lease, the
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Tenant has deposited with Landlord the sum of Fourteen Thousand Dollars
($14,000.00). Said sum shall continue to be held by Landlord as a Security
Deposit for the faithful performance
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by Tenant of all of the terms, covenants, and conditions of this Lease to be
kept and performed by Tenant during the term hereof. If Tenant defaults with
respect to any provision of this Lease, including, but not limited to, the
provisions relating to the payment of rent and any of the monetary sums due
herewith, Landlord may (but shall not be required to) use, apply or retain all
or any part of this Security Deposit for the payment of any other amount which
Landlord may spend by reason of Tenant's default or to compensate Lessor for any
other loss or damage which Landlord may suffer by reason of Tenant's default. If
any portion of said Deposit is so used or applied, Tenant shall, within ten (10)
days after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount. Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep this Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on such Deposit. If Tenant fully and
faithfully performs every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant or at
Landlord's option, to the last assignee of Tenant's interest hereunder at the
expiration of the Lease term and after Tenant has vacated the Premises. In the
event of termination of Landlord's interest in this Lease, Landlord shall
transfer said Deposit to Landlord's successor in interest whereupon Tenant
agrees to release Landlord from liability for the return of such Deposit or the
accounting therefor.
5. USE. Tenant shall use the Premises for general office, R&D, light
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manufacturing and assembly, storage/warehouse and related uses and all other
uses incidental thereto and shall not use or permit the Premises to be used for
any other purpose without the prior written consent of Landlord. Tenant shall
not use or occupy the Premises in violation of law or of the certificate of
occupancy issued for the Complex of which the Premises are a part and shall,
upon five (5) days' written notice from Landlord, discontinue any use of the
Premises which is declared by any governmental authority having jurisdiction to
be a violation of law or of said certificate of occupancy. Tenant shall comply
with any direction of any governmental authority having jurisdiction, which
shall by reason of the nature of Tenant's use or occupancy thereof. Tenant
shall not do or permit to be done anything which will invalidate or increase the
cost of any fire, extended coverage or any other insurance policy covering the
Complex and/or property located therein. Tenant shall promptly upon demand
reimburse Landlord for any additional premium charged for such policy by reason
of Tenant's failure to comply with the provisions of this Paragraph. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Complex, or injure or annoy them, or use or allow the Premises to be used
for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises.
6. NOTICES. Any notice required or permitted to be given hereunder must
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be in writing and may be given by personal delivery or by mail, and if given by
mail shall be deemed sufficiently given forty eight hours after mailing when
sent by registered or certified mail return receipt requested addressed to
Tenant at the Complex of which the Premises are a part, or to Landlord at the
address of Landlord set forth in Paragraph 3(6). Either party may by written
notice to the other specify a different address for notice purposes except that
the Landlord may in any event use the Premises as Tenant's address for notice
purposes.
7. BROKERS. Tenant warrants that it has had no dealings with any real
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estate broker or agent in connection with the negotiation of this Lease
excepting only Deerfield Realty and that it knows of no other real estate broker
or agent who is, or might be, entitled to a commission in connection with this
Lease, Landlord agrees to pay any and all commissions due to the above noted
broker in connection with the execution of this Lease.
8. HOLDING OVER. If Tenant holds over after the expiration or earlier
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termination of the term hereof without the express written consent of Landlord,
Tenant shall become a tenant at sufferance only, at the market rental rate in
effect upon the date of such expiration and otherwise upon the terms, covenants
and conditions herein specified, so far as applicable. Acceptance by Landlord
of rent after such expiration or earlier termination shall not constitute a
holdover hereunder or result in a renewal. The foregoing provisions of this
paragraph are in addition to and do not affect Landlord's right of re-entry or
any other rights of Landlord hereunder or as otherwise provided by law.
9. CONDITIONS OF PREMISES. Tenant acknowledges that neither Landlord nor
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any agent of Landlord has made any representation or warranty with respect to
the Premises or with respect to the suitability of the Premises for the conduct
of Tenant's business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Tenant's Premises and said Complex were at such
time in satisfactory condition, for Tenant's purposes.
10. ALTERATIONS. Tenant shall make no alterations, decorations, additions
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or improvements in or to the Premises in excess of $10,000.00 without Landlord's
prior written consent which consent shall not be unreasonably withheld, and then
only by contractors or mechanics approved by Landlord. Tenant agrees that there
shall be no construction or partitions or other obstructions which might
reasonably interfere with Landlord's free access to mechanical installations or
service facilities of the Complex or interfere with the moving of Landlord's
equipment to or from the enclosures containing said installations or facilities.
All such work shall be done at such time and in such manner as Landlord may from
time to time designate. Tenant covenants and agrees that all work done by
Tenant shall be performed in full compliance with all reasonable laws, rules,
orders, ordinances, directions, regulations and requirements of all governmental
agencies, offices, departments, bureaus and boards having jurisdiction. Before
commencing any work, Tenant shall give Landlord at least five (5) days' written
notice of the proposed commencement of such work and shall, if required by
Landlord, secure at Tenant's own cost and expense a completion and lien
indemnity bond, satisfactory to Landlord, for such reasonable work. Tenant
further covenants and agrees that any mechanic's lien filed against the Premises
or against the Complex for work claimed to have been done for, or materials
claimed to have been furnished to Tenant, will be discharged by Tenant, by bond
or otherwise, within ten (10) days after the filing thereof, at the cost and
expense of Tenant. All alterations, decorations, additions or improvements upon
the Premises made by either party, including (without limiting the generality of
the foregoing) all wall coverings, built-in cabinet work, paneling and the like,
shall, unless Landlord elects otherwise, become the property of Landlord and
shall remain upon, and be surrendered with, the Premises, as a part thereof, at
the end of the term hereof, except that Landlord may, by written notice to
Tenant, delivered at the time Tenant requests permission from Landlord to make
such alterations or improvements, require Tenant to remove all partitions,
counters, railings and the like installed by Tenant, and Tenant shall repair or,
at Landlord's option, shall pay to the Landlord all costs arising from such
removal.
All personal property, office machinery and equipment, furniture and
movable partitions owned by Tenant or installed by Tenant at its expense in the
Premises shall be and remain the property of Tenant and may be removed by Tenant
at any time during the lease term when Tenant is not in default hereunder. If
Tenant shall fail to remove all of its effects from said Premises upon
termination of this Lease for any cause whatsoever, Landlord may, at its option,
remove the same in any manner that Landlord shall choose, and store said effects
and to the extent permitted by Law Tenant agrees to pay Landlord upon demand any
and all expenses incurred in such removal, including court costs and attorneys'
fees and storage charges on such effects for any length of time that the same
shall be in Landlord's possession; or Landlord may, at
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its option, without notice, sell said effects, or any of the same, at private
sale, for such price as Landlord may obtain and apply the proceeds of such sale
upon the expenses incident to the removal and sale of said effects.
11. REPAIRS. Notwithstanding the provisions of paragraph 43 by entry
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hereunder Tenant accepts the Premises as being in condition acceptable by
Tenant, except as may be told to Landlord in writing within ten (10) days of
entry hereunder. Tenant shall, at Tenant's sole cost and expense, maintain the
Premises and every part thereof in the same condition and repair as delivered,
ordinary wear and tear and damage from causes beyond the reasonable control of
Tenant excepted. Tenant shall, upon the expiration or sooner termination of the
term hereof, surrender the Premises to Landlord in the same condition as when
received, ordinary wear and tear and damage from causes beyond the reasonable
control of Tenant excepted. Landlord shall have no obligation to alter,
remodel, improve, repair, decorate or paint the Premises or any part thereof and
the parties hereto affirm that Landlord has made no representations to Tenant
respecting the conditions of the Premises or the Complex except as specifically
herein set forth.
12. LIENS. Tenant shall keep the Premises, the Complex and the property
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upon which the Complex is situated free from any liens arising out of the work
performed, materials furnished or obligations incurred by Tenant.
13. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times
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have the right to enter the Premises to inspect the same, to supply janitorial
services and any other service to be provided to Tenant by Landlord hereunder,
to submit said Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, to alter, improve or repair the Premises or any portion of
the Complex, all without being deemed guilty of an eviction of Tenant and
without abatement of rent, and may erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, provided that the business of the Tenant shall be interfered with as
little as is reasonably practicable. Tenant hereby waives any claim for damages
for any injury or inconvenience to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises, and any other loss
occasioned thereby so long as Landlord's entry is reasonable. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open said door in an emergency in order to
obtain entry to the Premises, and any entry to the Premises obtained by Landlord
by any of said means, or otherwise, shall so long as reasonable under the
circumstances not be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction of Tenant from the Premises
or any portion thereof, and any reasonable damages caused on account thereof
shall be paid by Tenant. It is understood and agreed that no provision of the
Lease shall be construed as obligating Landlord to perform any repairs,
alterations or decorations except as otherwise expressly agreed herein to be
performed by Landlord.
14. INDEMNIFICATIONS. Tenant shall indemnify and hold harmless Landlord
----------------
against and from any and all causes and claims including, but not limited to,
those arising from Tenant's use of the premises or the conduct of its business
or from any activity, work done, permitted or suffered by the Tenant in or about
the premises, and shall further indemnify and hold harmless Landlord against and
from any and all claims arising from any breach or default in the performance of
any obligation of Tenant's part to be performed under the terms of this Lease,
or arising from any act, neglect, fault or omission of the Tenant, or of its
agents or employees, and from and against all costs, attorneys' fees, expenses
and liabilities incurred in or about such claim or any action or proceeding
brought thereon, and in case any action or proceeding be brought against
Landlord by reason of any such claim. Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord; provided however, that the foregoing indemnification shall not be
effective if any such claims arose from the active neglect or willful misconduct
of Landlord. Tenant, as a material part of the consideration to Landlord,
hereby assumes all risk of damage to property or injury to person in, upon or
about the Premises from any cause whatsoever except that which is caused by the
negligence or willful misconduct of Landlord. Landlord shall indemnify and hold
harmless Tenant against and from any and all causes and claims arising from the
active neglect or willful misconduct or intentional failure of Landlord to
observe any of the terms.
15. DAMAGE TO TENANT'S PROPERTY. Notwithstanding the provisions of
---------------------------
Paragraph 15 to the contrary, neither Landlord nor its agents shall be liable
for any damage to property entrusted to employees of the Complex, nor for loss
of or damage to any property by theft or otherwise, nor for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water which may leak from any part of the Complex or from the
pipes, appliances or plumbing works therein or from the street or sub-surface or
form any other place or resulting from dampness or any other cause whatsoever,
unless the same is caused by the active negligence or willful or reckless
misconduct of the Landlord. Landlord or its agents shall not be liable for any
latent defect in the Premises or in the Complex. Notwithstanding the preceding
sentence however, Landlord shall be responsible for any damage caused by defects
in the roof up until the time Landlord replaces aid roof during the leasehold
period. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the Complex or of defects therein or in the
fixtures or equipment.
16. INSURANCE SUBROGATION. The parties release each other, and their
---------------------
respective authorized representatives, from any claims for damage to any person
or to the Premises or the complex and to the fixtures, personal property,
Tenant's improvements, and alterations of either Landlord or Tenant in or on the
Premises that are caused by or result from risks insured against under any
insurance policies carried by the parties and in force at the time of any such
damage.
Each party shall cause each insurance policy obtained by it to provide that
the insurance company waives all right of recovery by way of subrogation against
either party in connection with any damage covered by any policy. Neither party
shall be liable to the other for any damages caused by fire and any of the risks
insured against under any insurance policy required by this Lease.
17. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
-------------------
keep in force during the term of this Lease, a policy of comprehensive public
liability insurance insuring Landlord and Tenant against any liability arising
out of the ownership, use, occupancy, maintenance, repair or improvement of the
Premises and as appurtenant thereto. Such insurance shall provide $1,000,000.00
combined single limit for bodily injury and property damage. The limits of said
insurance shall not, however, limit the liability of the Tenant hereunder, and
Tenant is responsible for ensuring that the amount of liability insurance
carried by Tenant is sufficient for Tenant's purposes. Tenant may carry said
insurance under a blanket policy, satisfactory to Landlord. If Tenant shall fail
to procure and maintain said insurance, Landlord may, but shall not be required
to, procure and maintain same, but at the expense of Tenant. Insurance required
hereunder shall be in companies rated A+ AAA or better in "Best's Insurance
Guide." Tenant shall deliver to Landlord prior to occupancy of the Premises
copies of policies of liability insurance required herein or certificates
evidencing the existence and amounts of such insurance with evidence
satisfactory to Landlord of payment of premiums. No policy shall be cancelable
or subject to reduction of coverage except after fifteen (15) days' prior
written notice to Landlord. Tenant acknowledges and agrees that insurance
coverage carried by Landlord will not cover Tenant's property within the
Premises or the Complex and that Tenant shall be responsible, at Tenant's sole
cost and expense, for providing insurance coverage for Tenant's movable
-5-
<PAGE>
equipment, furnishing, trade fixtures and other personal property in or upon the
Premises or the Complex, and for any alterations, additions or improvements to
or of the Premises or any part thereof made by Tenant, in the event of damage or
loss thereto from any cause whatsoever.
(A) Tenant's Personal Property Insurance and Workman's Compensation
---------------------------------------------------------------
Insurance. Tenant shall maintain a policy or policies of fire and property
---------
damage insurance in "all risk" form with a sprinkler leakage endorsement
insuring the personal property, inventory, trade fixtures, and leasehold
improvements within the Premises for the full replacement value thereof. The
proceeds from any of such policies shall be used for the repair or replacement
of such items so insured.
Tenant shall also maintain a policy or policies of workman's compensation
insurance and any other employee benefit insurance sufficient to comply with all
laws.
18. DAMAGE OR DESTRUCTION.
---------------------
(A) In the event the Complex of which the Premises or a part thereof
is damaged the Landlord shall:
(i) In the event of the destruction of all or more than
twenty-five percent (25%) of the full insurable value of the Complex, at
Landlord's option, within a period of ninety (90) days thereafter, commence
repair, reconstruction and restoration of said Complex and prosecute the
same diligently to completion, in which event this Lease shall remain in
full force and effect, or within said ninety (90) day period elect not to
so repair, reconstruct or restore said Complex in which event this Lease
shall terminate. In either event, Landlord shall give the Tenant written
notice of its intention within said ninety (90) day period. In the event
Landlord elects not to restore said Complex, said Lease shall be deemed to
have terminated as of the date of such total destruction.
(ii) In the event of a partial destruction of the Complex to
an extent not exceeding Twenty-Five Percent (25%) of the full insurable
value thereof and if the damage thereto is such that the Complex may be
repaired, reconstructed or restored within a period of ninety (90) days
from the date of the happening of such casualty and Landlord will receive
insurance proceeds sufficient to cover the cost of such repairs, Landlord
shall commence and proceed diligently with the work of repair,
reconstruction and restoration and the Lease shall continue in full force
and effect.
(B) Upon any termination of this Lease under any of the provisions
of this Paragraph, the parties shall be released thereby without further
obligation to the other from the date possession of the Premises is surrendered
to the Landlord except for items which have therefore accrued and are then
unpaid.
(C) In the event of repair, reconstruction and restoration as herein
provided, the rental provided to be paid under this Lease shall be abated
proportionally in the ratio which the Tenant's use of said Premises is impaired
during the period of such repair, reconstruction or restoration. The Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of said Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
(D) Tenant shall not be released from any of its obligations under
this Lease except to the extent and upon the conditions expressly stated in this
Paragraph. Notwithstanding anything to the contrary contained in this Paragraph,
should Landlord be delayed or prevented from repairing or restoring said damaged
Premises within one (1) year after the occurrence of such damage or destruction
by reason of acts of God, war, governmental restrictions, inability to procure
the necessary labor or materials, or other causes beyond the reasonable control
of Landlord, the Landlord shall be relieved of its obligation to make such
repairs or restoration and Tenant shall be released from its obligations under
this Lease as of the end of said one (1) year period.
(E) It is hereby understood that if Landlord is obligated to or
elects to repair or restore as herein provided, Landlord shall be obligated to
make repairs or restoration only of those portions of said Complex and said
Premises which were originally provided at Landlord's expense; and the repair
and restoration of items not provided at Landlord's expense shall be the
obligation of Tenant.
(F) Notwithstanding anything to the contrary contained in this
Paragraph, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Paragraph occurs during the last twelve (12) months of the
term of this Lease or any extension thereof and the Lease shall terminate as of
the date of such damage if Tenant so elects within thirty (30) days of the
occurrence of such damage.
(G) The provisions of Section 1932, Subdivision 2, and Section 1933,
Subdivision 4, of the Civil Code of the State of California are hereby waived by
Tenant.
19. EMINENT DOMAIN. In case the whole of the Premises, or such part
--------------
thereof as shall substantially interfere with the Tenant's use and occupancy
thereof, shall be taken for any public or quasi-public purpose by any lawful
power or authority, by exercise of the right of appropriation, condemnation or
eminent domain, or sold to prevent such taking, the Tenant or the Landlord, may,
at its option, terminate this Lease effective as of the date possession is
required to be surrendered to said authority. Tenant shall not, because of such
taking, assert any claim against the Landlord or the taking authority for any
compensation because of such taking, and Landlord shall be entitled to receive
the entire amount of any award without deduction for any estate or any interest
of Tenant. In the event the amount of property or the type of estate taken
shall not substantially interfere with the conduct of Tenant's business,
Landlord shall be entitled to the entire amount of the award without deduction
for any estate or interest of Tenant, and Landlord at its option may terminate
this Lease. If Landlord does not so elect, Landlord shall promptly proceed to
restore the Premises to substantially their same condition prior to such partial
taking, and a proportionate allowance shall be made to Tenant for the rent
corresponding to the time during which said restoration is being made and to the
part of the Premises of which Tenant shall be so deprived on account of such
taking and restoration. Nothing contained in this Paragraph shall be deemed to
give Landlord any interest in any specific award made to Tenant for the taking
of personal property and fixtures belonging to Tenant or the loss of Tenant's
goodwill or relocation expenses.
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<PAGE>
20. DEFAULTS AND REMEDIES.
---------------------
(A) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) The abandonment of the Premises by Tenant. Abandonment is
herein defined to include, but is not limited to, any absence by
Tenant from the Premises for five (5) days or longer while in default
of any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or
additional rent required to be made by Tenant hereunder, within five
(5) days after written notice thereof from Landlord to Tenant.
(iii) The failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be
observed or performed by Tenant, other than as specified in (i) or
(ii) above, where such failure shall continue for a period of ten (10)
days after written notice thereof from Landlord to Tenant, provided
however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure
Section 1161; provided, further, that if the nature of Tenant's
default is such that more than ten (10) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within said ten (10) day period and
thereafter diligently prosecute such cure to completion.
(iv) (1) The making by Tenant of any general assignment for the
benefit of creditors; (2) the appointment of a trustee or receiver to
take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is
not restored to Tenant within thirty (30) days; or (3) the attachment,
execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease
where such seizure is not discharged within thirty (30) days.
(B) In the event of such default by Tenant, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder. In
the event that Landlord shall elect to so terminate this Lease then Landlord may
recover from Tenant:
(i) The worth at the time of award of any unpaid rent which has
been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss Tenant proves
could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
(iv) Any other amount necessary to compensate the Landlord for
all the detriment approximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
As used in subparagraphs (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the prevailing discount rate of the
Federal Reserve Bank of San Francisco at the time of the award plus five percent
(5%), but not more than the maximum rate permissible by law. As used in
subparagraph (iii) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
(C) In the event of any such default by Tenant, Landlord shall also
have the right, to the extent permitted by law with or without terminating this
Lease, to re-enter the Premises and remove all persons and property from the
Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. No re-entry or taking
possession of the Premises by Landlord pursuant to this subparagraph shall be
construed as a election to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction.
21. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily or by
-------------------------
operation of law assign, transfer, mortgage or otherwise encumber all or any
part of Tenant's interest in this Lease or in the Premises and shall not sublet
all or any part of the Premises, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. Any attempted assignment,
transfer, mortgage, encumbrance or subletting without such consent shall, at the
option of Landlord, constitute grounds for termination of this Lease.
No subletting or assignment, even with the consent of Landlord, shall
relieve Tenant of its obligation to pay rent and to perform all of the other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision of this Lease or to be a consent of any assignment or subletting.
Each subletting or assignment to which Landlord has consented shall be by
an instrument in writing in form satisfactory to Landlord and shall be executed
by the sublessor or assignor and by the sublessee or assignee in each instance,
as the case may be, and each sublessee or assignee shall agree in writing for
the benefit of the Landlord herein to assume, to be bound by and to perform the
terms, covenants, and conditions of this Lease to be done, kept and performed by
the Tenant. One executed copy of such written instrument shall be delivered to
the Landlord. Tenant agrees to reimburse Landlord for Landlord's reasonable
attorneys fees and such other reasonable charges which Landlord incurs or causes
to be incurred in conjunction with the processing and documentation of any such
requested subletting or assignment of this Lease or Tenant's interest in and to
the Premises in an amount not to exceed $500.00.
22. SUBORDINATION. This Lease shall be subject and subordinate at all
-------------
times to all ground and underlying leases which now exist or may hereafter be
executed affecting the Complex or the land upon which the Complex is situated or
both, and to the lien of any mortgages or deed of trust in any amount or amounts
whatsoever now or hereafter placed on or against the land and Complex or either
thereof, or on Landlord's interest or Estate therein, or portion thereof, or on
or against any ground or underlying lease without the necessity of the
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<PAGE>
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination; provided, however, that so long as Tenant is not
in default, the terms of the Lease shall not be affected by termination
proceedings in respect to such ground or underlying lease or foreclosure or
other proceedings under such mortgages or deeds of trust. Tenant hereby agreeing
at the written request of the Landlord under such ground or underlying lease or
the purchaser of the Complex in such foreclosure or other proceedings, to attorn
to such Landlord or to such purchase or, at such Landlord's or such purchaser's
option, to enter into a new lease for the balance of the term hereof upon the
same terms and provisions as are continued in this Lease. Notwithstanding the
foregoing, Tenant will execute and deliver upon demand such further instrument
or instruments evidencing such subordination of the Lease to the lien of any
such mortgage or mortgages or deed of trust as may be required by Landlord.
23. ESTOPPEL CERTIFICATE. Tenant shall, at any time and from time to time
--------------------
upon not less than ten (10) days' prior written notice from Landlord, execute,
acknowledge and deliver to Landlord a statement in writing (i) certifying that
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 dates to which the rental and other charges
are paid in advance, if any, and (ii) acknowledge that there is not, to Tenant's
knowledge, any incurred defaults on the part of the Landlord hereunder, or
specifying such defaults, if any, that are claimed. Any such statement may be
relied upon by a prospective purchase or encumbrance of all or any portion of
the real property of which the Premises are a part.
Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
month's rental has been paid in advance.
24. CONFLICT OF LAWS. This Lease shall be governed by and construed
----------------
pursuant to the laws of the State of California.
25. COMMON AREAS. Tenant shall have the non-exclusive right, in common
------------
with others, to the use of common entrances, lobbies, elevators, ramps, drives,
stairs and similar access and service ways and common areas in and adjacent to
the Complex of which the Premises are a part subject to such nondiscriminatory
rules and regulations as may be adopted by Landlord.
26. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and shall
----------------------
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
27. SURRENDER OF PREMISES. The voluntary or other surrender of this lease
---------------------
by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall,
at the option of Landlord, operate as an assignment to it of any or all
subleases of subtenancies.
28. ATTORNEYS' FEES. In the event that either party should bring suit or
---------------
commence arbitration under this lease or because of the breach of any provision
of this Lease, then all costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party therein shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have accrued
on the date of the commencement of such action and shall be enforceable whether
or not the action is prosecuted to judgment.
29. PERFORMANCE BY TENANT. All covenants and agreements to be performed
---------------------
by Tenant under any of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of rent. If Tenant
shall fail to pay any sum of money, other than rent required to be paid by it
hereunder or shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for ten (10) days after notice
thereof by Landlord, Landlord may, without waiving or releasing Tenant from any
obligations of Tenant, but shall not be obligated to make, make any such payment
or perform any other such action on Tenant's part to be made or performed as in
this Lease provided. Any amount due from Tenant to Landlord hereunder which is
not paid when due shall bear interest at an annual rate of five percent (5%) per
annum plus the annual percentage rate 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 prevailing on the 25th day of the month preceding either the
(1) date on which this Lease is executed; or (2) the date the amount became due,
whichever is less (but not more than the maximum rate permissible by law), until
paid, unless otherwise specifically provided herein, but the payment of such
interest shall not exercise or cure any default by Tenant under this Lease.
30. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and
-------------------------------------
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time reasonably prescribe, Tenant and Tenant's employees, invitees and
customers shall, in common with other occupants of the Complex (if any) in which
the Premises are located, and their respective employees, invitees and
customers, and others entitled to the use thereof, have the non-exclusive right
to use the access roads, parking areas, and facilities provided and designated
by Landlord for the general use and convenience of the occupants of the Complex
in which the Premises are located, which areas and facilities are referred to
herein as "Common Area". This right shall terminate upon the termination of
this Lease. Landlord reserves the right from time to time to make reasonable
changes in the shape, size, location, amount and extent of Common Area.
Landlord further reserves the right to promulgate such reasonable rules and
regulations relating to the use of the Common Area, and any part or parts
thereof, as Landlord may deem appropriate for the best interests of the
occupants of the Complex. The Rules and Regulations shall be binding upon
Tenant upon delivery of a copy of them to Tenant, and Tenant shall abide by
them, and cooperate in their observance. Such Rules and Regulations may be
amended by Landlord form time to time, with or without advance notice, and all
amendments shall be effective upon delivery of a copy to Tenant. Landlord shall
not be responsible to Tenant for the non-performance by any other tenant or
occupant of the Complex of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
31. DEFINITION OF THE LANDLORD. The term "Landlord" as used in this
--------------------------
Lease, so far as covenants or obligations on the part of Landlord are concerned,
shall be limited to mean and include only the owner or owners at the time in
question of the fee of the Premises, and in the event of any transfer,
assignment or other conveyance or transfers of any such title, the Landlord
herein named (and in the case of any subsequent transfers or conveyances, the
then grantor) shall be automatically freed and relieved form and after
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed and, without further agreement, the
transferee of such title shall be deemed to have assumed and agreed to observe
and perform any and all obligations of the Landlord hereunder, during its
ownership of the Premises. Landlord may transfer its interest in the Premises
without the consent of Tenant and such transfer or subsequent transfer shall not
be deemed a violation on Landlord's part of any of the terms and conditions of
this Lease.
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<PAGE>
32. WAIVER. The waiver by either party of any breach of any term,
------
covenant, or condition herein contained shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or condition
herein contained nor shall any custom or practice which may arise between the
parties in the administration of the terms hereof be deemed a waiver of, or in
any way affect, the right of Landlord to insist upon the performance by Tenant
in strict accordance with said terms. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
33. PARKING. Tenant shall have the right to use with other tenants or
-------
occupants of the Complex 100% of the parking spaces in the common parking areas
----
of the Complex. Tenant agrees that Tenant, Tenant's employees, agents,
representatives and/or invitees shall not use parking spaces in excess of said
100% allocated to Tenant hereunder. Landlord shall have the right, at Landlord's
----
sole discretion, to specifically designate the location of Tenant's parking
spaces within the common parking areas of the Complex in the event of a dispute
among the tenants occupying the building and/or Complex referred to herein, in
which event Tenant agrees that Tenant, Tenant's employees, agents,
representatives and/or invitees shall not use any parking spaces other than
those parking spaces specifically designated by Landlord for Tenant's use. Such
parking spaces, if specifically designated by Landlord to Tenant, may be
reasonably relocated by Landlord at any time, and from time to time. Landlord
reserves the right, at Landlord's sole discretion, to rescind any specific
designation of parking spaces, thereby returning Tenant's parking spaces to the
common parking area. Landlord shall give Tenant written notice of any change in
Tenant's parking spaces. Tenant shall not, at any time, park, or permit to be
parked, any trucks or vehicles adjacent to the loading areas so as to interfere
in any way with the use of such areas, nor shall Tenant at any time park, or
permit the parking of Tenant's trucks or other vehicles or the trucks and
vehicles of Tenant's suppliers or others, in any portion of the common area not
designated by Landlord for such use by Tenant. Tenant shall not park nor permit
to be parked, any inoperative vehicles or equipment on any portion of the common
parking area or other common areas of the Complex. Tenant agrees to assume
responsibility for compliance by its employees with the parking provision
contained herein. If Tenant or its employees park in other than such designated
parking areas, then Landlord may charge Tenant, as an additional charge, and
Tenant agrees to pay, Ten Dollars ($10.00) per day for each day or partial day
each such vehicle is parked in any area other than that designated. Tenant
hereby authorized Landlords, at Tenant's sole expense, to tow away from the
Complex any vehicle belonging to Tenant or Tenant's employees parked in
violation of these provisions, or to attach violation stickers or notices to
such vehicles. Tenant shall use the parking areas for vehicle parking only, and
shall not use the parking areas for storage.
34. TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein
------------------
shall include the plural as well as the singular. Words used in any gender
include other genders. If there be more than one Tenant the obligations
hereunder imposed upon Tenant shall be joint and several. The paragraph
headings of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part thereof.
35. EXAMINATION OF LEASE. Submission of this instrument for examination
--------------------
or signature by Tenant does not constitute a reservation of or option for a
lease, and it is not effective as a lease or otherwise until execution by and
delivery to both Landlord and Tenant.
36. TIME. Time is of the essence with respect to the performance of every
----
provision of this Lease in which time or performance is a factor.
37. PRIOR AGREEMENTS, AMENDMENTS. This Lease contains all of the
----------------------------
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest.
38. SEPARABILITY. Any provision of this Lease which shall prove to be
------------
invalid, void or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
39. RECORDING. Neither Landlord nor Tenant shall record this Lease or a
---------
short form memorandum thereof without the consent of the other.
40. EXHIBITS. All Exhibits that are referred to in this Lease and
--------
attached hereto are incorporated herein by this reference and made a part of the
Lease.
41. SALE BY LANDLORD. In the event of a sale, conveyance, assignment or
----------------
transfer of the Premises or any interest therein, by Landlord or any owner of
the reversion then constituting Landlord, Landlord or such owner shall thereby
be released from any further liability or obligation under any of the terms,
covenants or conditions (express or implied) of this Lease in favor of Tenant;
and in such event (as between Landlord or such owner and such successor in
interest) Tenant agrees thereafter to look solely to the successor in interest
of Landlord or such owner for further performance of All terms and obligations
under this Lease. The terms of this Lease shall not be affected by any of the
above, and Tenant agrees to attorn to the successor in interest of Landlord or
such owner provided that such successor in interest of Landlord or such owner
shall have assumed, pursuant to an agreement to which Tenant is a party, full
liability for all obligations of Landlord, regardless of when incurred. In
connection with such a sale, conveyance, assignment or transfer, Tenant agrees
to provide to the prospective purchaser, at Landlord's request, a copy of
Tenant's most recent then available financial statements, which such prospective
purchaser shall agree to hold in confidence.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law.
42. SIGNS. No sign, placard, picture, advertisement, name or notice shall
-----
be inscribed, displayed or printed or affixed on or to any part of the outside
of the Premises or to any exterior windows of the Premises without the written
consent of Landlord first had and obtained which consent shall not be
unreasonably withheld and Landlord shall have the right to remove any such sign,
placard, picture, advertisement, name or notice without notice to and at the
expense of Tenant. If Tenant is allowed to print or affix or in any way place a
sign in, on, or about the Premises, upon expiration or other sooner termination
of this Lease, Tenant at Tenant's sole cost and expense shall both remove such
sign and repair all damage in such a manner as to restore all aspects of the
appearance of the Premises to the condition prior to the placement of said sign.
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<PAGE>
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
43. LANDLORD'S REPAIR/REPLACEMENT RESPONSIBILITY. Landlord at Landlord's
--------------------------------------------
expense has agreed to perform those repairs to the driveway, HVAC system and
roof that are described in the bids by Golden Gate Mechanical Corporation and
the bid by Renew Sealers Paving Company which are attached hereto as exhibit B.
However Landlord is still in the process of determining the extent of the
driveway/parking area repair required and may upon agreement with the Tenant
accept bids other than the one by Renew Sealers Paving Company. Tenant at
Tenant's expense agrees to continue its normal and regular maintenance program
of these items, but any repairs or replacements that are required will be the
responsibility of Landlord. In addition Landlord will have an inspection of the
roof bracing performed by Quake Structural, a qualified structural engineering
firm, and agrees to perform the work recommended by them.
44. TOXIC CLAUSE. Tenant shall not be responsible for any claim, damage
------------
or injury based upon or arising out of the actual or threatened discharge,
disbursal, release or escape of smoke, vapors, soot, fumes, acids, alkalis,
toxic chemicals, liquids or gases, lead paint, radon, waste materials, hazardous
materials or other irritants, pollutants or contaminants into or upon the land,
the atmosphere or any course or body of water, whether above or below ground
which event is not directly related to Tenant's use of its premises.
45. AUTHORITY. The undersigned parties hereby warrant that they have
---------
proper authority and are empowered to execute this Lease on behalf of the
Landlord and Tenant, respectively.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written.
TENANT LANDLORD
NAVIGATION TECHNOLOGIES BIANCHI JOINT VENTURE
By:/s/ Thomas A. Lerone By:/s/ Tito J. Bianchi
------------------------------ ------------------------------
By:/s/ Nora Bianchi Stent
------------------------------
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<PAGE>
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("First Amendment") is entered into as of
March 24, 1995 (Effective Date") by and between THE BIANCHI JOINT VENTURE, a
California general partnership (hereinafter "Landlord") and NAVIGATION
TECHNOLOGIES, a Delaware Corporation ( hereinafter "Tenant"), with reference to
the following facts:
RECITALS
46. The premises currently leased by Tenant pursuant to the lease dated
October 1, 1991 consists of approximately 20,000 rentable square feet commonly
known as 740 East Arques Avenue, Sunnyvale, California (hereinafter the
"Premises").
47. WHEREFORE, Landlord and Tenant wish to modify and amend the provisions
of the Lease to provide that the Lease Term be extended for three (3) additional
years. Tenant's lease during the extended period shall be subject to the terms
and conditions of the Lease, as modified by the provisions set forth herein
below.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
(A) EXPIRATION DATE. The expiration date for the Tenant's leasing of the
Premises shall be extended from October 31, 1995 to October 31, 1998.
(B) MONTHLY RENT. Paragraph 4 of the Lease is amended to provide that the
Monthly Rent for the Premises shall be as follows:
PERIOD RENT PER MONTH
11/01/95 TO 10/31/98 $12,500.00 NNN per month
(C) TENANT IMPROVEMENT ALLOWANCE. Paragraph 10 of the Lease is amended to
provide that the Landlord will contribute an additional tenant improvement
allowance not to exceed $40,000 to be made available on the following schedule:
$20,000 paid between 10/31/95 and 12/31/95
$20,000 paid between 1/31/96 and 3/31/96
(D) MONUMENT SIGN. Landlord, at Landlord's expense will provide a
monument sign up to the size of the one at 255 San Geronimo, providing such sign
meets the approval of all the appropriate governmental authorities. Tenant, at
Tenant's expense, will be responsible for any corporate signage to be placed
upon the monument.
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<PAGE>
(E) FULL FORCE AND EFFECT: To the best of Landlord's and Tenant's
knowledge, the Lease is in full force and effect, neither party is in default of
its obligations under the Lease and neither party has claims, offsets, or
defenses to the enforcement of the lease.
(F) ENTIRETY. Except as provided in this First Amendment, the Lease, is
the entire agreement between the parties except as expressed herein. Moreover,
no subsequent change or modification of this Lease, as amended, shall be binding
unless in writing and fully executed by Landlord and Tenant.
TENANT:
Dated: 3/27/95 NAVIGATION TECHNOLOGIES a
--------- Delaware Corporation
By: /s/ Thomas A. Lerone
--------------------------------
Its: Chief Executive Officer
-------------------------------
LANDLORD:
Dated: 3/29/95 BIANCHI JOINT VENTURE,
---------- a California General Partnership
By: /s/ Tito J. Bianchi
--------------------------------
TITO J. BIANCHI
By: /s/ Nora Bianchi Stent
--------------------------------
NORA BIANCHI STENT
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