WebEx Communications Inc. Contracts
Sample Business Contracts
California-Rancho Cordova-2868 Prospect Park Drive Lease - WDCI Inc. and WebEx Communications Inc.
Lease Forms
- Start a state-specific lease for the rental of commercial property. Specify the term and rent due, as well as whether the landlord or tenant is responsible for property taxes, insurance, and maintenance and repairs.
- When a tenant vacates commercial property before the lease term has expired, it may be able to rent the premises to a third party. The tenant would be the sublessor and the third party would be the sublessee. Besides preparing a sublease, both parties will want to review the provisions for assignment or subletting in the original lease agreement between the landlord and the sublessor.
- Tenants of residential property should prepare a sublease agreement if they are seeking to sublease a room or the entire apartment or house to a third party. All parties should review the original lease agreement to see if there are any restrictions on subletting or assigning the premises.
- Triple net leases are a type of commercial leases where the tenant has to pay for property taxes, insurance, utilities, and maintenance, in addition to the monthly rent.
- When renting an office space, tenants should understand the amount of the rent and duration of the lease. Other important terms include whether the space can be subleased, which parties are responsible for maintenance, and whether any furniture and furnishings will be provided.
LEASE AGREEMENT
THIS LEASE, made this ____ day of ______________, 2000, between WDCI,
Inc., a Hawaii corporation, hereinafter called Landlord, and WebEx
Communications, Inc., a Delaware corporation, hereinafter called Tenant.
WITNESSETH:
1. BASIC LEASE TERMS. The following constitutes certain basic terms of this
Lease as further described in this Lease.
A. PREMISES.
Suite No. 500 28,351 s.f.
Suite No. 310 5,962 s.f.
Total Rentable Square Feet of the Premises 34,313 s.f.
Total Usable Square Feet of the Premises 32,790 s.f.
Rentable Square Feet of the Complex 162,104 s.f.
Tenant's Approx. Share of Total Rentable Area 21.2%
B. PERMITTED USE.
General Office
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C. TERM.
Total Lease Term Sixty (60) months
Outside Commencement Date January 1, 2001
D. BASIC RENT.
<TABLE>
<S> <C>
Month January 1, 2001 to and including Month December 31, 2001 $ 63,479.05 per month
Month January 1, 2002 to and including Month December 31, 2002 $ 65,194.70 per month
Month January 1, 2003 to and including Month December 31, 2003 $ 66,910.35 per month
Month January 1, 2004 to and including Month December 31, 2004 $ 68,626.00 per month
Month January 1, 2005 to and including Month December 31, 2005 $ 70,341.65 per month
</TABLE>
E. DIRECT EXPENSE BASE. $0.56 per Rentable sq. ft. per month.
F. PREPAID RENT. (SIX (6) MONTH'S RENT) $380,874.30
G. SECURITY DEPOSIT. (FOUR (4) MONTH'S RENT) $253,916.20
H. PARKING SPACES.
<TABLE>
<S> <C>
No. of Spaces per 1,000 square feet of usable space Approx. 4.5 spaces
(See Addendum)
</TABLE>
I. ADDITIONAL PARAGRAPHS OR ADDENDA.
Exhibit A - Premises
Exhibit B - The Complex
Exhibit C - Environmental Questionnaire
Rules and Regulations
Addendum No. One
Work Agreement Addendum
J. OTHER.
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Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as a portion of that certain building containing the
approximate number of rentable square feet shown in Paragraph 1A located at
Prospect Park Center, 2868 Prospect Park Drive, Rancho Cordova, California. The
suite number of the Premises is shown in Paragraph 1A. The Premises is agreed to
be the number of rentable square feet shown in Paragraph 1A regardless of the
actual size of the Premises. Tenant's leased Premises is estimated to be the
percentage of the total rentable area of the Complex shown in Paragraph 1A.
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The total rentable square feet shall include the Premises and a pro-rata
share of the Common Area (as defined in Paragraph 6 below). Tenant's
proportionate share of Common Areas of the building in which the Premises are
located include, but is not limited to, common restrooms, hallways, atriums,
covered entrances or egresses, exterior smoking/lunch areas and covered loading
areas.
As used herein the Complex ("Complex") shall mean and include all of the
land described in Exhibit "B", attached hereto, and all of the buildings,
improvements, fixtures and equipment now or hereafter situated on said land.
This Lease is based upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
2. USE. Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose shown in
Paragraph 1B and for no other purpose. Tenant shall not do or permit to be done
in or about the Premises or the Complex nor bring or keep or permit to be
brought or kept in or about the Premises or the Complex anything which is
prohibited by law or will in any way increase the existing rate of (or otherwise
affect) fire or any insurance covering the Premises or the Complex or any part
thereof, or any of its contents, or will cause cancellation of any Insurance
covering the Premises or the Complex or any part thereof, or any of its
contents. Tenant shall not do or permit to be done anything in, on or about the
Premises or the Complex which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Complex or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises or the Complex. No sale by auction shall be
permitted on the Complex. Tenant shall not place any loads upon the floors,
walls or ceiling which endanger the structure, or use or store any harmful,
hazardous or toxic fluids or materials or other materials in or about the
Complex to include the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped or permitted to remain upon any part of the Premises or outside of the
building in which the Premises are a part, except in trash containers placed
inside exterior enclosures designated by Landlord for that purpose or inside of
the building proper where designated by Landlord. Other than where specifically
designated by Landlord, if any, there shall be no smoking anywhere in or
adjacent to the building including the area outside the building entrances. No
materials, supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to remain
outside the Premises or on any portion of Common Area of the Complex. Tenant
shall not place anything or allow anything to be placed near the glass of any
window, door partition or wall which may appear unsightly from outside the
Premises. No loudspeaker or other device, system or apparatus which can be heard
outside the Premises shall be used in or at the Premises without the prior
written consent of Landlord. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises. Tenant shall indemnify, defend and hold
Landlord harmless against any loss, expense, damage, reasonable attorney's fees,
or liability arising out of the failure of Tenant to comply with the provisions
of this paragraph and any applicable law. Tenant shall comply with any covenant,
condition, or restriction ("CC&R's") affecting the Premises or the Complex. The
provisions of this paragraph are for the benefit of Landlord only and shall not
be construed to be for the benefit of any tenant or occupant of the Complex.
3. TERM.
A. The term of this Lease shall be for the period shown in Paragraph 1C
and shall commence pursuant to Paragraph 3B below.
B. The term of this Lease ("Term") shall commence when the first of the
following occurs:
(a) One day after a Certificate of Occupancy (including a temporary
Certificate of Occupancy) or a signed final building inspection tag is provided
by the proper governmental agency, or, if the governmental agency having
jurisdiction over the area in which the Premises are situated does not issue
either of the above, then the same number of days after certification by
Landlord's architect or contractor that Landlord's construction work, if any,
has been completed; or
(b) Upon the occupancy of the Premises by any of Tenant's personnel;
or
(c) The Outside Commencement Date shown in Paragraph 1C ("Outside
Commencement Date").
4. POSSESSION.
A. DELAY IN DELIVERY. If Landlord, for any reason whatsoever, cannot
deliver possession of said premises to Tenant at the commencement of said Term,
as hereinbefore specified, this Lease shall not be void or voidable; no
obligation of Tenant shall be affected thereby; nor shall Landlord or Landlord's
agents be liable to Tenant for any loss or damage resulting therefrom. The above
is, however, subject to the provision that the period of delay of delivery of
the Premises shall not exceed sixty (60) days from the Outside Commencement Date
(except those delays caused by Tenant, Acts of God, strikes, war, utilities,
governmental bodies, weather, unavailable materials, and delays beyond
Landlord's control shall be excluded in calculating such period) in which
instance Tenant, at its option, may, by written notice to Landlord, delivered
not later than seventy-five days from the Outside Commencement Date, terminate
this Lease.
B. COMMENCEMENT AND CONFIRMATION. Within ten (10) days of Tenant taking
possession of the Premises, Landlord shall prepare and deliver to Tenant a
Commencement and Confirmation Letter which will specify the date upon which the
Term commenced, the date upon which the obligation to pay Basic Rent and expense
adjustments, if any, commenced, the date upon which the Term shall expire, and
the Monthly Basic Rent and Lease payment, along with an amendment to the Lease
("Amendment") modifying the Lease accordingly.
Provided Tenant agrees with the information contained in the Commencement
and Confirmation Letter and Amendment, Tenant shall promptly execute and return
the Commencement and Confirmation Letter and Amendment to Landlord. When fully
executed and delivered, the Amendment shall supersede any inconsistent terms
contained in the Lease. If Tenant objects to anything contained in the
Commencement and Confirmation Letter or the Amendment, within ten (10) days of
receipt of the Commencement and Confirmation Letter and Amendment, Tenant shall
provide Landlord with a written statement setting forth the specific basis for
the objection(s). In the event that an informal resolution of the issues in
dispute is not reached, the dispute shall be resolved by Judicial Reference as
provided herein. The parties agree that until a binding determination is
rendered on the issue(s) in dispute, Landlord and Tenant shall proceed including
the payment of Basic Rent and expenses, as if
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Landlord's Commencement and Confirmation Letter and Amendment were accurate and
acceptable. The parties shall thereafter make any adjustments required based
upon the resolution of the dispute.
5. RENT.
A. BASIC RENT. Tenant agrees to pay to Landlord, monthly, at such place as
Landlord may designate without deduction, offset, prior notice, or demand, and
Landlord agrees to accept as Basic Rent for the leased Premises the total amount
set forth below in lawful money of the United States of America, payable as set
forth in Paragraph 1D. The Prepaid Rent as identified in Section 1F shall be
applied to the first six (6) months of Basic Rent.
B. TIME FOR PAYMENT. Rent for the term of the Lease is due in advance on
the first day of each calendar month, with a five (5) day grace period for
payment. In the event that the term of this Lease commences on a date other than
the first day of a calendar month, on the date of commencement of the Term
hereof Tenant shall pay to Landlord as rent for the period from such date of
commencement to the first day of the next succeeding calendar month, that
proportion of the monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding calendar month
bears to thirty (30). In the event that the Term of this Lease for any reason
ends on a date other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to Landlord as rent
for the period from said first day of said last calendar month to and including
the last day of the term hereof that proportion of the monthly rent hereunder
which the number of days between said first day of said last calendar month and
the last day of the term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this Lease, if
Tenant is in default in the payment of rent or any other charge as set forth in
this Lease when due, or any part thereof, Tenant agrees to pay to Landlord, in
addition to the delinquent rent due, a late charge for each such payment in
default . Said late charges shall equal ten percent (10%) of the amount of such
payment in default.
D. EXPENSE ADJUSTMENT.
(a) For the purposes of this Paragraph 5D, the following terms are
defined as follows:
(i) LEASE YEAR: Each calendar year constituting any portion of
the Term of this Lease.
(ii) DIRECT EXPENSE BASE: The amount of the monthly Direct
Expenses (as defined below) which Landlord has utilized in establishing Tenant's
monthly Basic Rent and has included in Basic Rent and agrees to expend as
Landlord's share of operation expenses paid for and sustained is the amount per
rentable square foot per month shown in Paragraph 1E ("Direct Expenses Base").
Said sum shall constitute the maximum payable by Landlord as its contribution
toward the payment of Direct Expenses.
(iii) DIRECT EXPENSES: For the purposes of this Lease, the term
"Direct Expenses" is defined as all direct costs incurred in the course of
ownership, operation, management, maintenance and repair of the Complex as
determined by standard accounting practices, calculated as billed based on the
assumption that the Complex is at least ninety percent (90%) occupied (excepting
electrical expenses which shall be based on usage or other equitable basis). If
the average occupancy of the Complex is under ninety percent (90%) occupied,
Landlord shall pay one hundred percent (100%) of the expenses relating to the
vacant space up to ninety percent (90%) occupancy. If the Complex occupancy is
at or above ninety percent (90%), Landlord shall bill Tenants for one hundred
percent (100%) of expenses using each Tenant's occupancy percentage to calculate
each Tenant's share of Direct Expenses.
The following expenses are some but not all of the costs which are Direct
Expenses: (a) expenses of operation, management and maintenance of the Common
Areas of the Complex as set forth in Paragraph 7; (b) expenses of maintenance of
the Premises as set forth in Paragraph 11; (c) utility charges relating to the
Complex as set forth in Paragraph 12; (d) taxes relating to the Complex as set
forth in Paragraph 13; (e) expenses of insurance relating to the Complex as set
forth in Paragraph 16; (f) expenses of compliance as set forth in Paragraph 18;
(g) accounting and legal fees incurred in the Complex's ownership and operation;
and (h) management expenses relating to the operation, management and
maintenance of the Complex, whether managed by Landlord or by a property manager
or company, including employee salaries and benefits, clerical charges,
transportation, vehicle repairs, small tools and supply charges, postage, office
supplies, overtime pay, office overhead and utilities, space charges for on-site
manager's office (if any), and miscellaneous charges. The management expense
specified above is included in the Direct Expenses Base, and Landlord shall not
be required to keep separate records of management expenses for Tenant's leased
Premises.
(b) In any Lease Year from and after 2002, if the actual Direct
Expenses paid or incurred by Landlord (expressed on a per month rentable square
foot basis) exceeds the Direct Expense Base, then Tenant shall pay Tenant's
share of such increased amount to Landlord as Additional Rent. Tenant shall not
be responsible to pay any increases in Direct Expenses for the 2001 Lease Year.
Landlord shall give to Tenant a statement of the Additional Rent payable by
Tenant hereunder which shall be due and payable within ten (10) of receipt. In
addition, Landlord may at or after the start of any Lease Year from and after
2002 notify Tenant of the amount which Landlord estimates will be Tenant's
monthly share of increased Direct Expenses for such Lease Year. For each
subsequent month, Tenant shall pay to Landlord monthly, in advance, one-twelfth
(1/12) of Landlord's estimate of the amount by which Direct Expenses for that
Lease Year shall exceed the Direct Expense Base. If, at the beginning of a Lease
Year, said Landlord's estimate is not available prior to the commencement of the
Lease Year, Tenant's payments to Landlord hereunder shall accrue and such
accrual shall become payable the month following receipt by Tenant of said
Landlord's estimate, and further payments shall be made monthly thereafter. At
the end of each Lease Year, said Landlord's estimate shall be reconciled as
compared to Landlord's actual Direct Expenses, with Tenant paying to Landlord,
within thirty (30) days of demand, any amount of actual Direct Expenses expended
by Landlord in excess of said Landlord's estimate, or Landlord, at its option,
crediting or refunding to Tenant (providing Tenant is not in default in the
performance of any of the terms, covenants and conditions of this Lease) any
amount of estimated payments made by Tenant in excess of Landlord's actual
Direct Expenses.
(c) The respective obligations of Landlord and Tenant under this
paragraph shall survive the expiration or other termination of the term of this
Lease, even though the Tenant has vacated the premises, and when Landlord makes
the final determination of Tenant's percentage of Direct Expenses for the year
in which this Lease terminates, prorated in the proportion which the number of
days in such
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calendar year preceding termination bears to 365, Tenant shall pay to Landlord,
within fifteen (15) days of demand, any amount of actual Direct Expenses
expended by Landlord in excess of said Landlord's estimate, or Landlord shall
refund to Tenant within fifteen (15) days any amount of estimated payments made
by Tenant in excess of Landlord's actual Direct Expenses.
All charges, costs and expenses which Tenant is required to pay hereunder,
together with all interest and penalties, costs and expenses including
reasonable attorney's fees and legal expenses that may accrue thereto in the
event of Tenant's failure to pay such amounts, and all damages, reasonable costs
and expenses which Landlord may incur by reason of default of Tenant or failure
on Tenant's part to comply with the terms of this Lease shall be considered as
Additional Rent, and in the event of nonpayment by Tenant, Landlord shall have
all the rights and remedies with respect thereto as Landlord has for nonpayment
of rent.
(d) The annual statement of increased Direct Expenses shall be made
by or verified by an accounting or auditing officer of Landlord. Within sixty
(60) days after receipt of the statement, Tenant shall be entitled, upon five
(5) days prior written notice and during normal business hours, at Landlord's
office or such other place as Landlord shall designate, to inspect and examine
those books and records of Landlord relating to the Direct Expenses for the
immediately preceding calendar year. Failure of Tenant to request such
inspection within sixty (60) days from receipt of the statement shall render
such statement conclusive and binding on Tenant.
Notwithstanding anything contained in this Paragraph 5D, the
monthly rental payable by Tenant shall in no event be less than the Basic Rent
set forth in Paragraphs 1D and 5A of this Lease.
E. EXCLUSIONS FROM DIRECT EXPENSES. Exclusions from Direct Expenses shall
include Landlord's debt repayments, expenses directly or indirectly incurred by
Landlord solely for the benefit of any other tenant, cost of attracting tenants,
interest, leasing commissions, expenses incurred in construction of interior
improvements or otherwise in improving or decorating space solely for other
tenants or other occupants of vacant space; Landlord's cost of electricity and
other services sold or provided to tenants in the building for which Landlord is
reimbursed as a separate additional charge; depreciation of the building and
associated improvements; all items and services for which Tenant pays directly
to a third party; and costs of special services rendered to individual tenants
for which a special charge is made to that Tenant.
F. PREPAID RENT. Upon the execution of this Lease, Tenant shall pay to
Landlord Prepaid Rent in the sum of amount shown in Paragraph 1F and if Tenant
is not in default of any provisions of this Lease, the Prepaid Rent shall be
applied toward the Basic Rent due for the first month of the term. In the event
Landlord does not accept this Lease, Landlord shall return said Prepaid Rent. If
any excess rent shall remain after the above amount is applied to the first
month's rental, such excess shall be applied to subsequent monthly installments
of annual Basic Rent until such Prepaid Rent is exhausted.
G. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent and
Additional Rent and all other payments required hereunder shall be paid to
Landlord at the office of Landlord's agent at 2868 Prospect Park Drive, Suite
300, Rancho Cordova, CA 95670 or to such other person or to such other place as
Landlord may from time to time designate in writing.
H. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum shown in Paragraph 1G. Said sum shall
be held by Landlord as a Security Deposit ("Deposit") for the faithful
performance by Tenant of all of the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant during the term hereof. If Tenant
defaults with respect to any provision of this Lease, including, but not limited
to, the provisions relating to the payment of rent and any of the monetary sums
due herewith, Landlord may (but shall not be required to) use, apply or retain
all or any part of this Deposit for the payment of any other amount which
Landlord may spend by reason of Tenant's default or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied, Tenant shall,
within ten (10) days after written demand therefor, deposit cash with Landlord
in the amount sufficient to restore the Deposit to its original amount. Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep this Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on such Deposit. If Tenant fully and
faithfully performs every provision of this Lease to be performed by it, the
Deposit or any balance thereof shall be returned to Tenant (or at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the expiration
of the Lease term and after Tenant has vacated the Premises. In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer said
Deposit to Landlord's successor in interest whereupon Tenant agrees to release
Landlord from liability for the return of such Deposit or the accounting
therefor.
6. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and conditions of
this Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Complex in which the Premises are located,
and their respective employees, invitees and customers, and others entitled to
the use thereof, have the nonexclusive right to use the access roads, parking
areas, lobby, hallways, restrooms, stairways and such other facilities provided
and designated by Landlord for the general use and convenience of the occupants
of the Complex in which the Premises are located. All areas in the Complex,
other than the Premises and the premises leased or available to lease to other
tenants shall be referred to herein as "Common Area". Tenant's right to use the
Common Area shall terminate upon the termination of the Lease. Landlord reserves
the right to promulgate such reasonable rules and regulations relating to the
use of the Common Area, and any part or parts thereof, as Landlord may deem
appropriate for the best interests of the occupants of the Complex. The Rules
and Regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant, and Tenant shall abide by them and cooperate in their observance. Such
Rules and Regulations may be amended by Landlord from time to time, with or
without advance notice, and all amendments shall be effective upon delivery of a
copy to Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Complex of any of said
Rules and Regulations. Tenant shall notify Landlord of any items in the Common
Area which require repair or replacement.
Landlord reserves the right at any time to change the shape, size,
location, and extent of the Common Area, including but not limited to, the
arrangement or location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, restrooms or other public parts of the Complex and
to change the name, number or designation by which the Complex is commonly
known, and none of the foregoing shall be deemed an actual or constructive
eviction of Tenant, or shall entitle Tenant to any reduction of rent hereunder.
7. EXPENSES OF OPERATION, MANAGEMENT AND MAINTENANCE OF THE COMMON AREAS OF THE
COMPLEX. Landlord shall operate, manage and maintain the Common Area. Expenses
of operation, management, maintenance and repair of the Common
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Areas which are Direct Expenses include, but are not limited to, (1) license,
permit, and inspection fees; (2) security (if provided); (3) utility charges
including, but not limited to, water, gas, electricity, sewer service and waste
pickup; (4) all charges incurred in the maintenance of landscaped areas, ponds,
fountains, waterways, parking lots, sidewalks and driveways; (5) the cost of
operation, maintenance, and repair of the interior of the Common Area (including
lobbies, restrooms, janitor's closets, hallways, elevators, mechanical and
telephone rooms, stairwells, entrances, spaces above the ceilings, ceilings,
building exterior doors, skylights (if any), fire extinguishing systems)
including janitorial service for said Common Area; (6) the cost of operation,
maintenance, repair and replacement of the Common Area windows, window frames,
plate glass, glazing, truck doors, main plumbing systems (such as water and
drain lines, sinks, toilets, faucets, drains, showers and water fountains), main
electrical systems (such as panels, conduits, outlets, lighting fixtures, lamps,
bulbs, tubes and ballasts), main heating and air conditioning systems (such as
compressors, fans, air handlers, ducts, mixing boxes, thermostats, time clocks,
boilers, heaters, supply and return grills), store fronts, roofs, downspouts;
mechanical and structural elements, including structural roofing and exterior
surfaces to the buildings; (7) repairing and replacing non-structural roofing;
(8) the cost of repairing or replacing window coverings provided by Landlord,
carpeting, flooring materials, wall coverings, partitioning and other
furnishings in Common Areas which, as a result of normal use, require periodic
replacement; (9) supplies; (10) materials; (11) equipment and tools; (12) sales,
use and excise taxes on goods and services purchased by Landlord; (13) the cost
of capital expenditures which have the effect of reducing operating expenses,
provided, however, that in the event Landlord makes such capital improvements,
and if the capital improvement is less than One Dollar ($1.00) per rentable
square foot of the Complex, the cost will be allocated per Paragraph 5D, and
that in the event the cost is in excess of One Dollar ($1.00) per rentable
square foot of the Complex, Landlord shall amortize its investment in said
improvements (together with interest at the Prime Rate (as defined in Section 10
below) on the date the costs are incurred plus three percent (3%)) as an
operating expense in accordance with standard accounting practices, provided,
that such amortization is not at a rate greater than the anticipated savings in
the operating expenses; and (14) any other expense or charge, whether or not
hereinbefore described which in accordance with generally accepted accounting
and management practices would be considered an expense of managing, operating,
maintaining and repairing the Complex.
In the event any of the above maintenance responsibilities cannot be
segregated from any other tenant(s) of Landlord where there is common usage with
other tenant(s), such maintenance responsibilities and charges shall be
allocated to the leased Premises by square footage or other equitable basis as
calculated and determined by Landlord.
The manner in which the Common Area is maintained shall be at the sole
discretion of Landlord. In the event Landlord contracts with or hires a third
party to perform Common Area maintenance, Tenant acknowledges and agrees that
the amount paid to the third party is a proper and reasonable amount to be
charged for that item or service.
8. PARKING. Tenant shall have the right to use with other tenants or occupants
of the Complex the number of parking spaces per one thousand (1,000) usable
square feet leased to Tenant shown in Paragraph 1H in the common parking areas
of the Complex. Except for maintenance of the parking lot provided for herein,
parking shall be free to Tenant throughout the initial lease term unless charges
are imposed by any governmental agency having jurisdiction over the property.
Tenant agrees, that Tenant, Tenant's employees, agents, representatives and/or
invitees shall not use parking spaces in excess of the number of spaces
allocated to Tenant hereunder. Landlord shall have the right, at Landlord's
reasonable sole discretion, to specifically designate the location of Tenant's
parking spaces within the common parking areas of the Complex in the event of a
dispute among the tenants occupying the building and/or Complex referred to
herein, in which event Tenant agrees that Tenant, Tenant's employees, agents,
representatives and/or invitees shall not use any parking spaces other than
those parking spaces specifically designated by Landlord for to Tenant's use.
Said parking spaces, if specifically designated by Landlord to Tenant, may be
relocated by Landlord at any time, and from time to time. Landlord reserves the
right, at Landlord's reasonable sole discretion, to rescind any specific
designation of parking spaces, thereby returning Tenant's parking spaces to the
common parking area. Landlord shall give Tenant written notice of any change in
Tenant's parking spaces. Tenant shall not, at any time, park or permit to be
parked, any trucks or vehicles adjacent to the loading areas so as to interfere
in any way with the use of such areas, nor shall Tenant at any time park, or
permit the parking of Tenant's trucks or other vehicles or the trucks and
vehicles of Tenant's suppliers or others, in any portion of the Common Area not
designated by Landlord for such use by Tenant. Tenant shall not park nor permit
to be parked, any inoperative vehicles or equipment on any portion of the common
parking area or other common areas of the Complex. Tenant agrees to assume
responsibility for compliance by its employees and invitees with the parking
provisions contained herein. Tenant shall use the parking areas for vehicle
parking only, and shall not use the parking areas for storage.
9. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair and accepts
the building and improvements included in the Premises in their condition on the
date of signing Lease and without representation or warranty by Landlord as to
the condition of such building or as to the use or occupancy which may be made
thereof. In the event Landlord constructs improvements for Tenant prior to
occupancy as part of this Lease, Landlord and Tenant shall prepare a punch list
within fifteen (15) days of occupancy which items shall be corrected within
thirty (30) days of submission of the punch list to Landlord. In the event that
any item(s) in the punch list cannot be corrected within thirty (30) days, it
shall be sufficient that Landlord has commenced correction of such item(s)
within the thirty (30) day period. Any exceptions to the foregoing must be by
written agreement executed by Landlord and Tenant. Tenant agrees on the last day
of the Lease Term, or on the sooner termination of this Lease, to surrender the
Premises promptly and peaceably to Landlord in at least as good condition and
repair as when Tenant commenced occupancy of the Premises, except normal wear
and tear and in accordance with the standards set forth in Paragraph 11 below.
Upon termination of the Lease and Tenant's surrendering the Premises, Landlord
may, at Tenant's expense, cause the Premises to meet the standards set forth in
Paragraph 11.
Any alterations, additions, or improvements made in, to, or on the
Premises (except moveable trade fixtures installed at the expense of Tenant)
shall be removed at Tenant's sole expense prior to termination of the Lease Term
except that Tenant shall ascertain from Landlord not less than thirty (30) days
before the end of the Term whether Landlord desires to have the Premises or any
part or parts thereof restored to their condition and configuration as when the
Premises were delivered to Tenant and if Landlord shall so desire, then Tenant
shall restore (including repairing any damage caused during the Lease Term or by
the removal of Tenant's personal property or trade fixtures) said Premises or
such part or parts before the end of this Lease at Tenant's sole cost and
expense. Tenant, on or before the end of the Term or sooner termination of this
Lease, shall remove all of Tenant's personal property and trade fixtures from
the Premises, and all property not so removed on or before the end of the term
or sooner termination of this Lease shall be deemed abandoned by Tenant and
title to same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture and
equipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage
caused by such removal at Tenant's sole cost. If the Premises are not
surrendered at the end of the term or sooner termination of this Lease, Tenant
shall be treated as a holdover pursuant to Paragraph 30 below. and Tenant agrees
to indemnify, defend and hold Landlord harmless against loss or liability
resulting from the delay by Tenant in so surrendering the Premises including,
without
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limitation, any claims made by any succeeding tenant founded on such delay.
Nothing contained herein shall be construed as an extension of the Term hereof
or as a consent of Landlord to any holding over by Tenant. The voluntary or
other surrender of this Lease or the Premises by Tenant or a mutual cancellation
of this Lease shall not work as a merger and, at the option of Landlord, shall
either terminate all or any existing subleases or subtenancies or operate as an
assignment to Landlord of all or any such subleases or subtenancies.
10. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the written
consent of Landlord first had and obtained by Tenant. Landlord agrees that such
consent shall not be unreasonably withheld. However, Landlord may withhold its
consent in its sole discretion if any proposed alteration will affect the
structural integrity or safety of the building, or its electrical, plumbing,
heating/ventilation/air-conditioning, mechanical or life safety systems. Tenant
shall furnish complete plans and specifications for the desired alterations.
Tenant shall pay to Landlord, upon demand, a review fee in the amount of the
actual cost incurred by Landlord for such review, four percent (4%) of the first
$50,000 of construction cost of alterations and two percent (2%) of the balance
of the construction cost of alterations to compensate Landlord for the cost of
review and approval of the plans and specifications, and for additional
administrative costs incurred in monitoring the construction of the alterations.
Landlord reserves the right to approve all contractors, laborers, materialmen
and suppliers proposed by Tenant to make such alterations and additions. Tenant
shall retain title to all moveable furniture and trade fixtures placed in the
Premises. All heating, lighting, electrical, air conditioning, partitioning,
draperies, carpeting, and floor installations made by Tenant, together with all
property that has become an integral part of the Premises, shall not be deemed
trade fixtures but shall become the property of Landlord immediately upon
construction or installation and may not be removed by Tenant. Tenant agrees
that it will not proceed to make such alteration or additions, without having
obtained written consent from Landlord to do so, which shall not be unreasonably
withheld and until five (5) days from the receipt of such consent, in order that
Landlord may post appropriate notices to avoid any liability to contractors,
laborers, materialmen or suppliers for payment for Tenant's improvements.
Subsequent to obtaining Landlord's written consent and prior to commencement of
construction of the alterations, Tenant shall deliver to Landlord a copy of the
building permit. Tenant will at all times permit such notices to be posted and
to remain posted until the completion of work. Tenant shall, if required by
Landlord, secure at Tenant's own cost and expense, a completion and lien
indemnity bond, satisfactory to Landlord, for such work. Tenant further
covenants and agrees that any mechanic's lien, stop notice or other lien filed
against the Premises or against the Complex for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after the filing thereof,
at the sole cost and expense of Tenant. Any exceptions to the foregoing must be
made in writing and executed by both Landlord and Tenant.
11. MAINTENANCE OF PREMISES. Landlord shall, at its expense subject to
reimbursement according to Paragraph 5D, keep and maintain the Premises in a
good standard of maintenance and repair. Landlord's maintenance and repair
responsibilities herein referred to include janitorial service (as reasonably
determined by Landlord), plumbing systems within the Premises, electrical
systems within the Premises, interior improvements within the Premises
(including replacement of burned out or broken light bulbs or ballasts,
maintaining all interior walls painted, or cleaned so that they appear freshly
painted, and repaired and replaced, if damaged; all floors cleaned and waxed;
all carpets cleaned and shampooed; all broken, marred or nonconforming
acoustical ceiling tiles replaced; all interior windows washed; the air
conditioning and heating systems serviced by a reputable and licensed service
firm and in good operating condition and repair), and heating and air
conditioning controls within the Premises. Tenant agrees to provide and use
carpet mats (of a type which allow air circulation under the mat) under all
rolling chairs or to otherwise be responsible for wear and tear of the carpet
caused by such rolling chairs if such wear and tear exceeds that caused by
normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenant's sole expense upon Lease termination. Tenant hereby waives
all rights to terminate the Lease, to require Landlord to put Premises in a
condition suitable for Tenant, and/or to make repairs and deduct the amount of
the repair from rent due under Lease, which rights are more specifically set
forth in subsection 1 of Section 1932 and Sections 1941 and 1942 of the
California Civil Code and under any similar law, statute or ordinance now or
hereafter in effect.
12. UTILITIES. Utility charges include and are limited to all charges for water,
gas, electricity, sewer service and waste pick-up.
Landlord shall not be liable for any failure to provide access to the
Premises, to assure the beneficial use of the Premises, or to furnish any
services or utilities when such failure is caused by natural occurrences, riots,
civil disturbances, insurrection, war, court order, public enemy, accidents,
breakage, strikes, lockouts, or other labor disputes, the making of or delays in
repairs, alterations or improvements to the Premises or the Complex, the
inability to obtain an adequate supply of fuel, gas, steam, water, electricity,
labor, or other supplies or by any other condition beyond Landlord's reasonable
control, and Tenant shall not be entitled to any damages resulting from such
failure, nor shall such failure relieve Tenant of the obligation to pay all sums
due hereunder or be construed as a constructive or other eviction of Tenant. If
any governmental entity promulgates or revises any statute, ordinance, or
building code, fire or other code, or imposes mandatory or voluntary controls or
guidelines on Landlord or the building or any part thereof, relating to the use
or conservation of energy water, gas, steam, light or electricity or the
provision of any other utility or service provided with respect to this Lease,
or if Landlord is required or elects to make alterations to the Building in
order to comply with such mandatory or voluntary controls or guidelines,
Landlord may, in its sole discretion, comply with such mandatory or voluntary
controls or guidelines or make such alterations to the Building.
Provided that Tenant is not in default in the performance or observance of
any of the terms, covenants or conditions of this Lease to be performed or
observed by it, Landlord shall furnish to the Premises between the hours of 7:00
a.m. and 5:00 p.m., Mondays through Fridays (holidays excepted) and subject to
the rules and regulations of the Complex hereinbefore referred to, reasonable
quantities of water, gas and electricity suitable for the intended use of the
Premises and heat and air conditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises for such purposes. Tenant agrees
that at all times it will cooperate fully with Landlord and abide by all
regulations and requirements that Landlord may prescribe for the proper
functioning and protection of the building heating, ventilating and air
conditioning systems. Whenever heat generating machines, equipment, or any other
devices (including exhaust fans) are used in the Premises by Tenant which affect
the temperature otherwise maintained by the air conditioning system, Landlord
shall have the right to install supplementary air conditioning units in Premises
and the cost thereof, including the cost of installation and the cost of
operation and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord. Tenant will not, without the written consent of Landlord
which shall not be unreasonably withheld, use any apparatus or device in the
Premises, including, without limitation, electronic data processing machines or
machines using current in excess of 220 Volts which will in any way increase the
amount of electricity, gas, water or air conditioning usually furnished or
supplied to Premises being used as general office space, or connect with the
electric current (except through existing electrical outlets in the Premises),
or connect to gas or water pipes any apparatus or device for the purposes of
using electric current, gas, or water. If Tenant shall require water, gas, or
electric current in excess of that usually furnished or supplied to Premises
being used as general office space, Tenant shall first obtain the written
consent of Landlord, which consent shall not be unreasonably withheld and
Landlord may, at its option,
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cause an electric current, gas, or water meter to be installed in the Premises
in order to measure the amount of electric current, gas or water consumed for
any such excess use. The cost of any such meter and of the installation,
maintenance and repair thereof as well as all charges for such excess water, gas
and electric current consumed (as determined by meter, hourly rate or other
reasonable basis and at the rates then charged by the furnishing public
utility); and any additional expense incurred by Landlord in keeping account of
electric current, gas, or water so consumed shall be paid by Tenant, and Tenant
agrees to pay Landlord therefor promptly upon demand by Landlord. In the event
of Tenant's monetary default, which default is not cured within the applicable
time allowed, Landlord shall have the right to terminate utilities to the
Premises.
In the event any of the utility charges cannot be segregated from other
tenant(s) of Landlord or where there is common usage with other tenant(s), such
charges shall be allocated to the leased Premises by square footage, metered
usage or other equitable basis as calculated and determined by Landlord.
13. TAXES.
A. REAL PROPERTY TAXES. The term "Real Property Taxes", as used in this
Lease, shall mean (i) all taxes, assessments, levies and other charges of any
kind or nature whatsoever, general and special, foreseen and unforeseen
(including all installments of principal and interest required to pay any
general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership of the Complex
now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy assessments,
which are levied or assessed against, or with respect to the value, occupancy or
use of, all or any portion of the Complex (as now constructed or as may at any
time hereafter be constructed, altered, or otherwise changed) or Landlord's
interest therein) any improvements located within the Complex (regardless of
ownership); the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Complex; or parking
areas, public utilities, or energy within the Complex; (ii) all charges, levies
or fees imposed by reason of environmental regulation or other governmental
control of the Complex; and (iii) all costs and fees (including reasonable
attorneys' fees) incurred by Landlord in reasonably contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. If
at any time during the term of this Lease the taxation or assessment of the
Complex prevailing as of the commencement date of this Lease shall be altered so
that in lieu of or in addition to any Real Property Tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Complex or Landlord's interest therein or (ii) on or measured
by the gross receipts, income or rentals from the Complex, on Landlord's
business of leasing the Complex, or computed in any manner with respect to the
operation of the Complex, then any such tax or charge, however designated, shall
be included within the meaning of the term "Real Property Taxes" for purposes of
this Lease. If any Real Property Tax is based upon property or rents unrelated
to the Complex, then only that part of such Real Property Tax is fairly
allocable to the Complex shall be included within the meaning of the term "Real
Property Taxes". Notwithstanding the foregoing, the term "Real Property Taxes"
shall not include estate, inheritance, gift or franchise taxes of Landlord or
the federal or state net income tax imposed on Landlord's income from all
sources. If any portion of the Real Property Tax is based upon excess assessed
valuation of interior improvements in the Premises (or other premises for the
exclusive use of tenants in the Complex) that are deemed to be taxes levied
against personal property of Tenant (or such other tenants) governed by the
provisions of 13B(a) below, then such portion shall not be included within the
meaning of the term "Real Property Taxes."
B. TAXES ON TENANT'S PROPERTY. (a) Tenant shall be liable for and shall
pay ten (10) days before delinquency, all taxes levied against any personal
property or trade fixtures placed by Tenant in or about the Premises. If any
such taxes on Tenant's personal property or trade fixtures are levied against
Landlord or Landlord's property or if the assessed value of the Premises is
increased by the inclusion therein of a value placed upon such personal property
or trade fixtures of Tenant and if Landlord, pays the taxes based on such
increased assessment, which Landlord shall have the right to do regardless of
the validity thereof, Tenant shall within ten (10) days of demand repay to
Landlord the taxes so levied against Landlord, or the proportion of such taxes
resulting from such increase in the assessment; provided that in any such event
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of such taxes so paid under protest, and any amount so recovered shall
belong to Tenant.
(b) If the interior improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for Real Property Tax
purposes at a valuation higher than the valuation at which standard office
improvements in other space in the Complex are assessed, then the Real Property
Taxes and assessments levied against Landlord or the Complex by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of 13B(a) above. If
the records of the County Assessor are available and sufficiently detailed to
serve as a basis for determining whether said interior improvements are assessed
at a higher valuation than standard office improvements in other space in the
Complex, such records shall be binding on both the Landlord and the Tenant. If
the records of the County Assessor are not available or sufficiently detailed to
serve as a basis for making said determination, the actual cost of construction
shall be used.
14. LANDLORD'S INSURANCE. At all times during the term of this Lease, Landlord
will purchase and maintain, as part of Direct Expenses, Commercial Property
Insurance covering the Complex and Landlord's equipment and furnishings in such
reasonable amounts and with such reasonable coverages as determined by Landlord.
Tenant acknowledges that it shall not be a named insured on such policies and
that it has no right to receive any proceeds from any such insurance policies
carried by Landlord. Tenant further acknowledges that Landlord shall not be
required to carry (but shall have the right, in its sole discretion, and as a
Direct Expense, to carry) insurance covering (1) Tenant's property described in
paragraph 15 below; (2) Business Income Insurance against, or be responsible
for, any loss suffered by Landlord or Tenant due to interruption of Tenant's
business from any cause; (3) loss to the Complex resulting from Flood,
Earthquake, Windstorm or Hurricane; and (4) any other type of property or loss.
Tenant shall cooperate with Landlord's insurance companies in the adjustment of
any claims for any damage to the Complex.
15. TENANT'S INSURANCE. At all times during the term of this Lease, Tenant will
purchase and maintain, at Tenant's sole expense, the following insurance, in
amounts not less than those specified below or such other amounts as Landlord
may from time-to-time reasonably request, with insurance companies and on forms
satisfactory to Landlord.
A. LIABILITY INSURANCE. Commercial General Liability Insurance written on
an "occurrence" form covering the use, occupancy and maintenance of the demised
Premises and all operations of the Tenant including: a) Premises Operations; b)
Independent Contractors;
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c) Products - Completed Operations; d) Broad Form Property Damage; e) Blanket
Contractual Liability; f) Personal and Advertising Injury; g) Fire Legal
Liability; and h) Employees Named as Additional Insureds.
Limits for such coverage shall be:
Bodily Injury and Property Damage Combined Single Limit
$1,000,000 per Occurrence
$2,000,000 General Aggregate
$2,000,000 Products and Completed Operations Aggregate
Personal and Advertising Injury
$1,000,000 per Person/Organization
subject to
$2,000,000 General Aggregate
Fire Legal Liability
$500,000 Any One Fire
subject to
$2,000,000 General Aggregate
The policy shall further contain a provision that the General Aggregate
limit applies exclusively to Tenant's Premises.
The policy shall contain an endorsement specifically naming the following
as additional insureds: Alexander & Baldwin, Inc. and A&B Properties, Inc. and
all of their officers and employees, with respect to the Tenant's use, occupancy
or maintenance of the Premises.
The policy shall also contain an endorsement amending the "Other
Insurance" clause as follows:
"The insurance afforded to Additional Insureds under this policy is
primary insurance and the insurer will not seek contribution from
other insurance available to the Additional Insureds."
The policy shall contain a waiver of subrogation endorsement which
specifically states:
"The insurer waives any right of recovery they may have against
Alexander & Baldwin, Inc., and A&B Properties, Inc., as Landlord,
and all of their respective officers and employees, because of
payments made under this policy."
B. AUTOMOBILE INSURANCE. Automobile Liability Insurance to include
coverage for any owned, non-owned or hired automobiles and automobile
contractual liability with limits of: $1,000,000 per Person/$1,000,000 per
Accident - Bodily Injury; $1,000,000 per Accident - Property Damage; and such
other coverage as required by California law.
The policy shall contain an endorsement naming the following as additional
insureds: Alexander & Baldwin, Inc. and A&B Properties, Inc. and all of their
officers and employees.
C. WORKERS' COMPENSATION INSURANCE. Workers' Compensation coverage shall
be carried as required by California law to further include: Voluntary
Compensation Coverage, Other States' Coverage, and U.S. Longshore & Harbor
Workers' Compensation Coverage, if applicable, with statutory limits for
Workers' Compensation and limits for Employers' Liability of: $1,000,000.00 Each
Accident; $1,000,000.00 Disease - Policy Limit; and $1,000,000.00 Disease - Each
Employee.
D. UMBRELLA INSURANCE. Umbrella Liability Insurance to be excess over the
Commercial General Liability, Automobile Liability, and Employers' Liability
Insurance. The Umbrella Liability policy shall be written on an "occurrence"
form with a limit of liability of $2,000,000.00 and a Self-Insured Retention no
greater than $10,000.
The policy shall contain an endorsement naming the following as additional
insureds following the form of the underlying Commercial General Liability:
Alexander & Baldwin, Inc. and A&B Properties, Inc. and all of their officers and
employees.
The policy shall also contain an endorsement amending the "Other
Insurance" clause as follows:
"Subject to the terms and conditions of this policy, the insurance
afforded to Additional Insureds, Alexander & Baldwin, Inc., and A&B
Properties, Inc., and all of their officers and employees under this
policy shall be considered to be primary to any insurance they may
have in force which also applies to a loss covered hereunder and,
further, the insurer shall not seek contribution from other
insurance available to the Additional Insureds."
The policy shall contain a waiver of subrogation endorsement which
specifically states:
"The insurer waives any right of recovery they may have against
Alexander & Baldwin, Inc., and A&B Properties, Inc., as Landlord and
all of their respective officers and employees because of payments
made under this policy."
The policy shall provide defense expense in addition to the limit of
liability stated in the policy.
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E. COMMERCIAL PROPERTY INSURANCE. Commercial Property Insurance covering
all Tenant's furniture, fixtures, machinery, equipment, stock and any other
personal property owned and/or used in Tenant's business and all leasehold
improvements constructed after the date of this Lease, whether made or acquired
at the Tenant's expense or Landlord's expense, in an amount equal to their full
replacement cost without deduction for depreciation. At a minimum, such policy
shall insure against destruction or damage by fire and other perils covered on
an ISO Causes of Loss - Special Form including Earthquake, Wind and Hurricane or
its equivalent. Such policy shall further provide Replacement Cost Coverage and
contain an Agreed Amount endorsement. Such policy shall not contain a per
occurrence deductible greater than $5,000. Tenant, with all reasonable speed,
will use all proceeds of such insurance, so long as this Lease remains in
effect, for rebuilding, repairing, replacing or otherwise reinstating the
improvements in a good and substantial manner pursuant to applicable building
laws and codes and the plan as shall have been approved in writing by Landlord.
Tenant will make up from its own funds any deficiency in such insurance
proceeds.
Further, the policy shall contain a provision specifically naming the
following as additional insureds as their interest may appear: Alexander &
Baldwin, Inc. and A&B Properties, Inc. and all of their officers and employees.
F. BUSINESS INCOME INSURANCE. Business Income and/or Extra Expense
Insurance in an amount sufficient to insure payment of rent and other fixed
costs, for a period of not less than 12 months, during any interruption of
Tenant's business by reason of Tenant's Premises or personal property being
damaged by fire or other perils covered on an ISO Causes of Loss - Special Form
or its equivalent. In addition, such coverage shall be written on an Agreed
Amount Basis. Tenant acknowledges that it assumes all risks of loss due to
interruption of Tenant's business by any cause.
G. POLLUTION LIABILITY INSURANCE. If required by Landlord because of
special environmental concerns regarding the Tenant's operations, Pollution
Legal Liability Insurance covering claims for damage or injury caused by
hazardous materials, including, without limitation, bodily injury, wrongful
death, property damage, including loss of use, removal, cleanup and restoration
of work and materials necessary to return the Premises and any other property of
whatever nature located on the Premises to their condition existing prior to the
appearance of Tenant's hazardous materials on the Premises. The policy shall
contain a provision specifically naming Alexander & Baldwin, Inc. and A&B
Properties, Inc. and all of their officers and employees as additional insureds.
If such coverage is applicable, limits for Pollution Legal Liability coverage
shall be determined by Landlord.
16. GENERAL REQUIREMENTS.
A. CERTIFICATE OF INSURANCE. Certificates of Insurance evidencing all such
insurance and acceptable to Landlord shall be filed with Landlord prior to
occupancy of the demised Premises and at least ten (10) days prior to the
expiration of the term of each policy thereafter. Such Certificates of Insurance
must specifically show all the special policy conditions required in this
Article including "additional insured", "waiver of subrogation", "notice of
cancellation", and "primary insurance" wording applicable to each policy.
Alternatively, a certified, true and complete copy of each properly endorsed
policy may be submitted.
B. MINIMUM RATING. All coverage shall be written by an admitted insurer in
the State of California, with a current Best Rating of A-:7 or better.
C. NOTICE OF CANCELLATION. All insurance policies required hereunder shall
be specifically endorsed to state that coverages afforded under the policies
will not be cancelled or allowed to expire until at least 60 days' prior written
notice has been mailed to the Landlord. The Certificate of Insurance for each
policy must state that "the issuing company will mail 60 days' written notice of
cancellation or modification to the certificate holder." The words "endeavor to"
and "failure to mail such notice shall impose no obligation for liability . . ."
are unacceptable and these two phrases must be crossed out if they appear in the
printed certificate form.
D. REINSTATEMENT OF COVERAGE. If the limits of available liability
coverage required herein become substantially reduced as a result of claim
payments, Tenant shall immediately, at its own expense, purchase insurance to
reinstate the limits of liability coverage required by this Lease.
E. CLAIM SETTLEMENT. Tenant shall not settle any claim or accept any
proceeds in satisfaction of any claim involving damage to the Premises or
liability of Landlord without Landlord's express prior written consent.
F. BLANKET POLICY. Tenant may maintain the insurance required under this
Article under blanket or umbrella policies, as applicable, issued to Tenant
covering other properties owned or leased by Tenant; provided that the policies
otherwise comply with this Lease and allocate to the Premises the coverage
specified by this Lease, without possibility of reduction or coinsurance by
reason of, or damage to, any other properties named therein, and if the
insurance required by this Lease shall be effected by any such blanket or
umbrella policies, Tenant shall furnish to Landlord certified copies of policies
with schedules thereto attached showing the amount of insurance afforded by such
policies to the Premises.
G. WAIVER OF SUBROGATION. Each party hereto waives on behalf of itself and
its insurers any claim it might otherwise have against the other party and all
of its affiliates, arising out of loss or damage, including consequential loss
or damage, to its own property within the Premises or the Complex if the damage
is or would be covered by any policy of insurance required to be provided
hereunder or otherwise maintained.
H. ADEQUACY OF COVERAGE. Landlord, its agents and employees, make no
representation that the limits of liability specified to be carried by Tenant
pursuant to this Lease are adequate to protect Tenant. If Tenant believes that
any of such insurance coverage is inadequate, Tenant will obtain such additional
insurance coverage as Tenant deems adequate, at Tenant's sole expense.
I. RESERVATION OF RIGHTS - CHANGES. Landlord hereby reserves the right to
make changes at any time to the insurance requirements herein should new
exposures be brought to light or new insurance products become available during
the term of this Lease. Tenant shall add as additional insureds to the insurance
policies required by this Lease such other persons as Landlord may from
time-to-time reasonably require.
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17. INDEMNIFICATION. Tenant shall indemnify Landlord against and hold Landlord
harmless from any and all costs, claims or liability arising from: (a) Tenant's
use of the Premises or Complex; (b) the conduct of Tenant's business or anything
else done or permitted by Tenant to be done in or about the Premises or the
Complex, including any contamination of the Premises or the Complex or any other
property resulting from the presence or use of Hazardous Material caused or
permitted by Tenant; (c) injury to or death of any person or damage to or
destruction of property in or about the Premises by or from any cause
whatsoever, including without limitation, gas, oil, electricity or leakage of
any character from the roof, walls, or other portion of the Premises or the
Complex; (d) any breach or default in the performance of Tenant's obligations
under this Lease; (e) any misrepresentation or breach of warranty by Tenant
under this Lease; (f) any loss of or damage to property by theft or otherwise;
(g) any injury or damage to persons or property resulting from any casualty,
explosion, falling plaster or other masonry or glass, steam, gas, electricity,
water or rain which may leak from the pipes, appliances or plumbing therein or
from the roof, street, landscaped areas or from any other place or resulting
from any other cause whatsoever; or (h) other acts or omissions of Tenant;
except for any costs, claim or liability arising from Landlord's gross
negligence or willful misconduct. Tenant shall defend Landlord against any such
cost, claim or liability at Tenant's expense with counsel reasonably acceptable
to Landlord or, at Landlord's election, Tenant shall reimburse Landlord for any
legal fees or costs incurred by Landlord in connection with any such claim,
except for any claim arising out of Landlord's gross negligence or willful
misconduct. As a material part of the consideration to Landlord, Tenant assumes
all risk of damage to property or injury to persons in or about the Premises or
the Complex arising from any cause, and Tenant hereby waives all claims in
respect thereof against Landlord, except for any claim arising out of Landlord's
gross negligence or willful misconduct. As used herein, the term "Tenant" shall
include Tenant's employees, agents, contractors and invitees, if applicable.
18. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now or thereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole cost and expense, comply with any and all requirements pertaining to said
Premises and the Complex, of any insurance organization or company, necessary
for the maintenance of reasonable fire and public liability insurance covering
the Premises or the Complex.
In the event any governmental authority having jurisdiction over the
property promulgates or revises any law, ordinance or regulation, or building,
fire or other code, or imposes mandatory or voluntary controls or guidelines on
Landlord or the subject property of this Lease relating to the use or
conservation of energy, transportation management, utilities, or the reduction
of automobile or other emissions (collectively "controls") and in the event
Landlord is required or elects to make alterations to the property in order to
comply with such mandatory or voluntary controls, Landlord, may at its sole
discretion, comply with such controls or make such alterations to the property
related thereto. Such compliance and the making of such alterations shall not
constitute an eviction of Tenant, constructive or otherwise, or impose upon
Landlord any liability whatsoever, including, but not limited to, liability for
consequential damages or loss of business by Tenant.
Landlord agrees to bring the Complex, excluding the Premises leased to
Tenant and other premises leased to other tenants, into general compliance with
the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.)
(the "Act") prior to the commencement date of this Lease. Tenant shall, at
Tenant's sole cost and expense, comply with any and all governmental laws,
ordinances, rules and regulations applicable to the Premises regarding access of
disabled persons, including without limitation, the Act and any other similar
federal, state, or county laws or ordinances and the rules, regulations and/or
guidelines adopted, published and/or promulgated thereunder (collectively, the
"Disability Access Laws"). Landlord shall not be liable for any failure by
Tenant to comply with the Disability Access Laws with respect to the Premises,
and Tenant expressly releases Landlord and Landlord's employees from any and all
liability for any failure by Tenant to so comply. Tenant shall indemnify, defend
and hold harmless Landlord and Landlord's employees from and against any and all
claims and demands for loss or damage, including claims for discrimination,
personal injury, monetary damage, or injunctive relief arising out of or in
connection with any failure or alleged failure of the Premises to comply with
the Disability Access Laws, and including all reasonable attorneys' and other
professional or consultants' fees, paid or incurred by Landlord and/or
Landlord's employees in connection with any such claims or demands including,
but not limited to, all costs related to any preventive measures which Landlord
or Landlord's employees may take prior to the filing of any action or to attempt
to prevent the filing of such action.
19. LIENS. Tenant shall keep the Premises and the Complex free from any liens or
stop notices arising out of any work performed, materials furnished or
obligations incurred by Tenant. In the event that Tenant shall not, within ten
(10) days following the imposition of such lien or stop notice cause the same to
be released of record, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but not the obligation to, cause the same
to be released by such means as it shall deem proper, including payment of the
claim giving rise to such lien. All sums paid by Landlord for such purpose, and
all expenses incurred by it in connection therewith, shall be payable to
Landlord by Tenant within ten (10) days of written demand, with interest at the
highest Prime Rate published in the Money Rates section of the Wall Street
Journal (or if the Wall Street Journal ceases publishing such rate, as published
by a comparable source) (the "Prime Rate").
20. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, or hypothecate
the leasehold estate under this Lease, or any interest therein, and shall not
sublet the Premises, or any part thereof, or any right or privilege appurtenant
thereto, or suffer any other person or entity to occupy or use the Premises, or
any portion thereof, without, in each case, the prior written consent of
Landlord. As a condition for granting its consent to any subletting, Landlord
may require that Tenant agree to pay Landlord, as Additional Rent, all rents
received by Tenant from its subtenants in excess of the rent payable by Tenant
to Landlord hereunder. Tenant shall, by not less than ninety (90) days written
notice, advise Landlord of its intent to sublet the Premises or any portion
thereof for any part of the term hereof. Within thirty (30) days after receipt
of Tenant's notice, Landlord shall give approval or disapproval to Tenant to
sublease the portion of the Premises described in Tenant's notice on the date
specified in Tenant's notice. Landlord's approval to a sublease shall not be
unreasonably withheld Landlord shall also have the right to terminate this Lease
or that portion of the Premises described in Tenant's notice on the date
specified in Tenant's notice. If Tenant intends to sublet the entire Premises
and Landlord elects to terminate this Lease, this Lease shall be terminated on
the date specified in Tenant's notice. If, however, this Lease shall terminate
pursuant to the foregoing with respect to less than all of the Premises, the
rent, as defined and reserved hereinabove shall be adjusted on a pro rata basis
to the number of square feet retained by Tenant, and this Lease as so amended
shall continue in full force and effect. In the event Tenant is allowed to
assign, transfer or sublet the whole or any part of the Premises, with the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
no assignee, transferee or subtenant shall assign or transfer this Lease,
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either in whole or in part, or sublet the whole or any part of the Premises,
without also having obtained the prior written consent of Landlord. A consent of
Landlord to one assignment, transfer, hypothecation, subletting, occupation or
use by any other person shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent similar or
dissimilar assignment, transfer, hypothecation, subletting, occupation or use by
any other person. Any such assignment, transfer, hypothecation, subletting,
occupation or use without such consent shall be void and shall constitute a
breach of this Lease by Tenant and shall, at the option of Landlord exercised by
written notice to Tenant, terminate this Lease. The leasehold estate under this
Lease shall not, nor shall any interest therein, be assignable for any purpose
by operation of law without the written consent of Landlord. As a condition to
its consent, Landlord may require Tenant to pay all reasonable expenses in
connection with the assignment and Landlord may require Tenant's assignee or
transferee (or other assignees or transferees) to assume in writing all of the
obligations under this Lease.
If at any time during the term of this Lease the ownership of Tenant shall
be changed as a result of sale of assets, sale of stock, merger, consolidation
or otherwise so as to result in the change in the controlling interest in
Tenant, Tenant shall give immediate notice thereof to Landlord and obtain
Landlord's prior written consent. If Tenant is a corporation, a limited
liability company, an unincorporated association or a partnership, any
cumulative transfer, of any stock or interest in such corporation, limited
liability company, association or partnership greater than fifty-one percent
(51%) thereof, or any cumulative transfer (other than in the ordinary course of
business) of any assets of such corporation, association or partnership greater
than fifty-one percent (51%) thereof, shall be deemed a change in the
controlling interest within the meaning and provisions of this paragraph and
shall be subject to the provisions hereof; provided, however, that the foregoing
shall not apply to corporations, fifty percent (50%) or more of the stock of
which is traded through a national or regional exchange or over-the-counter.
21. PROTECTION OF LENDERS AND PURCHASERS.
A. SUBORDINATION. Landlord shall have the right to subordinate this Lease
to any deed of trust or mortgage encumbering the Premises or the Complex, any
advances made on the security thereof and any renewals, modifications,
consolidations, replacements or extensions thereof, whenever made or recorded.
Tenant shall cooperate with Landlord and any lender or purchaser, which is
acquiring a security interest in the Premises, the Complex or the Lease. Tenant
shall execute such further documents and assurances as such lender or purchaser
may require, provided that Tenant's obligations under this Lease shall not be
increased in any material way (the performance of ministerial acts shall not be
deemed material), and Tenant shall not be deprived of its rights under this
Lease. Tenant's right to quiet possession of the Premises or the Complex during
the Lease term shall not be disturbed if Tenant pays the rent and performs all
of Tenant's obligations under this Lease and is not otherwise in default. If any
beneficiary or mortgagee elects to have this Lease prior to the lien of its deed
of trust or mortgage and gives written notice thereof to Tenant, this Lease
shall be deemed prior to such deed of trust or mortgage whether this Lease is
dated prior or subsequent to the date of said deed of trust or mortgage or the
date of recording thereof.
B. ATTORNMENT. If Landlord's interest in the Premises or the Complex is
acquired by any beneficiary under a deed of trust, mortgagee or purchaser,
Tenant shall attorn to the transferee of or successor to Landlord's interest in
the Premises or the Complex and recognize such transferee or successor as
Landlord under this Lease, the party acquiring the Premises shall assume
Landlord's rights and obligations under this Lease and Tenant waives the
protection of any statute or rule of law which gives or purports to give Tenant
any right to terminate this Lease or surrender possession of the Premises or the
Complex upon the transfer of Landlord's interest.
C. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any instrument or
documents necessary or appropriate to evidence any such attornment or
subordination or agreement to do so. If Tenant fails to do so within ten (10)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
D. ESTOPPEL CERTIFICATES. (a) Upon Landlord's written request, Tenant
shall execute, acknowledge and deliver to Landlord a written statement
certifying: (i) that Tenant has accepted the Premises (or, if Tenant has not
done so, that Tenant has not accepted the Premises and specifying the reasons
therefor); (ii) the commencement and expiration dates of this Lease; (iii) that
none of the terms or provisions of this Lease have been changed (or if they have
been changed, stating how they have been changed); (iv) that this Lease has not
been canceled or terminated; (v) the last date of payment of the Basic Rent and
other charges and the time period covered by such payment; (vi) that Landlord is
not in default under this Lease (or, if Landlord is claimed to be in default,
stating the specific facts supporting Tenant's claim of default); (vii) the
capacity of the person executing the certificate and that such person is duly
authorized to execute the same on behalf of Tenant; (viii) that no notice has
been received by Tenant of any default which has not been cured, except as to
defaults specified in the certificate; (ix) the amount of any security deposit
and prepaid rent; (x) such other representations or information with respect to
Tenant or the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Premises or the Complex may require. Tenant
shall deliver such statement to Landlord within ten (10) days after receipt of
Landlord's request. Landlord may give any such statement by Tenant to any
prospective purchaser or encumbrancer of the Premises or the Complex. Such
purchaser or encumbrancer may rely conclusively upon such statement as true and
correct.
(b) If Tenant does not deliver such statement to Landlord within
such ten (10) day period, Landlord, and any prospective purchaser or
encumbrancer, may conclusively presume and rely upon the following facts: (i)
that the terms and provisions of this Lease have not been changed except as
otherwise represented by Landlord; (ii) that this Lease has not been canceled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Basic Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under the Lease. In such event, Tenant shall be
estopped from denying the truth of such facts.
E. TENANT'S FINANCIAL CONDITION. Within twenty (20) days after written
request from Landlord which request Landlord may make from time to time or at
any time during the Lease Term, Tenant (and/or Guarantor) shall deliver to
Landlord (a) a current financial statement of Tenant and any Guarantor of this
Lease; and (b) to the extent not already delivered, financial statements of
Tenant and such Guarantor for the two (2) years prior to the current financial
statements delivered to Landlord. Such statements shall be prepared in
accordance with generally accepted accounting principles and certified as true
in all material respects by Tenant and Guarantor (if Tenant and/or Guarantor are
individuals) or by an authorized officer or general partner of Tenant and
Guarantor (if Tenant and/or Guarantor are a corporation or partnership,
respectively). In addition, Tenant shall deliver to any lender designated by
Landlord any financial statements required by such lender to facilitate the
financing or refinancing of the Complex. All financial statements shall be
confidential and shall be used only for the purposes set forth in this Lease.
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22. ENTRY BY LANDLORD. Landlord (including agents, contractors, employees or
anyone else acting on behalf of Landlord) reserves, and shall at all reasonable
times have, the right to enter the Premises to inspect them; to perform any
services to be provided by Landlord hereunder; to make repairs or provide any
services to a contiguous tenant(s); to submit the Premises to prospective
purchasers, mortgagors or tenants; to post notices of non-responsibility; and to
alter, improve or repair the Premises or any portion of the Complex, all without
abatement of rent, and may erect scaffolding and other necessary structures in
or through the Premises where reasonably required by the character of the work
to be performed; provided, however that the business of Tenant shall be
interfered with to the least extent that is reasonably practical. For each of
the foregoing purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in an emergency in order to obtain entry to the
Premises, and any entry to the Premises by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from the Premises or any portion thereof.
23. BANKRUPTCY. The commencement of a bankruptcy action or liquidation action or
reorganization action or insolvency action or an assignment of or by Tenant for
the benefit of creditors, or any similar action undertaken by Tenant, or the
insolvency of Tenant, shall, at Landlord's option, constitute a material breach
of this Lease by Tenant. If the trustee or receiver appointed to serve during a
bankruptcy, liquidation, reorganization, insolvency or similar action elects to
reject Tenant's unexpired Lease, the trustee or receiver shall notify Landlord
in writing within the shortest time period afforded by the Bankruptcy rules
and/or regulations. Subject to applicable law, Landlord shall have all rights
available to terminate Tenant's right to possession on an expedited basis and
proceed against Tenant for all damages.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this paragraph shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold estate
under this Lease, or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
24. DEFAULT/REMEDIES. The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute a default hereunder by
Tenant upon the expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice from
Landlord within which to cure any default in the payment of rental or adjustment
thereto. Tenant shall have a period of five (5) days from the date of written
notice from Landlord within which to cure any other default under this Lease,
unless said default cannot be cured within five (5) days and Tenant has taken
steps to cure the default. Upon an uncured default of this Lease by Tenant,
Landlord shall have the following rights and remedies in addition to any other
rights or remedies available to Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed real estate broker in
the business of renting property of the same type and use as the Premises and in
the same geographic vicinity. Such two (2) real estate brokers shall select a
third licensed real estate broker, and the three (3) licensed real estate
brokers so selected shall determine the amount of the rental loss that could be
reasonably avoided from the balance of the term of this Lease after the time of
award. In the event the three (3) real estate brokers cannot agree upon the
amount of rental loss, the parties agree to accept the middle value as final and
binding.
(b) The rights and remedies provided by the California Civil Code
which allows Landlord to continue the Lease in effect and to enforce all of its
rights and remedies thereunder, including the right to recover rent as it
becomes due, for so long as Landlord does not terminate Tenant's right to
possession. For purposes of this Lease, acts of maintenance or preservation,
efforts to relet the Premises, or the appointment of a receiver upon Landlord's
initiative to protect its interest under this Lease shall not constitute a
termination of Tenant's right to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with the applicable law.
(d) The right and power, as attorney-in-fact for Tenant, to enter
the Premises and remove therefrom all persons and property, to store such
property in a public warehouse or elsewhere at the cost of and for the account
of Tenant, and to sell such property and apply such proceeds therefrom pursuant
to applicable California law. Landlord, as attorney-in-fact for Tenant, may from
time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the term of this Lease) and at such rent and such other
terms as Landlord in its reasonable sole discretion may deem advisable, with the
right to make alterations and repairs to the Premises. Upon each subletting, (i)
Tenant shall be immediately liable to pay Landlord, in addition to indebtedness
other than rent due hereunder, the reasonable cost of such subletting,
including, but not limited to, reasonable attorneys' fees, and any real estate
commissions actually paid, and the cost of such reasonable alterations and
repairs incurred by Landlord and the amount, if any, by which the rent hereunder
for the period of such subletting (to the extent such period does not exceed the
term hereof) exceeds the amount to be paid as rent for the Premises for such
period; or (ii) at the option of Landlord, rents received from such subletting
shall be applied first to payment of indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs of such subletting
and of such alterations and repairs; third, to payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same becomes due hereunder. If
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Tenant has been credited with any rent to be received by such subletting under
option (i) and such rent shall not be promptly paid to Landlord by the
subtenant(s), or if such rentals received from such subletting under option (ii)
during any month be less than that to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly. For all purposes set forth in this
subparagraph (d), Landlord is hereby irrevocably appointed attorney-in-fact for
Tenant, with power of substitution. No taking possession of the Premises by
Landlord, as attorney-in-fact for Tenant, shall be construed as an election on
its part to terminate this Lease unless a written notice of such intention be
given to Tenant. Notwithstanding any such subletting without termination,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach.
(e) The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and remedies
granted to Landlord as attorney-in-fact for Tenant pursuant to subparagraph (d)
above.
25. ADDITIONAL SECURITY AND REMEDY UPON DEFAULT. As further security for
Tenant's obligations under this Lease, Tenant hereby grants to Landlord a
security interest in all of Tenant's personal property and such other personal
property of any kind or nature whatsoever, which is now or becomes a "fixture"
or attached to the Premises, together with all present and future attachments,
replacements and additions thereto and products and proceeds thereof. This
provision is intended to be a Security Agreement under the Uniform Commercial
Code as in force from time to time in California and Tenant shall execute any
and all documents necessary to perfect Landlord's security interest in the
personal property described above. In the event of Tenant's default, Landlord
shall have the rights afforded by the Uniform Commercial Code with respect to
the personal property covered by this paragraph. Landlord's interest in the
items set forth above as well as Tenant's personal property and or "fixtures"
shall constitute Landlord's additional security and nothing in this paragraph
shall be construed to limit or constitute a waiver of any of Landlord's rights
and remedies upon Tenant's default.
26. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease; and if Tenant shall abandon, vacate or surrender
said Premises, or be dispossessed by the process of law, or otherwise, any
personal property belonging to Tenant left on the Premises shall be deemed to be
abandoned, at the option of Landlord, except such property as may be mortgaged
to Landlord.
27. DESTRUCTION. In the event the Premises are destroyed in whole or in part
from any cause, except for routine maintenance and repairs and incidental damage
and destruction caused from vandalism and accidents for which Tenant is
responsible under Paragraph 11, Landlord may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the
damage or destruction, or
(b) Terminate this Lease.
Landlord shall give Tenant notice in writing within thirty (30) days from
the partial destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease. If Landlord elects to rebuild or
restore, Landlord agrees, at its expense, promptly to rebuild or restore the
Premises to their condition prior to the damage or destruction. If Landlord does
not complete the rebuilding or restoration within one hundred eighty (180) days
following the date of destruction (such period of time to be extended for delays
caused by the fault or neglect of Tenant or because of Acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or fuels, acts of
contractors or subcontractors, or delay of the contractors or subcontractors due
to such causes or other contingencies beyond the control of Landlord), then
Tenant shall have the right to terminate this Lease by giving fifteen (15) days
prior written notice to Landlord. Notwithstanding anything herein to the
contrary, Landlord's obligation to rebuild or restore shall be limited to the
building and interior constructed by Landlord as they existed as of the
commencement date of the Lease and shall not include restoration of Tenant's
trade fixtures, equipment, merchandise, or any improvements, alterations or
additions made by Tenant to the Premises, which Tenant shall forthwith replace
or fully repair at Tenant's sole cost and expense provided this Lease is not
canceled according to the provisions above.
The proceeds from any insurance required by this Lease or such other
insurance proceeds paid by reason of damage to or destruction of the Complex of
Premises, or any part thereof, shall belong to and be paid to Landlord subject
to the rights of any beneficiary of any deed of trust which constitutes an
encumbrance.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions of Section 1932(2) and Section 1933(4) of the California Civil Code.
In the event that more than thirty-three and one third percent (33-1/3%)
of the building in which the Premises are situated is damaged or destroyed
(percentage of damage or destruction based on replacement cost) Landlord may
elect to terminate this Lease, whether the Premises be injured or not. Landlord
shall give Tenant notice in writing within thirty (30) days from such damage or
destruction of the building of its election to either rebuild and restore them,
or to terminate this Lease. In the event the destruction of the Premises is
caused by Tenant, Tenant shall pay the deductible portion of Landlord's
insurance proceeds.
28. EMINENT DOMAIN. If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any and all payment, income, rent, award, or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill, shall be and remain
the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any entity
or body having the right or power of condemnation of its intention to condemn
the Premises or any portion thereof, or (ii) any of the foregoing events occur
with respect to the taking of any space in the Complex not leased hereby, or if
any such spaces so taken are conveyed in lieu of such taking and Landlord shall
decide to discontinue the use and operation of the Complex, or decide to
demolish, alter or rebuild the Complex, then, in any of such events, Landlord
shall have the right to terminate this Lease by giving Tenant written notice
thereof within sixty (60) days of the date of receipt of said written notice, or
commencement of said action or proceeding, or taking conveyance, which
termination
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shall take place as of the first to occur of the last day of the calendar month
next following the month in which such notice is given or the date on which
title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention to do so, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination. If any assessments or Basic Rent has been paid in advance by
Tenant, Landlord shall refund to Tenant for the unexpired period for which
payment has been made within thirty (30) days from said termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
29. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or conveyance of the
Complex or any interest therein, by any owner then constituting all or part of
Landlord, the transferor shall thereby be released from any liability for acts
or events occurring after said transfer upon any of the terms, covenants or
conditions (express or implied) herein contained in favor of Tenant. In such
event, insofar as such transfer is concerned, Tenant agrees to look solely to
the responsibility of the successor in interest of such transferor in and to the
Complex and this Lease. This Lease shall not be affected by any such sale or
conveyance, and Tenant agrees to attorn to the successor in interest of such
transferor and the successor in interest shall assume Landlord's rights and
obligations under this Lease.
30. HOLDING OVER. Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month-to-month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty percent (150%) of the monthly Basic Rent
and Additional Rent required during the last month of the Lease term.
31. CONSTRUCTION CHANGES. It is understood that the description of the Premises
and the location of duct work, plumbing and other facilities therein are subject
to such changes as Landlord or Landlord's architect determines to be desirable
in the course of construction of the Premises. No change in plans for any other
portions of the Complex shall affect the enforceability of this Lease or entitle
Tenant to any reduction of rent hereunder or result in any liability of Landlord
to Tenant. Landlord does not guarantee the accuracy of any drawings supplied to
Tenant and verification of the accuracy of such drawings rests with Tenant.
32. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder or shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obliged
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
such performance by Landlord together with interest thereon at the rate of the
Prime Rate of interest plus two percent (2%) per annum from the date of such
payment on performance by Landlord, shall be paid (and Tenant covenants to make
such payment) to Landlord on demand by Landlord, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of nonpayment by Tenant as in the case of failure by Tenant in the
payment of rent hereunder.
33. ATTORNEYS' FEES.
A. In the event of a dispute regarding possession of the Premises,
recovery of any sum due under this Lease, breach of any provision of this Lease,
or to enforce any right or obligation set forth herein, then all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party
therein shall be paid by the other party, which obligation on the part of the
other party shall be deemed to have accrued on the date of the commencement of
such action and shall be enforceable whether or not the action is prosecuted to
judgment.
B. In the event of a dispute between Landlord and Tenant which is resolved
by a Court or Judicial Reference as set forth herein, Landlord and Tenant agree,
notwithstanding Paragraph 33A above, that for purposes of determining the amount
of attorneys' fees to be awarded to the prevailing party, the Judge or Reference
shall consider, in addition to such evidence as is submitted, any written
settlement offers and the timing of such offers. In such event, if the Court or
Reference determines that the prevailing party rejected a settlement offer which
is equal to or greater than the net recovery obtained, the prevailing party
shall only be entitled to recover in attorneys' fees an amount which is not more
than twenty-five percent (25%) of the net recovery. The Court or Reference shall
also consider the amount originally demanded by the prevailing party and
depending on the ultimate net recovery, award the non-prevailing party, as an
offset, an amount up to twenty-five percent (25%) of the prevailing party's
total net recovery for successfully defending claims asserted by the prevailing
party.
C. Should Landlord be named as a defendant in any suit brought against
Tenant by any third party in connection with or arising out of Tenant's
occupancy hereunder, Tenant shall indemnify and hold Landlord harmless from any
and all costs, expenses incurred (including reasonable attorneys' fees) as well
as any judgment rendered against Landlord, except to the extent a final judgment
of a court of competent jurisdiction establishes that the injury, loss, or
damage, was proximately caused by Landlord's gross negligence, or willful
misconduct.
34. JUDICIAL REFERENCE. The parties agree that, other than an action by Landlord
to obtain possession of the Premises, an action by Landlord seeking
indemnification from Tenant, or any action which seeks relief which can only be
obtained by Court proceeding, any dispute arising out of this Lease shall be
heard by a referee pursuant to the provisions of California Code of Civil
Procedure Section 638, et seq., for a determination to be made which shall be as
binding upon Landlord and Tenant as if tried by a court or jury. In the event of
such reference, the following provisions shall apply:
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(a) Within five (5) business days after service of a demand for
reference, Landlord and Tenant shall agree upon a single referee who shall then
try all issues in dispute, whether of fact or law, and then report his/her
findings and judgment thereon. If Landlord and Tenant are unable to agree upon a
referee, either Landlord or Tenant may seek to have one appointed pursuant to
Section 640 of the California Code of Civil Procedure by the presiding judge of
the Sacramento County Superior Court.
(b) The compensation of the referee shall be such as is customarily
charged by referees for like services. The cost of such proceedings shall
initially be borne equally by Landlord and Tenant; however, the prevailing party
in such proceedings shall be entitled, in addition to all other costs, to
recover its contribution for the cost of the referee as an item of costs.
(c) If a court reporter is required by any party, then a court
reporter shall be present at all proceedings and the fees of such court reporter
shall initially be borne by the party requesting the court reporter, or equally,
if both parties request a court reporter. Such fees shall be an item of
recoverable costs to the prevailing party.
(d) The referee shall apply all California Rules of Procedure and
Evidence and shall apply the substantive law of California in deciding the
issues to be heard. Notice of any motion before the referee shall be given in
the manner prescribed by the California Code of Civil Procedure, all hearings
shall be set at the convenience of the referee, and venue for all hearings shall
be selected by the referee at a place in Sacramento County, California.
(e) The referee's decision under California Code of Civil Procedure
Section 644 shall stand as the judgment of the court, subject to appellate
review as provided by the laws of the State.
(f) Landlord and Tenant agree that any such dispute shall be decided
as soon as practicable following the selection or appointment of a referee. The
date of hearing for any proceedings shall be determined by agreement of the
parties and the referee, or if the parties cannot agree, then by the referee.
(g) Without limiting the jurisdiction of the referee, Landlord and
Tenant specifically acknowledge that the referee shall have jurisdiction to
issue all legal and equitable relief including an award of damages, the issuance
of injunctions, and requiring the specific performance of any provisions of this
Lease.
(h) In addition to any other relief awarded by the referee, the
referee shall award attorneys' fees to the prevailing party pursuant to
Paragraph 33(B) above.
35. WAIVER. The waiver by either party of the other party's failure to perform
or observe any term, covenant or condition herein contained to be performed or
observed by such waiving party shall not be deemed to be a waiver of such term,
covenant or condition or of any subsequent failure of the party failing to
perform or observe the same or any other such term, covenant or condition
therein contained, and no custom or practice which may develop between the
parties hereto during the term hereof shall be deemed a waiver of, or in any way
affect, the right of either party to insist upon performance and observance by
the other party in strict accordance with the terms hereof.
36. NOTICES. All notices, demands, requests, advice or designations which may be
or are required to be given by either party to the other hereunder shall be in
writing. All notices, demands, requests, advice or designations by Landlord to
Tenant shall be sufficiently given, made or delivered if personally served on
Tenant by leaving the same at the Premises or if sent by United States certified
or registered mail, postage prepaid, addressed to Tenant at the Premises. All
notices, demands, requests, advice or designations by Tenant to Landlord shall
be sent by United States certified or registered mail, postage prepaid,
addressed to Landlord at the offices of its agent at: 2868 Prospect Park Drive,
Suite 300, Rancho Cordova, CA 95670. Each notice, request, demand, advice or
designation referred to in this paragraph shall be deemed received on the date
of the personal service or mailing thereof in the manner herein provided, as the
case may be.
37. EXECUTION OF LEASE. This Lease may be executed in counterparts and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument. Landlord's delivery of this Lease to Tenant shall not be
deemed an offer to lease and shall not be binding until executed and delivered
by both Landlord and Tenant.
38. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event later than thirty (30) days after written notice by Tenant to Landlord and
to the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have heretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligations are such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
39. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against Landlord and
Landlord's assets;
(b) no partner of Landlord who does not have an interest in the
Premises shall be sued or named as a party in any suit or action
(except as may be necessary to secure jurisdiction of the
partnership);
(c) no service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(d) no partner of Landlord shall be required to answer or otherwise
respond to a formal complaint or other proceeding who does not have
an interest in the Premises;
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(e) no judgment will be taken against any partner of Landlord who
does not have an interest in the Premises;
(f) any judgment taken against any partner of Landlord may be
vacated and set aside at any time without hearing who does not have
an interest in the Premises;
(g) no writ of execution will ever be levied against the assets of
any partner of Landlord who does not have an interest in the
Premises;
(h) these covenants and agreements are enforceable both by Landlord
and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall
survive the termination of the Lease and be applicable to any covenant or
agreement either expressly contained in this Lease or imposed by statute or at
common law.
40. CORPORATE AUTHORITY. If Tenant is a corporation (or a partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he/she is duly authorized to execute and deliver
this Lease on behalf of said corporation (or partnership) in accordance with the
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
41. SIGNS. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. If Tenant is allowed to print or affix or in any
way place a sign in, on, or about the Premises, upon expiration or other sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.
All approved signs or lettering on outside doors shall be printed,
painted, affixed, inscribed and removed at the expense of Tenant by a person
approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
42. HAZARDOUS AND TOXIC MATERIALS.
A. HAZARDOUS MATERIALS. Tenant covenants to comply with all laws relating
to Hazardous Materials with respect to the Premises and the Complex. Except for
general office supplies typically used in an office area in the ordinary course
of business (such as copier toner, liquid paper, glue, ink, and cleaning
solvents), for use in the manner for which they were designed and only in
accordance with all Hazardous Materials laws and the highest standards
prevailing in the industry for such use, and then only in such amounts as may be
normal for the business operations conducted by Tenant on the Premises. Tenant
(including its employees, agents, invitees or anyone acting by or on behalf of
Tenant) shall not use, handle, generate, manufacture, store or dispose of, on or
about the Premises or the Complex, or transport to or from the Premises or the
Complex, any flammable explosives, radioactive materials, hazardous wastes,
toxic substances, or any related materials or substances, including, without
limitation, any substance defined as or included in the definition of "hazardous
substances" under any applicable federal, state or local law, regulation or
ordinance (collectively, "Hazardous Materials").
B. PERMITTED MATERIALS. Notwithstanding the above provisions, Tenant shall
have the right to use, generate and store on the Premises or the Complex, and
transport to and from the Premises or the Complex, those Hazardous Materials
listed which Tenant has identified on the list attached hereto and incorporated
herein by this reference which are used in the ordinary course of Tenant's
business (collectively, "Permitted Materials"); provided, however, that Tenant's
use, generation, storage and transport thereof is in strict compliance with all
applicable federal, state and local laws, regulations and ordinances. If no list
is attached to this Lease, Tenant acknowledges and agrees that there are no
Permitted Materials. Tenant's failure to obtain and maintain authorization from
all required state, federal or local agencies to transfer, store or use
Hazardous Materials shall be deemed a material default of this Lease.
C. PERMITTED MATERIALS CLAIMS. Promptly upon Tenant obtaining actual
knowledge thereof, Tenant shall immediately notify Landlord in writing of (i)
any and all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened with respect to the Permitted
Materials pursuant to any applicable federal, state or local law, ordinance or
regulation, and (ii) all claims made or threatened by any third party against
Tenant or the Premises or the Complex related to any damage, loss or injury,
whether to person or property, resulting from the Permitted Materials (the
matters set forth in clauses (i) and (ii) above are hereinafter referred to
collectively as "Permitted Materials Claims").
D. CLEAN UP AND TENANT'S INDEMNITY. Tenant shall promptly take all actions
necessary, at its sole cost and expense, to return the Premises or Complex to
the condition existing prior to the introduction of any such Hazardous Materials
by Tenant or Tenant's employees, agents, invitees or anyone else acting by or on
behalf of Tenant, provided Landlord's approval of such actions shall first be
obtained.
Tenant shall be solely responsible for and shall indemnify, defend (with
counsel reasonably approved by Landlord) and hold Landlord harmless from and
against any and all claims, judgments, suits, causes of action, damages,
penalties, fines, liabilities, losses and expenses (including without
limitation, investigation and clean-up costs, attorneys' fees, consultant fees
and court costs) which arise during or after the term of this Lease as a result
of the breach of any of the obligations and covenants by Tenant set forth in
this Paragraph 42, and/or any contamination of the Premises or the Complex
directly arising from the activities of Tenant.
E. ENVIRONMENTAL INSPECTION. Landlord shall have the right, from time to
time, and upon not less than thirty (30) days written notice to Tenant, although
not more than annually except in the case of an emergency in which no notice
shall be required, to conduct an
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inspection of the Premises or the Complex to determine the existence or presence
of Hazardous Materials within the Premises or the Complex. Landlord shall be
accompanied during said inspection by an available representative of Tenant.
Landlord shall have the right to enter and inspect materials brought into the
Premises or the Complex and the manufacturing processes utilized by the Tenant.
Landlord may, in its discretion, retain such experts to conduct the inspection,
perform the tests referred to herein, and to prepare a written report in
connection therewith. All costs and expenses incurred by Landlord under this
subsection shall be paid as Additional Rent by Tenant to Landlord.
F. SURVIVAL. The foregoing covenants and indemnitee of Tenant shall
survive the expiration or earlier termination of the Lease.
43. MISCELLANEOUS AND GENERAL PROVISIONS.
A. USE OF BUILDING NAME. Tenant shall not, without the written consent of
Landlord, use the name of the building or the Complex for any purpose other than
as the address of the business conducted by Tenant in the Premises.
B. CHOICE OF LAW; SEVERABILITY. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provision of this Lease shall be invalid, unenforceable or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
C. DEFINITION OF TERMS. The term "Premises" includes the space leased
hereby and any improvements now or hereafter installed therein or attached
thereto. The term "Landlord" or any pronoun used in place thereof includes the
plural as well as the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes the plural as well
as the singular and individuals, firms, associations, partnerships and
corporations, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof and the provisions of this Lease shall inure to the benefit of and bind
such heirs, executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant, the
obligations of Tenant hereunder are joint and several. The paragraph headings of
this Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provision hereof.
D. TIME OF ESSENCE. Time is of the essence of this Lease and of each and
all of its provisions.
E. QUITCLAIM. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days
after written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in the
State of California, to remove the cloud or encumbrance created by this Lease
from the real property of which Tenant's Premises are a part.
F. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This instrument along
with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
hereby agree that all prior or contemporaneous oral agreements between and among
themselves and their agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.
G. RECORDING. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
H. AMENDMENTS FOR FINANCING. Tenant further agrees to execute any
amendments required by a lender to enable Landlord to obtain financing, so long
as Tenant's rights hereunder are not substantially affected.
I. ADDITIONAL PARAGRAPHS AND ADDENDA. The Paragraphs and Addenda shown in
Paragraph 1I are added hereto and are included as a part of this lease.
J. CLAUSES, PLATS AND RIDERS. Clauses, plats and riders, if any, signed by
Landlord and Tenant and endorsed on or affixed to this Lease are a part hereof.
K. DIMINUTION OF LIGHT, AIR OR VIEW. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect this
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease
as of the date and year first above written.
LANDLORD: TENANT:
WDCI, INC., A HAWAII CORPORATION WEBEX COMMUNICATIONS, INC.,
CORPORATION A DELAWARE CORPORATION
BY: BY:
------------------------------------ -----------------------------
CRAIG KLOSTERMAN
TITLE: TITLE: CHIEF FINANCIAL OFFICER
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BY: BY:
------------------------------------ -----------------------------
TITLE: TITLE:
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