California-San Jose-2160-2190 Gold Street WIX/NSJ Real Estate LP and TiVo Inc.
LEASE AGREEMENT
(NNN TENANT IMPROVEMENTS)
BASIC LEASE INFORMATION
Lease Date: October 6, 1999
Landlord: WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
Landlord's Address: c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
Tenant: TiVo, Inc.,
a Delaware corporation
Tenant's Address: 894 Ross Drive
Sunnyvale, California 94089
Premises: Approximately 127,124 rentable square feet as
shown on Exhibit A, consisting of the Buildings
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Premises Address: 2160 and 2190 Gold Street
San Jose, California 95002
Buildings: Buildings D & E Approximately 127,124
rentable square feet
Lot: APN 015-34-27, 015-34-28, 015-34-77, 015-34-78
Park: Legacy TechPark @ 237 Approximately 302,186
rentable square feet
Term: March 10, 2000 ("Commencement Date"), through
March 9, 2007 ("Expiration Date")
Base Rent ((P)3): One Hundred Fifteen Thousand Five Hundred Thirteen
and 20/100 Dollars ($115,513.20) per month
commencing March 10, 2000 through June 9, 2000, or
until adjustment as set forth below.
Adjustments to Base Rent: Effective three calendar months following the
Building D Commencement Date, the Base Rent shall
increase to $172,168.20 per month ($1.354 NNN per
rentable sf)
Effective nine calendar months following the
Building D Commencement Date, the Base Rent shall
increase to $228,823.20 per month ($1.80 NNN per
rentable sf)
Effective twelve calendar months following the
Building D Commencement Date, the Base Rent shall
increase to $235,687.90 per month ($1.854 NNN per
rentable sf)
Effective the first anniversary of the Building D
Commencement Date, the Base Rent shall increase to
$242,806.84 per month ($1.91 NNN per rentable sf)
Effective the second anniversary of the Building D
Commencement Date, the Base Rent shall increase to
$250,091.04 per month ($1.967 NNN per rentable sf)
Effective the third anniversary of the Building D
Commencement Date, the Base Rent shall increase to
$257,593.77 per month ($2.026 NNN per rentable sf)
Effective the fourth anniversary of the Building D
Commencement Date, the Base Rent shall increase to
$265,321.59 per month ($2.087 NNN per rentable sf)
Effective the fifth anniversary of the Building D
Commencement Date, the Base Rent shall increase to
$273,316.60 per month ($2.15 NNN per rentable sf)
Advance Rent ((P)3): One Hundred Fifteen Thousand Five Hundred Thirteen
and 20/100 Dollars ($115,513.20)
Security Deposit ((P)4): Seven Hundred Fifty Thousand and 00/100 Dollars
($750,000.00) subject to Section 4 herein.
*Tenant's Share of Operating Expenses ((P)6.1): 42.07% of the Park
*Tenant's Share of Tax Expenses ((P)6.2): 42.07% of the Park
*Tenant's Share of Common Area Utility Costs ((P)7.2): 42.07% of the Park
*Tenant's Share of Utility Expenses ((P)7.1): 100% of the Buildings
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
Permitted Uses ((P)9): The Premises shall be used solely for general
office use, design, research and development,
sales, and light manufacturing and services and
for no other purposes without Landlord's prior
written consent, but only to the extent permitted
by the City of San Jose and all agencies and
governmental authorities having jurisdiction
thereof
Parking Spaces: Four hundred thirty-two (432) non-exclusive and
non-designated spaces
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Broker ((P)33): Cornish and Carey Commercial, Inc. for Tenant
BT Commercial for Landlord
Exhibits: Exhibit A - Premises, Building, Lot and/or Park
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Covenants, Conditions and Restrictions
Exhibit E - Tenant's Initial Hazardous Materials
Disclosure Certificate
Exhibit F - Change of Commencement Date - Example
Exhibit G - Sign Criteria
Addenda: Addendum 1 Option to Extend the Lease
Addendum II Right of First Offer
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TABLE OF CONTENTS
<TABLE>
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SECTION PAGE
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<S> <C>
1. Premises.............................................................. 1
2. Occupancy; Adjustment of Commencement Date............................ 1
3. Rent.................................................................. 1
4. Security Deposit...................................................... 2
5. Condition of Premises; Tenant Improvements............................ 2
6. Additional Rent....................................................... 2
7. Utilities and Services................................................ 3
8. Late Charges.......................................................... 4
9. Use of Premises....................................................... 4
10. Alterations; and Surrender of Premises................................ 5
11. Repairs and Maintenance............................................... 5
12. Insurance............................................................. 6
13. Limitation of Liability and Indemnity................................. 7
14. Assignment and Subleasing............................................. 7
15. Subordination......................................................... 9
16. Right of Entry........................................................ 10
17. Estoppel Certificate.................................................. 10
18. Tenant's Default...................................................... 10
19. Remedies for Tenant's Default......................................... 10
20. Holding Over.......................................................... 11
21. Landlord's Default.................................................... 11
22. Parking............................................................... 11
23. Transfer of Landlord's Interest....................................... 11
24. Waiver................................................................ 12
25. Casualty Damage....................................................... 12
26. Condemnation.......................................................... 13
27. Environmental Matters/Hazardous Materials............................. 13
28. Financial Statements.................................................. 15
29. General Provisions.................................................... 15
30. Signs................................................................. 16
31. Mortgagee Protection.................................................. 16
32. Warranties of Tenant.................................................. 16
33. Brokerage Commission.................................................. 17
34. Quiet Enjoyment....................................................... 17
35. Satellite Dish(es) and Antennae....................................... 17
36. Collateral for Performance of Lease Obligations....................... 17
</TABLE>
<PAGE>
NNN TENANT IMPROVEMENTS
LEASE AGREEMENT
The Basic Lease Information set forth on Page 1 and this Lease are and shall be
construed as a single instrument.
1. PREMISES
Landlord hereby leases the Premises to Tenant upon the terms and conditions
contained herein. Tenant shall have the right to use, on a non-exclusive basis,
parking areas and ancillary facilities located within the Common Areas of the
Park, subject to the terms of this Lease. Landlord and Tenant hereby agree that
for purposes of this Lease, as of the Lease Date, the rentable square footage
area of each of the Premises, the Building, the Phase (if any) and the Park
shall be deemed to be the number of rentable square feet as set forth in the
Basic Lease Information. Tenant hereby acknowledges that the rentable square
footage of the Premises may include a proportionate share of certain areas used
in common by all occupants of the Building, the Phase (if any) and/or the Park
(for example corridors, common restrooms, an electrical room or telephone room).
Tenant further agrees that the number of rentable square feet of any of the
Building, the Phase (if any) and the Park may subsequently change after the
Lease Date commensurate with any modifications to any of the foregoing by
Landlord, and Tenant's Share shall accordingly change. The term "Project" as
used herein shall mean and collectively refer to the Buildings, the Common
Areas, the Lot, the Phase (if any) and the Park.
2. OCCUPANCY; ADJUSTMENT OF COMMENCEMENT DATE
2.1 Landlord shall deliver possession of the Premises with the Shell
Improvements (defined in Exhibit B hereto) Substantially Complete on or before
November 15, 1999. If Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to Tenant on such date in such condition, Landlord
shall not be subject to any liability nor shall the validity of the Lease be
affected; provided, the Term of this Lease and the Commencement Date shall be
extended one (1) day for each day of delay in delivering the Premises with the
Shell Improvements completed. Subject to the foregoing, Tenant's obligation to
pay Rent shall commence on the earlier to occur of (i) the Commencement Date or
(ii) the date on which Tenant has Substantially Completed the Tenant
Improvements (as defined in Exhibit B). Provided, however, if the Tenant
Improvements for Building D are not Substantially Complete as of the
Commencement Date, Rent for Building D shall not commence until the earlier of
(i) the date the Tenant Improvements for Building D are Substantially Complete
or (ii) April 6, 2000 (the "Building D Commencement Date"). Notwithstanding the
above, the Expiration Date shall be extended or adjusted commensurately for any
delay or advancement in the Building D Commencement Date. Base Rent shall not
adjust until three calendar months following the Building D Commencement Date,
as set forth in the Basic Lease Information. In the event Tenant subleases or
assigns any portion of Building D prior to the commencement of the tenth month
after the Building D Commencement Date, Tenant shall pay to Landlord any rental
proceeds received from such sublease or assignment. If the commencement date
and/or the expiration date of this Lease is other than the Commencement Date and
Expiration Date specified in the Basic Lease Information, Landlord and Tenant
shall execute a written amendment to this Lease, substantially in the form of
Exhibit F hereto, wherein the parties shall specify the actual commencement
---------
date, expiration date and the date on which Tenant is to commence paying Rent.
The word "Term" whenever used herein refers to the initial term of this Lease
and any valid extension(s) thereof. Notwithstanding the foregoing, if possession
of the Premises are not delivered by Landlord with the Shell Improvements
Substantially Complete on or before June 1, 2000, Tenant shall have the right to
terminate this Lease by notice given to Landlord within ten (10) days of such
date, whereupon Landlord shall promptly return to Tenant the Security Deposit
and all unearned Rent theretofore paid by Tenant and this Lease shall terminate.
2.2 Within three (3) business days after, in each case, the Substantial
Completion of the Tenant Improvements for Building E and Substantial Completion
of the Tenant Improvements for Building D, representatives of Landlord and
Tenant shall make a joint inspection of the Tenant Improvements for each
Building and the results of such inspections shall be set forth in a written
list specifying the incomplete items as well as those items for which
corrections need to be made (the "Punchlist Items"). Landlord and Tenant shall
promptly (by no later than three (3) business days after the date of inspection
of a Building) and in good faith approve the written list of Punchlist Items.
Tenant shall use commercially reasonable efforts to cause the Punchlist Items to
be promptly completed and/or corrected, as applicable. The performance of the
work associated with the Punchlist Items shall be performed in such a manner so
as not to preclude or substantially prevent Tenant's ability to conduct its
operations in the Premises. Upon the completion of the Punchlist Items, to
Tenant's reasonable satisfaction, Tenant shall immediately notify Landlord in
writing that such items have been completed to Tenant's reasonable satisfaction.
2.3 Landlord shall permit Tenant to enter the Premises prior to the
actual Commencement Date for the limited purpose of performing the Tenant's Work
(defined in Exhibit B hereto). In no event may Tenant conduct its business or
---------
operations from the Premises until after the Commencement Date. Such entry and
occupancy shall be at Tenant's sole risk and subject to all the provisions of
this Lease, including the requirement to perform all of Tenant's obligations
hereunder (other than the obligation to pay Rent), including without limitation,
the obligation to obtain the insurance and deliver insurance certificates as
required pursuant to Section 12 and Exhibit B of this Lease.
3. RENT
On the date that Tenant executes this Lease, Tenant shall deliver to Landlord
the original executed Lease, the Advance Rent (which shall be applied against
the Rent payable for the first month(s) Tenant is required to pay Rent), the
Security Deposit, and all insurance certificates evidencing the insurance
required to be obtained by Tenant under Section 12 and Exhibit B of this Lease.
---------
Tenant agrees to pay Landlord the Base Rent, without prior notice or demand,
abatement (except as specifically provided herein), offset, deduction or claim,
in advance at Landlord's Address on the Commencement Date and thereafter on the
first (1st) day of each month throughout the balance of the Term of the Lease.
In addition to the Base Rent, Tenant shall pay Landlord in advance on the
Commencement Date and thereafter on the first (1st) day of each month throughout
the balance of the Term of this Lease, as Additional Rent, Tenant's Share of
Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses. The term "Rent" whenever used herein refers to the aggregate of all
these amounts. If Landlord permits Tenant to occupy the Premises without
requiring Tenant to pay rental payments for a period of time, the waiver of the
requirement to pay rental payments shall only apply to the waiver of the Base
Rent. The Rent for any fractional part of a calendar month at the commencement
or expiration or termination of the Lease Term shall be a prorated amount of the
Rent for a full calendar month based upon a calendar month. To the extent not
already paid as part of the Advance Rent any prorated Rent shall be paid on the
Commencement Date, and any prorated Rent for the final calendar month hereof
shall be paid on the first day of the calendar month in which the date of
expiration or termination occurs.
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4. SECURITY DEPOSIT
Simultaneously with Tenant's execution and delivery of this Lease, Tenant shall
deliver to Landlord, as a Security Deposit for the faithful performance by
Tenant of its obligations under this Lease, the amount specified in the Basic
Lease Information. If Tenant is in default hereunder, Landlord may, but without
obligation to do so, use all or any portion of the Security Deposit to cure the
default or to compensate Landlord for all damages sustained by Landlord in
connection therewith. Tenant shall, immediately on demand, pay to Landlord a sum
equal to the portion of the Security Deposit so applied or used to replenish the
amount of the Security Deposit held to increase such deposit to the amount
initially deposited with Landlord. As soon as practicable after the expiration
or termination of this Lease, Landlord shall return the Security Deposit to
Tenant, less such amounts as are reasonably necessary to remedy Tenant's
default(s) hereunder. If the cost to remedy Tenant's default(s) hereunder
exceeds the amount of the Security Deposit, Tenant shall promptly deliver to
Landlord any and all of such excess sums. Landlord shall not be required to keep
the Security Deposit separate from other funds, and, unless otherwise required
by law, Tenant shall not be entitled to interest on the Security Deposit. In no
event or circumstance shall Tenant have the right to any use of the Security
Deposit and, specifically, Tenant may not use the Security Deposit as a credit
or to otherwise offset any payments required hereunder. Notwithstanding the
above, in the event Tenant has achieved a market capitalization value of at
least $500,000,000, as of the 13/th/ and/or 25/th/ months of the Term, a portion
of Tenant's Security Deposit equal to $476,683 shall be applied to the Rent for
the 13/th/ and 25/th/ months. However, in the event Tenant's market
capitalization value is below $500,000,000 as of the first day of the 13/th/ or
25/th/ month, Tenant's Security Deposit shall remain on account with Landlord.
Tenant shall be required to provide written documentation outlining Tenant's
market value for Landlord's review and acceptance prior to the application of
any portion of the Security Deposit to the Rent. In an event, a Security Deposit
in the amount of $273,317.00 shall remain on account as Tenant's permanent
security deposit.
Tenant shall be entitled to substitute an irrevocable standby letter of credit
("Letter of Credit") for a portion of the cash Security Deposit referenced
above. The Letter of Credit shall be issued to Landlord, as beneficiary, in
accordance with the provisions of Section 36 below.
5. CONDITION OF PREMISES; TENANT IMPROVEMENTS
Landlord warrants and represents that, as of the date Landlord delivers
possession of the Premises to Tenant, the Shell Improvements (as defined in
Exhibit B) will be substantially complete. Tenant agrees to accept the Premises
---------
on the Commencement Date as then being suitable for Tenant's intended use and in
good operating order, condition and repair in its then existing "AS IS"
condition, except as otherwise set forth in Exhibit B hereto. The Tenant
---------
Improvements (defined in Exhibit B) shall be installed in accordance with the
---------
terms, conditions, criteria and provisions set forth in Exhibit B. Except as
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otherwise set forth in this Lease, by taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises in good condition and state of
repair. Tenant expressly acknowledges and agrees that neither Landlord nor any
of Landlord's agents, representatives or employees has made any representations
as to the suitability, fitness or condition of the Premises for the conduct of
Tenant's business or for any other purpose, including without limitation, any
storage incidental thereto. Any Tenant Improvements to be constructed hereunder
shall be in compliance with the requirements of the ADA (defined below), and all
costs incurred for purposes of compliance therewith shall be a part of and
included in the costs of the Tenant Improvements.
6. ADDITIONAL RENT
It is intended by Landlord and Tenant that this Lease be a "triple net lease."
The costs and expenses described in this Section 6 and all other sums, charges,
costs and expenses specified in this Lease other than Base Rent are to be paid
by Tenant to Landlord as additional rent (collectively, "Additional Rent").
6.1 Operating Expenses:
6.1.1 Definition of Operating Expenses. Tenant shall pay to Landlord
Tenant's Share of all Operating Expenses as Additional Rent. The term "Operating
Expenses" as used herein shall mean the total amounts paid or payable by
Landlord in connection with the ownership, management, maintenance, repair and
operation of the Premises and the other portions of the Project. These Operating
Expenses may include, but are not limited to, Landlord's cost of: (i) repairs
to, and maintenance of, the roof membrane, the non-structural portions of the
roof and the non-structural elements of the perimeter exterior walls of the
Building; (ii) maintaining the outside paved area, landscaping and other common
areas of the Park. The term "Common Areas" shall mean all areas and facilities
within the Park exclusive of the Premises and the other portions of the Park
leasable exclusively to other tenants. The Common Areas include, but are not
limited to, interior lobbies, mezzanines, parking areas, access and perimeter
roads, sidewalks, rail spurs (if any), and landscaped areas; (iii) annual
insurance premium(s) insuring against bodily injury and property damage
(including, if Landlord elects, "all risk" or "special form or equivalent"
coverage) and all other insurance, including, but not limited to, earthquake and
flood for the Project (if the same be available at commercially reasonably
rates), rental value insurance against loss of Rent for a period of at least
nine (9) months commencing on the date of loss, and subject to the provisions of
Section 25 below, any deductible; (iv) (a) modifications and/or new improvements
to any portion of the Project occasioned by any rules, laws or regulations
effective subsequent to the Lease Date; (b) reasonably necessary replacement
improvements to any portion of the Project after the Commencement Date; and (c)
new improvements to the Project that reduce operating costs or improve
life/safety conditions, all of the foregoing as reasonably determined by
Landlord, in its sole but reasonable discretion; provided, if such costs are of
a capital nature, then such costs or allocable portions thereof shall be
amortized on a straight-line basis over the estimated useful life of the capital
item, as reasonably determined by Landlord, in accordance with generally
accepted real estate accounting practices, together with reasonable interest on
the amortized balance; (v) the management and administration of any and all
portions of the Project, including, without limitation, a property management
fee, accounting, auditing, billing, postage, salaries and benefits for clerical
and supervisory employees, whether located on the Project or off-site, payroll
taxes and legal and accounting costs and all fees, licenses and permits related
to the ownership, operation and management of the Project; (vi) preventative
maintenance and repair contracts including, but not limited to, contracts for
elevator systems (if any) and heating, ventilation and air conditioning systems,
lifts for disabled persons, if Landlord elects to so procure; (vii) security and
fire protection services for any portion of the Project, if and to the extent,
in Landlord's sole discretion, such services are provided; (viii) supplies,
materials, equipment, rental equipment and other similar items used in the
operation and/or maintenance of the Project; (ix) any and all levies, charges,
fees and/or assessments payable to any applicable owner's association or similar
body; (x) any barrier removal work or other required improvements, alterations
or work to any portion of the Project generally required under the ADA (defined
below) after the Commencement Date (the "ADA Work"); provided, if such ADA Work
is required under the ADA due to Tenant's particular use of the Premises or any
Alteration (defined below) made to the Premises by or on behalf of Tenant, then
the cost of such ADA Work shall be borne solely by Tenant and shall not be
included as part of the Operating Expenses; and (xii) the repairs and
maintenance items set forth in Section 11.2 below.
2
<PAGE>
6.1.2 Operating Expense Exclusions. Notwithstanding anything to the
contrary contained herein, for purposes of this Lease, the term "Operating
Expenses" shall not include the following: (i) costs (including permit, license,
and inspection fees) incurred in renovating, improving, decorating, painting, or
redecorating vacant space or space for other tenants within the Project; (ii)
costs incurred because Landlord or another tenant actually violated the terms
and conditions of any lease for premises within the Project; (iii) legal and
auditing fees (other than those fees reasonably incurred in connection with the
maintenance and operation of all or any portion the Project), leasing
commissions, advertising expenses, and other costs incurred in connection with
the original leasing of the Project or future re-leasing of any portion of the
Project; (iv) depreciation of the Building or any other improvements situated
within the Project; (v) any items for which Landlord is entitled to
reimbursement by insurance or by direct reimbursement by any other tenant of the
Project; (vi) costs of repairs or other work necessitated by fire, windstorm or
other casualty (excluding any deductibles) and/or costs of repair or other work
necessitated by the exercise of the right of eminent domain to the extent
insurance proceeds or a condemnation award, as applicable, is actually received
by Landlord for such purposes; provided, such costs of repairs or other work
shall be paid by the parties in accordance with the provisions of Sections 25
and 26, below; (vii) other than any interest charges for capital improvements
referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any
financing for the Building, the Phase or the Project, interest and penalties
incurred as a result of Landlord's late payment of any invoice (provided that
Tenant pays Tenant's Share of Operating Expenses and Tax Expenses to Landlord
when due as set forth herein), and any bad debt loss, rent loss or reserves for
same; (viii) costs associated with the investigation and/or remediation of
Hazardous Materials (hereafter defined) present in, on or about any portion of
the Project, unless such costs and expenses are the responsibility of Tenant as
provided in Section 27 hereof, in which event such costs and expenses shall be
paid solely by Tenant in accordance with the provisions of Section 27 hereof;
(ix) Landlord's cost for the repairs and maintenance items set forth in Section
11.3, below; (x) overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in the Project
to the extent the same exceeds the costs of such by unaffiliated third parties
on a competitive basis; or any costs included in Operating Expenses representing
an amount paid to a person, firm, corporation or other entity related to
Landlord which is in excess of the amount which would have been paid in the
absence of such relationship; and (xi) any payments under a ground lease or
master lease.
6.2 Tax Expenses: Tenant shall pay to Landlord Tenant's Share of all
real property taxes applicable to the Project. Prior to delinquency, Tenant
shall pay any and all taxes and assessments levied upon Tenant's Property
(defined below in Section 10) located or installed in or about the Premises by,
or on behalf of Tenant. To the extent any such taxes or assessments are not
separately assessed or billed to Tenant, then Tenant shall pay the amount
thereof as invoiced by Landlord. Tenant shall also reimburse and pay Landlord,
as Additional Rent, within ten (10) days after demand therefor, one hundred
percent (100%) of (i) any increase in real property taxes attributable to any
and all Alterations (defined below in Section 10), Tenant Improvements,
fixtures, equipment or other improvements of any kind whatsoever placed in, on
or about the Premises for the benefit of, at the request of, or by Tenant after
the Commencement Date or the Building D Commencement Date, as applicable, and
(ii) taxes and assessments levied or assessed upon or with respect to the
possession, operation, use or occupancy by Tenant of the Premises or any other
portion of the Project. The term "Tax Expenses" shall mean and include, without
limitation, any form of tax and assessment (general, special, supplemental,
ordinary or extraordinary), commercial rental tax, payments under any
improvement bond or bonds, license fees, license tax, business license fee,
rental tax, transaction tax or levy imposed by any authority having the direct
or indirect power of tax (including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
district thereof) as against any legal or equitable interest of Landlord in the
Premises or any other portion of the Project or any other tax, fee, or excise,
however described, including, but not limited to, any value added tax, or any
tax imposed in substitution (partially or totally) of any tax previously
included within the definition of real property taxes, or any additional tax the
nature of which was previously included within the definition of real property
taxes. The term "Tax Expenses" shall not include any franchise, estate,
inheritance, net income, or excess profits tax imposed upon Landlord, or a
penalty fee imposed as a result of Landlord's failure to pay Tax Expenses when
due, or any item included in Operating Expenses.
6.3 Payment of Expenses: Landlord shall estimate Tenant's Share of the
Operating Expenses and Tax Expenses for the calendar year in which the Lease
commences. Commencing on the Commencement Date, one-twelfth (1/12th) of this
estimated amount shall be paid by Tenant to Landlord, as Additional Rent, and
thereafter on the first (1st) day of each month throughout the remaining months
of such calendar year. Thereafter, Landlord may estimate such expenses for each
calendar year during the Term of this Lease and Tenant shall pay one-twelfth
(1/12th) of such estimated amount as Additional Rent hereunder on the first
(1st) day of each month during such calendar year and for each ensuing calendar
year throughout the Term of this Lease. Tenant's obligation to pay Tenant's
Share of Operating Expenses and Tax Expenses shall survive the expiration or
earlier termination of this Lease.
6.4 Annual Reconciliation: By May 1st of each calendar year, or as soon
thereafter as reasonably possible, Landlord shall furnish Tenant with an
accounting of actual and accrued Operating Expenses and Tax Expenses. Within
thirty (30) days of Landlord's delivery of such accounting, Tenant shall pay to
Landlord the amount of any underpayment. Notwithstanding the foregoing, failure
by Landlord to give such accounting by such date shall not constitute a waiver
by Landlord of its right to collect any underpayment by Tenant at any time.
Landlord shall credit the amount of any overpayment by Tenant toward the next
estimated monthly installment(s) falling due, or where the Term of the Lease has
expired, refund the amount of overpayment to Tenant as soon as possible
thereafter. If the Term of the Lease expires prior to the annual reconciliation
of expenses Landlord shall have the right to reasonably estimate Tenant's Share
of such expenses, and if Landlord determines that there has been an
underpayment, Landlord may deduct such underpayment from Tenant's Security
Deposit. Failure by Landlord to accurately estimate Tenant's Share of such
expenses or to otherwise perform such reconciliation of expenses shall not
constitute a waiver of Landlord's right to collect any of Tenant's underpayment
or Tenant's right to be reimbursed for any overpayment, at any time during the
Term of the Lease or at any time after the expiration or earlier termination of
this Lease.
6.5 Audit: After delivery to Landlord of at least thirty (30) days prior
written notice, Tenant, at its sole cost and expense through any accountant
designated by it, shall have the right to examine and/or audit the books and
records evidencing such costs and expenses for the previous one (1) calendar
year, during Landlord's reasonable business hours but not more frequently than
once during any calendar year. Any such accounting firm designated by Tenant may
not be compensated on a contingency fee basis. The results of any such audit
(and any negotiations between the parties related thereto) shall be maintained
strictly confidential by Tenant and its accounting firm and shall not be
disclosed, published or otherwise disseminated to any other party other than to
Landlord and its authorized agents, to Tenant and its financial and legal
advisors and consultants, and except as may be required by law. Landlord and
Tenant each shall use its best efforts to cooperate in such negotiations and to
promptly resolve any discrepancies between Landlord and Tenant in the accounting
of such costs and expenses.
7. UTILITIES AND SERVICES
Tenant shall pay to Landlord or directly, as the case may be, the cost of all
(i) water, sewer use, sewer discharge fees, gas, electricity,
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telephone, telecommunications, cabling and other utilities billed or metered
separately to the Premises and (ii) refuse pickup and janitorial service to the
Premises. Utility Expenses, Common Area Utility Costs and all other sums and
charges set forth in this Section 7 are considered part of Additional Rent.
7.1 Utility Expenses: For any such utility fees, use charges, or similar
services that are not billed or metered separately to Tenant, including without
limitation, water and sewer charges, and garbage and waste disposal
(collectively, "Utility Expenses"), Tenant shall pay to Landlord Tenant's Share
of Utility Expenses. If Landlord reasonably determines that Tenant's Share of
Utility Expenses is not commensurate with Tenant's use of such services, Tenant
shall pay to Landlord the amount which is attributable to Tenant's use of the
utilities or similar services, as reasonably estimated and determined by
Landlord, based upon factors such as size of the Premises and intensity of use
of such utilities by Tenant such that Tenant shall pay the portion of such
charges reasonably consistent with Tenant's use of such utilities and similar
services. If Tenant disputes any such estimate or determination, then Tenant
shall either pay the estimated amount or cause the Premises to be separately
metered at Tenant's sole expense. Tenant shall also pay Tenant's Share of any
assessments, charges, and fees included within any tax bill for the Lot on which
the Premises are situated, including without limitation, entitlement fees,
allocation unit fees, sewer use fees, and any other similar fees or charges.
7.2 Common Area Utility Costs: Tenant shall pay to Landlord Tenant's
Share of any Common Area utility costs, fees, charges and expenses
(collectively, "Common Area Utility Costs"). Tenant shall pay to Landlord one-
twelfth (1/12/th/) of the estimated amount of Tenant's Share of the Common Area
Utility Costs on the Commencement Date and thereafter on the first (1/st/) day
of each month throughout the balance of the Term of this Lease. Any
reconciliation thereof shall be substantially in the same manner as set forth in
Section 6.4 above.
7.3 Miscellaneous: Tenant acknowledges that the Premises may become
subject to the rationing of utility services or restrictions on utility use as
required by a public utility company, governmental agency or other similar
entity having jurisdiction thereof. Tenant agrees that its tenancy and occupancy
hereunder shall be subject to such rationing restrictions as may be imposed upon
Landlord, Tenant, the Premises, or other portions of the Project, and Tenant
shall in no event be excused or relieved from any covenant or obligation to be
kept or performed by Tenant by reason of any such rationing or restrictions. If
permitted by applicable Laws, Landlord shall have the right at any time and from
time to time during the Term of this Lease to either contract for service from a
different company or companies (each such company referred to as an "Alternate
Service Provider") other than the company or companies presently providing
electricity service for the Project (the "Electric Service Provider") or
continue to contract for service from the Electric Service Provider, at
Landlord's sole discretion. Tenant agrees to cooperate with Landlord, the
Electric Service Provider, and any Alternate Service Provider at all times and,
as reasonably necessary, shall allow Landlord, the Electric Service Provider,
and any Alternate Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring, and any other machinery within the Premises.
8. LATE CHARGES
Any and all sums or charges set forth in this Section 8 are considered part of
Additional Rent. Tenant acknowledges that late payment (the fourth day of each
month or any time thereafter) by Tenant to Landlord of Rent and all other sums
due hereunder, will cause Landlord to incur costs not contemplated by this
Lease. Such costs may include, without limitation, processing and accounting
charges, and late charges that may be imposed on Landlord by the terms of any
note secured by any encumbrance against the Premises, and late charges and
penalties due to the late payment of real property taxes on the Premises.
Therefore, if any installment of Rent or any other sum payable by Tenant is not
received by Landlord within four days of the date due, Tenant shall promptly pay
to Landlord a late charge, as liquidated damages, in an amount equal to seven
and one-half percent (7.5%) of such delinquent amount plus interest on such
delinquent amount at the rate equal to the prime rate plus three percent (3%)
for every month or portion thereof that such sums remain unpaid. Notwithstanding
the foregoing, Landlord waives the late charge for the first (1st) instance
during the Term of this Lease in which Tenant fails to timely pay Rent. If
Tenant delivers to Landlord a check for which there are not sufficient funds,
Landlord may require Tenant to replace such check with a cashier's check for the
amount of such check and all other charges payable hereunder. The parties agree
that this late charge and the other charges referenced above represent a fair
and reasonable estimate of the costs that Landlord will incur by reason of such
late payment by Tenant, excluding attorneys' fees and costs. Acceptance of any
late charge or other charges shall not constitute a waiver by Landlord of
Tenant's default with respect to the delinquent amount, nor prevent Landlord
from exercising any of the other rights and remedies available to Landlord for
any other breach of Tenant under this Lease. If a late charge becomes payable
for three (3) installments of Rent, then Landlord, at Landlord's sole option,
can either require the Rent be paid quarterly in advance or be paid monthly in
advance by cashier's check or by electronic funds transfer.
9. USE OF PREMISES
9.1 Compliance with Laws, Recorded Matters, and Rules and Regulations:
The Premises are to be used solely for the purposes and uses specified in the
Basic Lease Information and for no other uses or purposes without Landlord's
prior written consent. Landlord's consent shall not be unreasonably withheld or
delayed so long as the proposed use (i) does not involve the use of Hazardous
Materials other than as expressly permitted under the provisions of Section 29
below, (ii) does not require any additional parking spaces, and (iii) is
compatible and consistent with the other uses then being made in the Project and
in other similar types of buildings in the vicinity of the Project, as
reasonably determined by Landlord. The use of the Premises by Tenant and its
employees, representatives, agents, invitees, licensees, subtenants, customers
or contractors (collectively, "Tenant's Representatives") shall be subject to,
and at all times in compliance with, (a) any and all applicable laws, rules,
codes, ordinances, statutes, orders and regulations as same exist from time to
time throughout the Term of this Lease (collectively, the "Laws"), including
without limitation, the requirements of the Americans with Disabilities Act, a
federal law codified at 42 U.S.C. 12101 et seq., including, but not limited to
Title III thereof, all regulations and guidelines related thereto and all
requirements of Title 24 of the State of California (collectively, the "ADA"),
(b) any and all easements, covenants, conditions and restrictions, and similar
instruments, together with any and all amendments and supplements thereto made
from time to time each of which has been or hereafter is recorded in any
official or public records with respect to the Premises or any other portion of
the Project (collectively, the "Recorded Matters"), and (c) any and all rules
and regulations set forth in Exhibit C hereto, any other reasonable
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nondiscriminatory rules and regulations promulgated by Landlord now or hereafter
enacted relating to parking and the operation of the Premises and/or any other
part of the Project (collectively, the "Rules and Regulations"). Landlord shall
use commercially reasonable efforts to ensure that other tenants in the Project
comply with the Rules and Regulations. Landlord reserves to itself the right,
from time to time, to grant, without the consent of Tenant, such easements,
rights and dedications that Landlord deems reasonably necessary, and to cause
the recordation of parcel or subdivision maps and/or restrictions, so long as
such easements, rights, dedications, maps and restrictions, as applicable, do
not materially and adversely interfere with Tenant's operations in the Premises.
Tenant agrees to sign any documents reasonably requested by Landlord to
effectuate any such easements, rights, dedications, maps or restrictions. Tenant
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agrees to, and does hereby, assume full and complete responsibility to ensure
that the Premises, including without limitation, the Tenant Improvements, are in
compliance with all applicable Laws throughout the Term of this Lease.
Additionally, Tenant shall be solely responsible for the payment of all costs,
fees and expenses associated with any modifications, improvements or other
Alterations to the Premises and/or any other portion of the Project required by
the enactment of, or changes to, any Laws after the Commencement Date and
arising from Tenant's particular use of the Premises or Alterations or other
improvements made to the Premises regardless of when such Laws became effective.
Tenant shall not initiate, submit an application for, or otherwise request, any
land use approvals or entitlements with respect to the Premises or any other
portion of the Project, including without limitation, any variance, conditional
use permit or rezoning, without first obtaining Landlord's prior written consent
thereto, which consent may be given or withheld in Landlord's sole discretion.
9.2 Prohibition on Use: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything therein
which will in any way increase the existing rate of or affect any policy of fire
or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy. No auctions may be held or otherwise
conducted in, on or about any portion of the Premises or the Project without
Landlord's prior written consent thereto. 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 Landlord or other tenants or occupants of any portion of the
Project. The Premises shall not be used for any unlawful purpose. Tenant shall
not cause, maintain or permit any private or public nuisance in, on or about any
portion of the Premises or the Project, including, but not limited to, any
offensive odors, noises, fumes or vibrations. Tenant shall not damage or deface
or otherwise commit or suffer to be committed any waste in, upon or about the
Premises or any other portion of the Project. Tenant shall not place or store,
nor permit any other person or entity to place or store, any property,
equipment, materials, supplies, personal property or any other items or goods
outside of the Premises for any extended period of time. Tenant shall not permit
any animals, including, but not limited to, any household pets, to be brought or
kept in or about the Premises. Tenant shall place no loads upon the floors,
walls, or ceilings in excess of the maximum designed load permitted by the
applicable Uniform Building Code or which may damage the Building or outside
areas within the Project. Tenant shall not place any harmful liquids in the
drainage systems or dump or store waste materials, refuse or other such
materials, or allow such materials to remain outside the Building area, except
for any non-hazardous or non-harmful materials which may be stored in refuse
dumpsters.
10. ALTERATIONS; AND SURRENDER OF PREMISES
10.1 Alterations: Tenant shall not install any signs, fixtures,
improvements, nor make or permit any other alterations or additions
(individually, an "Alteration", and collectively, the "Alterations") to the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed so long as any such Alteration does not
affect the Building systems or the structural integrity of the Premises or the
Building. Notwithstanding the foregoing, Tenant shall be permitted to install
artwork, shelving and normal office furniture, and to perform non-structural
alterations on the Premises not exceeding an aggregate of $25,000 during any
calendar year in any Building without Landlord's prior consent, provided that
Tenant (i) complies with all relevant building codes and fire, safety and other
governmental regulations and (ii) does not adversely effect the structural,
mechanical, electrical, HVAC or plumbing systems of the Premises. If any such
Alteration is expressly permitted by Landlord, Tenant shall deliver at least ten
(10) days prior notice to Landlord, from the date Tenant intends to commence
construction, sufficient to enable Landlord to post a Notice of Non-
Responsibility. In all events, Tenant shall obtain all permits or other
governmental approvals prior to commencing any of such work and deliver a copy
of same to Landlord. All Alterations shall be at Tenant's sole cost and expense,
and shall be installed by a licensed contractor in compliance with all
applicable Laws (including, but not limited to, the ADA), Development Documents,
Recorded Matters, and Rules and Regulations. Tenant shall keep the Premises and
the property on which the Premises are situated free from any liens arising out
of any work performed, materials furnished or obligations incurred by or on
behalf of Tenant. Tenant shall, prior to construction of any and all
Alterations, cause its contractor(s) and/or major subcontractor(s) to provide
insurance as reasonably required by Landlord, and Tenant shall provide such
assurances to Landlord, including without limitation, waivers of lien, surety
company performance bonds as Landlord shall reasonably require to assure payment
of the costs thereof to protect Landlord and the Project from and against any
loss from any mechanic's, materialmen's or other liens.
10.2 Surrender of Premises: At the expiration of the Term or earlier
termination of this Lease, Tenant shall surrender the Premises to Landlord (a)
in good condition and repair (damage by acts of God, casualty, and normal wear
and tear excepted), but with all interior walls cleaned, any carpets cleaned,
all floors cleaned and waxed, all non-working light bulbs and ballasts replaced
and all roll-up doors and plumbing fixtures in good condition and working order,
and (b) in accordance with the provisions of Section 27 hereof. Normal wear and
tear shall not include any damage or deterioration that would have been
prevented by proper maintenance by Tenant, or Tenant otherwise performing all of
its obligations under this Lease. On or before the expiration or earlier
termination of this Lease, (i) Tenant shall remove all of Tenant's Property (as
hereinafter defined) and Tenant's signage from the Premises and the other
portions of the Project, and (ii) to the extent Landlord has advised Tenant in
writing on or about the time that the Tenant Improvements or any Alterations
were constructed and installed in the Premises that Tenant is to remove all or
portions of the items comprising the Tenant Improvements or Alterations (the
"Removable TIs"), Tenant shall remove the Removable TIs. Tenant shall repair any
damage caused by such removal of the Tenant's Property and the Removable TIs.
For purposes hereof, the term "Tenant's Property" shall mean and refer to all
equipment, trade fixtures, computer wiring and cabling, furnishings,
inventories, goods and personal property of Tenant. Any of Tenant's Property not
so removed by Tenant as required herein shall be deemed abandoned and may be
stored, removed, and disposed of by Landlord at Tenant's expense, and Tenant
waives all claims against Landlord for any damages resulting from Landlord's
retention and disposition of such property; provided, however, Tenant shall
remain liable to Landlord for all costs incurred in storing and disposing of
such abandoned property of Tenant. All Tenant Improvements and Alterations
except those which Landlord requires Tenant to remove shall remain in the
Premises as the property of Landlord. If the Premises are not surrendered at the
expiration of the Term or earlier termination of this Lease, and in accordance
with the provisions of this Section 10 and Section 27 below, Tenant shall
continue to be responsible for the payment of Rent (as the same may be increased
pursuant to Section 20 below) until the Premises are so surrendered in
accordance with said provisions. Tenant shall indemnify, defend and hold the
Indemnitees (hereafter defined) harmless from and against any and all damages,
expenses, costs, losses or liabilities arising from any delay by Tenant in so
surrendering the Premises including, without limitation, any damages, expenses,
costs, losses or liabilities arising from any claim against Landlord made by any
succeeding tenant founded on or resulting from such delay and losses and damages
suffered by Landlord due to lost opportunities to lease any portion of the
Premises to any such succeeding tenant or prospective tenant, together with, in
each case, actual attorneys' fees and costs.
11. REPAIRS AND MAINTENANCE
11.1 Tenant's Repairs and Maintenance Obligations: Except for those
portions of the Building to be maintained by Landlord, as provided in Sections
11.2 and 11.3 below, Tenant shall, at its sole cost and expense, keep and
maintain all parts of the Premises and such portions of the Building and
improvements as are within the exclusive control of Tenant in good, clean and
safe
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condition and repair, promptly making all necessary repairs and replacements,
whether ordinary or extraordinary, with materials and workmanship of the same
character, kind and quality as the original thereof, all of the foregoing to the
reasonable satisfaction of Landlord including, but not limited to, repairing any
damage caused by Tenant or any of Tenant's Representatives and replacing any
property so damaged by Tenant or any of Tenant's Representatives. Without
limiting the generality of the foregoing, Tenant shall be solely responsible for
promptly maintaining, repairing and replacing (a) all mechanical systems,
heating, ventilation and air conditioning systems serving the Premises, unless
maintained by Landlord, (b) all plumbing systems within either Building and all
plumbing fixtures, (c) electrical wiring systems, fixtures and equipment
exclusively serving the Premises, (d) all interior lighting (including, without
limitation, light bulbs and/or ballasts) and exterior lighting exclusively
serving the Premises or adjacent to the Premises, (e) all glass, windows, window
frames, window casements, skylights, interior and exterior doors, door frames
and door closers, (f) all roll-up doors, ramps and dock equipment, including
without limitation, dock bumpers, dock plates, dock seals, dock levelers and
dock lights, (g) all tenant signage, (h) lifts for disabled persons serving the
Premises, (i) sprinkler systems, fire protection systems and security systems,
except to the extent maintained by Landlord, and (j) all partitions, fixtures,
equipment, interior painting, interior walls and floors, and floor coverings of
the Premises and every part thereof (including, without limitation, any demising
walls contiguous to any portion of the Premises). Additionally, Tenant shall be
solely responsible for performance of the regular removal of trash and debris.
Tenant shall have no right of access to or right to install any device on the
roof of the Building nor make any penetrations of the roof of the Building
without the express prior written consent of Landlord.
11.2 Maintenance by Landlord: Subject to the provisions of Section 11.1,
and further subject to Tenant's obligation under Section 6 to reimburse
Landlord, in the form of Additional Rent, for Tenant's Share of the cost and
expense of the following described items, Landlord agrees to repair and maintain
the following items: fire protection services; the roof and roof coverings
(provided that Tenant installs no additional air conditioning or other equipment
on the roof that damages the roof coverings, in which event Tenant shall pay all
costs relating to the presence of such additional equipment); the plumbing and
mechanical systems serving the Building, excluding the plumbing, mechanical and
electrical systems exclusively serving the Premises; plumbing, electrical and
sewer service up to the exterior walls of the Buildings; exterior painting of
the Building; and the parking areas, pavement, landscaping, sprinkler systems,
sidewalks, driveways, curbs, and lighting systems in the Common Areas.
Notwithstanding anything in this Section 11 to the contrary, Landlord shall have
the right to either repair or to require Tenant to repair any damage to any
portion of the Premises and any other portion of the Project caused by or
created due to any act, omission, negligence or willful misconduct of Tenant or
any of Tenant Representatives and to restore the Premises and the other affected
portions of the Project, as applicable, to the condition existing prior to the
occurrence of such damage. To the extent that insurance proceeds are available,
Landlord agrees to make such proceeds available to Tenant if Landlord elects to
have Tenant make such repairs or restoration. If Landlord elects to perform such
repair and restoration work, Tenant shall reimburse Landlord upon demand for all
costs and expenses incurred by Landlord in connection therewith, to the extent
not otherwise covered by insurance proceeds. Tenant shall promptly report, in
writing, to Landlord any defective condition known to it which Landlord is
required to repair, and failure to so report any such defect shall make Tenant
responsible to Landlord for any liability proximately caused by Tenant's failure
to report such condition.
11.3 Landlord's Repairs and Maintenance Obligations: Subject to the
provisions of Sections 11.1, 25 and 26, and except for repairs rendered
necessary by the intentional or negligent acts or omissions of Tenant or any of
Tenant's Representatives (other than those covered by insurance), Landlord
agrees, at Landlord's sole cost and expense, to (a) keep in good repair the
structural portions of the floors, foundations and exterior perimeter walls of
the Building (exclusive of glass and exterior doors), and (b) replace the
structural portions of the roof of the Building (excluding the roof membrane).
11.4 Tenant's Failure to Perform Repairs and Maintenance Obligations: If
Tenant refuses or neglects to repair and maintain the Premises and the other
areas as required herein, and to the reasonable satisfaction of Landlord,
Landlord may, but without obligation to do so, at any time make such repairs or
maintenance without Landlord having any liability to Tenant for any loss or
damage that may accrue to Tenant's Property or to Tenant's business by reason
thereof, except to the extent any damage is caused by the willful misconduct or
gross negligence of Landlord or its authorized agents and representatives. If
Landlord makes such repairs or maintenance, upon completion thereof Tenant shall
pay to Landlord, as Additional Rent, Landlord's costs and expenses incurred
therefor. The obligations of Tenant hereunder shall survive the expiration of
the Term of this Lease or the earlier termination thereof. Tenant hereby waives
any right to repair at the expense of Landlord under any applicable Laws now or
hereafter in effect with respect to the Premises.
12. INSURANCE
12.1 Types of Insurance: Tenant shall maintain in full force and effect
at all times during the Term of this Lease, at Tenant's sole cost and expense,
for the protection of Tenant and Landlord, as their interests may appear,
policies of insurance issued by a carrier or carriers reasonably acceptable to
Landlord and its lender which afford the following coverages: (i) worker's
compensation and employer's liability, as required by law; (ii) commercial
general liability insurance (occurrence form) providing coverage against any and
all claims for bodily injury and property damage occurring in, on or about the
Premises arising out of Tenant's and Tenant's Representatives' use or occupancy
of the Premises. Such insurance shall include coverage for blanket contractual
liability, fire damage, premises, personal injury, completed operations and
products liability. Such insurance shall have a combined single limit of not
less than One Million Dollars ($1,000,000) per occurrence with a Two Million
Dollar ($2,000,000) aggregate limit and excess/umbrella insurance in the amount
of Four Million Dollars ($4,000,000). If Tenant has other locations which it
owns or leases, the policy shall include an aggregate limit per location
endorsement; (iii) comprehensive automobile liability insurance with a combined
single limit of at least $1,000,000 per occurrence for claims arising out of any
company owned automobiles; (iv) "all risk" or "special form or equivalent"
property insurance, including without limitation, sprinkler leakage, covering
damage to or loss of any of Tenant's Property located in, on or about the
Premises, and in addition, coverage for business interruption of Tenant,
together with, if the property of any of Tenant's invitees, vendors or customers
is to be kept in the Premises, warehouser's legal liability or bailee customers
insurance for the full replacement cost of the property belonging to such
parties and located in the Premises. Such insurance shall be written on a
replacement cost basis (without deduction for depreciation) in an amount equal
to one hundred percent (100%) of the full replacement value of the aggregate of
the items referred to in this clause (iv); and (v) such other insurance or
higher limits of liability as is then customarily required for similar types of
buildings within the general vicinity of the Project or as may be reasonably
required by any of Landlord's lenders.
12.2 Insurance Policies: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A:X (or such higher rating as may be
required by a lender having a lien on the Premises) as set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed Twenty-five
thousand dollars ($25,000). Tenant shall deliver to Landlord certificates of
insurance for all insurance required to be maintained by Tenant hereunder at the
time of execution of this Lease by Tenant. Tenant shall, prior to expiration of
each policy, furnish Landlord with certificates of renewal or "binders" thereof.
Each certificate shall expressly provide that such policies shall not be
cancelable or otherwise
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subject to reduction in coverage except after thirty (30) days prior written
notice to the parties named as additional insureds as required in this Lease
(except for cancellation for nonpayment of premium, in which event cancellation
shall not take effect until at least ten (10) days' notice has been given to
Landlord). Tenant shall have the right to provide insurance coverage which it is
obligated to carry pursuant to the terms of this Lease under a blanket insurance
policy, provided such blanket policy expressly affords coverage for the Premises
and for Landlord as required by this Lease.
12.3 Additional Insureds and Coverage: Each of Landlord, Landlord's
property management company or agent and Landlord's lender(s) having a lien
against the Premises or any other portion of the Project shall be named as
additional insureds or loss payees (as applicable) under all of the policies
required in Section 12.1(ii) and, with respect to the Tenant Improvements, in
Section 12.1(iv) hereof. Additionally, all of such policies shall provide for
severability of interest. All insurance to be maintained by Tenant shall, except
for workers' compensation and employer's liability insurance, be primary,
without right of contribution from insurance maintained by Landlord. Any
umbrella/excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage will
drop down as primary insurance. The limits of insurance maintained by Tenant
shall not limit Tenant's liability under this Lease. It is the parties'
intention that the insurance to be procured and maintained by Tenant as required
herein shall provide coverage for any and all damage or injury arising from or
related to Tenant's operations of its business and/or Tenant's or Tenant's
Representatives' use of the Premises and any of the areas within the Project.
Notwithstanding anything to the contrary contained herein, to the extent
Landlord's cost of maintaining insurance with respect to the Building and/or any
other buildings within the Project is increased as a result of Tenant's acts,
omissions, Alterations, improvements, use or occupancy of the Premises, Tenant
shall pay one hundred percent (100%) of, and for, each such increase as
Additional Rent.
12.4 Failure of Tenant to Purchase and Maintain Insurance: If Tenant
fails to obtain and maintain the insurance required herein throughout the Term
of this Lease, Landlord may, but without obligation to do so, purchase the
necessary insurance and pay the premiums therefor. If Landlord so elects to
purchase such insurance, Tenant shall promptly pay to Landlord as Additional
Rent, the amount so paid by Landlord, upon Landlord's demand therefor. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
Additional Rent, any and all losses, damages, expenses and costs which Landlord
may sustain or incur by reason of Tenant's failure to obtain and maintain such
insurance.
12.5 Waiver of Subrogation: Landlord and Tenant hereby mutually waive
their respective rights of recovery against each other for any loss of, or
damage to, either parties' property to the extent that such loss or damage is
insured by an insurance policy required to be in effect at the time of such loss
or damage. Each party shall obtain any special endorsements, if required by its
insurer, whereby the insurer waives its rights of subrogation against the other
party. This provision is intended to waive fully, and for the benefit of the
parties hereto, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier.
12.6 Landlord's Insurance. Landlord shall, during the Term of this Lease,
procure and keep in force the following insurance, the cost of which shall be
deemed an Operating Expense under Section 6.1 of this Lease: property insurance
insuring the Building (and Tenant Improvements) and improvements within the Park
and rental value insurance for perils covered by the causes of loss - special
form (all risk) and in addition coverage for flood, earthquake and boiler and
machinery (if applicable). Such coverage (except for flood and earthquake) shall
be written on a replacement cost basis equal to at least eighty percent (80%) of
the full insurable replacement value of the foregoing (excluding costs for
footings and excavation) and shall not cover any Alterations, Tenant's
equipment, trade fixtures, inventory, fixtures or personal property located on
or in the Premises. Additionally, Landlord shall, during the Term of this Lease,
procure and keep in force the following insurance, the cost of which shall be
deemed an Operating Expense under Section 6.1 of this Lease: commercial general
liability insurance (occurrence form) providing coverage against claims for
bodily injury, personal injury and property damage occurring in, on or about the
Common Areas, having a combined single limit of not less than Two Million
Dollars ($2,000,000) per occurrence and in the aggregate.
13. LIMITATION OF LIABILITY AND INDEMNITY
Except to the extent of damage resulting from the gross negligence, willful
misconduct of Landlord or its authorized representatives, or Landlord's material
default of the provisions of this Lease, beyond any applicable cure period
Tenant agrees to protect, defend (with counsel reasonably acceptable to
Landlord) and hold Landlord and Landlord's lenders, partners, members, property
management company (if other than Landlord), agents, directors, officers,
employees, representatives, contractors, successors and assigns and each of
their respective partners, members, directors, heirs, employees,
representatives, agents, contractors, heirs, successors and assigns
(collectively, the "Indemnitees") harmless and indemnify the Indemnitees from
and against all liabilities, damages, demands, penalties, costs, losses,
judgments, charges and expenses (including reasonable attorneys' fees, costs of
court and expenses necessary in the prosecution or defense of any litigation
including the enforcement of this provision) (collectively, "Claims") arising
from or in any way related to, directly or indirectly, (i) Tenant's or Tenant's
Representatives' use of the Premises and other portions of the Project, (ii) the
conduct of Tenant's business at the Premises, (iii) from any activity, work or
thing done, permitted or suffered by Tenant in or about the Premises, (iv) in
any way connected with the Premises, the Alterations or with the Tenant's
Property therein, including, but not limited to, any liability for injury to
person or property of Tenant, Tenant's Representatives or third party persons,
and/or (v) Tenant's failure to perform any covenant or obligation of Tenant
under this Lease. Tenant agrees that the obligations of Tenant herein shall
survive the expiration or earlier termination of this Lease.
Except to the extent of damage resulting from the gross negligence or willful
misconduct of Landlord or its authorized representatives, or Landlord's material
default of the provisions of this Lease, beyond any applicable cure periods to
the fullest extent permitted by law, Tenant agrees that neither Landlord nor any
of the Indemnitees shall at any time or to any extent whatsoever be liable,
responsible or in any way accountable for any loss, liability, injury, death or
damage to persons or property which at any time may be suffered or sustained by
Tenant or by any person(s) whomsoever who may at any time be using, occupying or
visiting the Premises or any other portion of the Project, including, but not
limited to, any acts, errors or omissions of any other tenants or occupants of
the Project. Tenant shall not, in any event or circumstance, be permitted to
offset or otherwise credit against any payments of Rent required herein for
matters for which Landlord may be liable hereunder. Landlord and its authorized
representatives shall not be liable for any interference with light or air.
14. ASSIGNMENT AND SUBLEASING
14.1 Prohibition: Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or
conditioned, assign, mortgage, hypothecate, encumber, grant any license or
concession, pledge or otherwise transfer this Lease or any interest herein,
permit any assignment or other such transfer of this Lease or any interest
hereunder by operation of law,
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sublet the Premises or any part thereof, or permit the use of the Premises by
any persons other than Tenant and Tenant's Representatives (all of the foregoing
are sometimes referred to collectively as "Transfers" and any person to whom any
Transfer is made or sought to be made is sometimes referred to as a
"Transferee"). No consent to any Transfer shall constitute a waiver of the
provisions of this Section 14, and all subsequent Transfers may be made only
with the prior written consent of Landlord, which consent shall not be
unreasonably withheld, but which consent shall be subject to the provisions of
this Section 14.
14.2 Request for Consent: If Tenant seeks to make a Transfer, Tenant
shall notify Landlord, in writing, and deliver to Landlord at least thirty (30)
days (but not more than one hundred eighty (180) days) prior to the proposed
commencement date of the Transfer (the "Proposed Effective Date") the following
information and documents (the "Tenant's Notice"): (i) a description of the
portion of the Premises to be transferred (the "Subject Space"); (ii) all of the
terms of the proposed Transfer including without limitation, the Proposed
Effective Date, the name and address of the proposed Transferee, and a copy of
the existing or proposed assignment, sublease or other agreement governing the
proposed Transfer; (iii) current financial statements of the proposed Transferee
certified by an officer, member, partner or owner thereof, and any such other
information as Landlord may then reasonably require; including without
limitation, audited financial statements for the previous three (3) most recent
consecutive fiscal years, if available; (iv) the Plans and Specifications
(defined below), if any; and (v) such other information as Landlord may then
reasonably require. Tenant shall give Landlord the Tenant's Notice by registered
or certified mail addressed to Landlord at Landlord's Address specified in the
Basic Lease Information. Within fifteen (15) days after Landlord's receipt of
the Tenant's Notice (the "Landlord Response Period") Landlord shall notify
Tenant, in writing, of its determination with respect to such requested proposed
Transfer and the election to recapture as set forth in Section 14.5 below. If
Landlord does not elect to recapture pursuant to the provisions of Section 14.5
hereof and Landlord does consent to the requested proposed Transfer, Tenant may
thereafter assign its interests in and to this Lease or sublease all or a
portion of the Premises to the same party and on the same terms as set forth in
the Tenant's Notice. If Landlord fails to respond to Tenant's Notice within
Landlord's Response Period, then, the proposed Transfer shall then be deemed
approved by Landlord.
14.3 Criteria for Consent: Tenant acknowledges and agrees that, among
other circumstances for which Landlord could reasonably withhold consent to a
proposed Transfer, it shall be reasonable for Landlord to withhold its consent
where (a) Tenant is in default of its obligations under this Lease beyond
applicable notice and cure periods, (b) the use to be made of the Premises by
the proposed Transferee is prohibited under this Lease or differs in any
material respect from the uses permitted under this Lease, (c) the proposed
Transferee or its business is subject to compliance with additional requirements
of the ADA beyond those requirements which are applicable to Tenant, unless the
proposed Transferee shall (1) first deliver plans and specifications for
complying with such additional requirements (the "Plans and Specifications") and
obtain Landlord's written consent thereto, and (2) comply with all Landlord's
reasonable conditions contained in such consent, (d) the proposed Transferee
does not intend to occupy a substantial portion of the Premises assigned or
sublet to it, (e) Landlord reasonably disapproves of the proposed Transferee's
business operating ability or history, reputation or creditworthiness or the
character of the business to be conducted by the proposed Transferee at the
Premises, (f) the proposed Transferee is a governmental agency or unit or an
existing tenant in the Project (and no other space is available in the Project
for lease to such tenant), (g) the proposed Transfer would cause Landlord to
violate another agreement or obligation to which Landlord is a party or
otherwise subject, (h) Landlord or Landlord's agent has shown space in the
Project to the proposed Transferee or responded to any inquiries from the
proposed Transferee or the proposed Transferee's agent concerning availability
of space in the Project, at any time within the preceding six (6) months and no
other space is available in the Project for lease to such Transferee, (i)
Landlord otherwise reasonably determines that the proposed Transfer would have
the effect of decreasing the value of the Building or the Project, or materially
increasing the expenses associated with operating, maintaining and repairing the
Project, (j) either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (x) occupies space in the Building at the time of
the request for consent, (y) is negotiating with Landlord to lease space in the
Building at such time, or (z) has negotiated with Landlord during the 12 month
period immediately preceding the Tenant's Notice, and space is otherwise
available for lease to such Transferee or party, (k) the Transfer occurs during
the time period between the Commencement Date and the date that at least ninety-
five percent (95%) of the rentable square feet of the Building is leased, or (l)
the proposed Transferee will use, store or handle Hazardous Materials (defined
below) in or about the Premises of a type, nature or quantity not then
acceptable to Landlord.
14.4 Effectiveness of Transfer and Continuing Obligations: Prior to the
date on which any permitted Transfer becomes effective, Tenant shall deliver to
Landlord (i) a counterpart of the fully executed Transfer document, (ii) an
executed Hazardous Materials Disclosure Certificate substantially in the form of
Exhibit E hereto (the "Transferee HazMat Certificate"), and (iii) Landlord's
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standard form of Consent to Assignment or Consent to Sublease, as applicable,
executed by Tenant and the Transferee in which each of Tenant and the Transferee
confirms its obligations pursuant to this Lease. Failure or refusal of a
Transferee to execute any such consent instrument shall not release or discharge
the Transferee from its obligation to do so or from any liability as provided
herein. The voluntary, involuntary or other surrender of this Lease by Tenant,
or a mutual cancellation by Landlord and Tenant, shall not work a merger, and
any such surrender or cancellation shall, at the option of Landlord, either
terminate all or any existing subleases or operate as an assignment to Landlord
of any or all of such subleases. Each permitted Transferee shall assume and be
deemed to assume this Lease and shall be and remain liable jointly and severally
with Tenant for payment of Rent and for the due performance of, and compliance
with all the terms, covenants, conditions and agreements herein contained on
Tenant's part to be performed or complied with, for the Term of this Lease. No
Transfer shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the assignee), and Tenant
shall not be released from performing any of the terms, covenants and conditions
of this Lease. An assignee of Tenant shall become directly liable to Landlord
for all obligations of Tenant hereunder, but no Transfer by Tenant shall relieve
Tenant of any obligations or liability under this Lease whether occurring before
or after such consent, assignment, subletting or other Transfer. The acceptance
of any or all of the Rent by Landlord from any other person (whether or not such
person is an occupant of the Premises) shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any Transfer. Any
and all options, first rights of refusal, tenant improvement allowances and
other similar rights granted to Tenant in this Lease, if any, shall not be
assignable by Tenant unless expressly authorized in writing by Landlord. Any
transfer made without Landlord's prior written consent, shall, at Landlord's
option, be null, void and of no effect, and shall, at Landlord's option,
constitute a material default by Tenant of this Lease. As Additional Rent
hereunder, Tenant shall promptly reimburse Landlord for actual legal expenses
incurred by Landlord in connection with any actual or proposed Transfer, up to a
maximum of $2,000.
14.5 Recapture: If the Transfer (i) by itself or taken together with then
existing or pending Transfers covers or totals, as the case may be, more than
one hundred percent (100%) of the rentable square feet of either Building, or
(ii) is for a term which by itself or taken together with then existing or
pending Transfers is greater than fifty percent (50%) of the period then
remaining in the Term of this Lease as of the time of the Proposed Effective
Date, then Landlord shall have the right, to be exercised by giving written
notice to Tenant, to recapture the Subject Space described in the Tenant's
Notice. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed Subject Space, or, if the proposed Subject
Space covers all the Premises, it shall serve to terminate the entire Term of
this Lease, in either case, as of the Proposed Effective Date. However, no
termination of this Lease with respect to part or all of
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the Premises shall become effective without the prior written consent, where
necessary, of the holder of each deed of trust encumbering the Premises or any
other portion of the Project. If this Lease is terminated pursuant to the
foregoing provisions with respect to less than the entire Premises, the Rent
shall be adjusted on the basis of the proportion of rentable square feet
retained by Tenant to the rentable square feet originally demised and this Lease
as so amended shall continue thereafter in full force and effect.
14.6 Transfer Premium: If Landlord consents to a Transfer, as a condition
thereto which the Tenant hereby agrees is reasonable, Tenant shall pay to
Landlord, as Additional Rent seventy-five percent (75%) of any "Transfer
Premium" received by Tenant from such Transferee. The term "Transfer Premium"
shall mean all rent, additional rent and other consideration paid by such
Transferee which either initially or over the term of the Transfer exceeds the
Rent or pro rata portion of the Rent, as the case may be, for such space
reserved in the Lease, after deducting therefrom all of Tenant's actual
brokerage commission costs incurred in connection with such Transfer. Tenant
shall pay the Landlord monthly, as Additional Rent, at the same time as the
monthly installments of Rent are payable hereunder, its portion of the Transfer
Premium.
14.7 Waiver: Notwithstanding any Transfer, or any indulgences, waivers or
extensions of time granted by Landlord to any Transferee, or failure by Landlord
to take action against any Transferee, Tenant agrees that Landlord may, at its
option, proceed against Tenant without having taken action against or joined
such Transferee, except that Tenant shall have the benefit of any indulgences,
waivers and extensions of time granted to any such Transferee.
14.8 Affiliated Companies/Restructuring of Business Organization: The
assignment or subletting by Tenant of all or any portion of this Lease or the
Premises to (i) a parent or subsidiary of Tenant, or (ii) any person or entity
which controls, is controlled by or under the common control with Tenant, or
(iii) any entity which purchases all or substantially all of the assets of
Tenant, or (iv) any entity into which Tenant is merged or consolidated (all such
persons or entities described in clauses (i), (ii), (iii) and (iv) being
sometimes herein referred to as "Affiliates") shall not be deemed a Transfer
under the Section 14 (hence, the aforesaid events shall not be subject to
obtaining Landlord's prior consent; Landlord shall not have any right to receive
any Transfer Premium in connection therewith; and Landlord shall not have the
recapture rights described in Section 14.5 above), provided in all instances
that:
14.8.1 any such Affiliate was not formed as a subterfuge to avoid
the obligations of this Section 14;
14.8.2 Tenant give Landlord prior notice of any such assignment or
sublease to an Affiliate;
14.8.3 the successor of Tenant has as of the effective date of any
such assignment or sublease a market value of at least $500 million and a
tangible net worth and net assets, in the aggregate, computed in accordance with
generally accepted accounting principles (but excluding goodwill as an asset),
which is sufficient to meet the obligations of Tenant under this Lease, as
reasonably determined by Landlord;
14.8.4 any such assignment or sublease shall be subject to all of
the terms and provisions of this Lease, and such assignee or sublessee (i.e. any
such Affiliate), other than in the case of an Affiliate resulting from a merger
or consolidation as described in Section 14.8 (iv) above, shall assume, in a
written document reasonably satisfactory to Landlord and delivered to Landlord
upon or prior to the effective date of such assignment or sublease, all the
obligations of Tenant under this Lease; and
14.8.5 Tenant and any guarantor shall remain fully liable for all
obligations to be performed by Tenant under this Lease, except in the case of an
Affiliate resulting from the acquisition of all or substantially all of the
assets of Tenant described in Section 14.8 (iii) or from a merger or
consolidation described in Section 14.8 (iv) above.
15. SUBORDINATION
To the fullest extent permitted by law, this Lease, the rights of Tenant under
this Lease and Tenant's leasehold interest shall be subject and subordinate at
all times to: (i) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building, the Lot, or any other portion of
the Project, and (ii) the lien of any mortgage or deed of trust which may now or
hereafter exist for which the Building, the Lot, ground leases or underlying
leases, any other portion of the Project or Landlord's interest or estate in any
of said items is specified as security. Notwithstanding the foregoing, Landlord
or any such ground lessor, mortgagee, or any beneficiary shall have the right to
require this Lease be superior to any such ground leases or underlying leases or
any such liens, mortgage or deed of trust. If any ground lease or underlying
lease terminates for any reason or any mortgage or deed of trust is foreclosed
or a conveyance in lieu of foreclosure is made for any reason, Tenant shall
attorn to and become the Tenant of the successor in interest to Landlord,
provided such successor in interest will not disturb Tenant's use, occupancy or
quiet enjoyment of the Premises if Tenant is not in material default of the
terms and provisions of this Lease. The successor in interest to Landlord
following foreclosure, sale or deed in lieu thereof shall not be: (a) liable for
any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership; (b) subject to any offsets or defenses which
Tenant might have against any prior lessor; (c) bound by prepayment of more than
one (1) month's Rent, except in those instances when Tenant pays Rent quarterly
in advance pursuant to Section 8 hereof, then not more than three months' Rent;
or (d) liable to Tenant for any Security Deposit not actually received by such
successor in interest to the extent any portion or all of such Security Deposit
has not already been forfeited by, or refunded to, Tenant. Landlord shall be
liable to Tenant for all or any portion of the Security Deposit not forfeited
by, or refunded to Tenant, until and unless Landlord transfers such Security
Deposit to the successor in interest. Tenant covenants and agrees to execute
(and acknowledge if required by Landlord, any lender or ground lessor) and
deliver, within five (5) days of a demand or request by Landlord and in the form
reasonably requested by Landlord, ground lessor, mortgagee or beneficiary, any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or the lien of any such
mortgage or deed of trust. Tenant hereby acknowledges that as of the date on
which Landlord and Tenant execute this Lease there is a deed of trust
encumbering, and in force against the Premises, the Building and the Park in
favor of Bank of America, N.T. & S.A. (the "Current Lender"). Within thirty (30)
days of Tenant's execution of this Lease, Tenant shall sign, notarize and
deliver a subordination, non-disturbance and attornment agreement substantially
in the form of Exhibit I attached hereto, entitled "Subordination, Non-
Disturbance and Attornment Agreement." Landlord shall (i) execute and notarize
such agreement within thirty (30) days of Landlord's execution of this Lease and
(ii) cause Current Lender to execute and notarize such agreement promptly after
Landlord's and Tenant's execution and notarization of such non-disturbance
agreement. If Landlord at any time during the Term of the Lease causes the
Premises, the Building and the Park to be encumbered by a new deed of trust or
mortgage pursuant to which the beneficiary of such deed of trust or mortgage is
a party or entity other than the Current Lender, the parties acknowledge and
agree that the form of any non-disturbance and attornment agreement that may be
requested to be executed and delivered by Tenant in connection therewith will
not be the "Subordination, Non-Disturbance and Attornment Agreement" attached to
the Lease as Exhibit I. Tenant's agreement to subordinate this Lease to any
future ground or underlying lease or any future deed of trust or mortgage
pursuant to the foregoing provisions of this Section
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15 is conditioned upon Landlord delivering to Tenant from the lessor under such
future ground or underlying lease or the holder of any such deed of trust, a
non-disturbance agreement agreeing, among other things, that Tenant's right to
possession of the Premises pursuant to the terms and conditions of this Lease
shall not be disturbed provided Tenant is not in default under this Lease beyond
the applicable notice and cure periods hereunder.
16. RIGHT OF ENTRY
Subject to Tenant's reasonable security requirements, Landlord and its agents
shall have the right to enter the Premises at all reasonable times, upon
reasonable prior notice, for purposes of inspection, exhibition, posting of
notices, investigation, replacements, repair and maintenance. It is further
agreed that Landlord shall have the right to use any and all means Landlord
deems necessary to enter the Premises in an emergency. Landlord shall have the
right, during the final nine months of the Lease term, to place "for rent" or
"for lease" signs on the outside of the Premises, the Building and in the Common
Areas. Landlord shall also have the right to place "for sale" signs on the
outside of the Building and in the Common Areas. Tenant hereby waives any Claim
from damages or for any injury or inconvenience to or interference with Tenant's
business, or any other loss occasioned thereby except for any Claim for any of
the foregoing arising out of the gross negligence or willful misconduct of
Landlord or its authorized representatives or breach of this Section 16.
Landlord shall use its best efforts not to unreasonably interfere with or
disturb Tenant's use or occupancy of the Premises in connection with the
exercise of its rights under this Section 16.
17. ESTOPPEL CERTIFICATE
Tenant shall execute (and acknowledge if required by any lender or ground
lessor) and deliver to Landlord, within five (5) business days after Landlord
provides such to Tenant, a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification), the date to which the Rent and other charges are paid in
advance, if any, acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder or specifying such defaults
as are claimed, and such other matters as Landlord may reasonably require. Any
such statement may be conclusively relied upon by Landlord and any prospective
purchaser or encumbrancer of the Building or other portions of the Project.
Tenant's failure to deliver such statement within such time shall be conclusive
upon the Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) there are no uncured
defaults in Landlord's performance; and (c) not more than one month's Rent has
been paid in advance, except in those instances when Tenant pays Rent quarterly
in advance pursuant to Section 8 hereof, then not more than three months' Rent
has been paid in advance.
18. TENANT'S DEFAULT
The occurrence of any one or more of the following events shall, at Landlord's
option, constitute a material default by Tenant of the provisions of this Lease:
18.1 The abandonment of the Premises by Tenant without payment of Rent
for the statutorily prescribed period or the vacation of the Premises by Tenant
which would cause any insurance policy to be invalidated or otherwise lapse;
18.2 The failure by Tenant to make any payment of Rent, Additional Rent
or any other payment required hereunder within three (3) business days after
Landlord's delivery of written notice to Tenant that said payment is past due.
Tenant agrees that any such written notice delivered by Landlord shall, to the
fullest extent permitted by law, serve as the statutorily required notice under
applicable law;
18.3 The failure by Tenant to observe, perform or comply with any of the
conditions, covenants or provisions of this Lease (except failure to make any
payment of Rent and/or Additional Rent) and such failure is not cured within (i)
thirty (30) days of the date on which Landlord delivers written notice of such
failure to Tenant for all failures other than with respect to (a) Hazardous
Materials (defined in Section 27 hereof), or (b) the timely delivery by Tenant
of a subordination, non-disturbance and attornment agreement (an "SNDA"), a
counterpart of a fully executed Transfer document and a consent thereto
(collectively, the "Transfer Documents"), an estoppel certificate and insurance
certificates, (ii) ten (10) days of the date on which Landlord delivers written
notice of such failure to Tenant for all failures in any way related to
Hazardous Materials or Tenant failing to timely make the repairs, maintenance or
replacements required by Section 11.1, and (iii) the time period, if any,
specified in the applicable sections of this Lease with respect to
subordination, assignment and sublease, estoppel certificates and insurance.
However, Tenant shall not be in default of its obligations hereunder if such
failure (other than any failure of Tenant to timely deliver an SNDA, the
Transfer Documents, an estoppel certificate or insurance certificates, for which
no additional cure period shall be given to Tenant) cannot reasonably be cured
within such thirty (30) or ten (10) day period, as applicable, and Tenant
promptly commences, and thereafter diligently proceeds with same to completion;
all actions necessary to cure such failure a soon as is reasonably possible, but
in no event shall the completion of such cure be later than sixty (60) days
after the date on which Landlord delivers to Tenant written notice of such
failure, unless Landlord, acting reasonably and in good faith otherwise
expressly agrees in writing to a longer period of time based upon the
circumstances relating to such failure as well as the nature of the failure and
the nature of the actions necessary to cure such failure; or
18.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets or this leasehold, where such attachment, execution or seizure is not
released within thirty (30) days.
19. REMEDIES FOR TENANT'S DEFAULT
19.1 Landlord's Rights: In the event of Tenant's material default under
this Lease, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which case upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In
addition, the Landlord shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this right of re-entry is exercised following
abandonment of the Premises by Tenant, Landlord may consider any of Tenant's
Property left on the Premises to also have been
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abandoned. No re-entry or taking possession of the Premises by Landlord pursuant
to this Section 19 shall be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant. If Landlord relets
the Premises or any portion thereof, Tenant shall be liable immediately to
Landlord for all reasonable costs Landlord incurs in reletting the Premises or
any part thereof, including, without limitation, broker's commissions, expenses
of cleaning, redecorating, and further improving the Premises and other similar
costs (collectively, the "Reletting Costs"). Any and all of the Reletting Costs
shall be fully chargeable to Tenant and shall not be prorated or otherwise
amortized in relation to any new lease for the Premises or any portion thereof.
Reletting may be for a period shorter or longer than the remaining term of this
Lease. In no event shall Tenant be entitled to any excess rent received by
Landlord. No act by Landlord other than giving written notice to Tenant shall
terminate this Lease. Acts of maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right
to possession. So long as this Lease is not terminated, Landlord shall have the
right to remedy any default of Tenant, to maintain or improve the Premises, to
cause a receiver to be appointed to administer the Premises and new or existing
subleases and to add to the Rent payable hereunder all of Landlord's reasonable
costs in so doing, with interest at the maximum rate permitted by law from the
date of such expenditure.
19.2 Damages Recoverable: If Tenant materially breaches this Lease and
abandons the Premises before the end of the Term, or if Tenant's right to
possession is terminated by Landlord because of a material breach or default
under this Lease, then in either such case, Landlord may recover from Tenant all
damages suffered by Landlord as a result of Tenant's failure to perform its
obligations hereunder, including without limitation, the unamortized cost of any
Tenant Improvements constructed by or on behalf of Tenant pursuant to Exhibit B
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hereto to the extent Landlord has paid for such improvements, the unamortized
portion of any broker's or leasing agent's commission incurred with respect to
the leasing of the Premises to Tenant for the balance of the Term of the Lease
remaining after the date on which Tenant is in default of its obligations
hereunder, and all Reletting Costs, and the worth at the time of the award
(computed in accordance with paragraph (3) of Subdivision (a) of Section 1951.2
of the California Civil Code) of the amount by which the Rent then unpaid
hereunder for the balance of the Lease Term exceeds the amount of such loss of
Rent for the same period which Tenant proves could be reasonably avoided by
Landlord and in such case, Landlord prior to the award, may relet the Premises
for the purpose of mitigating damages suffered by Landlord because of Tenant's
failure to perform its obligations hereunder; provided, however, that even
though Tenant has abandoned the Premises following such material breach, this
Lease shall nevertheless continue in full force and effect for as long as
Landlord does not terminate Tenant's right of possession, and until such
termination, Landlord shall have the remedy described in Section 1951.4 of the
California Civil Code (Landlord may continue this Lease in effect after Tenant's
breach and abandonment and recover Rent as it becomes due, if Tenant has the
right to sublet or assign, subject only to reasonable limitations) and may
enforce all its rights and remedies under this Lease, including the right to
recover the Rent from Tenant as it becomes due hereunder. The "worth at the time
of the award" within the meaning of Subparagraphs (a)(1) and (a)(2) of Section
1951.2 of the California Civil Code shall be computed by allowing interest at
the rate of ten percent (10%) per annum. Tenant waives redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 and 1179 (or
any successor or substitute statute), or under any other present or future law,
in the event Tenant is evicted or Landlord takes possession of the Premises by
reason of any default of Tenant hereunder. Tenant hereby waives for Tenant and
for all those claiming under Tenant all rights now or hereafter existing to
redeem by order or judgment of any court or by any legal process or writ,
Tenant's right of occupancy of the Premises after any termination of this Lease.
19.3 Rights and Remedies Cumulative: The foregoing rights and remedies of
Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditors' rights generally. In
addition to all remedies set forth above, if Tenant materially defaults under
this Lease, all options granted to Tenant hereunder shall automatically
terminate, unless otherwise expressly agreed to in writing by Landlord.
20. HOLDING OVER
If Tenant holds over after the expiration of the Lease Term hereof, with or
without the express or implied consent of Landlord, such tenancy shall be from
month-to-month only, and shall not constitute a renewal hereof or an extension
for any further term, and in such case Base Rent shall be payable at a monthly
rate equal to one hundred fifty percent (150%) of the Base Rent applicable
during the last rental period of the Lease Term under this Lease. Such month-to-
month tenancy shall be subject to every other term, covenant and agreement
contained herein. Landlord hereby expressly reserves the right to require Tenant
to surrender possession of the Premises to Landlord as provided in this Lease
upon the expiration or other termination of this Lease. The provisions of this
Section 20 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law. If Tenant fails to
surrender the Premises upon the termination or expiration of this Lease, in
addition to any other liabilities to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all Claims resulting
from such failure, including but not limited to, any Claims made by any
succeeding tenant founded upon such failure to surrender, and any lost profits
to Landlord resulting therefrom.
21. LANDLORD'S DEFAULT
Landlord shall not be considered in default of this Lease unless Landlord fails
within a reasonable time to perform an obligation required to be performed by
Landlord hereunder. For purposes hereof, a reasonable time shall not be less
than thirty (30) days after receipt by Landlord of written notice specifying the
nature of the obligation Landlord has not performed, unless the nature of such
default materially and adversely effects Tenant's use of the Premises; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days, after receipt of written notice, is reasonably necessary for
its performance, then Landlord shall not be in default of this Lease if
performance of such obligation is commenced within such thirty (30) day period
and thereafter diligently pursued to completion.
22. PARKING
Tenant may use the number of non-designated and non-exclusive parking spaces
specified in the Basic Lease Information. Landlord shall exercise reasonable
efforts to ensure that such spaces are available to Tenant for its use. In no
event shall Tenant or any of Tenant's Representatives park or permit any parking
of vehicles overnight.
23. TRANSFER OF LANDLORD'S INTEREST
If there is any sale or other transfer of the Premises or any other portion of
the Project by Landlord or any of Landlord's interest therein, Landlord shall
automatically be entirely released from all liability under this Lease and
Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of such transfer. A ground lease
or similar long term lease by Landlord
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of the entire Building or Lot, of which the Premises are a part, shall be deemed
a sale within the meaning of this Section 23. Tenant agrees to attorn to such
new owner provided such new owner does not disturb Tenant's use, occupancy or
quiet enjoyment of the Premises so long as Tenant is not in material default of
any of the provisions of this Lease.
24. WAIVER
No delay or omission in the exercise of any right or remedy of either party on
any default by the other party shall impair such a right or remedy or be
construed as a waiver. The subsequent acceptance of Rent by Landlord after
default by Tenant of this Lease shall not be deemed a waiver of such default,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Landlord from maintaining an unlawful detainer or other
action based on such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Rent and other sums due hereunder shall be deemed
to be other than on account of the earliest Rent or other sums due, nor shall
any endorsement or statement on any check or accompanying any check or payment
be deemed an accord and satisfaction; and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or other sum or pursue any other remedy provided in this Lease. No failure,
partial exercise or delay on the part of the Landlord in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
25. CASUALTY DAMAGE
25.1 Casualty. If the Premises or any part [excluding any of Tenant's
Property, any Tenant Improvements and any Alterations installed by or for the
benefit of Tenant which Tenant is required to insure in accordance with Section
12.1 (collectively, the "Tenant's FF&E")] shall be damaged or destroyed by fire
or other casualty, Tenant shall give immediate written notice thereof to
Landlord. Within sixty (60) days after receipt by Landlord of such notice,
Landlord shall notify Tenant, in writing, whether the necessary repairs can
reasonably be made, as reasonably determined by Landlord: (a) within ninety (90)
days; (b) in more than ninety (90) days but in less than one hundred eighty
(180) days; or (c) in more than one hundred eighty (180) days, from the date of
such notice.
25.1.1 Minor Insured Damage. If the Premises (other than the
Tenant's FF&E) are damaged only to such extent that repairs, rebuilding and/or
restoration can be reasonably completed within ninety (90) days, this Lease
shall not terminate and, provided that insurance proceeds are available and paid
to Landlord to fully repair the damage (but only if Landlord has complied with
its obligation to procure and maintain insurance in accordance with Section 12.6
above) and/or Tenant otherwise voluntarily contributes any shortfall thereof to
Landlord, Landlord shall repair the Premises to substantially the same condition
that existed prior to the occurrence of such casualty, except Landlord shall not
be required to rebuild, repair, or replace any of Tenant's FF&E. The Rent
payable hereunder shall be abated proportionately from the date of such damage
until any and all repairs required herein to be made by Landlord are
substantially completed but such abatement shall only be to the extent (i) of
the portion of the Premises which is actually rendered unusable and unfit for
occupancy, and (ii) Landlord receives rental abatement insurance proceeds
therefor (but only if Landlord has complied with its obligation to procure and
maintain insurance in accordance with Section 12.6 above).
25.1.2 Insured Damage Requiring More Than 90 Days To Repair. If the
Premises (other than the Tenant's FF&E) are damaged only to such extent that
repairs, rebuilding and/or restoration can be reasonably completed, as
reasonably determined by Landlord, in more than ninety (90) days but in less
than one hundred eighty (180) days, then Landlord shall have the option of: (a)
terminating the Lease effective upon making the determination of the extent of
such damage, in which event the Rent shall be abated from the date of the
occurrence of such damage; or (b) electing to repair the Premises to
substantially the same condition that existed prior to the occurrence of such
casualty, provided insurance proceeds are available and paid to Landlord (but
only if Landlord has complied with its obligation to procure and maintain
insurance in accordance with Section 12.6 above) and Tenant otherwise
voluntarily contributes any shortfall thereof to Landlord to fully repair the
damage (except that Landlord shall not be required to rebuild, repair, or
replace any of Tenant's FF&E). The Rent payable hereunder shall be abated
proportionately from the date until any and all repairs required herein to be
made by Landlord are substantially completed but such abatement shall only be to
the extent (i) of the portion of the Premises which is actually rendered
unusable and unfit for occupancy and only during the time Tenant is not actually
using same, and (ii) Landlord receives rental abatement insurance proceeds
therefor (but only if Landlord has complied with its obligation to procure and
maintain insurance in accordance with Section 12.6 above). If Landlord fails to
substantially complete such repairs within one hundred eighty (180) days after
the date on which Landlord is notified by Tenant of the occurrence of such
casualty [such 180-day period to be extended for delays caused by Tenant or any
of Tenant's Representatives ("Tenant Delays") or any force majeure events, which
events shall include, but not be limited to, acts or events beyond Landlord's
and/or its contractors' control, acts of God, earthquakes, strikes, lockouts,
riots, boycotts, casualties not caused by Landlord or Tenant, discontinuance of
any utility or other service required for performance of the work, moratoriums,
governmental delays in issuing permits, governmental agencies and weather, and
the lack of availability or shortage of materials ("Force Majeure Delays")],
Tenant may within ten (10) business days after expiration of such one hundred
eighty (180) day period (as same may be extended), terminate this Lease by
delivering written notice to Landlord as Tenant's exclusive remedy, whereupon
all rights of Tenant hereunder shall cease and terminate ten (10) business days
after Landlord's receipt of such notice and Tenant shall immediately vacate the
Premises and surrender possession thereof to Landlord.
25.1.3 Major Insured Damage. If the Premises (other than the
Tenant's FF&E) are damaged to such extent that repairs, rebuilding and/or
restoration cannot be reasonably completed, as reasonably determined by
Landlord, within one hundred eighty (180) days, then either Landlord or Tenant
may terminate this Lease by giving written notice within twenty (20) days after
notice from Landlord regarding the time period of repair. If either party
notifies the other of its intention to so terminate the Lease, then this Lease
shall terminate and the Rent shall be abated from the date of the occurrence of
such damage. If neither party elects to terminate this Lease, Landlord shall
promptly commence and diligently prosecute to completion the repairs to the
Premises, provided insurance proceeds are available and paid to Landlord to
fully repair the damage (but only if Landlord has complied with its obligation
to procure and maintain insurance in accordance with Section 12.6 above) or
Tenant voluntarily contributes any shortfall thereof to Landlord (except that
Landlord shall not be required to rebuild, repair, or replace any of Tenant's
FF&E). During the time when Landlord is prosecuting such repairs to substantial
completion, the Rent payable hereunder shall be abated proportionately from the
date of the occurrence of such damage, until any and all repairs required herein
to be made by Landlord are substantially completed but such abatement shall only
be to the extent (i) of the portion of the Premises which is actually rendered
unusable and unfit for occupancy, and (ii) Landlord receives rental abatement
insurance proceeds therefor (but only if Landlord has complied with its
obligation to procure and maintain insurance in accordance with Section 12.6
above).
25.1.4 Damage Near End of Term. Notwithstanding anything to the
contrary contained in this Lease except for the provisions of Section 25.3
below, if the Premises are substantially damaged or destroyed during the last
year of then applicable term of this
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Lease, either Landlord or Tenant may, at their option, cancel and terminate this
Lease by giving written notice to the other party of its election to do so
within thirty (30) days after receipt by Landlord of notice from Tenant of the
occurrence of such casualty. If either party so elects to terminate this Lease,
all rights of Tenant hereunder shall cease and terminate ten (10) days after
Tenant's receipt or delivery of such notice, as applicable, and Tenant shall
immediately vacate the Premises and surrender possession thereof to Landlord.
25.2 Deductible and Uninsured Casualty. Tenant shall be responsible for
and shall pay to Landlord, as Additional Rent, the deductible amounts under the
insurance policies obtained by Landlord and Tenant under this Lease if the
proceeds of which are used to repair the Premises as contemplated in this
Section 25; provided, however, that any deductible on any earthquake coverage
shall be treated in the same manner as capital costs in accordance with the
provisions of Section 6.1.1 (iv). Notwithstanding the foregoing, if other
portions of the Building are also damaged by said casualty and insurance
proceeds are payable therefor, then Tenant shall only pay its proportionate
share of the deductible as reasonably determined by Landlord. If any portion of
the Premises is damaged and is not fully covered by the aggregate of insurance
proceeds received by Landlord and any applicable deductible, and Tenant does not
voluntarily contribute any shortfall thereof to Landlord, or if the holder of
any indebtedness secured by the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord or Tenant shall have the right to
terminate this Lease by delivering written notice of termination to the other
party within thirty (30) days after the date of notice to Tenant of any such
event, whereupon all rights and obligations of Tenant shall cease and terminate
hereunder, except for those obligations expressly provided for in this Lease to
survive such termination of the Lease.
25.3 Tenant's Fault and Lender's Rights. Notwithstanding anything to the
contrary contained herein, if the Premises (other than Tenant's FF&E) or any
other portion of the Building be damaged by fire or other casualty resulting
from the intentional or negligent acts or omissions of Tenant or any of Tenant's
Representatives, (i) the Rent shall not be diminished during the repair of such
damage, (ii) Tenant shall not have any right to terminate this Lease due to the
occurrence of such casualty or damage, and (iii) Tenant shall be liable to
Landlord for the cost and expense of the repair and restoration of all or any
portion of the Building caused thereby (including, without limitation, any
deductible) to the extent such cost and expense is not covered by insurance
required to be carried by Landlord hereunder. Notwithstanding anything to the
contrary contained herein, if the holder of any indebtedness secured by the
Premises or any other portion of the Project requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within thirty (30) days after the date of notice to Tenant of any such event,
whereupon all rights and obligations of Tenant shall cease and terminate
hereunder, except for those obligations expressly provided for in this Lease to
survive such termination of the Lease.
25.4 Tenant's Waiver. Landlord shall not be liable for any inconvenience
or annoyance to Tenant, injury to the business of Tenant, loss of use of any
part of the Premises by Tenant or loss of Tenant's Property, resulting in any
way from such damage, destruction or the repair thereof, except that, Landlord
shall allow Tenant a fair diminution of Rent during the time and to the extent
the Premises are actually unusable and unfit for occupancy. With respect to any
damage or destruction which Landlord is obligated to repair or may elect to
repair, Tenant hereby waives all rights to terminate this Lease or offset any
amounts against Rent pursuant to rights accorded Tenant by any law currently
existing or hereafter enacted, including but not limited to, all rights pursuant
to the provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the
California Civil Code, as the same may be amended or supplemented from time to
time.
26. CONDEMNATION
If twenty-five percent (25%) or more of the Premises is condemned by eminent
domain, inversely condemned or sold in lieu of condemnation for any public or
quasi-public use or purpose ("Condemned"), then Tenant or Landlord may terminate
this Lease as of the date when physical possession of the Premises is taken and
title vests in such condemning authority, and Rent shall be adjusted to the date
of termination. Tenant shall not because of such condemnation assert any claim
against Landlord or the condemning authority for any compensation because of
such condemnation, and Landlord shall be entitled to receive the entire amount
of any award without deduction for any estate of interest or other interest of
Tenant; provided, however, the foregoing provisions shall not preclude Tenant,
at Tenant's sole cost and expense, from obtaining any separate award to Tenant
for loss of or damage to Tenant's Property or for damages for cessation or
interruption of Tenant's business provided such award is separate from
Landlord's award and provided further such separate award does not diminish nor
otherwise impair the award otherwise payable to Landlord. In addition to the
foregoing, Tenant shall be entitled to seek compensation for the relocation
costs recoverable by Tenant pursuant to the provisions of California Government
Code Section 7262. If neither party elects to terminate this Lease, Landlord
shall, if necessary, promptly proceed to restore the Premises or the Building,
as applicable, to substantially its same condition prior to such partial
condemnation, allowing for the reasonable effects of such partial condemnation,
and a proportionate allowance shall be made to Tenant, as solely determined by
Landlord, for the Rent corresponding to the time during which, and to the part
of the Premises of which, Tenant is deprived on account of such partial
condemnation and restoration. Landlord shall not be required to spend funds for
restoration in excess of the amount received by Landlord as compensation
awarded.
27. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS
27.1 Hazardous Materials Disclosure Certificate: Prior to executing this
Lease, Tenant has delivered to Landlord Tenant's executed initial Hazardous
Materials Disclosure Certificate (the "Initial HazMat Certificate"), a copy of
which is attached hereto as Exhibit E. Tenant covenants, represents and
---------
warrants to Landlord that the information in the Initial HazMat Certificate is
true and correct and accurately describes the use(s) of Hazardous Materials
which will be made and/or used on the Premises by Tenant. Tenant shall,
commencing with the date which is one year from the Commencement Date and
continuing every year thereafter, deliver to Landlord, an executed Hazardous
Materials Disclosure Certificate ("the "HazMat Certificate") describing Tenant's
then present use of Hazardous Materials on the Premises, and any other
reasonably necessary documents as requested by Landlord. The HazMat Certificates
required hereunder shall be in substantially the form attached hereto as
Exhibit E.
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27.2 Definition of Hazardous Materials: As used in this Lease, the term
Hazardous Materials shall mean and include (a) any hazardous or toxic wastes,
materials or substances, and other pollutants or contaminants, which are or
become regulated by any Environmental Laws; (b) petroleum, petroleum by
products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
and asbestos containing material, in any form, whether friable or non-friable;
(d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and lead-
containing materials; (g) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or threatens
to cause a nuisance upon or waste to any portion of the Project or any
surrounding property; or poses or threatens to pose a hazard to the health and
safety of persons on the Premises, any other portion of the Project or any
surrounding property. For purposes of this Lease, the term "Hazardous Materials"
shall not include nominal amounts of ordinary household cleaners, office
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supplies and janitorial supplies which are not actionable under any
Environmental Laws.
27.3 Prohibition; Environmental Laws: Tenant shall not be entitled to use
or store any Hazardous Materials on, in, or about any portion of the Premises
and the Project without, in each instance, obtaining Landlord's prior written
consent thereto. If Landlord, in its sole discretion, consents to any such usage
or storage, then Tenant shall be permitted to use and/or store only those
Hazardous Materials that are necessary for Tenant's business and to the extent
disclosed in the HazMat Certificate and as expressly approved by Landlord in
writing. Any such usage and storage may only be to the extent of the quantities
of Hazardous Materials as specified in the then applicable HazMat Certificate as
expressly approved by Landlord. In all events such usage and storage must at all
times be in full compliance with any and all local, state and federal
environmental, health and/or safety-related laws, statutes, orders, standards,
courts' decisions, ordinances, rules and regulations (as interpreted by judicial
and administrative decisions), decrees, directives, guidelines, permits or
permit conditions, currently existing and as amended, enacted, issued or adopted
in the future which are or become applicable to Tenant or all or any portion of
the Premises (collectively, the "Environmental Laws"). Tenant agrees that any
changes to the type and/or quantities of Hazardous Materials specified in the
most recent HazMat Certificate may be implemented only with the prior written
consent of Landlord, which consent may be given or withheld in Landlord's sole
discretion. Tenant shall not be entitled nor permitted to install any tanks
under, on or about the Premises for the storage of Hazardous Materials without
the express written consent of Landlord, which may be given or withheld in
Landlord's sole discretion. Landlord shall have the right at all times during
the Term of this Lease to (i) inspect the Premises, (ii) conduct tests and
investigations to determine whether Tenant is in compliance with the provisions
of this Section 27 or to determine if Hazardous Materials are present in, on or
about the Project, and (iii) request lists of all Hazardous Materials used,
stored or otherwise located on, under or about any portion of the Premises
and/or the Common Areas. The cost of all such inspections, tests and
investigations shall be borne by Tenant, if Tenant or any of Tenant's
Representatives are directly or indirectly responsible in any manner for any
contamination revealed by such inspections, tests and investigations. The
aforementioned rights granted herein to Landlord and its representatives shall
not create (a) a duty on Landlord's part to inspect, test, investigate, monitor
or otherwise observe the Premises or the activities of Tenant and Tenant's
Representatives with respect to Hazardous Materials, including without
limitation, Tenant's operation, use and any remediation related thereto, or (b)
liability on the part of Landlord and its representatives for Tenant's use,
storage, disposal or remediation of Hazardous Materials, it being understood
that Tenant shall be solely responsible for all liability in connection
therewith.
27.4 Tenant's Environmental Obligations: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about any portion of the Premises or in any
Common Areas by Tenant; provided that Tenant has actual, implied or constructive
knowledge of such event(s). Tenant, at its sole cost and expense, covenants and
warrants to promptly investigate, clean up, remove, restore and otherwise
remediate (including, without limitation, preparation of any feasibility studies
or reports and the performance of any and all closures) any spill, release,
discharge, disposal, emission, migration or transportation of Hazardous
Materials arising from or related to the intentional or negligent acts or
omissions of Tenant or Tenant's Representatives such that the affected portions
of the Project and any adjacent property are returned to the condition existing
prior to the appearance of such Hazardous Materials. Any such investigation,
clean up, removal, restoration and other remediation shall only be performed
after Tenant has obtained Landlord's prior written consent, which consent shall
not be unreasonably withheld so long as such actions would not potentially have
a material adverse long-term or short-term effect on any portion of the Project.
Notwithstanding the foregoing, Tenant shall be entitled to respond immediately
to an emergency without first obtaining Landlord's prior written consent.
Tenant, at its sole cost and expense, shall conduct and perform, or cause to be
conducted and performed, all closures as required by any Environmental Laws or
any agencies or other governmental authorities having jurisdiction thereof. If
Tenant fails to so promptly investigate, clean up, remove, restore, provide
closure or otherwise so remediate, Landlord may, but without obligation to do
so, take any and all steps necessary to rectify the same and Tenant shall
promptly reimburse Landlord, upon demand, for all costs and expenses to Landlord
of performing investigation, clean up, removal, restoration, closure and
remediation work. All such work undertaken by Tenant, as required herein, shall
be performed in such a manner so as to enable Landlord to make full economic use
of the Premises and the other portions of the Project after the satisfactory
completion of such work.
27.5 Environmental Indemnity: In addition to Tenant's obligations as set
forth hereinabove, Tenant agrees to, and shall, protect, indemnify, defend (with
counsel acceptable to Landlord) and hold Landlord and the other Indemnitees
harmless from and against any and all Claims (including, without limitation,
diminution in value of any portion of the Premises or the Project, damages for
the loss of or restriction on the use of rentable or usable space, and from any
adverse impact of Landlord's marketing of any space within the Project) arising
at any time during or after the Term of this Lease in connection with or related
to, directly or indirectly, the use, presence, transportation, storage,
disposal, migration, removal, spill, release or discharge of Hazardous Materials
on, in or about any portion of the Project as a result (directly or indirectly)
of the intentional or negligent acts or omissions of Tenant or any of Tenant's
Representatives. Neither the written consent of Landlord to the presence, use or
storage of Hazardous Materials in, on, under or about any portion of the Project
nor the strict compliance by Tenant with all Environmental Laws shall excuse
Tenant from its obligations of indemnification pursuant hereto. Tenant shall not
be relieved of its indemnification obligations under the provisions of this
Section 27.5 due to Landlord's status as either an "owner" or "operator" under
any Environmental Laws.
27.6 Survival: Tenant's and Landlord's obligations and liabilities
pursuant to the provisions of this Section 27 shall survive the expiration or
earlier termination of this Lease. If it is determined by Landlord that the
condition of all or any portion of the Project is not in compliance with the
provisions of this Lease with respect to Hazardous Materials as the result of a
breach by Tenant of its obligations hereunder, then Landlord may require Tenant
to hold over possession of the Premises until Tenant can surrender the Premises
to Landlord in the condition required by this Lease, including without
limitation, the conduct or performance of any closures as required by any
Environmental Laws. For purposes hereof, the term "reasonable wear and tear"
shall not include any deterioration in the condition or diminution of the value
of any portion of the Project in any manner whatsoever related to directly, or
indirectly, Hazardous Materials. Any such holdover by Tenant will be with
Landlord's consent, will not be terminable by Tenant in any event or
circumstance and will otherwise be subject to the provisions of Section 20 of
this Lease.
27.7 Exculpation of Tenant: Tenant shall not be liable to Landlord for
nor otherwise obligated to Landlord under any provision of the Lease with
respect to the following: (i) any claim, remediation, obligation, investigation,
obligation, liability, cause of action, attorney's fees, consultants' cost,
expense or damage resulting from any Hazardous Materials present in, on or about
the Premises or, the Building or Park to the extent not caused or otherwise
permitted, directly or indirectly, by Tenant or Tenant's Representatives; or
(ii) the removal, investigation, monitoring or remediation of any Hazardous
Material present in, on or about the Premises or, the Building or Park caused by
any source, including third parties, other than Tenant or Tenant's
Representatives, including but not limited to the conditions described in the
Environmental Report; provided, however, Tenant shall be fully liable for and
otherwise obligated to Landlord under the provisions of this Lease for all
liabilities, costs, damages, penalties, claims, judgments, expenses (including
without limitation, attorneys' and experts' fees and costs) and losses to the
extent (a) Tenant or any of Tenant's Representatives contributes to the presence
of such Hazardous Materials, or Tenant and/or any of Tenant's Representatives
exacerbates the conditions caused by such Hazardous
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Materials, or (b) Tenant and/or Tenant's Representatives allows or permits
persons over which Tenant or any of Tenant's Representatives has control, and/or
for which Tenant or any of Tenant's Representatives are legally responsible for,
to cause such Hazardous Materials to be present in, on, under, through or about
any portion of the Premises, the Common Areas, the Building or the Park, or (c)
Tenant and/or any of Tenant's Representatives does not take all reasonably
appropriate actions to prevent such persons over which Tenant or any of Tenant's
Representatives has control and/or for which Tenant or any of Tenant's
Representatives are legally responsible from causing the presence of Hazardous
Materials in, on, under, through or about any portion of the Premises, the
Common Areas, the Building or the Park.
27.8 Disclosure: Pursuant to the provisions of California Health & Safety
Code (S)25359.7, Landlord hereby discloses to Tenant that as of the Lease Date
the Lot contains certain Hazardous Materials as such Hazardous Materials are
more particularly described and set forth in that certain report prepared by CET
Environmental Services, entitled Soil Management Plan for Development and
Ongoing Activities Route 237 Assemblage, dated August 27, 1997 (the
"Environmental Report"). Landlord acknowledges and agrees that none of the
environmental conditions or presence of Hazardous Materials on, in or under the
Lot as described in the Environmental Report have been in any way caused by
Tenant or any of Tenant's Representatives. Tenant hereby acknowledges and agrees
that Landlord has delivered to Tenant a copy of the Environmental Report prior
to Tenant entering into this Lease.
27.9 Landlord's Environmental Indemnity: Landlord agrees to, and shall
protect, indemnify, defend and hold Tenant harmless from and against any and all
claims, judgments, damages, penalties, fines, liabilities, losses, suits,
administrative proceedings, and costs arising at any time during or after the
Term of this Lease in connection with or related to the presence of the
Hazardous Materials disclosed in Section 27.8 above.
28. FINANCIAL STATEMENTS
Tenant and any permitted Transferee, for the reliance of Landlord, any lender
holding or anticipated to acquire a lien upon any portion of the Project or any
prospective purchaser of any portion of the Project within ten (10) days after
Landlord's request therefor, but not more often than once annually so long as
Tenant is not in material default of this Lease, shall deliver to Landlord the
then current audited financial statements of Tenant (including interim periods
following the end of the last fiscal year for which annual statements are
available). If audited financial statements have not been prepared, Tenant and
any permitted Transferee shall provide Landlord with unaudited financial
statements and such other information, the type and form of which are acceptable
to Landlord in Landlord's reasonable discretion, which reflects the financial
condition of Tenant and any permitted Transferee. Notwithstanding the foregoing,
under no circumstances shall Tenant be required to disclose to Landlord any
material nonpublic information. Further, Landlord agrees that it will maintain
any financial information delivered by Tenant pursuant hereto that is not public
information in strict confidence, and will not disclose such financial
information to any other party other than Landlord's lenders or partners or a
prospective purchaser of the Premises on a need-to-know basis, or as may be
required by any laws, regulations, orders, decrees, court orders or subpoenas.
29. GENERAL PROVISIONS:
29.1 Time. Time is of the essence in this Lease and with respect to each
and all of its provisions in which performance is a factor.
29.2 Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
29.3 Recordation. Tenant shall not record this Lease or a short form
memorandum hereof.
29.4 Landlord Exculpation. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the actual
interest of Landlord and its present or future partners or members in the
Building, and Tenant agrees to look solely to Landlord's interest in the
Building for satisfaction of any liability and shall not look to other assets of
Landlord nor seek any recourse against the assets of the individual partners,
members, directors, officers, shareholders, agents or employees of Landlord,
including without limitation, any property management company of Landlord
(collectively, the "Landlord Parties"). It is the parties' intention that
Landlord and the Landlord Parties shall not in any event or circumstance be
personally liable, in any manner whatsoever, for any judgment or deficiency
hereunder or with respect to this Lease. The liability of Landlord under this
Lease is limited to its actual period of ownership of title to the Building.
29.5 Severability and Governing Law. Any provisions of this Lease which
shall prove to be invalid, void or illegal shall in no way affect, impair or
invalidate any other provisions hereof and such other provision shall remain in
full force and effect. This Lease shall be governed by, and construed in
accordance with, the laws of the State of California.
29.6 Attorneys' Fees. In the event any dispute between the parties
results in litigation or other proceeding, the prevailing party shall be
reimbursed by the party not prevailing for all reasonable costs and expenses,
including, without limitation, reasonable attorneys' and experts' fees and costs
incurred by the prevailing party in connection with such litigation or other
proceeding, and any appeal thereof. Such costs, expenses and fees shall be
included in and made a part of the judgment recovered by the prevailing party,
if any.
29.7 Entire Agreement. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease and
any side letter or separate agreement executed by Landlord and Tenant in
connection with this Lease and dated of even date herewith contain all of the
terms, covenants, conditions, warranties and agreements of the parties relating
in any manner to the rental, use and occupancy of the Premises, shall be
considered to be the only agreement between the parties hereto and their
representatives and agents, and none of the terms, covenants, conditions or
provisions of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto. All negotiations and oral agreements acceptable to
both parties have been merged into and are included herein. There are no other
representations or warranties between the parties, and all reliance with respect
to representations is based totally upon the representations and agreements
contained in this Lease. The parties acknowledge that (i) each party and/or its
counsel have reviewed and revised this Lease, and (ii) no rule of construction
to the effect that any ambiguities are to be resolved against the drafting party
shall be employed in the interpretation or enforcement of this Lease or any
amendments or exhibits to this Lease or any document executed and delivered by
either party in connection with this Lease.
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29.8 Warranty of Authority. On the date that Tenant executes this Lease,
Tenant shall deliver to Landlord an original certificate of status for Tenant
issued by the California Secretary of State or statement of partnership for
Tenant recorded in the county in which the Premises are located, as applicable,
and such other documents as Landlord may reasonably request with regard to the
lawful existence of Tenant. Each person executing this Lease on behalf of a
party represents and warrants that (1) such person is duly and validly
authorized to do so on behalf of the entity it purports to so bind, and (2) if
such party is a partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into this Lease and
perform all of its obligations hereunder.
29.9 Notices. All notices, demands, statements or communications
(collectively, "Notices") given or required to be given by either party to the
other hereunder shall be in writing, shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested, or delivered
personally (i) to Tenant at the Tenant's Address set forth in the Basic Lease
Information, or to such other place as Tenant may from time to time designate in
a Notice to Landlord; or (ii) to Landlord at Landlord's Address set forth in the
Basic Lease Information, or to such other firm or to such other place as
Landlord may from time to time designate in a Notice to Tenant. Any Notice will
be deemed given on the date it is mailed as provided in this Section 29.9 or
upon the date personal delivery is made.
29.10 Joint and Several; Covenants and Conditions. If Tenant consists of
more than one person or entity, the obligations of all such persons or entities
shall be joint and several. Each provision to be performed by Tenant hereunder
shall be deemed to be both a covenant and a condition.
29.11 [Intentionally Omitted]
29.12 Landlord Renovations. Tenant acknowledges that Landlord may from
time to time, at Landlord's sole option, renovate, improve, develop, alter, or
modify (collectively, the "Renovations") portions of the Building, Premises,
Common Areas and the Project, including without limitation, systems and
equipment, roof, and structural portions of the same. In connection with such
Renovations, Landlord may, among other things, erect scaffolding or other
necessary structures in the Building, limit or eliminate access to portions of
the Project, including portions of the Common Areas, or perform work in the
Building, which work may create noise, dust or leave debris in the Building.
Landlord agrees to provide Tenant with adequate advance notice of its intention
to make Renovations and to use its best efforts not to interfere with Tenant's
use and enjoyment of the Premises in connection with such Renovations. Tenant
hereby agrees that such Renovations and Landlord's actions in connection with
such Renovations shall in no way constitute a constructive eviction of Tenant
nor entitle Tenant to any abatement of Rent. Landlord shall have no
responsibility, or for any reason be liable to Tenant, for any direct or
indirect injury to or interference with Tenant's business arising from the
Renovations, nor shall Tenant be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises or of
Tenant's Property, Alterations or improvements resulting from the Renovations or
Landlord's actions in connection with such Renovations, or for any inconvenience
or annoyance occasioned by such Renovations or Landlord's actions in connection
with such Renovations.
29.13 Submission of Lease. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or an option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
30. SIGNS
All signs and graphics of every kind visible in or from public view or corridors
or the exterior of the Premises shall be subject to Landlord's prior written
approval, which shall not be unreasonably withheld or delayed, and shall be
subject to and in compliance with all applicable Laws, Development Documents,
Recorded Matters, Rules and Regulations, and Landlord's sign criteria as same
may exist from time to time or as set forth in Exhibit G hereto. Tenant shall
---------
remove all such signs and graphics prior to the expiration or earlier
termination of this Lease. Such installations and removals shall be made in a
manner as to avoid damage or defacement of the Premises. Tenant shall repair any
damage or defacement, including without limitation, discoloration caused by such
installation or removal. Landlord shall have the right, at its option, to deduct
from the Security Deposit such sums as are reasonably necessary to remove such
signs and make any repairs necessitated by such removal. Notwithstanding the
foregoing, in no event shall any: (a) neon, flashing or moving sign(s) or (b)
sign(s) which are likely to interfere with the visibility of any sign, canopy,
advertising matter, or decoration of any kind of any other business or occupant
of the Building or the other portions of the Project be permitted hereunder.
Tenant further agrees to maintain each such sign and graphics, as may be
approved, in good condition and repair at all times.
31. MORTGAGEE PROTECTION
Upon any default on the part of Landlord, Tenant will give written Notice by
registered or certified mail to any beneficiary of a deed of trust or mortgagee
of a mortgage covering the Premises who has provided Tenant with notice of their
interest together with an address for receiving Notice, and shall offer such
beneficiary or mortgagee a reasonable opportunity to cure the default, including
time to obtain possession of the Premises by power of sale or a judicial
foreclosure, if such should prove necessary to effect a cure. If such default
cannot be cured within such time period, then such additional time as may be
necessary will be given to such beneficiary or mortgagee to effect such cure so
long as such beneficiary or mortgagee has commenced the cure within the original
time period and thereafter diligently pursues such cure to completion, in which
event this Lease shall not be terminated while such cure is being diligently
pursued. Tenant agrees that each lender to whom this Lease has been assigned by
Landlord is an express third party beneficiary hereof. Tenant shall not make any
prepayment of Rent more than one (1) month in advance without the prior written
consent of each such lender, except if Tenant is required to make quarterly
payments of Rent in advance pursuant to the provisions of Section 8 above.
Tenant waives the collection of any deposit from such lender(s) or any purchaser
at a foreclosure sale of such lender(s)' deed of trust unless the lender(s) or
such purchaser shall have actually received and not refunded the deposit. Tenant
agrees to make all payments under this Lease to the lender with the most senior
encumbrance upon receiving a direction from Landlord, in writing, to pay said
amounts to such lender. Tenant shall comply with such written direction to pay
without determining whether an event of default exists under such lender's loan
to Landlord. If, in connection with obtaining financing for the Premises or any
other portion of the Project, Landlord's lender shall request reasonable
modification(s) to this Lease as a condition to such financing, Tenant shall not
unreasonably withhold, delay or defer its consent thereto, provided such
modifications do not materially and adversely affect Tenant's rights or increase
its obligations hereunder or effect the use, occupancy or quiet enjoyment of
Tenant hereunder.
32. WARRANTIES OF TENANT
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Tenant hereby warrants and represents to Landlord, for the express benefit of
Landlord, that Tenant has undertaken a complete and independent evaluation of
the risks inherent in the execution of this Lease and the operation of the
Premises for the use permitted hereby, and that, based upon said independent
evaluation, Tenant has elected to enter into this Lease and hereby assumes all
risks with respect thereto. Tenant hereby further warrants and represents to
Landlord, for the express benefit of Landlord, that in entering into this Lease,
Tenant has not relied upon any statement, fact, promise or representation
(whether express or implied, written or oral) not specifically set forth herein
in writing and that any statement, fact, promise or representation (whether
express or implied, written or oral) made at any time to Tenant, which is not
expressly incorporated herein in writing, is hereby waived by Tenant.
33. BROKERAGE COMMISSION
Landlord and Tenant each represents and warrants for the benefit of the other
that it has had no dealings with any real estate broker, agent or finder in
connection with the Premises and/or the negotiation of this Lease, except for
the Broker(s) specified in the Basic Lease Information, and that it knows of no
other real estate broker, agent or finder who is or might be entitled to a real
estate brokerage commission or finder's fee in connection with this Lease or
otherwise based upon contacts between the claimant and Tenant. Each party shall
indemnify and hold harmless the other from and against any and all liabilities
or expenses arising out of claims made for a fee or commission by any real
estate broker, agent or finder in connection with the Premises and this Lease
other than Broker(s), if any, resulting from the actions of the indemnifying
party. Landlord agrees that it will be responsible for all brokerage fees and
commissions payable to the Broker(s). Unless expressly agreed to in writing by
Landlord and Broker(s), no real estate brokerage commission or finder's fee
shall be owed to, or otherwise payable to, the Broker(s) for any renewals or
other extensions of the initial Term of this Lease or for any additional space
leased by Tenant other than the Premises as same exists as of the Lease Date.
Tenant further represents and warrants to Landlord that Tenant will not receive
(i) any portion of any brokerage commission or finder's fee payable to the
Broker(s) in connection with this Lease or (ii) any other form of compensation
or incentive from the Broker(s) with respect to this Lease.
34. QUIET ENJOYMENT
Landlord covenants with Tenant, upon the paying of Rent and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept, (i) that Tenant shall and may peaceably and quietly have, hold, occupy and
enjoy the Premises and the Common Areas during the Term of this Lease, and (ii)
neither Landlord, nor any successor or assign of Landlord, shall disturb
Tenant's occupancy or enjoyment of the Premises and the Common Areas. The
foregoing covenant is in lieu of any other covenant express or implied.
35. SATELLITE DISH(ES) AND ANTENNAE
Tenant shall have the right (but only to the extent permitted by the City of San
Jose and all agencies and governmental authorities having jurisdiction thereof),
at Tenant's sole cost and expense to install and operate a satellite or
microwave dish or dishes, television antennae along with any necessary cables
(hereinafter referred to as "Equipment") on the roof of the Premises (the "Roof
Space") during the term of the Lease. The location and size of the Equipment
shall be subject to Landlord's approval, not to be unreasonably withheld and
which best promotes the safety, aesthetics and efficiency of the Equipment;
provided, all of the Equipment and any modifications thereto or placement
thereof shall be (I) at Tenant's sole cost and expense, (ii) contained visually
within the roof screen, (iii) installed to Landlord's reasonable specifications,
and (iv) installed, maintained, operated and removed in accordance with all
Recorded Matters and applicable Laws. Landlord shall cooperate reasonably with
Tenant to modify the roof screen placement (subject to all applicable Laws and
Recorded Matters) if required for signal quality, reconfiguration due to the
installation of any HVAC systems and other reasonable considerations; provided,
the cost of all such modifications shall be the responsibility of Tenant. All
modifications to the Building, including the Roof Space, if any, shall be
reasonably approved by Landlord prior to commencement of any work with respect
to the Equipment. No additional Rent shall be paid by Tenant for use of the Roof
Space and operation of the Equipment. The Equipment shall remain the property of
Tenant and Tenant shall remove the Equipment upon the expiration or earlier
termination of the Lease. Tenant shall restore the Roof Space and any other
portion of the Buildings affected by the Equipment, to its original condition,
excepting ordinary wear and tear and/or damage or destruction due to fire or
other insured casualty. Tenant may not assign, lease, rent sublet or otherwise
transfer any of its interest in the Roof Space of the Equipment except together
with a transfer of all the Premises in accordance with the provisions of Section
14. Each of the other provisions of this Lease shall be applicable to the
Equipment and the use of the Roof Space by Tenant, including without limitation,
Sections 12 and 13 of this Lease. In addition, Tenant shall be responsible for
insuring, in its discretion, the Equipment; and in any event, Landlord shall
have no responsibility therefor. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord) and hold harmless Landlord from any and all
liabilities, damages, judgments, costs and expenses (including reasonable
attorneys' fees) Landlord may suffer or incur arising out of or related to the
installation, use, operation, maintenance, replacement and/or removal of the
Equipment or any portion thereof. Landlord covenants and agrees that it will not
install any equipment on the Roof Space or take or permit any other action which
interferes with the normal and efficient reception of broadcast signals by the
Equipment.
36. COLLATERAL FOR PERFORMANCE OF LEASE OBLIGATIONS
Simultaneously with the delivery to Landlord of this Lease and the first month's
Base Rent in accordance with the provisions of Section 3 above, Tenant shall
deliver to Landlord, as collateral for the full and faithful performance by
Tenant of all its obligations under this Lease and for all losses and damages
Landlord may suffer as a result of any default by Tenant under this Lease, an
irrevocable negotiable letter of credit, in the form and containing the terms
required herein, payable in the County of San Mateo or Santa Clara, or the City
and County of San Francisco, California running in favor of Landlord issued by a
solvent bank under the supervision of the Superintendent of Banks of the State
of California, or a National Banking Association in the amount of Four Hundred
Thirty-Five Thousand Nine Hundred Forty-Six and 00/100 Dollars ($476,683.00)(the
"Letter of Credit"). The Letter of Credit shall be (a) at sight and irrevocable,
(b) maintained in effect, whether through replacement, renewal or extension, for
the entire Lease Term (the "Letter of Credit Expiration Date") and Tenant shall
deliver a new Letter of Credit or certificate of renewal or extension to
Landlord at least thirty (30) days prior to the expiration of the Letter of
Credit, without any action whatsoever on the part of Landlord, (c) subject to
the Uniform Customs and Practices for Documentary Credits (1993-Rev)
International Chamber of Commerce Publication #400, and (d) fully assignable by
Landlord and permit partial draws. In addition to the foregoing, the form and
terms of the Letter of Credit (and the bank issuing the same) shall be
acceptable to Landlord, in Landlord's reasonable discretion, and shall provide,
among other things, in effect that: (1) Landlord, or its then managing agent,
shall have the right to draw down an amount up to the face amount of the Letter
of Credit upon the presentation to the issuing bank of Landlord's (or Landlord's
then managing agent's) statement that Tenant is in material default and such
amount is due to Landlord under the terms and conditions of this Lease, it being
understood that if Landlord or its managing agent be a corporation, partnership
or other entity, then such
17
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statement shall be signed by an officer (if a corporation), a general partner
(if a partnership), or any authorized party (if another entity); (2) the Letter
of Credit will be honored by the issuing bank without inquiry as to the accuracy
thereof and regardless of whether the Tenant disputes the content of such
statement; and (3) in the event of a transfer of Landlord's interest in the
Premises, Landlord shall transfer the Letter of Credit, in whole or in part (or
cause a substitute letter of credit to be delivered, as applicable), to the
transferee and thereupon the Landlord shall, without any further agreement
between the parties, be released by Tenant from all liability therefor, and it
is agreed that the provisions hereof shall apply to every transfer or assignment
of the whole or may portion of said Letter of Credit in a new landlord. If, as a
result of any such application of all or any part of the Letter of Credit, the
amount of the Letter of Credit shall be less than Four Hundred Thirty-Five
Thousand Nine Hundred Forty-Six and 00/100 Dollars ($435,946.00), Tenant shall
within five (5) days thereafter provide Landlord with additional letter(s) of
credit in an amount equal to the deficiency (or a replacement letter of credit
in the amount of Four Hundred Thirty-Five Thousand Nine Hundred Forty-Six and
00/100 Dollars ($435,946.00) and each such additional (or replacement) letter of
credit shall comply with all of the provisions of this Section 36, and if Tenant
fails to do so, the same shall constitute an incurable default by Tenant. Tenant
further covenants and warrants that it will neither assign nor encumber the
Letter of Credit or any part thereof and that neither Landlord nor its
successors or assigns will he bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. Without limiting the generality
of the foregoing, if the Letter of Credit expires earlier than the Letter of
Credit Expiration Date, Landlord will accept a renewal thereof or substitute
letter of credit (such renewal or substitute letter of credit to be in effect
not later than thirty (30) days prior to the expiration thereof), which shall be
irrevocable and automatically renewable as above provided through the Letter of
Credit Expiration Date upon the same terms as the expiring letter of credit or
such other terms as may be acceptable to Landlord in its sole discretion.
However, if the Letter of Credit is not timely renewed or a substitute letter of
credit is not timely received, or if Tenant fails to maintain the Letter of
Credit in the amount and terms set forth in this Section 36, Landlord shall have
the right to present such Letter of Credit to the bank in accordance with the
terms of this Section 36 and the entire sum evidenced thereby shall be paid to
and held by Landlord as collateral for performance of all of Tenant's
obligations under this Lease and for all losses and damages Landlord may suffer
as a result of any default by Tenant under this Lease. If there shall occur a
material default under this Lease as described in Section 18 of this Lease,
Landlord may, but without obligation to do so, draw upon the Letter of Credit,
in part or in whole, to cure any default of Tenant and/or to compensate Landlord
for any and all damages of any kind or nature sustained or which may be
sustained by Landlord resulting from Tenant's default. Tenant agrees not to
interfere in any way with payment to Landlord of the proceeds of the Letter of
Credit, either prior to or following a "draw" by Landlord of any portion of the
Letter of Credit, regardless of whether any dispute exists between Tenant and
Landlord as to Landlord's right to draw from the letter of Credit. No condition
or term of this Lease shall be deemed to render the letter of Credit conditional
to justify the issuer of the Letter of Credit in failing to honor a drawing upon
such Letter of Credit in a timely manner. Notwithstanding the foregoing, if
Tenant has a market value of at least $500,000,000 as of the first day of the
13th and/or the 25th months of the Term, the Letter of Credit may be reduced by
$228,823.00 as of the first day of the 13th month and further reduced by an
additional $235,688.00 as of the first day of the 25th month, so that no Letter
of Credit is required. However, in the event Tenant's market value is below
$500,000 as if the first day of the 13th month or 25th month, the Letter of
Credit shall remain. Tenant shall be required to provide written documentation
outlining Tenant's market value for Landlord's review and acceptance prior to
the decrease of any portion of the Letter of Credit.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease
Date referenced on Page 1 of this Lease.
TENANT:
TiVo, Inc.,
a Delaware corporation
By: /s/ Michael Ramsay
------------------------------
Its: ______________________________
Date: ______________________________
By: /s/ David H. Courtney
------------------------------
Its: ______________________________
Date: ______________________________
LANDLORD:
WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LEGACY PARTNERS COMMERCIAL, INC.,
as manager and agent for WIX/NSJ Real Estate Limited Partnership
By: /s/ Mack Laney
--------------------------
Senior Vice President
Date: 10/13/99
------------------------------
If Tenant is a CORPORATION, the authorized officers must sign on behalf of the
-----------
corporation and indicate the capacity in which they are signing. The Lease must
be executed by the president or vice-president and the secretary or assistant
---
secretary, unless the bylaws or a resolution of the board of directors shall
------
otherwise provide, in which event, the bylaws or a certified copy of the
resolution, as the case may be, must be attached to this Lease.
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EXHIBIT A
PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to that
certain Lease Agreement dated October 6, 1999 (the "Lease"), by and between
WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership,
("Landlord") and TiVo, Inc., a Delaware corporation ("Tenant") for the leasing
of certain premises located at 2160 and 2190 Gold Street, San Jose, California,
(the "Premises").
The Premises consist of the rentable square footage of space specified in the
Basic Lease Information and has the address specified in the Basic Lease
Information. The Premises are a part of and are contained in the Building
specified in the Basic Lease Information. The cross-hatched area depicts the
Premises within the Park:
<PAGE>
EXHIBIT B TO LEASE AGREEMENT
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute EXHIBIT B
---------
to that certain Lease Agreement dated October 6, 1999 (the "Lease"), by and
between WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord"), and TiVo, Inc., a Delaware corporation ("Tenant"), for the leasing
of certain premises located at 2160 and 2190 Gold Street, San Jose, California
(the "Premises"). The terms, conditions and provisions of this EXHIBIT B are
---------
hereby incorporated into and are made a part of the Lease. Any capitalized terms
used herein and not otherwise defined herein shall have the meaning ascribed to
such terms as set forth in the Lease:
1. Tenant To Construct Tenant Improvements. Subject to the provisions below,
---------------------------------------
Tenant shall be solely responsible for the planning, construction and completion
of the interior tenant improvements ("Tenant Improvements") to the Premises in
accordance with the terms and conditions of this Exhibit B. The Tenant
----------
Improvements shall not include any of Tenant's personal property, trade
fixtures, furnishings, equipment or similar items.
2. Tenant Improvement Plans.
-------------------------
A. Preliminary Plans and Specifications. Promptly after execution of the
------------------------------------
Lease, Tenant shall retain a licensed and insured architect ("Architect") to
prepare preliminary working architectural and engineering plans and
specifications ("Preliminary Plans and Specifications") for the Tenant
Improvements. Promptly after execution of the Lease, landlord shall provide
Architect with accurate as-built building plans for the Premises in both
electronic format and hard copy. Tenant shall deliver the Preliminary Plans and
Specifications to Landlord. The Preliminary Plans and Specifications shall be in
sufficient schematic detail to show locations, types and conceptual requirements
for all significant heat loads, people loads, floor loads, power and plumbing,
regular and special HVAC needs, telephone communications, telephone and
electrical outlets, lighting, lighting fixtures and related power, and
electrical and telephone switches. Landlord shall reasonably approve or
disapprove the Preliminary Plans and Specifications within five (5) days after
Landlord receives the Preliminary Plans and Specifications and, if disapproved,
Landlord shall return the Preliminary Plans and Specifications to Tenant, who
shall make all necessary revisions within ten (10) days after Tenant's receipt
thereof. This procedure shall be repeated until Landlord approves the
Preliminary Plans and Specifications. The approved Preliminary Plans and
Specifications, as modified, shall be deemed the "Final Preliminary Plans and
Specifications".
B. Final Plans and Specifications. After the Final Preliminary Plans and
-------------------------------
Specifications are approved by Landlord and are deemed to be the Final
Preliminary Plans and Specifications, Tenant shall cause the Architect to
prepare in twenty (20) days following Landlord's approval of the Final
Preliminary Plans and Specifications the final working architectural and
engineering plans, specifications and drawings ("Final Plans and
Specifications") for the Tenant Improvements. Tenant shall then deliver the
Final Plans and Specifications to Landlord. Landlord shall reasonably approve or
disapprove the Final Plans and Specifications within five (5) days after
Landlord receives the Final Plans and Specifications and, if disapproved,
Landlord shall return the Final Plans and Specifications to Tenant who shall
make all necessary revisions within ten (10) days after Tenant's receipt
thereof. This procedure shall be repeated until Landlord approves, in writing,
the Final Plans and Specifications. The approved Final Plans and Specifications,
as modified, shall be deemed the "Construction Documents".
C. Miscellaneous. All deliveries of the Preliminary Plans and
--------------
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents shall be delivered by
messenger service, by personal hand delivery or by overnight parcel service.
While Landlord has the right to approve the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents, Landlord's interest in doing
so is to protect the Premises, the Building and Landlord's interest.
Accordingly, Tenant shall not rely upon Landlord's approvals and Landlord shall
not be the guarantor of, nor responsible for, the adequacy and correctness or
accuracy of the Preliminary Plans and Specifications, the Final Preliminary
Plans and Specifications, the Final Plans and Specifications, and the
Construction Documents, or the compliance thereof with applicable laws, and
Landlord shall incur no liability of any kind by reason of granting such
approvals. Landlord and Tenant shall use their respective best efforts and shall
work cooperatively to create and finalize the Preliminary and Final Plans and
Specifications and Landlord agrees that Tenant can utilize design-build/design-
assist techniques to expedite construction of the Tenant Improvements; however,
Tenant must submit a detailed criteria specification for the electrical,
mechanical and plumbing aspects of the Tenant Improvements for Landlord's prior
review and approval.
D. Building Standard Work. The Construction Documents shall provide
-----------------------
that the Tenant Improvements to be constructed in accordance therewith must be
at least equal, in quality, to Landlord's building standard materials,
quantities and procedures then in use by Landlord ("Building Standards")
attached hereto as Exhibit B-2, and shall consist of improvements which are
generic in nature.
E. Construction Agreements. Tenant hereby covenants and agrees that a
------------------------
provision shall be included in each and every agreement made with the Architect
and the Contractor with respect to the Tenant Improvements specifying that
Landlord shall be a third party beneficiary thereof, including without
limitation, a third party beneficiary of all covenants, representations,
indemnities and warranties made by the Architect and/or Contractor.
3. Permits. Tenant at its sole cost and expense (subject to the provisions of
-------
Paragraph 5 below) shall obtain all governmental approvals of the Construction
Documents to the full extent necessary for the issuance of a building permit for
the Tenant Improvements based upon such Construction Documents. Tenant at its
sole cost and expense shall also cause to be obtained all other necessary
approvals and permits from all governmental agencies having jurisdiction or
authority for the construction and installation of the Tenant Improvements in
accordance with the approved Construction Documents. Tenant at its sole cost and
expense (subject to the provisions of Paragraph 5 below) shall undertake all
steps necessary to insure that the construction of the Tenant Improvements is
accomplished in strict compliance with all statutes, laws, ordinances, codes,
rules, and regulations applicable to the construction of the Tenant Improvements
and the requirements and standards of any insurance underwriting board,
inspection bureau or insurance carrier insuring the Premises and/or the
Building.
4. Construction.
------------
A. Tenant shall be solely responsible for the construction, installation
and completion of the Tenant Improvements in accordance with the Construction
Documents approved by Landlord and is solely responsible for the payment of all
amounts when payable in connection therewith without any cost or expense to
Landlord, except for Landlord's obligation to contribute the Tenant Improvement
Allowance in accordance with the provisions of Paragraph 5 below. Tenant shall
diligently proceed with the construction, installation and
<PAGE>
completion of the Tenant Improvements in accordance with the Construction
Documents and the completion schedule reasonably approved by Landlord. No
material changes shall be made to the Construction Documents and the completion
schedule approved by Landlord without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed.
The Tenant Improvements shall be deemed substantially complete on the date
that the building officials of the applicable governmental agency(s) issues its
final approval of the construction of the Tenant Improvements whether in the
form of the issuance of a final permit, temporary certificate of occupancy,
certificate of occupancy or the written approval evidencing its final inspection
on the building permits, or the date on which Tenant first takes occupancy of
the Premises for purposes other than to perform the Tenant's Work (defined in
Section 2.3 herein), or the date that the Contractor and Architect issues a
certificate stating that the Tenant Improvements have been substantially
completed in accordance with the Construction Drawings, whichever first occurs
("Substantial Completion", or "Substantially Completed", or "Substantially
Complete").
B. Tenant at its sole cost and expense (subject to the provisions of
Paragraph 5 below) shall employ a licensed, insured and bonded general
contractor ("Contractor") to construct the Tenant Improvements in accordance
with the Construction Documents. The construction contracts between Tenant and
the Contractor and between the Contractor and subcontractors shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed. Proof that the Contractor is licensed in California, is
bonded as required under California law, and has the insurance specified in
Exhibit B-1, attached hereto and incorporated herein by this reference, shall be
-----------
provided to Landlord at the time that Tenant requests approval of the Contractor
from Landlord. Tenant shall comply with or cause the Contractor to comply with
all other terms and provisions of Exhibit B-1.
------------
C. Prior to the commencement of the construction and installation of the
Tenant Improvements, Tenant shall provide the following to Landlord, all of
which shall be to Landlord's reasonable satisfaction:
(i) An estimated budget and cost breakdown for the Tenant
Improvements.
(ii) Estimated completion schedule for the Tenant Improvements.
(iii) Copies of all required approvals and permits from governmental
agencies having jurisdiction or authority for the construction and installation
of the Tenant Improvements; provided, however, if prior to commencement of the
construction and installation of Tenant Improvements Tenant has not received the
electrical, plumbing or mechanical permits, Tenant shall only be required to
provide Landlord with evidence that Tenant has made application therefor, and,
upon receipt by Tenant of such permits, Tenant shall promptly provide Landlord
with copies thereof.
(iv) Evidence of Tenant's procurement of insurance required to be
obtained pursuant to the provisions of Paragraphs 4.B and 4.G.
D. Landlord shall at all reasonable times have a right to inspect the
Tenant Improvements (provided Landlord does not materially interfere with the
work being performed by the Contractor or its subcontractors) and Tenant shall
immediately cease work upon written notice from Landlord if the Tenant
Improvements are not in compliance with the Construction Documents approved by
Landlord. If Landlord shall give notice of faulty construction or any other
deviation from the Construction Documents, Tenant shall cause the Contractor to
make corrections promptly. However, neither the privilege herein granted to
Landlord to make such inspections, nor the making of such inspections by
Landlord, shall operate as a waiver of any rights of Landlord to require good
and workmanlike construction and improvements constructed in accordance with the
Construction Documents.
E. Subject to Landlord complying with its obligations in Paragraph 5
below, Tenant shall pay and discharge promptly and fully all claims for labor
done and materials and services furnished in connection with the Tenant
Improvements. The Tenant Improvements shall not be commenced until five (5)
business days after Landlord has received notice from Tenant stating the date
the construction of the Tenant Improvements is to commence so that Landlord can
post and record any appropriate Notice of Non-responsibility.
F. Tenant acknowledges and agrees that the agreements and covenants of
Tenant in Sections 10 and 9 of the Lease shall be fully applicable to Tenant's
construction of the Tenant Improvements.
G. Tenant shall maintain, and cause to be maintained, during the
construction of the Tenant Improvements, at its sole cost and expense, insurance
of the types and in the amounts specified in Exhibit B-1 and in Section 12 of
-----------
the Lease, together with builders' risk insurance for the amount of the
completed value of the Tenant Improvements on an all-risk non-reporting form
covering all improvements under construction, including building materials, and
other insurance in amounts and against such risks as the Landlord shall
reasonably require in connection with the Tenant Improvements.
H. No materials, equipment or fixtures shall be delivered to or installed
upon the Premises pursuant to any agreement by which another party has a
security interest or rights to remove or repossess such items, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
I. Landlord reserves the right to establish reasonable rules and
regulations for the use of the Building during the course of construction of the
Tenant Improvements, including, but not limited to, construction parking,
storage of materials, hours of work, use of elevators, and clean-up of
construction related debris.
J. Upon completion of the Tenant Improvements, Tenant shall deliver to
Landlord the following, all of which shall be to Landlord's reasonable
satisfaction:
(i) Any certificates required for occupancy, including a permanent
and complete Certificate of Occupancy issued by the City of San Jose.
(ii) A Certificate of Completion signed by the Architect who
prepared the Construction Documents, reasonably approved by Landlord.
(iii) A cost breakdown itemizing all expenses for the Tenant
Improvements, together with invoices and receipts for the same or other evidence
of payment.
(iv) Final and unconditional mechanic's lien waivers for all the
Tenant Improvements.
<PAGE>
(v) A Notice of Completion for execution by Landlord, which
certificate once executed by Landlord shall be recorded by Tenant in the
official records of the county of Santa Clara, and Tenant shall then deliver to
Landlord a true and correct copy of the recorded Notice of Completion.
(vi) A true and complete copy of all as-built plans and drawings for
the Tenant Improvements.
5. Tenant Improvement Allowance.
-----------------------------
A. Subject to Tenant's compliance with the provisions of this EXHIBIT B,
---------
Landlord shall provide to Tenant an allowance in the amount of Four Million Five
Hundred Seventy-Six Thousand Four Hundred Sixty-Four and 00/100 Dollars
($4,576,464.00) (the "Tenant Improvement Allowance") to construct and install
only the Tenant Improvements. The Tenant Improvement Allowance shall be used to
design, prepare, plan, obtain the approval of, construct and install the Tenant
Improvements and for no other purpose. Except as otherwise expressly provided
herein, Landlord shall have no obligation to contribute the Tenant Improvement
Allowance unless and until the Construction Documents have been approved by
Landlord and Tenant has complied with all requirements set forth in Paragraph
4.C. of this EXHIBIT B. The costs to be paid out of the Tenant Improvement
----------
Allowance shall include all reasonable costs and expenses associated with the
design, preparation, approval, planning, construction and installation of the
Tenant Improvements (the "Tenant Improvement Costs"), including all of the
following:
(i) All costs of the Preliminary Plans and Specifications, the
Final Plans and Specifications, and the Construction Documents, and engineering
costs associated with completion of the State of California energy utilization
calculations under Title 24 legislation;
(ii) All costs of the Preliminary and Final Plans and Specifications
and the Construction Documents and engineering costs associated with the lobby
design for the Buildings;
(iii) All costs of obtaining building permits and other necessary
authorizations from local governmental authorities;
(iv) All costs of interior design and finish schedule plans and
specifications including as-built drawings, if applicable;
(v) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not limited
to, the construction fee for overhead and profit and the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by the Contractor in connection with the construction of the Tenant
Improvements; provided, however, that the construction fee for overhead and
profit, the cost of all on-site supervisory and administrative staff, office,
equipment and temporary services shall not exceed amounts which are reasonable
and customary for such items in the local construction industry;
(vi) All fees payable to the Architect and any engineer if they are
required to redesign any portion of the Tenant Improvements following Tenant's
and Landlord's approval of the Construction Documents;
(vii) Utility connection fees;
(viii) Inspection fees and filing fees payable to local governmental
authorities, if any;
(ix) All costs of all permanently affixed equipment and non-trade
fixtures provided for in the Construction Documents, including the cost of
installation; and,
(x) A construction management fee payable to Landlord in the amount
of two and one half percent (2 1/2%) of the aggregate of the principal amount of
the Amortized Excess TI Costs (defined below) and the Tenant Improvement
Allowance (the "CM Fee").
The Tenant Improvement Allowance shall be the maximum contribution by Landlord
for the Tenant Improvement Costs, and the disbursement of the Tenant Improvement
Allowance is subject to the terms contained hereinbelow.
Except for payment of the CM Fee, Landlord will make payments to Tenant from the
Tenant Improvement Allowance to reimburse Tenant for Tenant Improvement Costs
paid or incurred by Tenant. Payment of the CM Fee shall be the first payment
from the Tenant Improvement Allowance and shall be made by means of a deduction
or credit against the Tenant Improvement Allowance. All other payments of the
Tenant Improvement Allowance shall be by progress payments not more frequently
than once per month and only after satisfaction of the following conditions
precedent: (a) receipt by Landlord of conditional mechanics' lien releases for
the work completed and to be paid by said progress payment, conditioned only on
the payment of the sums set forth in the mechanics' lien release, executed by
the Contractor and all subcontractors, labor suppliers and materialmen; (b)
receipt by Landlord of unconditional mechanics' lien releases from the
Contractor and all subcontractors, labor suppliers and materialmen for all work
other than that being paid by the current progress payment previously completed
by the Contractor, subcontractors, labor suppliers and materialmen and for which
Tenant has received funds from the Tenant Improvement Allowance to pay for such
work; (c) receipt by Landlord of any and all documentation reasonably required
by Landlord detailing the work that has been completed and the materials and
supplies used as of the date of Tenant's request for the progress payment,
including, without limitation, invoices, bills, or statements for the work
completed and the materials and supplies used; and (d) completion by Landlord or
Landlord's agents of any inspections of the work completed and materials and
supplies used as deemed reasonably necessary by Landlord. Except for the CM Fee
payment (credit), Tenant Improvement Allowance progress payments shall be paid
to Tenant within fourteen (14) days from the satisfaction of the conditions set
forth in the immediately preceding sentence. The preceding notwithstanding, all
Tenant Improvement Costs paid or incurred by Tenant prior to Landlord's approval
of the Construction Documents in connection with the design and planning of the
Tenant Improvements by Architect shall be paid from the Tenant Improvement
Allowance, without any retention, within fourteen (14) days following Landlord's
receipt of invoices, bills or statements from Architect evidencing such costs.
Notwithstanding the foregoing to the contrary, Landlord shall be entitled to
withhold and retain five percent (5%) of the Tenant Improvement Allowance or of
any Tenant Improvement Allowance progress payment until the lien-free expiration
of the time for filing of any mechanics' liens claimed or which might be filed
on account of any work ordered by Tenant or the Contractor or any subcontractor
in connection with the construction and installation of the Tenant Improvements.
<PAGE>
B. Landlord shall not be obligated to pay any Tenant Improvement
Allowance progress payment or the Tenant Improvement Allowance retention if on
the date Tenant is entitled to receive the Tenant Improvement Allowance progress
payment or the Tenant Improvement Allowance retention Tenant is in default of
this Lease. Such payments shall resume upon Tenant curing any such default
within the time periods which may be provided for in the Lease.
C. Should the total cost of constructing the Tenant Improvements be less
than the Tenant Improvement Allowance, the Tenant Improvement Allowance shall be
automatically reduced to the amount equal to said actual cost.
D. The term "Excess Tenant Improvement Costs" as used herein shall mean
and refer to the aggregate of the amount by which the actual Tenant Improvement
Costs exceed the Tenant Improvement Allowance. A portion of the Excess Tenant
Improvement Costs up to a maximum amount of Three Hundred Seventeen Thousand
Eight Hundred Ten and 00/100 Dollars ($317,810.00) shall be paid by Landlord in
the same manner as the Tenant Improvement Allowance and such Excess Tenant
Improvement Costs will then be amortized over the initial term of the Lease at
the rate of ten percent (10%) per annum and such amortized amount (including
interest charges) shall be paid by Tenant to Landlord with, and as part of, the
Base Rent for the Premises in accordance with the provisions and requirements of
Section 3 of the Lease (the "Amortized Excess TI Costs"). Within two (2) weeks
after the Tenant Improvements have been substantially completed and the actual
Tenant Improvement Costs are known, the parties shall execute and deliver a
written amendment to the Lease, in the form acceptable to the parties, wherein
there shall be specified, inter alia, the amount of the Base Rent payable by
----------
Tenant during the initial term of the Lease after taking into account the amount
of the Amortized Excess TI Costs. Tenant shall promptly pay any and all Excess
Tenant Improvement Costs in excess of the principal amount of the Amortized
Excess TI Costs.
6. Shell Improvements: Landlord shall provide the Premises with the following
------------------
improvements substantially complete on or before November 15, 1999:
(i) The site work and building structure, including foundations, slab on
grade (including vapor barrier), roof framing, roofing, exterior walls of the
building including doors (per original shell design) and concrete wall panels;
(ii) Utilities brought to an exterior location within the building,
including electrical power, water, gas and sewer; and conduit for electrical
stubbed into the Buildings; and
(iii) Fire Sprinkler mains and branch lines (per original shell design)
with sprinkler heads (excluding modification required for Tenant Improvements)
(collectively "Shell Improvements").
Building Shell Improvements specifically excludes all Tenant Improvements
and other improvements including, without limitation, the following: (a)
additional underslab plumbing, (b) finish carpentry, (c) roof screen, (d)
interior doors, windows and hardware, (e) interior finishes, (f) drywall
partitions (including demising walls separating the Premises from the contiguous
space), (g) acoustic ceiling, (h) floor and window coverings, (i) casework, (j)
dock equipment, (k) plumbing, (l) electrical wiring and distribution, and
electrical panels, (m) heating, ventilation and air conditioning, and any
additional structural improvements or engineering costs related thereto, (n)
fire sprinkler finish, (o) in-rack fire sprinklers, draft curtains, smoke vents,
hose racks, and pallet racking, (p) security systems, (q) phone and data lines,
(r) insulation, (s) slab treatment, and (t) additional doors required for
Tenant's use or occupancy.
7. Termination. If the Lease is terminated prior to the date on which the
-----------
Tenant Improvements are completed, for any reason due to the default of Tenant
hereunder, in addition to any other remedies available to Landlord under the
Lease, Tenant shall pay to Landlord as Additional Rent under the Lease, within
five (5) days of receipt of a statement therefor, any and all costs incurred by
Landlord and not reimbursed or otherwise paid by Tenant through the date of
termination in connection with the Tenant Improvements to the extent planned,
installed and/or constructed as of such date of termination, including, but not
limited to, any costs related to the removal of all or any portion of the Tenant
Improvements and restoration costs related thereto. Subject to the provisions of
Section 10.2 of the Lease, upon the expiration or earlier termination of the
Lease, Tenant shall not be required to remove the Tenant Improvements it being
the intention of the parties that the Tenant Improvements are to be considered
incorporated into the Building.
8. Lease Provisions; Conflict. The terms and provisions of the Lease, insofar
--------------------------
as they are applicable, in whole or in part, to this EXHIBIT B, are hereby
---------
incorporated herein by reference, and specifically including all of the
provisions of Section 29 of the Lease. In the event of any conflict between the
terms of the Lease and this EXHIBIT B, the terms of this EXHIBIT B shall
--------- ---------
prevail. Any amounts payable by Tenant to Landlord hereunder shall be deemed to
be Additional Rent under the Lease and, upon any default in the payment of same,
Landlord shall have all rights and remedies available to it as provided for in
the Lease.
<PAGE>
EXHIBIT B-1
CONSTRUCTION INSURANCE REQUIREMENTS
Before commencing work, the contractor shall procure and maintain at its sole
cost and expense until completion and final acceptance of the work, at least the
following minimum levels of insurance.
A. Workers' Compensation in statutory amounts and Employers Liability
Insurance in the minimum amounts of $100,000 each accident for bodily injury by
accident and $100,000 each employee for bodily injury by disease with a $500,000
policy limit, covering each and every worker used in connection with the
contract work.
B. Comprehensive General Liability Insurance on an occurrence basis including,
but not limited to, protection for Premises/Operations Liability, Broad Form
Contractual Liability, Owner's and Contractor's Protective, and
Products/Completed Operations Liability*, in the following minimum limits of
liability.
Bodily Injury, Property Damage, and
Personal Injury Liability $2,000,000/each occurrence
$3,000,000/aggregate
* Products/Completed Operations Liability Insurance is to be provided
for a period of at least one (1) year after completion of work.
Coverage should include protection for Explosion, Collapse and Underground
Damage.
C. Comprehensive Automobile Liability Insurance with the following minimum
limits of liability.
Bodily Injury and Property $1,000,000/each occurrence
Damage Liability $2,000,000/aggregate
This insurance will apply to all owned, non-owned or hired automobiles to
be used by the Contractor in the completion of the work.
D. Umbrella Liability Insurance in a minimum amount of five million dollars
($5,000,000), providing excess coverage on a following-form basis over the
Employer's Liability limit in Paragraph A and the liability coverages outlined
in Paragraphs B and C.
E. Equipment and Installation coverages in the broadest form available
covering Contractor's tools and equipment and material not accepted by Tenant.
Tenant will provide Builders Risk Insurance on all accepted and installed
materials.
All policies of insurance, duplicates thereof or certificates evidencing
coverage shall be delivered to Landlord prior to commencement of any work and
shall name Landlord, and its partners and lenders as additional insureds as
their interests may appear. All insurance policies shall (1) be issued by a
company or companies licensed to be business in the state of California, (2)
provide that no cancellation, non-renewal or material reduction in coverage
shall be effective without thirty (30) days prior written notice provided to
Landlord, (3) provide no deductible greater than $15,000 per occurrence, (4)
except for the Workers' Compensation coverage, contain a waiver to subrogation
clause in favor of Landlord, and its partners and lenders, and (5) comply with
the requirements of Sections 12.2, 12.3 and 12.4 of the Lease to the extent such
requirements are applicable.
<PAGE>
Exhibit B-2
Building Standards
Outline Specification For
New Office Build-out In R&D Buildings
OFFICE AREA
-----------
Demising Partition and Corridor Walls:
Note: One hr. rated walls where required based on occupancy group.
A. 6" 20-gage metal studs at 24" O.C. (or as required by code based on roof
height) framed full height from finish floor to surface above.
B. One (1) layer 5/8" drywall Type "X" both sides of wall, fire taped only.
Interior Partitions:
A. 3-5/8" 25-gage metal studs at 24" O.C. to bottom of T-Bar ceiling grid
approximately 9' 0" high.
B. One (1) layer 5/8" drywall both sides of wall, smooth ready for paint.
C. 3-5/8" metal studs including all lateral bracing as required by code.
Perimeter Drywall (At Office Areas):
A. 3-5/8" metal studs @ 24" O.C. to 12' 0" above finished floor. (or as
required by Title-24 for full height envelope then use demising wall spec.)
B. One (1) layer 5/8" Type "X" drywall taped smooth and ready for paint.
Column Furring:
A. Furring channel all sides of 2-1/2" metal studs per details.
B. One (1) layer 5/8" drywall taped smooth and ready for paint.
C. Columns within walls shall be furred-out.
Acoustical Ceilings:
Note: Gyp. Bd. ceiling at all restrooms Typ.
A. 2' x 4' standard white T-Bar grid system as manufactured by Chicago
Metallic of equal.
B. 2' x 4' x 5/8" white, no-directional acoustical tile to be regular second
look as manufactured by Armstrong or equal.
Painting:
A. Sheetrock walls within office to receive two (2) coats of interior latex
paint as manufactured by Kelly Moore or equal. Some portions of second coat to
be single accent color.
B. Semi-gloss paint all restrooms and lunch rooms.
Window Covering:
A. 1" aluminum mini-blinds as manufactured by Levelor, Bali or equal, color
to be selected by Legacy Partners Commercial, Inc. (brushed aluminum or white).
B. Blinds to be sized to fit window module.
VCT
---
A. VCT to be 1/8" x 12" x 12" as manufactured by Armstrong -Excelon Series
or equal.
B. Slabs shall be water proofed per manufacturer recommendations, at sheet
vinyl or VCT areas.
Light Fixtures:
A. 2" x 4" T-bar lay in 3-tube energy efficient fixture with cool white
fluorescent tubes with parabolic lens as manufactured by Lithonia or equal.
(Approximately 50 F.C.)
Light Switches:
A. Switching as required by Title 24.
B. Switch assembly to be Levinton or equal, color - White
<PAGE>
Electrical Outlet:
A. 110V duplex outlet in demising or interior partitions only, as manufactured
by Leviton or equal, color to be White.
B. Maximum eight (8) outlets per circuit, spacing to meet code or minimum 2 per
office, conference room, reception and 2 dedicated over cabinet at lunch room
junction boxes above ceiling for large open area with furniture partitions.
C. Transformers to be a minimum of 20% or over required capacity.
D. Contractors to inspect electric room and to include all necessary metering
cost.
E. No aluminum wiring is acceptable.
Telephone/Data Outlet:
A. One (1) single outlet box in wall with pullwire from outlet box to area
above T-bar ceiling per office.
B. Cover plate for phone outlets by telephone/data vendors.
Fire Sprinklers:
As required by fire codes.
Topset Base:
A. 4" rubber base as manufactured by Burke or equal, standard colors only.
B. 4" rubber base at VCT areas.
Toilet Areas:
Wet walls to receive Duraboard or Wonder Board and ceramic tile up to 48".
Floors to receive ceramic tile with self coved base as required by code.
Carpet:
Note any of the following carpets are acceptable
Designweave: Alumni 28 oz., Windswept Classic 30 oz. or Stratton Design Series
III 30 oz, Structure II 28 oz.
Wood Doors:
Shall be 3' 0" x 9' 0" x 1-3/4" (unless otherwise specified) solid core,
prefinished harmony (rotary N. birch).
Door Frames:
Shall be ACI or equal, 3-3/4" or 4-7/8" throat, brushed, standard aluminum,
snap-on trim.
Hardware:
1-1/2 pr. butts F179 Stanley, Latchset D10S Rhodes Schlage, Lockset D53PD
Rhodes Schlage, Dome Type floor stop Gylnn Johnson FB13, Closer 4110LCN (where
required) brushed chrome.
Insulation:
By Title 24 insulation.
Plumbing:
A. Shall comply with all local codes and handicapped code requirements.
Fixtures shall be either "American Standard", "Kohler" or "Norris". All toilet
accessories and grab bars shall be "Bobrick" or equal and approved by owner.
B. Plumbing bid shall include 5 gallon minimum hot water heater, or insta hot
with mixer valve including all connections.
Toilet Partitions:
Shall be as manufactured by Fiat, global or equal if approved by owner. Color
to be white or gray.
HVAC:
HVAC units per specifications.
Five (5) year warranty provided on all HVAC compressor units. All penetrations
including curbs and sleepers to be hot moped to Legacy Partners Commercial, Inc.
standard.
<PAGE>
Warehouse Areas:
Floor - seal concrete with water base clear acrylic sealer.
Fire Extinguishers - 2A 10 BC surface mount by code x by S.F.
400 W metal halide lighting at warehouse minimum 5-7 foot candles.
Note: All high pile storage requirements are excluded for standard building
T.I.
<PAGE>
Exhibit B-2
Building Standards
Outline Specification For
New Office Build-out In Industrial Buildings
OFFICE AREA
-----------
Demising Partition and Corridor Walls:
Note: One hr. rated walls where required based on occupancy group.
A. 6" 20-gage metal studs at 24" O.C. (or as required by code based on roof
height) framed full height from finish floor to surface above.
B. One (1) layer 5/8" drywall Type "X" both sides of wall, fire taped only.
Interior Partitions:
A. 3-5/8" 25-gage metal studs at 24" O.C. to bottom of T-Bar ceiling grid
approximately 9' 0" high.
B. One (1) layer 5/8" drywall both sides of wall, smooth ready for paint.
C. 3-5/8" metal studs including all lateral bracing as required by code.
Perimeter Drywall (At Office Areas):
A. 3-5/8" metal studs @ 24" O.C. to 12' 0" above finished floor. (or as
required by Title-24 for full height envelope then use demising wall spec.)
B. One (1) layer 5/8" Type "X" drywall taped smooth and ready for paint.
Column Furring:
A. Furring channel all sides of 2-1/2" metal studs per details.
B. One (1) layer 5/8" drywall taped smooth and ready for paint.
C. Columns within walls shall be furred-out.
Acoustical Ceilings:
Note: Gyp. Bd. ceiling at all restrooms Typ.
A. 2' x 4' standard white T-Bar grid system as manufactured by Chicago
Metallic of equal.
B. 2' x 4' x 5/8" white, fissured, no-directional acoustical tile to be
Cortega as manufactured by Armstrong or equal.
Painting:
A. Sheetrock walls within office to receive two (2) coats of interior latex
paint as manufactured by Kelly Moore or equal. Some portions of second coat to
be single accent color.
B. Semigloss paint all restrooms and lunch rooms.
Window Covering:
A. 1" aluminum mini-blinds as manufactured by Levelor, Bali or equal, color
to be selected by Legacy Partners Commercial, Inc.
B. Blinds to be sized to fit window module.
Vct:
A. VCT to be 1/8" x 12" x 12" as manufactured by Armstrong-Excelon Series or
equal.
B. Slabs shall be water proofed per manufacturer recommendations, at sheet
vinyl or VCT areas.
Light Fixtures:
A. 2" x 4" T-bar lay in 3-tube energy efficient fixture with cool white
fluorescent tubes with prismatic acrylic lens as manufactured by Lithonia or
equal. (Approximately 50 F.C.)
Light Switches:
A. Switching as required by Title 24.
<PAGE>
B. Switch assembly to be Levinton or equal, color - White
Electrical Outlet:
A. 110V duplex outlet in demising or interior partitions only, as manufactured
by Leviton or equal color to be White.
B. Maximum eight (8) outlets per circuit, spacing to meet code or minimum 2 per
office, conference room, reception and 2 dedicated over cabinet at lunch room
junction boxes above ceiling for large open area with furniture partitions.
C. Transformers to be a minimum of 20% or over required capacity.
D. Contractors to inspect electric room and to include all necessary metering
cost.
E. No aluminum wiring is acceptable.
Telephone/Data Outlet:
A. One (1) single outlet box in wall with pullwire from outlet box to area
above T-bar ceiling per office.
B. Cover plate for phone outlets by telephone/data vendors.
Fire Sprinklers:
As required by fire codes.
Topset Base:
A. 4" rubber base as manufactured by Burke or equal, standard colors only.
B. 4" rubber base at VCT areas.
Toilet Areas:
Wet walls to receive duraboard or wondslboard and marlite up to 48". Floors to
receive sheetvinyl and self coved base as required by code.
Carpet:
Note any of the following carpets are acceptable
Designweave: Alumni 28 oz., Windswept Classic 30 oz. or Stratton Design Series
III 30 oz, Structure II
28 oz.
Wood Doors:
Shall be 3'0" x 7' 0" x 1-3/4" (unless otherwise specified) solid core,
prefinished harmony (rotary N. birch).
Door Frames:
Shall be ACI or equal, 3-3/4" or 4-7/8" throat, aluminum, standard black, snap-
on trim.
Hardware:
1-1/2 pr. butts F179 Stanley, Latchset D10S Rhodes Schlage, Lockset D53PD Rhodes
Schlage, Dome Type floor stop Gylnn Johnson FB13, Closer 4110LCN (where
required)
Insulation:
By Title 24 insulation.
Plumbing:
A. Shall comply with all local codes and handicapped code requirements.
Fixtures shall be either "American Standard", "Kohler" or "Norris". All toilet
accessories and grab bars shall be "Bobrick" or equal and approved by owner.
B. Plumbing bid shall include 5 gallon minimum hot water heater, or insta hot
with mixer valve including all connections.
Toilet Partitions:
Shall be as manufactured by Fiat, global or equal if approved by owner. Color
shall be chosen by tenant.
HVAC:
HVAC units per specifications.
Five (5) year warranty provided on all HVAC compressor units. All penetrations
including curbs and sleepers to be hot moped to Legacy Partners Commercial, Inc.
standard.
<PAGE>
Warehouse Areas:
Floor - seal concrete with water base clear acrylic sealer.
Fire Extinguishers - 2A 10 BC surface mount by code x by S.F.
400 W metal halide lighting at warehouse minimum 5 to 7 foot candles.
Note: All high pile storage requirements are excluded for standard building
T.I.
Note: When remodeling, all materials and finishes within remodeled or expansion
areas to match existing. If code upgrades are required for hardware, fixtures,
etc. use new specifications.
<PAGE>
Exhibit C To Lease Agreement
Rules & Regulations
This exhibit, entitled "Rules & Regulations", is and shall constitute EXHIBIT C
---------
to that certain Lease Agreement dated October 6, 1999 (the "Lease"), by and
between WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord") and TiVo, Inc., a Delaware corporation ("Tenant") for the leasing
of certain premises located at 2160 and 2190 Gold Street, San Jose, California
(the "Premises"). The terms, conditions and provisions of this EXHIBIT C are
---------
hereby incorporated into and are made a part of the Lease. In the event of any
conflict between the terms of these Rules and Regulations and the Lease, the
terms of the Lease shall control. Any capitalized terms used herein and not
otherwise defined herein shall have the meaning ascribed to such terms as set
forth in the Lease:
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises or the Building without the prior written consent of
Landlord. Landlord shall have the right to remove any such unapproved item
without notice and at Tenant's expense.
2. Tenant shall not regularly park motor vehicles in designated parking areas
overnight.
3. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
4. All window coverings installed by Tenant and visible from the outside of the
Building require the prior written approval of Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance or any flammable or combustible materials on or around the
Premises, the Building or the Park.
6. Tenant shall not alter any lock or install any new locks or bolts on any
door at the Premises without the prior consent of Landlord.
7. [intentionally omitted].
8. Tenant shall park motor vehicles in those general parking areas as
designated by Landlord except for loading and unloading. During those periods
of loading and unloading, Tenant shall not unreasonably interfere with traffic
flow within the Park and loading and unloading areas of other Tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the Building or
Park and shall cooperate to prevent same.
10. No person other than the HVAC contractor specified in a service agreement
for maintenance of the HVAC shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building, to
such a degree as to be objectionable to Landlord or other Tenants, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate noise or vibration.
12. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and shall not be
left in parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks under the dolly
wheels to prevent damage to the asphalt paving surfaces. No parking or storing
of such trailers will be permitted in the auto parking areas of the Park or on
streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles stored
behind screened enclosures at locations approved by Landlord.
16. Tenant shall not store or permit the storage or placement of goods, or
merchandise or pallets or equipment of any sort in or around the Premises, the
Building, the Park or any of the Common Areas of the foregoing. No displays or
sales of merchandise shall be allowed in the parking lots or other Common Areas.
17. Tenant shall not permit any animals, including, but not limited to, any
household pets, to be brought or kept in or about the Premises, the Building,
the Park or any of the Common Areas of the foregoing.
18. Tenant shall not permit any motor vehicles to be washed on any portion of
the Premises or in the Common Areas of the Park, nor shall Tenant permit
mechanical work or maintenance of motor vehicles to be performed on any portion
of the Premises or in the Common Areas of the Park.
<PAGE>
Exhibit E
Hazardous Materials Disclosure Certificate
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as Tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord: WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn: Portfolio Vice President
Phone: (650) 571-2200
Name of (Prospective) Tenant: TiVo, Inc.
Mailing Address:________________________________________________________________
________________________________________________________________________________
______
Contact Person, Title and Telephone Number(s):__________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address of (Prospective) Premises:______________________________________________
________________________________________________________________________________
Length of (Prospective) Initial Term:___________________________________________
________________________________________________________________________________
1. General Information:
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled services and activities to be provided or otherwise
conducted. Existing Tenants should describe any proposed changes to on-going
operations.
____________________________________________________________________________
____________________________________________________________________________
2. Use, Storage and Disposal of Hazardous Materials
2.1 Will any Hazardous Materials be used, generated, stored or disposed of
in, on or about the Premises? Existing Tenants should describe any Hazardous
Materials which continue to be used, generated, stored or disposed of in, on or
about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain:______________________________________
_______________________________________________________________________
_______________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or about the
Premises, including the applicable hazard class and an estimate of the
quantities of such Hazardous Materials at any given time; estimated annual
throughput; the proposed location(s) and method of storage (excluding nominal
amounts of ordinary household cleaners and janitorial supplies which are not
regulated by any Environmental Laws); and the proposed location(s) and method of
disposal for each Hazardous Material, including, the estimated frequency, and
the proposed contractors or subcontractors. Existing Tenants should attach a
list setting forth the information requested above and such list should include
actual data from on-going operations and the identification of any variations in
such information from the prior year's certificate.
3. Storage Tanks and Sumps
3.1 Is any above or below ground storage of gasoline, diesel, petroleum, or
other Hazardous Materials in tanks or sumps proposed in, on or about the
Premises? Existing Tenants should describe any such actual or proposed
activities.
Yes [ ] No [ ]
<PAGE>
If yes, please explain:________________________________________
_______________________________________________________________
_______________________________________________________________
4. Waste Management
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing Tenants should describe any additional identification numbers
issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a hazardous
waste generator? Existing Tenants should describe any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. Wastewater Treatment and Discharge
5.1 Will your company discharge wastewater or other wastes to:
<TABLE>
<S> <C>
_______ storm drain? _______ sewer?
_______ surface water? _______ no wastewater or other wastes discharged.
</TABLE>
Existing Tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).____________
_______________________________________________________________________
_______________________________________________________________________
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be conducted.
Existing Tenants should describe the actual treatment conducted.
_______________________________________________________________________
_______________________________________________________________________
6. Air Discharges
6.1 Do you plan for any air filtration systems or stacks to be used in your
company's operations in, on or about the Premises that will discharge into the
air; and will such air emissions be monitored? Existing Tenants should indicate
whether or not there are any such air filtration systems or stacks in use in, on
or about the Premises which discharge into the air and whether such air
emissions are being monitored.
Yes [ ] No [ ]
If yes, please describe:_______________________________________________
_______________________________________________________________________
_______________________________________________________________________
6.2 Do you propose to operate any of the following types of equipment, or
any other equipment requiring an air emissions permit? Existing Tenants should
specify any such equipment being operated in, on or about the Premises.
________ Spray booth(s) _______ Incinerator(s)
________ Dip tank(s) _______ Other (Please describe)
________ Drying oven(s) _______ No Equipment Requiring Air Permit
If yes, please describe:_______________________________________________
_______________________________________________________________________
_______________________________________________________________________
7. Hazardous Materials Disclosures
7.1 Has your company prepared or will it be required to prepare a Hazardous
Materials management plan ("Management Plan") pursuant to Fire Department or
other governmental or regulatory agencies' requirements? Existing Tenants should
indicate whether or not a Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing Tenants should
attach a copy of any required updates to the Management Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the Premises regulated
under Proposition 65? Existing Tenants should indicate whether or not there are
any new Hazardous Materials
<PAGE>
being so used which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, please explain:_______________________________________________
______________________________________________________________________
______________________________________________________________________
8. Enforcement Actions and Complaints
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement actions, administrative
orders, or consent decrees or has your company received requests for
information, notice or demand letters, or any other inquiries regarding its
operations? Existing Tenants should indicate whether or not any such actions,
orders or decrees have been, or are in the process of being, undertaken or if
any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders or decrees
and also describe any requests, notices or demands, and attach a copy of all
such documents. Existing Tenants should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not already delivered to
Landlord pursuant to the provisions of Section 29 of the signed Lease Agreement.
_______________________________________________________________________
_______________________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regarding any environmental or health and safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other documents related
thereto as requested by Landlord. Existing Tenants should describe and attach a
copy of any new complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the provisions of
Section 29 of the signed Lease Agreement.
_______________________________________________________________________
_______________________________________________________________________
8.3 Have there been any problems or complaints from adjacent Tenants,
owners or other neighbors at your company's current facility with regard to
environmental or health and safety concerns? Existing Tenants should indicate
whether or not there have been any such problems or complaints from adjacent
Tenants, owners or other neighbors at, about or near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing Tenants should describe any such
problems or complaints not already disclosed to Landlord under the provisions of
the signed Lease Agreement.
_______________________________________________________________________
_______________________________________________________________________
9. Permits and Licenses
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with respect to its
proposed operations in, on or about the Premises, including, without limitation,
any wastewater discharge permits, air emissions permits, and use permits or
approvals. Existing Tenants should attach copies of any new permits and
licenses as well as any renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding
the foregoing or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will, rely upon the statements, representations,
warranties, and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name)_____________, acting with full authority to bind the (proposed)
Tenant and on behalf of the (proposed) Tenant, certify, represent and warrant
that the information contained in this certificate is true and correct.
<PAGE>
(Prospective) Tenant:
By: ______________________________
Title:____________________________
Date:_____________________________
<PAGE>
Exhibit F
First Amendment To Lease Agreement
Change Of Commencement Date
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into to be effective as of _________________________, by and between
_____________________________ ("Landlord"), and ________________________
("Tenant"), with reference to the following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
___________ (the "Lease"), for the leasing of certain premises containing
approximately __________ rentable square feet of space located at
____________________________, California (the "Premises") as such Premises are
more fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are true and
--------
correct.
2. The Commencement Date of the Lease shall be ________________________.
3. The last day of the Term of the Lease (the "Expiration Date") shall be
______________.
4. The dates on which the Base Rent will be adjusted are:
for the period ________ to _______ the monthly Base Rent shall be
$___________;
for the period ________ to _______ the monthly Base Rent shall be
$__________;and
for the period ________ to _______ the monthly Base Rent shall be
$___________.
5. Effect of Amendment: Except as modified herein, the terms and conditions
-------------------
of the Lease shall remain unmodified and continue in full force and effect. In
the event of any conflict between the terms and conditions of the Lease and this
Amendment, the terms and conditions of this Amendment shall prevail.
6. Definitions: Unless otherwise defined in this Amendment, all terms not
-----------
defined in this Amendment shall have the meaning set forth in the Lease.
7. Authority: Subject to the provisions of the Lease, this Amendment shall
---------
be binding upon and inure to the benefit of the parties hereto, their respective
heirs, legal representatives, successors and assigns. Each party hereto and the
persons signing below warrant that the person signing below on such party's
behalf is authorized to do so and to bind such party to the terms of this
Amendment.
8. The terms and provisions of the Lease are hereby incorporated in this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
[PROPERTY MANAGER: Please provide Tenant information and Word Processing will
complete the signature block]
<PAGE>
Exhibit G
Sign Criteria
To be attached
<PAGE>
ADDENDUM 1
Option To Extend The Lease
This Addendum 1 ("Addendum") is incorporated as a part of that certain Lease
Agreement dated October 6, 1999 (the "Lease"), by and between TiVo, Inc., a
Delaware corporation ("Tenant"), and WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP, a
Delaware limited partnership ("Landlord"), for the leasing of those certain
premises located at 2160 and 2190 Gold Street, San Jose, California as more
particularly described in Exhibit A to the Lease (the "Premises"). Any
---------
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease.
1. Grant of Extension Option. Subject to the provisions, limitations and
-------------------------
conditions set forth in Paragraph 5 below, Tenant shall have an Option
("Option") to extend the term of the Lease for five (5) years (the "Extended
Term").
2. Tenant's Option Notice. If Landlord does not receive written notice from
----------------------
Tenant of its exercise of this Option on a date which is not more than two
hundred seventy (270) days nor less than one hundred eighty (180) days prior to
the end of the initial term of the Lease (the "Option Notice"), all rights under
this Option shall automatically terminate and shall be of no further force or
effect.
3. Establishing the Initial Monthly Base Rent for the Extended Term. The
----------------------------------------------------------------
initial monthly Base Rent for the Extended Term shall be the then current market
rent for similar space within the competitive market area of the Premises (the
"Fair Rental Value"). "Fair Rental Value" of the Premises means the fair market
rental value of the Premises as of the commencement of the Extended Term, taking
into consideration all relevant factors, including length of term, the uses
permitted under the Lease, the quality, size, design and location of the
Premises, including the condition and value of existing tenant improvements, and
the monthly base rent paid by tenants for premises comparable to the Premises,
and located within the competitive market area of the Premises as reasonably
determined by Landlord.
If Landlord and Tenant are unable to agree on the Fair Rental Value for the
Extended Term, within ten (10) days of receipt by Landlord of the Option Notice
for the Extended Term, Landlord and Tenant each, at its cost and by giving
notice to the other party, shall appoint a competent and disinterested
commercial real estate broker (hereinafter "broker") with at least five (5)
years' full-time commercial real estate brokerage experience in the geographical
area of the Premises to set the Fair Rental Value for the Extended Term. If
either Landlord or Tenant does not appoint a broker within ten (10) days after
the other party has given notice of the name of its broker, the single broker
appointed shall be the sole broker and shall set the Fair Rental Value for the
Extended Term. If two (2) brokers are appointed by Landlord and Tenant as stated
in this paragraph, they shall meet promptly and attempt to set the Fair Rental
Value. If the two (2) brokers are unable to agree within ten (10) days after the
second broker has been appointed, they shall attempt to select a third broker,
meeting the qualifications stated in this paragraph within ten (10) days after
the last day the two (2) brokers are given to set the Fair Rental Value. If they
are unable to agree on the third broker, either Landlord or Tenant by giving ten
(10) days' notice to the other party, can apply to the Presiding Judge of the
Superior Court of the county in which the Premises is located for the selection
of a third broker who meets the qualifications stated in this paragraph.
Landlord and Tenant each shall bear one-half (1/2) of the cost of appointing the
third broker and of paying the third broker's fee. The third broker, however
selected, shall be a person who has not previously acted in any capacity for
either Landlord or Tenant. Within fifteen (15) days after the selection of the
third broker, the third broker shall select one of the two Fair Rental Values
submitted by the first two brokers as the Fair Rental Value for the Extended
Term. Such third broker determination shall be binding on Landlord and Tenant.
If either of the first two brokers fails to submit their opinion of the Fair
Rental Value, then the single Fair Rental Value submitted shall automatically be
the monthly Base Rent for the Extended Term.
Upon determination of the initial monthly Base Rent for the Extended Term in
accordance with the terms outlined above, Landlord and Tenant shall immediately
execute an amendment to this Lease. Such amendment shall set forth among other
things, the initial monthly Base Rent for the Extended Term and the actual
commencement date and expiration date of the Extended Term. Tenant shall have
no other right to extend the term of the Lease under this Addendum unless
Landlord and Tenant otherwise agree in writing.
4. Condition of Premises. If Tenant timely and properly exercises this Option,
---------------------
in strict accordance with the terms contained herein Tenant shall accept the
Premises in its then "As-Is" condition and, accordingly, Landlord shall not be
required to perform any additional improvements to the Premises.
5. Limitations On, and Conditions To, Extension Option. This Option is
---------------------------------------------------
personal to Tenant and may not be assigned, voluntarily or involuntarily,
separate from or as part of the Lease. At Landlord's option, all rights of
Tenant under this Option shall terminate and be of no force or effect if any of
the following individual events occur or any combination thereof occur: (1)
Tenant has been in material default at any time during the initial term of the
Lease, or is in material default of any provision of the Lease on the date of
the Option Notice; and/or (2) Between the Lease Date and the time the Option
Notice is delivered there has occurred a material and adverse change in Tenant's
financial condition; and/or (3) Tenant has failed to properly exercise this
Option in a timely manner in strict accordance with the provisions of this
Addendum. Notwithstanding the foregoing, this provision shall not apply and the
Option shall not terminate, in the event of any Transfer permitted without
Landlord's consent to an Affiliate or in connection with a merger, consolidation
or sale of substantially all of the assets of Tenant in accordance with Section
14.8.
6. Time is of the Essence. Time is of the essence with respect to each and
----------------------
every time period described in this Addendum.
<PAGE>
ADDENDUM II
Right Of First Offer
This Addendum II is incorporated as a part of that certain Lease Agreement
("Lease") dated October 6, 1999, by and between TiVo, Inc., a Delaware
corporation ("Tenant"), and WIX/NSJ REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Landlord"), for the Premises located at 2160 and 2190 Gold
Street, San Jose, California (the "Premises").
During the initial term of the Lease only, Tenant shall have a one time First
Offer to Lease ("Right of First Offer") any space that becomes vacant after the
initial lease-up of the building commonly known as 2150 Gold Street, San Jose,
California (Building C"), and containing approximately 52,165 rentable square
feet, as outlined on Exhibit A attached hereto and made a part hereof (the
"Expansion Space"). Tenant's Right of First Offer, as granted herein, is
subject to the following conditions:
i. Tenant's Right of First Offer shall be subject to the rights and
options of the existing tenants (together with their successors and assigns)
then occupying any of said Expansion Space pursuant to the terms and provisions
of such tenant's leases as such leases may be later modified, amended or
extended; and
ii. Tenant's Right of First Offer shall be void if, at any time, Tenant is
currently in default in the performance of any of its obligations under the
Lease; and
iii. Tenant's Right of First Offer shall be subject to Landlord's review
and approval of Tenant's then current financial condition.
Provided the above conditions are satisfied, if the Expansion Space is vacant,
and Landlord desires to lease the Expansion Space, Landlord shall give Tenant
written notice, by facsimile and by mail, of the estimated date upon which
Landlord can deliver such space to Tenant, and the terms and conditions upon
which Landlord is willing to lease the Expansion Space ("Landlord's Availability
Notice"). Tenant shall notify Landlord within three (3) business days following
receipt of Landlord's Availability Notice of Tenant's election to lease all the
Expansion Space upon those terms by written acceptance delivered to Landlord
("Election Notice"). If Tenant fails to notify Landlord of Tenant's election to
lease the Expansion Space within the time specified herein, it shall be deemed
that (i) Tenant has elected not to lease said Expansion Space; (ii) Landlord may
thereafter enter into a Lease Agreement with a third party; and (iii) all rights
under this Right of First Offer shall terminate and be of no further force and
effect. Time is of the essence herein.
In the event Tenant exercises this Right of First Offer as herein provided,
Tenant shall provide Landlord a non-refundable deposit, equivalent to the last
month's rent for the Expansion Space and the parties shall have ten (10) working
days after Landlord receives the Election Notice and deposit from Tenant in
which to execute an amendment to the Lease setting forth the agreed-upon terms.
Upon full execution of an amendment for the Expansion Space, the non-refundable
deposit shall be credited toward Base Rent or the security deposit for the
Expansion Space, as agreed between the parties.
This Right of First Offer shall terminate and be of no force and effect if, at
any time, Tenant is or has been in default of the performance of any of the
covenants, conditions or agreements to be performed under this Lease; or the
Premises are being subleased at the time of this Right of First Offer is
offered.
This Right of First Offer is personal to Tenant and may not be assigned,
voluntarily or involuntarily, separate from or as a part of the Lease, except to
an Affiliate as defined herein.
Should Tenant exercise this Right of First Offer, Landlord and Tenant shall
execute an amendment to this Lease, adding the Expansion Space to the Premises
and adjusting the Base Rent and Tenant's proportionate share of the items set
forth in Sections 6, 7, and 8 of this Lease. If Tenant does not elect to
exercise the Right of First Offer granted herein, based upon the material terms
proposed by Landlord, all rights under this Right of First Offer shall terminate
and be of no further force and effect.