Document/Exhibit Description Pages Size
1: 10-K Annual Report 56 234K
2: EX-2.02 Interpix Acquisition 27 111K
3: EX-10.14 Office Lease - Santa Clara, Ca 48 154K
4: EX-22.01 Subsidiaries of Excalibur Technologies Corp 1 5K
5: EX-23.01 Consent of Arthur Andersen LLP 1 6K
6: EX-27 Article 5 FDS Filed With Form 10-K 1 8K
STANDARD OFFICE LEASE
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1 Parties: This Lease, dated, for reference purposes only, July 1 , 1997
, is made by and between STEVENS CREEK OFFICE CENTER OF SANTA CLARA , (herein
called "Landlord") and EXCALIBUR TECHNOLOGIES CORPORATION, a Delaware
corporation, , (herein called the "Tenant").
1.2 Building: Commonly described as being located at 4675 Stevens Creek
Boulevard , in the City of Santa Clara, County of Santa Clara, State of
California, as more particularly described in Exhibit "A" hereto, and as defined
in paragraph 2.
1.3 Premises: Suite Number(s) #230 , on the second floor, consisting of
approximately 1,339 rentable square feet , more or less, as defined in paragraph
2 and subject to Attached Addendum to Lease , and as shown on Exhibit(s) "B@ and
"B-1" , hereto (the Premises").
1.4 Use: General office and administrative, including software engineering,
as well as other landlord approved uses, subject to paragraph 6.
1.5 Term: Thirty-six (36) months, commencing July 1, 1997 ("Commencement
Date") and ending June 30, 2000, ("Termination Date") as defined in paragraph 3.
1.6 Base Rent: : See: Attached Addendum to Lease, per month, payable on the
first (1st) day of each month, per paragraph 4.1
1.7 Base Rent Increase: See: Attached Addendum to Lease the monthly Base
Rent payable under paragraph 1.6 above shall be adjusted as provided in the
Addendum to Lease.
1.8 Rent Paid Upon Execution: Four Thousand Nine Hundred Ninety-Six Dollars
and Eighty-Five Cents ($4,996.85) : for the month of July 1997 for Suite #230,
September 1997 for Suite #220 and November 1997 for Suite #224 .
1.9 Security Deposit: Two Thousand Dollars and No Cents ($2,000.), is
currently being held by Landlord for the benefit of Interpix Software
Corporation, said Tenant having been acquired by Excalibur Technologies
Corporation. Said sum is being transferred from that certain Lease Agreement
dated June 5, 1996, between Stevens Creek Office Center (Landlord) and Interpix
Software Corporation (Tenant) upon expiration of said Lease for the benefit of
Excalibur Technologies. Tenant hereby agrees to increase said deposit by the sum
of Three Thousand Dollars and No Cents ($3,000.) increasing the security deposit
to a total sum of Five Thousand Dollars and No Cents ($5,000.) upon execution of
this lease agreement.
1.10 Tenant's Share of Operating Expense Increase: 4.050 % as defined in
paragraph 4.2.
2. Premises, Parking and Common Areas.
2.1 Premises: The Premises are a portion of a building, herein referred to
as the "Building" in paragraph 1.2 of the Basic Lease Provisions. "Building"
shall include adjacent parking structures used in connection therewith. The
Premises, the Building, the Common Areas, the land upon which the same are
located, along with all other buildings and improvements thereon or thereunder,
are herein collectively referred to as the "Office Building Project". Landlord
hereby leases to Tenant and Tenant leases from Landlord for the term, at the
rental, and upon all of the conditions set forth herein, the real property
referred to in the Basic Lease Provisions, paragraph 1.3, as the "Premises",
including rights to the Common Areas as hereinafter specified.
2.2 Vehicle Parking: So long as Tenant is not in default, and subject to
the rules and regulations attached hereto, and as established by Landlord from
time to time, Tenant shall be entitled to rent and use Six (6) unassigned
parking spaces in the Office Building Project at the monthly rate applicable
from time to time for monthly parking as set by Landlord and/or its licensee.
2.2.1 If Tenant commits, permits or allows any of the prohibited activities
described in the Lease or the rules then in effect, then Landlord shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove or tow away, in connection with parking, the vehicle involved
and charge the cost to the Tenant, which cost shall be immediately payable upon
demand by Landlord.
2.2.2 The monthly parking rate per parking space will be $ (0) per month at
the commencement of the term of this Lease, and is subject to change upon five
(5) days prior written notice to Tenant. Monthly parking fees shall be payable
one month in advance prior to the first day of each calendar month.
2.3 Common Areas - Definition. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Office Building Project that are provided and designated by the Landlord
from time to time for the general non-exclusive use of Landlord, Tenant and of
other Tenants of the Office Building Project and their respective employees,
suppliers, shippers, customers and invitees, including but not limited to common
entrances, lobbies, corridors, stairways and stairwells, public restrooms,
elevators, escalators, parking areas to the extent not otherwise prohibited by
this Lease, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, ramps, driveways, landscaped areas and decorative walls.
2.4 Common Areas - Rules and Regulations. Tenant agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit C with respect
to the Office Building Project and Common Areas, and to cause its employees,
suppliers, shippers, customers, and invitees to so abide and conform. Landlord
or such other person(s) as Landlord may appoint shall have the exclusive control
and management of the Common Areas and shall have the right, from time to time,
to modify, amend and enforce said non-discriminatory rules and regulations.
Except that Landlord shall do all it can do to enforce such rules and
regulations and to the best of its ability to mitigate any non-compliance,
Landlord shall not be responsible to Tenant for the noncompliance with said
rules and regulations by other Tenants, their agents, employees and invitees of
the Office Building Project.
2.5 Common Areas - Changes. Landlord shall have the right, in Landlord's
sole discretion, from time to time:
(a) To make changes to the Building interior and exterior and Common
Areas, including, without limitation, changes in the location, size, shape,
number, and appearance thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, escalators, restrooms,
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, decorative walls, landscaped
areas and walkways; provided, however, that any such changes shall not
materially deprive Tenant of the Premises leased hereunder and as more
particularly set forth in Section 1.3, above. Landlord shall at all times
provide the parking facilities required by applicable law;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land and improvements outside the boundaries of
the Office Building Project to be a part of the Common Areas, provided that
such other land and improvements have a reasonable functional relationship
to the Office Building Project.
(d) To add additional buildings and improvements to Common Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project, or any
portion thereof;
(f) To do and perform such other acts and make such other changes in,
to or with respect to the Common Areas and Office Building Project as
Landlord may, in the exercise of sound business judgment deem to be
reasonably appropriate.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
3. Term.
3.1 Term. The term and Commencement Date of this Lease shall be as
specified in paragraph 1.5 of the Basic Lease Provisions.
3.2 Delay in Possession. Except in the event of willful acts of Landlord,
its agents or employees, or for causes within the reasonable control of
Landlord, notwithstanding said Commencement Date, if for any reason Landlord
cannot deliver possession of the Premises to Tenant on said date and subject to
paragraph 3.2.2, Landlord shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease or the obligations of
Tenant hereunder or extend the term hereof; but, in such case, Tenant shall not
be obligated to pay rent or perform any other obligation of Tenant under the
terms of this Lease, except as may be otherwise provided in this Lease, until
possession of the Premises is tendered to Tenant, as hereinafter defined;
provided, however, that if Landlord shall not have delivered possession of the
Premises within ninety (90) days following said Commencement Date, as the same
may be extended under the terms of a Work Letter executed by Landlord and
Tenant, Tenant may, at Tenant's option, by notice in writing to Landlord within
ten (10) days thereafter cancel this Lease, in which event the parties shall be
discharged from all obligations hereunder: provided, however, that, as to
Tenant's obligations, Tenant first reimburses Landlord for all costs incurred
for Non-Standard improvements and as to Landlord's obligations, Landlord shall
return any money previously deposited by Tenant (less any offsets due Landlord
for Non-Standard Improvements): and provided further, that if such written
notice by Tenant is not received by Landlord within said ten (10) day period,
Tenant's right to cancel this Lease hereunder shall terminate and be of no
further force or effect.
3.2.1 Possession Tendered-Defined. Possession of the Premises shall be
deemed tendered to Tenant ("Tender of Possession") when (1) the improvements to
be provided by Landlord under this Lease are substantially completed, (2) the
Building utilities are ready for use In the Premises. (3) Tenant has reasonable
access to the Premises and, (4) ten (10) days shall have expired following
advance written notice to Tenant of the occurrence of the matters described in
(1),(2) and (3). above of this paragraph 3.2.1.
3.2.2 Delays Caused by Tenant. There shall be no abatement of rent, and the
sixty (60) day period following the Commencement Date before which Tenant's
right to cancel this Lease accrues under paragraph 3.2. shall be deemed extended
to the extent of any delays caused by acts or omissions of Tenant, Tenant's
agents, employees and contractors.
3.3 Early Possession. If Tenant occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not change the termination date and Tenant shall pay
rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of the Lease term is
defined as the completion of the improvements, Tenant and Landlord shall execute
an amendment to this Lease establishing the date of Tender of Possession (as
defined In paragraph 3.2.1) or the actual taking of possession by Tenant,
whichever first occurs, as the Commencement Date.
4. Rent
4.1 Base Rent. Subject to adjustment as hereinafter provided In paragraph
4.3 and except as may be otherwise expressly provided in this Lease, Tenant
shall pay to Landlord the Base Rent for the Premises set forth in paragraph 1.6
of the Basic Lease Provisions, without offset or deduction. Tenant shall pay
Landlord upon execution hereto the advance Base Rent described in paragraph 1.8
of the Basic Lease Provision. Rent for any period during the term hereof which
Is for less than one month shall be prorated based upon the actual number of
days of the calendar month involved. Rent shall be payable in lawful money of
the United States to Landlord at the address stated herein or to such other
persons or at such other places as Landlord may designate In writing.
4.2 Operating Expense Increase. Tenant shall pay to Landlord during the
term hereof, in addition to the Base Rent, Tenant's Share, as hereinafter
defined, of the amount by which all Operating Expenses, as hereinafter defined,
for each Comparison Year exceeds the amount of all Operating Expenses for the
Base Year, such excess being hereinafter referred to as the "Operating Expense
increase" in accordance with the following provisions:
(a) "Tenant's Share" Is defined, for purposes of this Lease, as the
percentage set forth in paragraph 1.10 of the Basic Lease Provisions, which
percentage has been determined by dividing the approximate square footage
of the Premises by the total approximate square footage of the rentable
space contained in the Office Building Project. it is understood and agreed
that the square footage figures set forth in the Basic Lease Provisions are
approximations which Landlord and Tenant agree are reasonable and shall not
be subject to revision except in connection with an actual change In the
size of the Premises or a change in the space available for lease In the
Office Building Project.
(b) "Base Year" is defined as 1996 .
(c) "Comparison Year" is defined as each calendar year during the term
of this Lease subsequent to the Base Year: Tenant's Share of the Operating
Expense Increase for the first and last Comparison Years of the Lease Term
shall be prorated according to that portion of such Comparison Year as to
which Tenant Is responsible for a share of such increase.
(d) "Operating Expenses " is defined, for purposes of this Lease, to
include all costs, if any, incurred by Landlord in the exercise of Its
reasonable discretion, for:
(i) The operation, repair, maintenance, and replacement, in neat,
clean, safe, good order and condition, of the Office Building Project,
including but not limited to, the following:
(aa) The Common Areas, including their surfaces, coverings,
decorative items, carpets, drapes and window coverings, and
including parking areas, loading and unloading areas, trash
areas, roadways, sidewalks, walkways, stairways, parkways,
driveways, landscaped areas, striping, bumpers, irrigation
systems, Common Area lighting facilities, building exteriors and
roofs, fences and gates:
(bb) All heating, air conditioning, plumbing, electrical
systems, life safely equipment, telecommunication and other
equipment used in common by, or for the benefit of, Tenants or
occupants of the Office Building Project, including elevators and
escalators, Tenant directories, fire detection systems Including
sprinkler system maintenance and repair,
(ii) Trash disposal, janitorial and security services:
(iii) Any other service to be provided by Landlord that is
elsewhere in this Lease stated to be an "Operating Expense":
(iv) The cost of the premiums for the liability and property
Insurance policies to be maintained by Landlord under paragraph 8
hereof:
(v) The amount of the real property taxes to be paid by Landlord
under paragraph 10.1 hereof:
(vi) The cost of water, sewer, gas, electricity and other
publicly mandated services to the Office Building Project:
(vii) Labor, salaries and applicable fringe benefits and costs,
materials, supplies and tools, used in maintaining and/or cleaning the
Office Building Project and accounting and a management fee
attributable to the operation of the Office Building Project:
(viii) Replacing and/or adding improvements mandated by any
governmental agency and any repairs or removals necessitated thereby
amortized over its useful life according to federal income tax
regulations or guidelines for depreciation thereof (Including interest
on the unamortized balance as is then reasonable in the judgment of
Landlord's accountants):
(ix) Replacements of equipment or improvements that have a useful
life for depreciation purposes according to Federal income tax
guidelines of five (5) years or less, as amortized over such life.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
(e) Operating Expenses shall not include the costs of replacements of
equipment or improvements that have a useful life for Federal income tax
purposes in excess of five (5) years unless it is of the type described in
paragraph 4.2(d)(viii), in which case their cost shall be included as above
provided;
(f) Operating Expenses shall not Include any expenses paid by any
Tenant directly to third parties, or as to which Landlord Is otherwise
reimbursed by any third party, other Tenant, or by insurance proceeds.
(g) Tenant's Share of Operating Expense Increase shall be payable by
Tenant within ten (10) days after a reasonably detailed statement of actual
expenses is presented to Tenant by Landlord. At Landlord's option, however,
an amount may be estimated by Landlord from time to time In advance of
Tenant's Share of the Operating Expense Increase for any Comparison Year,
and the same shall be payable monthly or quarterly, as Landlord shall
designate, during each Comparison Year of the Lease term, on the same day
as the Base Rent Is due hereunder. In the event that Tenant pays Landlord's
estimate of Tenant's Share of Operating Expense Increase as aforesaid,
Landlord shall deliver to Tenant within ninety (90) days after the
expiration of each Comparison Year a reasonably detailed statement showing
Tenant's Share of Operating Expense Increase next falling due. If Tenant's
payments under this paragraph during said Comparison Year were less than
Tenant's Share as indicated on said statement, Tenant shall pay to Landlord
the deficiency within ten (10) days after delivery by Landlord to Tenant of
said detailed statement showing Tenant's Share of the actual Operating
Expense Increase incurred during the year, If Tenant's payments under this
paragraph 4.2(g) during said Comparison Year exceed Tenant's Share as
indicated on said statement, Tenant shall be entitled to a credit in the
amount of such overpayment against future payments of Base Rent to
Landlord. Landlord and Tenant shall forthwith adjust between them by cash
payment any balance determined to exist with respect to that portion of the
last Comparison Year for which Tenant Is responsible as to Operating
Expense increases, notwithstanding that the Lease term may have terminated
before the end of such Comparison Year.
4.3 Rent Increase. (This section marked out and deleted)
5. Security Deposit. Tenant shall deposit with Landlord upon execution hereof
the security deposit set forth in paragraph 1.9 of the Basic Lease Provisions as
security for Tenant's faithful performance of Tenant's obligations hereunder If
Tenant fails to pay rent or other charges due hereunder. or otherwise defaults
with respect to any provision of this Lease, Landlord may use, apply or retain
all or any portion of said deposit for the payment of any rent or other charge
in default for the payment of any other sum to which Landlord may become
obligated by reason of Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer thereby if Landlord so uses or applies all
or any portion of said deposit, Tenant shall within ten (10) days after written
demand therefor deposit cash with Landlord in an amount sufficient to restore
said deposit to the full amount then required of Tenant. Landlord shall not be
required to keep said security deposit separate from its general accounts. If
Tenant performs all of Tenant's obligations hereunder, said deposit, or so much
thereof as has not heretofore been applied by Landlord shall be returned,
without payment of interest or other increment for its use, to Tenant (or, at
Landlord's option, to the last assignee, if any, of Tenant's interest hereunder)
at the expiration of the term hereof, and after Tenant has vacated the Premises.
No trust relationship is created herein between Landlord and Tenant with respect
to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for the purpose set
forth in paragraph 1.4 of the Basic Lease Provisions or any other use which is
reasonably comparable to that use and for no other purpose.
6.2 Compliance with Law.
(a) Landlord warrants to Tenant that the Premises, in the state existing
on the date that the lease term commences, but without regard to alterations or
improvements made by Tenant or the use for which Tenant will occupy the
Premises, does not violate any covenants or restrictions of record, or any
applicable building code, regulation or ordinance in effect on such Lease term
Commencement Date. In the event it is determined that this warranty has been
violated, then it shall be the obligation of the Landlord, after written notice
from Tenant, to promptly, at Landlord's sole cost and expense, rectify any such
violation.
(b) Except as provided in paragraph 6.2(a) Tenant shall, at Tenant's
expense, promptly comply with all applicable statutes, ordinances, rules,
regulations, orders, covenants and restrictions of record, and requirements of
any fire insurance underwriters or rating bureaus, now in effect or which may
hereafter come into effect, whether or not they reflect a change in policy from
that now existing, during the term or any part of the term hereof, relating in
any manner to the Premises and the occupation and use by Tenant of the Premises.
Tenant shall conduct its business in a lawful manner and shall not use or permit
the use of the Premises or the Common Areas in any manner that will tend to
create waste or a nuisance or shall tend to disturb other occupants of the
Office Building Project.
6.3 Condition of Premises.
(a) Landlord shall deliver the Premises to Tenant in a clean condition on
the Lease Commencement Date (unless Tenant is already in possession) and
Landlord warrants to Tenant that the plumbing, lighting, air conditioning, and
heating system in the Premises shall be in good operating condition. In the
event that it Is determined that this warranty has been violated, then it shall
be the obligation of Landlord, after receipt of written notice from Tenant
setting forth with specificity the nature of the violation, to promptly, at
Landlord's sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Tenant hereby accepts the
Premises and the Office Building Project in their condition existing as of the
Lease Commencement Date or the date that Tenant takes possession of the
Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any easements, covenants or restrictions or record, and
accepts this Lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Tenant acknowledges that it has satisfied itself
by its own independent investigation that the Premises are suitable for its
intended use, and that neither Landlord nor Landlord's agent or agents has made
any representation or warranty as to the present or future suitability of the
Premises, Common Areas, or Office Building Project for the conduct of Tenant's
business.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1 Landlord's Obligations. Landlord shall keep the Office Building Project,
including the Premises, interior and exterior walls, roof, and Common Areas, and
the equipment whether used exclusively for the Premises or in common with other
premises, in good condition and repair; provided, however, Landlord shall not be
obligated to paint, repair or replace wall coverings, or to repair or replace
any improvements that are not ordinarily a part of the Building or are above
then Building standards. Except as provided in paragraph 9 5. there shall be no
abatement of rent or liability of Tenant on account of any injury or
interference with Tenant's business with respect to any improvements,
alterations or repairs made by Landlord to the Office Building Project or any
part thereof. Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
7.2 Tenant's Obligations.
(a) Notwithstanding Landlord's obligation to keep the Premises in good
condition and repair, Tenant shall be responsible for payment of the cost
thereof to Landlord as additional rent for that portion of the cost of any
maintenance and repair of the Premises, or any equipment (wherever located) that
serves only Tenant or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear. Tenant shall be responsible for the cost of
painting, repairing or replacing wall coverings and to repair or replace any
Premises improvements that are not ordinarily a part of the Building or that are
above then Building standards. Landlord may, at its option, upon reasonable
notice, elect to have Tenant perform any particular such maintenance or repairs
the cost of which is otherwise Tenant's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in the same condition as
received, ordinary wear and tear excepted, clean and free of debris. Any damage
or deterioration of the Premises shall not be deemed ordinary wear and tear if
the same could have been prevented by good maintenance practices by Tenant.
Tenant shall repair any damage to the Premises occasioned by the installation or
removal of Tenant's trade fixtures, alterations. furnishings and equipment.
Except as otherwise stated in this Lease. Tenant shall leave the air lines,
power panels, electrical distribution systems, lighting fixtures, air
conditioning, window coverings, wall coverings, carpets, wall paneling, ceilings
and plumbing on the Premises and in good operating condition.
7.3 Alterations and Additions.
(a) Tenant shall not, without Landlord's prior written consent make any
alterations, improvements, additions, Utility Installations or repairs in, on or
about the Premises, or the Office Building Project. As used in this paragraph
7.3 the term "Utility Installation" shall mean carpeting, window and wall
coverings, power panels, electrical distribution systems, lighting fixtures, air
conditioning, plumbing, and telephone and telecommunication wiring and
equipment. At the expiration of the term, Landlord may require the removal of
any or all of said alterations, improvements, additions or Utility
Installations, and the restoration of the Premises and the Office Building
Project to their prior condition, at Tenant's expense. Should Landlord permit
Tenant to make its own alterations, improvements, additions or Utility
Installations, Tenant shall use only such contractor as has been expressly
approved by Landlord, and Landlord may require Tenant to provide Landlord, at
Tenant's sole cost and expense, a lien and completion bond in an amount equal to
one and one-half times the estimated cost of such improvements, to insure
Landlord against any liability for mechanic's and materialmen's liens and to
insure completion of the work. Should Tenant make any alterations. improvements,
additions or Utility Installations without the prior approval of Landlord, or
use a contractor not expressly approved by Landlord, Landlord may, at any lime
during the term of this Lease, require that Tenant remove any part or all of the
same.
(b) Any alterations, improvements, additions or Utility Installations in
or about the Premises or the Office Building Project that Tenant shall desire to
make shall be presented to Landlord in written form, with proposed detailed
plans. If Landlord shall give its consent to Tenant's making such alteration,
improvement. addition or Utility Installation, the consent shall be deemed
conditioned upon Tenant acquiring a permit to do so from the applicable
governmental agencies, furnishing a copy thereof to Landlord prior to the
commencement of the work, and compliance by Tenant with all conditions of said
permit in a prompt and expeditious manner.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, the Building or the Office Building
Project, or any interest therein.
(d) Tenant shall give Landlord not less than ten (10) days' notice prior
to the commencement of any work in the Premises by Tenant, and Landlord shall
have the right to post notices of non-responsibility in or on the Premises or
the Building as provided by law. If Tenant shall, in good faith, contest the
validity of any such lien, claim or demand, then Tenant shall, at its sole
expense defend itself and Landlord against the same and shall pay and satisfy
any such adverse judgment that may be rendered thereon before the enforcement
thereof against the Landlord or the Premises, the Building or the Office
Building Project, upon the condition that if Landlord shall require, Tenant
shall furnish to Landlord a surely bond satisfactory to Landlord in an amount
equal to such contested lien claim or demand indemnifying Landlord against
liability for the same and holding the Premises, the Building and the Office
Building Project free from the effect of such lien or claim. In addition,
Landlord may require Tenant to pay Landlord's reasonable attorneys' fees and
costs in participating in such action if Landlord shall decide it is to
Landlord's best interest so to do.
(e) All alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of Tenant),
which may be made to the Premises by Tenant, including but not limited to, floor
coverings, paneling, doors, drapes, built-ins, moldings, sound attenuation, and
lighting and telephone or communication systems, conduit, wiring and outlets,
shall be made and done in a good and workmanlike manner and of good and
sufficient quality and materials and shall be the property of Landlord and
remain upon and be surrendered with the Premises at the expiration of the Lease
term, unless Landlord requires their removal pursuant to paragraph 7.3(a).
Provided Tenant is not In default, notwithstanding the provisions of this
paragraph 7.3(e), Tenant's personal property and equipment, other than that
which Is affixed to the Premises so that it cannot be removed without material
damage to the Premises or the Building, and other than Utility Installations,
shall remain the property of Tenant and may be removed by Tenant subject to the
provisions of paragraph 7.2.
(f) Tenant shall provide Landlord with as-built plans and specifications
for any alterations, improvements, additions or Utility Installations.
7.4 Utility Additions, Landlord reserves the right to install new or
additional utility facilities throughout the Office Building Project for the
benefit of Landlord or Tenant, or any other Tenant of the Office Building
Project, including, but not by way of limitation, such utilities as plumbing,
electrical systems, communication systems, and fire protection and defection
systems, so long as such installations do not unreasonably interfere with
Tenant's use of the Premises.
8. Insurance; Indemnity.
8.1 Liability Insurance-Tenant. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of Comprehensive General
Liability insurance utilizing an Insurance Services Office standard form with
Broad Form General Liability Endorsement (GLO404), or equivalent. in an amount
of not less than $1,000,000 per occurrence of bodily Injury and property damage
combined or In a greater amount as reasonably determined by Landlord and shall
insure Tenant with Landlord as an additional insured against liability arising
out of the use, occupancy or maintenance of the Premise's. Compliance with the
above requirement shall not, however, limit the liability of Tenant hereunder.
8.2 LiabilIty Insurance-Landlord. Landlord shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Broad Form Property Damage Insurance, plus coverage against such other risks
Landlord deems advisable from time to time, insuring Landlord, but not Tenant,
against liability arising out of the ownership, use, occupancy or maintenance of
the Office Building Protect in an amount not less than $5,000,000.00 per
occurrence.
8.3 Property Insurance-Tenant. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease for the benefit of Tenant,
replacement cost fire and extended coverage insurance, with vandalism and
malicious mischief, sprinkler leakage and earthquake sprinkler leakage
endorsements, in an amount sufficient to cover not less than 100% of the full
replacement cost, as the same may exist from time to time, of all of Tenant's
personal property, fixtures, equipment and Tenant improvements.
8.4 Property Insurance-Landlord. Landlord shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or damage
to the Office Building Project improvements, but not Tenant's personal property,
fixtures, equipment or Tenant improvements, in the amount of the
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
full replacement cost thereof, as the same may exist from time to time,
utilizing Insurance Services Office standard form, or equivalent, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, plate glass, and such other
perils as Landlord deems advisable or may be required by a lender having a lien
on the Office Building Project. In addition, Landlord shall obtain and keep in
force, during the term of this Lease, a policy of rental value insurance
covering a period of one year, with toss payable to Landlord, which insurance
shall also cover all Operating Expenses for said period. Tenant will not be
named in any such policies carried by Landlord and shall have no right to any
proceeds therefrom. The policies required by these paragraphs 8.2 and 8.4 shall
contain such deductibles as Landlord or the aforesaid lender may determine. In
the event that the Premises shall suffer an insured loss as defined In paragraph
9.1(f) hereof, the deductible amounts under the applicable insurance policies
shall be deemed an Operating Expense. Tenant shall not do or permit to be done
anything which shall invalidate the insurance policies carried by Landlord.
Tenant shall pay the entirety of any increase in the property insurance premium
for the Office Building Project over what it was immediately prior to the
commencement of the term of this Lease if the increase Is specified by
Landlord's Insurance carrier as being solely caused by the nature of Tenant's
occupancy or any act or omission of Tenant.
8.5 Insurance Policies, Tenant shall deliver to Landlord copies of liability
insurance policies required under paragraph 8.1 or certificates evidencing the
existence and amounts of such insurance within seven (7) days after the
Commencement Date of this Lease. No such policy shall be cancelable or subject
to reduction of coverage or other modification except after thirty (30) days
prior written notice to Landlord. Tenant shall, at least thirty (30) days prior
to the expiration of such policies, furnish Landlord with renewals thereof.
8.6 Waiver of Subrogation, Tenant and Landlord each hereby release and
relieve the other, and waive their entire right of recovery against the other,
for direct or consequential loss or damage arising out of or incident to the
perils covered by property insurance carried by such party. whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors and/or
invitees. If necessary all property insurance policies required under this Lease
shall be endorsed to so provide.
8.7 Indemnity. Tenant shall indemnify and hold harmless Landlord and its
agents, Landlord's master or ground Landlord, partners and lenders, from and
against any and all claims for damage to the person or properly of anyone or any
entity arising from Tenant's use of the Office Building Project, or from the
conduct of Tenant's business or from any activity, work or things done,
permitted or suffered by Tenant in or about the Premises or elsewhere and shall
further indemnify and hold harmless Landlord from and against any and all
claims, costs and expenses arising from any breach or default in the performance
of any obligation on Tenant's part to be performed under the terms of this
Lease, or arising from any act or omission of Tenant, or any of Tenant's agents,
contractors, employees, or invitees and from and against all costs, attorney's
fees, expenses and liabilities incurred by Landlord as the result of any such
use, conduct, activity, work, things done, permitted or suffered, breach,
default or negligence, and in dealing reasonably therewith, including but not
limited to the defense or pursuit of any claim or any action or proceeding
involved therein, and in case any action or proceeding be brought against
Landlord by reason of any such matter. Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord and Landlord shall cooperate with Tenant in such defense. Landlord need
not have first paid any such claim in order to be so indemnified. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property of Tenant or injury to persons, in, upon or about the Office
Building Project arising from any cause and Tenant hereby waives all claims in
respect thereof against Landlord.
8.8 Exemption of Landlord from Liability. Tenant hereby agrees that Landlord
shall not be liable for injury to Tenant's business or any loss of income
therefrom or for loss of or damage to the goods, wares or merchandise or other
property of Tenant, Tenant's employees, Invitees, customers, or any other person
in or about the Premises or the Office Building Project, nor shall Landlord be
liable for injury to the person of Tenant, Tenant's employees, agents or
contractors, whether such damage or injury is caused by or results from theft,
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether said
damage or injury results from conditions arising upon the Premises or upon other
portions of the Office Building Project, or from other sources or places, or
from new construction or the repair; alteration or Improvement of any part of
the Office Building Project, or of the equipment, fixtures or appurtenances
applicable thereto, and regardless of whether the cause of such damage or injury
or the means of repairing the same is inaccessible. Landlord shall not be liable
for any damages arising from any act or neglect of any other Tenant, occupant or
user of the Office Building Project, nor from the failure of Landlord to enforce
the provisions of any other lease of any other Tenant of the Office Building
Project.
8.9 No Representation of Adequate Coverage. Landlord makes no representation
that the limits or forms of coverage of insurance specified in this paragraph 8
are adequate to cover Tenant's property or obligations under this Lease.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Damage" shall mean if the Premises are damaged or destroyed
to any extent.
(b) "Premises Building Partial Damage" shall mean if the Building of which
the Premises are a part is damaged or destroyed to the extent that the cost to
repair Is less than fifty percent (50%) of the then Replacement Cost of the
building.
(c) "Premises Building Total Destruction" shall mean If the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is fifty percent (50%) or more of the then Replacement Cost of
the Building.
(d) "Office Building Project Buildings" shall mean all of the buildings on
the Office Building Project site.
(e) "Office Building Project Buildings Total Destruction" shall mean If
the Office Building Project Buildings are damaged or destroyed to the extent
that the cost of repair is fifty percent (50%) or more of the then Replacement
Cost of the Office Building Project Buildings.
(f) "Insured Loss" shall mean damage or destruction which was caused by an
event required to be covered by the insurance described in paragraph 8. The fact
that an Insured Loss has a deductible amount shall not make the loss an
uninsured loss.
(g) "Replacement Cost" shall mean the amount of money necessary to be
spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring, excluding all improvements
made by Tenants, other than those installed by Landlord at Tenant's expense.
9.2 Premises Damage: Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4 and 9.5, if
at any time during the term of this Lease there is damage which is an Insured
Loss and which falls into the classification of either Premises Damage or
Premises Building Partial Damage, then Landlord shall, as soon as reasonably
possible and to the extent the required materials and labor are readily
available through usual commercial channels, at Landlord's expense, repair such
damage (but not Tenant's fixtures, equipment or Tenant improvements originally
paid for by Tenant) to its condition existing at the time of the damage, and
this Lease shall continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4 and 9.5,
if at any time during the term of this Lease there is damage which is not an
Insured Loss and which falls within the classification of Premises Damage or
Premises Building Partial Damage, unless caused by a negligent or willful act of
Tenant (in which event Tenant shall make the repairs at Tenant's expense), which
damage prevents Tenant from making any substantial use of the Premises, Landlord
may at Landlord's option either (i) repair such damage as soon as reasonably
possible at Landlord's expense, in which event this Lease shall continue in full
force and effect, or (ii) give written notice to Tenant within thirty (30) days
after the date of the occurrence of such damage of Landlord's intention to
cancel and terminate this Lease as of the date of the occurrence of such damage,
in which event this Lease shall terminate as of the date of the occurrence of
such damage.
9.3 Premises Building Total Destruction; Office Building Project Total
Destruction. Subject to the provisions of paragraphs 9.4 and 9.5, if at any time
during the term of this Lease there is damage, whether or not it is an Insured
Loss, which falls into the classifications of either (i) Premises Building Total
Destruction, or (ii) Office Building Project Total Destruction, then Landlord
may at Landlord's option either (i) repair such damage or destruction as soon as
reasonably possible at Landlord's expense (to the extent the required materials
are readily available through usual commercial channels) to its condition
existing at the time of the damage, but not Tenant's fixtures, equipment or
Tenant improvements, and this Lease shall continue in full force and effect, or
(ii) give written notice to Tenant within thirty (30) days after the date of
occurrence of such damage of Landlord's intention to cancel and terminate this
Lease, in which case this Lease shall terminate as of the date of the occurrence
of such damage.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the last twelve
(12) months of the term of this Lease there is substantial damage to the
Premises, Landlord may at Landlord's option cancel and terminate this Lease as
of the date of occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within 30 days after the dale of occurrence of such
damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Tenant has an
option to extend or renew this Lease, and the time within which said option may
be exercised has not yet expired, Tenant shall exercise such option, if it is to
be exercised at all, no later than twenty (20) days after the occurrence of an
Insured Loss falling within the classification of Premises Damage during the
last twelve (12) months of the term of this Lease. If Tenant duly exercises such
option during said twenty (20) day period, Landlord shall, at Landlord's
expense, repair such damage, but not Tenant's fixtures, equipment or Tenant
Improvements, as soon as reasonably possible and this Lease shall continue in
full force and effect. If Tenant fails to exercise such option during said
twenty (20) day period, then Landlord may at Landlord's option terminate and
cancel this Lease as of the expiration of said twenty (20) day period by giving
written notice to Tenant of Landlord's election to do so within ten (10) days
after the expiration of said twenty (20) day period, notwithstanding any term or
provision in the grant of option to the contrary.
9.5 Abatement of Rent; Tenant's Remedies.
(a) In the event Landlord repairs or restores the Building or Premises
pursuant to the provisions of this paragraph 9, and any part of the Premises are
not usable (including loss of use due to loss of access or essential services),
the rent payable hereunder (including Tenant's Share of Operating Expense
Increase) for the period during which such damage, repair or restoration
continues shall be abated, provided (1) the damage was not the result of the
negligence of Tenant, and (2) such abatement shall only be to the extent the
operation and profitability of Tenant's business as operated from the Premises
is adversely affected. Except for said abatement of rent, if any, Tenant shall
have no claim against Landlord for any damage suffered by reason of any such
damage, destruction, repair or restoration.
(b) If Landlord shall be obligated to repair or restore the Premises or
the Building under the provisions of this Paragraph 9 and shall not commence
such repair or restoration within ninety (90) days after such occurrence, or if
Landlord shall not complete the restoration and repair within six (6) months
after such occurrence, Tenant may at Tenant's option cancel and terminate this
Lease, by giving Landlord written notice of Tenant's election to do so at any
time prior to the commencement or completion, respectively, of such repair or
restoration. In such event this Lease shall terminate as of the date of such
notice.
(c) Tenant agrees to cooperate with Landlord in connection with any such
restoration and repair, including but not limited to the approval and/or
execution of plans and specifications required.
9.6Termination-Advance Payments. Upon termination of this Lease pursuant to
this paragraph 9, an equitable adjustment shall be made concerning advance rent
and any advance payments made by Tenant to Landlord. Landlord shall, in
addition, return to Tenant so much of Tenant's security deposit as has not
theretofore been applied by Landlord.
9.7 Waiver. Landlord and Tenant waive the provisions of any statute which
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Payment of Taxes. Landlord shall pay the real property tax, as defined
in paragraph 10.3, applicable to the Office Building Project subject to
reimbursement by Tenant of Tenant's Share of such taxes in accordance with the
provisions of paragraph 4.2, except as otherwise provided in paragraph 10.2.
10.2 Additional Improvements. Tenant shall not be responsible for paying any
increase in real properly lax specified In the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Office
Building Project by other Tenants or by Landlord for the exclusive enjoyment of
any other Tenant. Tenant shall, however, pay to Landlord at the lime that
Operating Expenses are payable under paragraph 4.2(c) the entirety of any
increase in real property tax if assessed solely by reason of additional
improvements placed upon the Premises by Tenant or at Tenant's request.
10.3 Definition of "Real Property Tax": As used herein, the term "real
properly tax" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Office Building Project or any portion thereof
by any authority having the direct or Indirect power to tax, including any city,
county, state or federal government, or any school, agricultural, sanitary,
fire, street, drainage or other improvement district thereof, as against any
legal or equitable interest of Landlord in the Office Building Project or in any
portion thereof, as against Landlord's right to rent or other income therefrom,
and as against Landlord's business of leasing the Office Building Project. The
term "real property tax" shall also include any tax, fee, levy assessment or
charge (i) in substitution of, partially or totally, any tax, fee, levy,
assessment or charge hereinabove included within the definition of "real
property tax:' or (ii) the nature of which was hereinbefore included within the
definition of "real property tax:' or (iii) which is imposed as a result of a
change in ownership, as defined by applicable local statutes for property tax
purposes, of the Office Building Project or which is added to a tax or charge
hereinbefore included within the definition of real property tax by reason of
such change of ownership, or (iv) which is imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof.
10.4 Joint Assessment. If the improvements or property, the taxes for which
are to be paid separately by Tenant under paragraph 10.2 or 10.5 are not
separately assessed, Tenant's portion of that tax shall be equitably determined
by Landlord from the respective valuations assigned in the assessor's work
sheets or such other information (which may include the cost of construction) as
may be reasonably available. Landlord's reasonable determination thereof, in
good faith, shall be conclusive.
10.5 Personal Property Taxes.
(a) Tenant shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises or elsewhere.
(b) If any of Tenant's said personal properly shall be assessed with
Landlord's real property, Tenant shall pay to Landlord the taxes attributable to
Tenant within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Tenant's property.
11. Utilities.
11.1 Services Provided by Landlord. Landlord shall provide heating,
ventilation, air conditioning, and janitorial service as reasonably required,
reasonable amounts of electricity for normal lighting and office machines, water
for reasonable and normal drinking and lavatory use, and replacement light bulbs
and/or fluorescent tubes and ballasts for standard overhead fixtures.
11.2 Services Exclusive to Tenant. Tenant shall pay for all water, gas, heat,
light, power, telephone and other utilities and services specially or
exclusively supplied and/or metered exclusively to the Premises or to Tenant,
together with any taxes thereon. If any such services are not separately metered
to the Premises, Tenant shall pay at Landlord's option, either Tenant's Share or
a reasonable proportion to be reasonably determined by Landlord of all charges
jointly metered with other premises in the Building.
11.3 Hours of Service. Said services and utilities shall be provided during
generally accepted business days and hours or such other days or hours as may
hereafter be set forth, Utilities and services required at other times shall be
subject to advance request and reimbursement by Tenant to Landlord of the cost
thereof.
11.4 Excess Usage by Tenant. Tenant shall not make connection to the
utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that causes extra burden upon the
utilities or services, including but not limited to security services, over
standard office usage for the Office Building Project. Landlord shall require
Tenant to reimburse Landlord for any excess expenses or costs that may arise out
of a breach of this subparagraph by Tenant. Landlord may, in its sole
discretion, install at Tenant's expense supplemental equipment and/or separate
metering applicable to Tenant's excess usage or loading.
11.5 Interruptions. There shall be no abatement of rent and Landlord shall
not be liable in any respect whatsoever for the inadequacy stoppage.
interruption or discontinuance of any utility or service due to riot. strike,
labor dispute, breakdown, accident, repair or other cause beyond Landlord's
reasonable control or in cooperation with governmental request or directions.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
12.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in the Lease or in the Premises,
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. Landlord shall respond to Tenant's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a material
default and breach of this Lease without the need for notice to Tenant under
paragraph 13.1. "Transfer" within the meaning of this paragraph 12 shall include
the transfer or transfers aggregating, (a) If Tenant is a corporation, more than
forty-five percent (45%) of the voting stock of such corporation, or (b) if
Tenant is a partnership, more than twenty-five percent (25%) of the profit and
loss participation in such partnership.
12.2 Tenant Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Tenant may assign or sublet the Premises, or any portion thereof,
without Landlord's consent, to any corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from the
merger or consolidation with Tenant, or to any person or entity which acquires
all the assets of Tenant as a going concern of the business that is being
conducted on the Premises, all of which are referred to as "Tenant Affiliate";
provided that before such assignment shall be effective, (a) said assignee shall
assume, in full, the obligations of Tenant under this Lease and (b) Landlord
shall be given written notice of such assignment and assumption. Any such
assignment shall not, in any way, affect or limit the liability of Tenant under
the terms of this Lease even if after such assignment or subletting the terms of
this Lease are materially changed or altered without the consent of Tenant, the
consent of whom shall not be necessary.
12.3 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Landlord's consent, no assignment or subletting shall
release Tenant of Tenant's obligations hereunder or after the primary liability
of Tenant to pay the rent and other sums due Landlord hereunder Including
Tenant's Share of Operating Expense Increase, and to perform all other
obligations to be performed by Tenant hereunder.
(b) Landlord may accept rent from any person other than Tenant pending
approval or disapproval of such assignment.
(c) Neither a delay in the approval or disapproval of such assignment or
subletting, nor the acceptance of rent, shall constitute a waiver or estoppel of
Landlord's right to exercise its remedies for the breach of any of the terms or
conditions of this paragraph 12 or this Lease.
(d) If Tenant's obligations under this Lease have been guaranteed by third
parties, then an assignment or sublease, and Landlord's consent thereto, shall
not be effective unless said guarantors give their written consent to such
sublease and the terms thereof.
(e) The consent by Landlord to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Tenant or to
any subsequent or successive assignment or subletting by the sub-tenant.
However, Landlord may consent to subsequent subletting's and assignments of the
sublease or any amendments or modifications thereto without notifying Tenant or
anyone else liable on the Lease or sublease and without obtaining their consent
and such action shall not relieve such persons from liability under this Lease
or said sublease: however, such persons shall not be responsible to the extent
any such amendment or modification enlarges or increases the obligations of the
Tenant or sub-tenant under this Lease or such sublease.
(f) In the event of any default under this Lease, Landlord may proceed
directly against Tenant, any guarantors or any one else responsible for the
performance of this Lease, including the sub-tenant, without first exhausting
Landlord's remedies against any other person or entity responsible therefor to
Landlord, or any security held by Landlord or Tenant.
(g) Landlord's written consent to any assignment or subletting of the
Premises by Tenant shall not constitute an acknowledgment that no default then
exists under this Lease of the obligations to be performed by Tenant nor shall
such consent be deemed a waiver of any then existing default, except as may be
otherwise stated by Landlord at the time.
(h) The discovery of the fact that any financial statement relied upon by
Landlord in giving its consent to an assignment or subletting was materially
false shall, at Landlord's election, render Landlord's said consent null and
void.
12.4 Additional Terms and Conditions Applicable to Subletting. Regardless of
Landlord's consent, the following terms and conditions shall apply to any
subletting by Tenant of all or any part of the Premises and shall be deemed
included in all subleases under this Lease whether or not expressly incorporated
therein:
(a) Tenant hereby assigns and transfers to Landlord all of Tenant's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Tenant, and Landlord may collect such rent and income and
shall apply same toward Tenant's obligations under this Lease: provided,
however; that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any other
assignment of such sublease to Landlord nor by reason of the collection of the
rents from a sub-tenant, be deemed liable to the sub-tenant for any failure of
Tenant to perform and comply with any of Tenant's obligations to such sub-tenant
under such sublease. Tenant hereby irrevocably authorizes and directs any such
sub-tenant, upon receipt of a written notice from Landlord stating that a
default exists in the performance of Tenant's obligations under this Lease, to
pay to Landlord the rents due and to become due under the sublease. Tenant
agrees that such sub-tenant shall have the right to rely upon any such statement
and request from Landlord; and that such sub-tenant shall pay such rents to
Landlord without any obligation or right to inquire as to whether such default
exists and notwithstanding any notice from or claim from Tenant to the contrary.
Tenant shall have no right or claim against said sub-tenant or Landlord for any
such rents so paid by said sub-tenant to Landlord.
(b) No sublease entered into by Tenant shall be effective unless and until
it has been approved in writing by Landlord. In entering Into any sublease,
Tenant shall use only such form of sub-tenant as is satisfactory to Landlord;
and once approved by Landlord, such sublease shall not be changed or modified
without Landlord's prior written consent. Any sublease shall, by reason of
entering into a sublease under this Lease, be deemed, for the benefit of
Landlord; to have assumed and agreed to conform and comply with each and every
obligation herein to be performed by Tenant other than such obligations as are
contrary to or inconsistent with provisions contained in a sublease to which
Landlord has expressly consented in writing.
(c) In the event Tenant shall default in the performance of its
obligations under this Lease, Landlord at Its option and without any obligation
to do so, may require any sub-tenant to attorn to Landlord, in which event
Landlord shall undertake the obligations of Tenant under such sublease from the
time of the exercise of said option to the termination of such sublease:
provided, however; Landlord shall not be liable for any prepaid rents or
security deposit paid by such sub-tenant to Tenant or for any other prior
defaults of Tenant under such sublease.
(d) No sub-tenant shall further assign or sublet all or any part of the
Premises without Landlord's prior written consent.
(a) With respect to any subletting to which Landlord has consented,
Landlord agrees to deliver a copy of any notice of default by Tenant to the
sub-tenant. Such sub-tenant shall have the right to cure a default of Tenant
within three (3) days after service of said notice of default upon such
sub-Tenant, and the sub-tenant shall have a right of reimbursement and offset
from and against Tenant for any such defaults cured by the sub-tenant.
12.5 Landlord's Expenses. In the event Tenant shall assign or sublet the
Premises or request the consent of Landlord to any assignment or subletting or
If Tenant shall request the consent of Landlord for any act Tenant proposes to
do then Tenant shall pay Landlord's reasonable costs and expenses incurred in
connection therewith, including attorneys, architects, engineers' or other
consultants' fees.
12.6 Conditions to Consent. Landlord reserves the right to condition any
approval to assign or sublet upon Landlord's determination that (a) the proposed
assignee or sub-tenant shall conduct a business on the Premises of a quality
substantially equal to that of Tenant and consistent with the general character
of the other occupants of the Office Building Project and not In violation of
any exclusives or rights then held by other Tenants, and (b) the proposed
assignee or sub-tenant be at least as financially responsible as Tenant was
expected to be at the time of the execution of this Lease or of such assignment
or subletting, whichever Is greater.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
13. Default; Remedies.
13.1Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Tenant:
(a) The vacation or abandonment of the Premises by Tenant. Vacation of the
Premises shall Include the failure to occupy the Premises for a continuous
period of sixty (60) days or more, whether or not the rent Is paid, except where
damage to the Premises prevents such occupancy.
(b) The breach by Tenant of any of the covenants, conditions or provisions
of paragraphs 7.3(a), (b) or (d) (alterations), 12.1 (assignment or subletting),
13.1(a) (vacation or abandonment), 13.1(e) (Insolvency), 13.1(f) (false
statement), 16(a) (estoppel certificate), 30(b) (subordination), 33 (auctions),
or 41.1 (easements), all of which are hereby deemed to be material, non-curable
defaults without the necessity of any notice by Landlord to Tenant thereof.
(c) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, as and when due, where such failure
shall continue for a period of three (3) days after written notice thereof from
Landlord to Tenant. In the event that Landlord serves Tenant with a Notice to
Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice
to Pay Rent or Quit shall also constitute the notice required by this
subparagraph.
(d)The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant
other than those referenced in subparagraphs (b) and (c), above, where such
failure shall continue for a period of thirty (30) days after written notice
thereof from Landlord to Tenant, provided, however, that if the nature of
Tenant's noncompliance is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commenced such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion. To the extent permitted by law, such
thirty (30) day notice shall constitute the sole and exclusive notice required
to be given to Tenant under applicable Unlawful Defamer statutes.
(e) (i) The making by Tenant of any general arrangement or general
assignment for the benefit of creditors; (ii) Tenant becoming a "debtor" as
defined in 11 U.S.C. ss.101 or any successor statute thereto (unless, in the
case of a petition filed against Tenant, the same is dismissed within sixty (60)
days. (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days, or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. In the event that any provision of this paragraph 13.1(e) is contrary to
any applicable law, such provision shall be of no force or effect.
(f) The discovery by Landlord that any financial statement given to
Landlord by Tenant, or its successor in interest or by any guarantor of Tenant's
obligation hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of this Lease
by Tenant, Landlord may at any time thereafter; with notice or demand and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default:
(a) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease and the term hereof shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. In such
event Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of re-letting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
Tenant loss for the same period that Tenant proves could be reasonably avoided;
that portion of the leasing commission paid by Landlord pursuant to paragraph 15
applicable to the unexpired term of this Lease.
(b) Maintain Tenant's right to possession in which case this Lease shall
continue in effect whether or not Tenant shall have vacated or abandoned the
Premises. In such event Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state wherein the Premises are located.
Unpaid installments of rent and other unpaid monetary obligations of Tenant
under the terms of this Lease shall bear interest from the date due at the
maximum rate the allowable by law.
13.3 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 theretofore been furnished to Tenant
In writing, specifying wherein Landlord has failed to perform such obligation;
provided, however, that If the nature of Landlords obligation is such that more
than thirty (30) days are required for performance then Landlord shall not be in
default if Landlord commences performance within such 30-day period and
thereafter diligently pursues the same to completion.
13.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant to
Landlord of Base Rent, Tenant's Share of Operating Expense Increase or other
sums due hereunder will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges, and
late charges which may be imposed on Landlord by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly If any installment
of Base Rent, Operating Expense Increase, or any other sum due from Tenant shall
not be received by Landlord or Landlords designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to 6% of such overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof or the Office Building
Project are taken under the power of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs; provided that if so
much of the Premises or the Office Building Project are taken by such
condemnation as would substantially and adversely affect the operation and
profitability of Tenant's business conducted from the Premises, Tenant shall
have the option, to be exercised only in writing within thirty (30) days after
Landlord shall have given Tenant written notice of such taking (or in the
absence of such notice, within thirty (30) days after the condemning authority
shall have taken possession), to terminate this Lease as of the date the
condemning authority takes such possession. If Tenant does not terminate this
Lease In accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the rent and
Tenant's Share of Operating Expense Increase shall be reduced in the proportion
that the floor area of the Premises taken bears to the total floor area of the
Premises. Common Areas taken shall be excluded from the Common Areas usable by
Tenant and no reduction of rent shall occur with respect thereto or by reason
thereof. Landlord shall have the option In its sole discretion to terminate this
Lease as of the taking of possession of the Premises by the condemning
authority, by giving written notice to Tenant of such election within thirty
(30) days after receipt of notice of a taking by condemnation of any part of the
Premises or the Office Building Project. Any award for the taking of all or any
part of the Premises or the Office Building Project under the power of eminent
domain or any payment made under threat of the exercise of such power shall be
the property of Landlord. whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however; that Tenant shall be entitled to any
separate award for loss of or damage to Tenant's business, trade fixtures,
removable personal property and unamortized Tenant improvements that have been
paid for by Tenant. For that purpose the cost of such improvements shall be
amortized over the original term of this Lease excluding any options. In the
event that this Lease Is not terminated by reason of such condemnation, Landlord
shall to the extent of severance damages received by Landlord In connection with
such condemnation, repair any damage to the Premises caused by such condemnation
except to the extent that Tenant has been reimbursed therefor by the condemning
authority. Tenant shall pay any amount in excess of such severance damages
required to complete such repair.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
15. Broker's Fee.
(a) The brokers involved in this transaction are --(none)--
as "listing broker" and --(none)--as "cooperating broker:'
licensed real estate broker(s). A "cooperating broker" is defined as any broker
other than the listing broker entitled to a share of any commission arising
under this Lease. Upon execution of this Lease by both parties, Landlord shall
pay to said brokers jointly, or In such separate shares as they may mutually
designate in writing, a fee as set forth in a separate agreement between
Landlord and said broker(s), or In the event there Is no separate agreement
between Landlord and said broker(s), the sum of $ (N/A) for brokerage services
rendered by said broker(s) to Landlord in this transaction.
(b) Landlord further agrees that (I) if Tenant exercises any Option, as
defined In paragraph 39.1 of this Lease, which Is granted to Tenant under this
Lease, or any subsequently granted option which Is substantially similar loan
Option granted to Tenant under this Lease, or (II) If Tenant acquires any rights
to the Premises or other premises described In this Lease which are
substantially similar to what Tenant would have acquired had an Option herein
granted to Tenant been exercised, or (iii) if Tenant remains In possession of
the Premises after the expiration of the term of this Lease after having failed
to exercise an Option, or (iv) if said broker(s) are the procuring cause of any
other lease or sale entered into between the parties pertaining to the Premises
and/or any adjacent property In which Landlord has an Interest, or (v) If the
Base Rent is Increased, whether by agreement or operation of an escalation
clause contained herein, then as to any of said transactions or rent increases,
Landlord shall pay said broker(s) a fee in accordance with the schedule of said
broker(s) In effect at the time of execution of this Lease. Said fee shall be
paid at the time such increased rental is determined.
(c) Landlord agrees to pay said fee not only on behalf of Landlord but also
on behalf of any person, corporation, association, or other entity having an
ownership Interest in said real property or any part thereof, when such fee Is
due hereunder. Any transferee of Landlord's Interest In this Lease, whether such
transfer is by agreement or by operation of law shall be deemed to have assumed
Landlord's obligation under this paragraph 15. Each listing and cooperating
broker shall be a third party beneficiary of the provisions of this paragraph 15
to the extent of their Interest in any commission arising under this Lease and
may enforce that right directly against Landlord; provided, however, that all
brokers having a right to any part of such total commission shall be necessary
party to any suit with respect thereto.
(d) Tenant and Landlord each represent and warrant to the other that neither
has had any dealings with any person, firm, broker or finder (other than the
person(s), if any, whose names are set forth In paragraph 15(a), above) in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and no other broker or other person, firm or
entity is entitled to any commission or finder's fee In connection with said
transaction and Tenant and Landlord do each hereby indemnify and hold the other
harmless from and against any costs, expenses, attorneys' fees or liability for
compensation or charges which may be claimed by any such unnamed broker; finder
or other similar party by reason of any dealings or actions of the indemnifying
party.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not less than
fifteen (15) days' prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party a statement in
writing (i) certifying that this Lease Is unmodified and in full force and
effect (or, If modified; stating the nature of such modification and certifying
that this Lease, as so modified, Is In full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the responding party's knowledge, any
uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective purchaser or encumbrancer of the Office Building Project or
of the business of Tenant.
(b) At the requesting party's option, the failure to deliver such statement
within such time shall be a material default of this Lease by the party who is
to respond, without any further notice to such party, or it shall be conclusive
upon such party that (i) this Lease is in full force and effect, without
modification except as may be represented by the requesting party, (ii) there
are no uncured defaults in the requesting party's performance, and (iii) if
Landlord is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Landlord desires to finance, refinance, or sell the Office Building
Project, or any pad thereof, Tenant hereby agrees to deliver to any lender or
purchaser designated by Landlord such financial statements of Tenant as maybe
reasonably required by such lender or purchaser Such statements shall include
the past three (3) years' financial statements of Tenant. All such financial
statements shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. Landlord's Liability. The term "Landlord" as used herein shall mean only the
owner or owners, at the time in question, of the fee title or a Tenant's
interest in a ground lease of the Office Building Project, and except as
expressly provided in paragraph 15, in the event of any transfer of such title
or interest, Landlord herein named (and in case of any subsequent transfers then
the grantor) shall be relieved from and after the date of such transfer of all
liability as respects Landlord's obligations thereafter to be performed,
provided that any funds In the hands of Landlord or the then grantor at the time
of such transfer; in which Tenant see has an interest, shall be delivered to the
grantee, The obligations contained in this Lease to be performed by Landlord
shall subject as aforesaid, be binding on Landlord's successors and assigns,
only during their respective periods of ownership.
18. Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction shall In no way affect the
validity of any other provision hereof,
19. Interest on Past-due Obligations. Except as expressly herein provided, any
amount due to Landlord not paid when due shall bear interest at the maximum rate
then allowable by law or judgments from the date due, Payment of such interest
shall not excuse or cure any default by Tenant under this Lease; provided,
however, that interest shall not be payable on late charges incurred by Tenant
nor on any amounts upon which late charges are paid by Tenant.
20. Time of Essence. Time is of the essence with respect to the obligations to
be performed under this Lease,
21. Additional Rent. All monetary obligations of Tenant to Landlord under the
terms of this Lease, Including but not limited to Tenant's Share of Operating
Expense Increase and any other expenses payable by Tenant hereunder shall be
deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified In writing only, signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this Lease, Tenant hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction nor
the Landlord or any employee or agents of any of said persons has made any oral
or written warranties or representations to Tenant relative to the condition or
use by Tenant of the Premises or the Office Building Project and Tenant
acknowledges that Tenant assumes all responsibility regarding the Occupational
Safety Health Act, the legal use and adaptability of the Premises and the
compliance thereof with all applicable laws and regulations in effect during the
term of this Lease.
23. Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified or registered mail
or by overnight delivery service, and shall be deemed sufficiently given if
delivered or addressed to Tenant or to Landlord at the address noted below or
adjacent to the signature of the respective parties, as the case may be. Mailed
notices shall be deemed given upon actual receipt at the address required, or
forty-eight hours following deposit in the mail, postage prepaid, whichever
first occurs. Either party may by notice to the other specify a different
address for notice purposes except that upon Tenant's taking possession of the
Premises, the Premises shall constitute Tenant's address for notice purposes. A
copy of all notices required or permitted to be given Landlord hereunder shall
be concurrently transmitted to such party or parties at such addresses as
Landlord may from time to time hereafter designate by notice to Tenant.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
24. Waivers. No waiver by either party of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. A party's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of that party's consent
to or approval of any subsequent act by Tenant. The acceptance of rent hereunder
by Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach, at the
time of acceptance of such rent.
25. Recording. Either Landlord or Tenant shall, upon request of the other;
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
26. Holding Over. If Tenant, without Landlord's consent, remains in possession
of the Premises or any part thereof after the expiration of the term hereof,
such occupancy shall be a tenancy from month to month upon all the provisions of
this Lease pertaining to the obligations of Tenant, except that the rent payable
shall be two hundred percent (200%) of the rent payable immediately preceding
the termination date of this Lease, and all Options, if any, granted under the
terms of this Lease shall be deemed terminated and be of no further effect
during said month to month tenancy.
27. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
28. Covenants and Conditions. Each provision of this Lease performable by Tenant
shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof restricting
assignment or subletting by Tenant and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
30. Subordination.
(a) This Lease, and any Option or right of first refusal granted hereby, at
Landlord's option, shall be subordinate to any ground lease, mortgage, deed of
trust, or any other hypothecation or security now or hereafter placed upon the
Office Building Project and to any and all advances made on the security thereof
and to all renewals, modifications, consolidations, replacements and extensions
thereof, notwithstanding such subordination, Tenant's right to quiet possession
of the Premises shall not be disturbed if Tenant is not in default and so tong
as Tenant shall pay the rent and observe and perform all of the provisions of
this Lease, unless this Lease is otherwise terminated pursuant to Its terms, if
any mortgagee, trustee or ground Landlord shall elect to have this Lease and any
Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Tenant, this Lease and
such Options shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease or such Options are dated prior or subsequent to the
date of said mortgage, deed of trust or, ground lease or the date of recording
thereof.
(b) Tenant agrees to execute any documents required to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be, Tenant's failure to execute such documents within fifteen (15) days
after written demand shall constitute a material default by Tenant hereunder
without further notice to Tenant or; at Landlord's option, Landlord shall
execute such documents on behalf of Tenant as Tenant's attorney-in-fact, Tenant
does hereby make, constitute and irrevocably appoint Landlord as Tenant's
attorney-In-fact and In Tenant's name, place and stead, to execute such
documents in accordance with this paragraph 30(b).
31. Attorneys' Fees.
31.1 If either party or the broker(s) named herein bring an action to enforce
the terms hereof or declare rights hereunder; the prevailing party in any such
action, trial or appeal thereon, shall be entitled to his reasonable attorneys'
fees to be paid by the losing party as fixed by the court in the same or a
separate suit, and whether or not such action is pursued to decision or
judgment. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder,
31.2 The attorneys' fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably Incurred in good faith,
31.3 Landlord shall be entitled to reasonable attorneys' fees and all other
costs and expenses incurred In the preparation and service of notice of default
and consultations in connection therewith, whether or not a legal transaction is
subsequently commenced in connection with such default.
32. Landlord's Access.
32.1 Landlord and Landlord's agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting the same, performing
any services required of Landlord, showing the same to prospective purchasers,
lenders, or Tenants, taking such safety measures, erecting such scaffolding or
other necessary structures, making such alterations, repairs, improvements or
additions to the Premises or to the Office Building Project as Landlord may
reasonably deem necessary or desirable and the erecting, using and maintaining
of utilities, services, pipes and conduits through the Premises and/or other
premises as long as there is no material adverse effect to Tenant's use of the
Premises. Landlord may at any time place on or about the Premises or the
Building any ordinary "For Sale" signs and Landlord may at any time during the
last 120 days of the term hereof place on or about the Premises any ordinary
"For Lease" signs,
32.2 All activities of Landlord pursuant to this paragraph shall be without
abatement of rent, nor shall Landlord have any liability to Tenant for the same.
32.3 Landlord shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and safes,
and in the case of emergency to enter the Premises by any reasonably appropriate
means, and any such entry shall not be deemed a forceable or unlawful entry or
detainer of the Premises or an eviction. Tenant waives any charges for damages
or injuries or interference with Tenant's property business in connection
therewith.
33. Auctions. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas
without first having obtained Landlord's prior written consent. Notwithstanding
anything to the contrary in this Lease, Landlord shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent. The holding of any auction on the Premises or Common Areas in violation
of this paragraph shall constitute a material default of this Lease.
34. Signs. Tenant shall not place any sign upon the Premises or the Office
Building Project without Landlord's prior written consent. Under no
circumstances shall Tenant place a sign on any roof or windows of the Office
Building Project.
35. Merger. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord; shall not work a
merger; and shall, at the option of Landlord; terminate all or any existing
sub-tenancies or may, at the Option of Landlord; operate as an assignment to
Landlord of any or all of such sub-tenancies.
36. Consents. Except for paragraphs 33 (auctions) and 34 (signs) hereof,
wherever in this Lease the consent of one party is required to an act of the
other party such consent shall not be unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Tenant under this Lease.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
38. Quiet Possession. Upon Tenant paying the rent for the Premises and observing
and performing all of the covenants, conditions and provisions on Tenant's part
to be observed and performed hereunder; Tenant shall have quiet possession of
the Premises for the entire term hereof subject to all of the provisions of this
Lease. The individuals executing this Lease on behalf of Landlord represent and
warrant to Tenant that they are fully authorized and legally capable of
executing this Lease on behalf of Landlord and that such execution is binding
upon all parties holding an ownership interest in the Office Building Project.
39. Options.
39.1Definition. As used in this paragraph the word "Option" has the following
meaning: (a) the right or option to extend the term of this Lease or to extend
or renew any lease that Tenant has on other property of Landlord: (b) the option
of right of first refusal to lease the Premises or the right of first offer to
lease the Premises or the right of first refusal to lease other space within the
Office Building Project or other property of Landlord or the right of first
offer to lease other space within the Office Building Project or other property
of Landlord: (c) the right or option to purchase the Premises or the Office
Building Project, or the right of first refusal to purchase the Premises or the
Office Building Project or the right of first offer to purchase the Premises or
the Office Building Project, or the right or option to purchase other property
of Landlord, or the right of first refusal to purchase other property of
Landlord or the right of first offer to purchase other property of Landlord.
39.2 Options Personal. Each Option granted to Tenant in this Lease is
personal to the original Tenant and may be exercised only by the original Tenant
while occupying the Premises who does so without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be exercised or be assigned, voluntarily or involuntarily, by or to any
person or entity other than Tenant: provided, however; that an Option may be
exercised by or assigned to any Tenant Affiliate as defined in paragraph 12.2 of
this Lease. The Options, if any, herein granted to Tenant are not assignable
separate and apart from this Lease, nor may any Option be separated from this
Lease in any manner; either by reservation or otherwise.
39.3 Multiple Options. In the event that Tenant has any multiple options to
extend or renew this Lease a later option cannot be exercised unless the prior
option to extend or renew this Lease has been so exercised.
39.4 Effect of Default on Options.
(a) Tenant shall have no right to exercise an Option, notwithstanding any
provision in the grant of Option to the contrary, (i) during the time commencing
from the date Landlord gives to Tenant a notice of default pursuant to paragraph
13.1(c) or 13.1(d) and continuing until the noncompliance alleged in said notice
of default is cured, or (ii) during the period of time commencing on the day
after a monetary obligation to Landlord is due from Tenant and unpaid (without
any necessity for notice thereof to Tenant) and continuing until the obligation
is paid, or (iii) In the event that Landlord has given to Tenant three or more
notices of default under paragraph 13.1(c), or paragraph 13.1(d), whether or not
the defaults are cured, during the 12 month period of time immediately prior to
the time that Tenant attempts to exercise the subject Option, (iv) If Tenant has
committed any non-curable breach, including without limitation those described
in paragraph 13.1(b). or is otherwise In default of any of the terms. covenants
or conditions of this Lease.
(b) The period of time with which an Option may be exercised shall not be
extended or enlarged by reason of Tenant's inability to exercise an Option
because of the provisions of paragraph 39.4(a).
(c) All rights of Tenant under the provisions of an Option shall terminate
and be of no further force or effect, notwithstanding Tenant's due and timely
exercise of the Option, if, after such exercise and during the term of this
Lease. (i) Tenant fails to pay to Landlord a monetary obligation of Tenant for a
period of thirty (30) days after such obligation becomes due (without any
necessity of Landlord to give notice thereof to Tenant), or (ii) Tenant fails to
commence to cure a default specified in paragraph 13.1(d) within thirty (30)
days after the date that Landlord gives notice to Tenant of such default and/or
Tenant fails thereafter to diligently prosecute said cure to completion, or
(iii) Landlord gives to Tenant three or more notices of default under paragraph
13.1(c), or paragraph 13.1(d), whether or not the defaults are cured, or (iv) if
Tenant has committed any non-curable breach, including without limitation those
described in paragraph 13.1(b), or is otherwise in default of any of the terms,
covenants and conditions of this Lease.
40. Security Measures-Landlord's Reservations.
40.1 Tenant hereby acknowledges that Landlord shall have no obligation
whatsoever to provide guard service or other security measures for the benefit
of the Premises or the Office Building Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, and invitees and the
property of Tenant and of Tenant's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Landlord, at Landlord's sole
option, from providing security protection for the Office Building Project or
any part thereof, in which event the cost thereof shall be included within the
definition of Operating Expenses, as set forth in paragraph 4.2(b).
40.2 Landlord shall have the following rights:
(a) To change the name, address or title of the Office Building Project or
building In which the Premises are located upon not less than 90 days prior
written notice:
(b) To, at Tenant's expense, provide and install Building standard
graphics on the door of the Premises and such portions of the Common Areas as
Landlord shall reasonably deem appropriate:
(c) To permit any Tenant the exclusive right to conduct any business as
long as such exclusive does not conflict with any rights expressly given herein:
(d) To place such signs, notices or displays as Landlord reasonably deems
necessary or advisable upon the roof, exterior of the buildings or the Office
Building Project or on pole signs In the Common Areas:
40.3 Tenant shall not:
(a) Use a representation (photographic or otherwise) of the Building or
the Office Building Project or their name(s) in connection with Tenant's
business:
(b) Suffer or permit anyone, except in emergency, to go upon the roof of
the Building.
41. Easements.
41.1 Landlord reserves to Itself the right, from time to time, to grant such
easements, rights and dedications that Landlord deems necessary or desirable,
and to cause the recordation of Parcel Maps and restrictions, so long as such
easements, rights, dedications, Maps end restrictions do not unreasonably
interfere with the use of the Premises by Tenant. Tenant shall sign any of the
aforementioned documents upon request of Landlord and failure to do so shall
constitute a material default of this Lease by Tenant without the need for
further notice to Tenant.
41.2 The obstruction of Tenant's view air; or light by any structure erected
in the vicinity of the Building, whether by Landlord or third parties, shall in
no way affect this Lease or impose any liability upon Landlord.
42. Performance Under Protest.. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of said party to institute suit for recovery of such sum. if it shall be
adjudged that there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as It was not legally required to pay under the provisions of
this Lease.
Landlord Initials:____________
FULL SERVICE - GROSS
Tenant Initials:____________
43. Authority. If Tenant is a corporation, trust, or general or limited
partnership, Tenant, and each individual executing this Lease on behalf of such
entity represent and warrant that such individual is duly authorized to execute
and deliver this Lease on behalf of said entity. If Tenant is a corporation,
trust or partnership, Tenant shall, within thirty (30) days after execution of
this Lease, deliver to Landlord evidence of such authority satisfactory to
Landlord, if requested in writing by Landlord.
44. Conflict. Any conflict between the printed provisions, Exhibits or Addenda
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
45. No Offer. Preparation of this Lease by Landlord or Landlord's agent and
submission of same to Tenant shall not be deemed an offer to Tenant to lease.
This Lease shall become binding upon Landlord and Tenant only when fully
executed by both parties.
46. Lender Modification. Tenant agrees to make such reasonable modifications to
this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.
47. Multiple Parties. If more than one person or entity is named as either
Landlord or Tenant herein, except as otherwise expressly provided herein, the
obligations of the Landlord or Tenant herein shall be the joint and several
responsibility of all persons or entities named herein as such Landlord or
Tenant, respectively.
48. Work Letter. This Lease is supplemented by that certain Work Letter of even
date executed by Landlord and Tenant, attached hereto as Exhibit D, and
incorporated herein by this reference.
49. Attachments. Attached hereto, including the Addendum, are the following
documents constitute a part of this Lease:
Exhibit "A" Property Description
Exhibit "B" Floor Plans
Exhibit "B-1" Demised Premises
Exhibit "C" Rules & Regulations
Exhibit "D" Work Letter Agreement
Exhibit "D-1" Space Plan
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND , BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION
TO YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES
AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF
THIS LEASE OR THE TRANSACTION RELATING THERETO; THE PARTIES SHALL
RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE
LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
LANDLORD: TENANT:
STEVENS CREEK OFFICE CENTER EXCALIBUR TECHNOLOGIES CORPORATION
OF SANTA CLARA a Delaware corporation
By /s/Louie P. Tersini By /s/James H. Buchanan
-------------------- --------------------
Louie P. Tersini James H. Buchanan
Owner
Its Chief Financial Officer
Federal Tax I.D. #85-0278207
Exhibit "A"
Property Description
All that certain property situated in the City of Santa Clara, County of Santa
Clara, State of California, described as follows:
Parcel One:
Parcel 1, as shown on that certain map entitled, "Parcel Map of a portion of the
Quito Rancho for Red Barn Systems, Inc., Santa Clara California," filed for
record June 16, 1969, in Book 255 of Maps, at Page 16, Santa Clara Records.
Parcel Two:
Easement and right of way for the purpose of accessibility in the case of
service or emergency over a strip of land 20 feet in width lying westerly of and
contiguous to the Westerly boundary of Board of the Southern Baptist Convention,
a Texas corporation, to Paul H. Magnuson, recorded July 16, 1982 in Book G905,
Page 327 of Official Records.
APN#: 296-21-008
Exhibit "B"
FLOOR PLAN
THIS EXHIBIT is made this 1st day of July ,1997, by and between STEVENS CREEK
OFFICE CENTER OF SANTA CLARA, ("Landlord"), and, EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation, ("Tenant").
Exhibit "B-1"
DEMISED PREMISES
THIS EXHIBIT is made this 1st day of July ,1997, by and between STEVENS CREEK
OFFICE CENTER OF SANTA CLARA, ("Landlord"), and, EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation, ("Tenant").
Exhibit "C"
RULES and REGULATIONS
THIS EXHIBIT is made this 1st day of July ,1997, by and between STEVENS CREEK
OFFICE CENTER OF SANTA CLARA, ("Landlord"), and, EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation, ("Tenant").
Landlord and Tenant agree that the following Rules and Regulations shall be and
hereby are made a part of this Lease, and Tenant agrees that Tenant's employees
and agents, or any others permitted by Tenant to occupy or enter the Premises,
will at all times abide by said Rules and Regulations:
GENERAL RULES
1. The sidewalks, entries, passages, corridors, stairways and elevators of the
Building shall not be obstructed by Tenant, or Tenant's agents or employees, or
used for any purpose other than ingress to and egress from the Premises.
2. Furniture, equipment or supplies will be moved in or out of the Building only
upon the elevator designated by Landlord and then only during such hours and in
such manner as may be prescribed by Landlord and upon no less than forty-eighty
(48) hours prior notice to Landlord. Landlord shall have the right to approve or
disapprove the movers or moving company employed by Tenant. Tenant shall cause
its ,movers to use only the ;loading facilities and elevator designated by
Landlord. In the event Tenant's movers damage the elevator or any part of the
Building, Tenant shall forthwith pay to Landlord the amount required to repair
said damage. Tenant shall insure that deliveries of materials and supplies to
the Premises are made through such entrances, elevators and corridors and at
such times as may from time to time be designated by Landlord, and shall
promptly pay or cause to be paid to Landlord the costs of repairing any damage
in or to the Building or Building Complex caused by any person making such
deliveries.
3. All removals, or the carrying in or out of any safes, freight, furniture,
construction material, bulky matter or heavy equipment of any description must
take place during the hours which Landlord or its agent may determine from time
to time. Landlord reserves the fight to prescribe the weight and position of all
safes, which must be placed upon two-inch thick plank strips to distribute the
weight. The moving of safes, freight, furniture, fixtures, bulky matter or heavy
equipment of any kind must be made upon previous notice to the Building Manager
and in a manner and at times prescribed by same, and the persons employed y
Tenant for such work are subject to Landlord's prior approval. Landlord reserves
the right to inspect all safes, freight or other bulky articles to be brought in
the Building, and to exclude from the Building all safes, freight or other bulky
articles which violate any of these Rules and Regulations or the Lease of which
these Rules and Regulations a part.
4. During the entire term of this Lease, Tenant shall, at Tenant's expense
install and maintain under each and every caster chair a vinyl chair pad to
protect the carpeting.
5. No sign, advertisement, notice, lettering, decoration or other thing shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside or
inside of the Premises or of the Building, without the prior written consent of
Landlord. In the event of the violation of the foregoing by Tenant, Landlord may
remove same without any liability, and may charge the expense incurred by such
removal to Tenant.
6. Tenant shall not do or permit anything to be done in the Premises, or bring
or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property kept therein, constitute a nuisance or
waste, or obstruct or interfere with the rights of other Tenants, or in any way
injure or annoy them, or conflict with any of the rules or ordinances of the
Fire Department or of the Department of Health of the City and County where the
Building is located.
7. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rages or other substances shall be thrown therein. All damages
resulting from any misuse of the fixtures shall be borne by Tenant to the extent
that Tenant or Tenant's agents, servants, employees, contractors, visitors or
licensees shall have caused the same.
8. No animal or bird of any kind shall be brought into or kept in or about the
Premises or the Building, except seeing-eye dogs or other seeing-eye animals.
9. No vehicles, including bicycles, shall be permitted in the offices, halls,
corridors, and elevators in the Building nor shall any vehicles by permitted to
obstruct the sidewalks or entrances of the Building.
10. Tenant shall not make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with occupants of the building, or those having
business with them. Tenant shall not throw anything out of the doors, windows or
skylights or down the passageways.
11. Neither Tenant nor any of Tenant's agents, servants, employees, contractors,
visitors or licensees shall at any time bring or keep upon the Premises any
flammable, combustible or explosive fluid, chemical or substance.
12. No additional locks, bolts or mail slots of any kind shall be placed upon
any of the doors or windows by Tenant, nor shall any change be made in existing
locks or the mechanism thereof. Tenant must, upon the termination of the
tenancy, restore to Landlord all keys of stores, offices, toilet rooms and mail
box, either furnished to, or otherwise procured by Tenant, and in the event of
the loss of any keys so furnished, Tenant shall pay to Landlord the cost
thereof.
13. No window shades, blinds, screens, draperies or other window coverings will
be attached or detached by Tenant without Landlord's prior written consent.
Tenant agrees to abide by Landlord's rules with respect to maintaining uniform
curtains, draperies and/or linings at all windows and hallways.
14. No awnings shall be placed over any window.
15. If Tenant desires telegraphic, telephonic, telecommunications or other
similar connections, Landlord or Landlord's agent will designate the location of
such installations. Any such installation and connection shall be made at
Tenant's expense.
16. Any painting or decorating as may be agreed to be done by and at the expense
of Landlord hall be done during regular weekday working hours. Should Tenant
desire such work on Saturdays, Sundays, holidays or outside or regular working
hours, Tenant shall pay for the extra cost thereof. Tenant shall carry out
Tenant's repair, maintenance, alterations and improvements in the Premises only
during times agreed to in advance by Landlord and in a manner which will not
interfere with the rights of other Tenants in the Building.
17. Except as permitted by Landlord or except for normal office decorating,
Tenant shall not mark upon, paint signs upon, cut, drill into, drive nails or
screws into, or in any way deface the walls, ceilings, partitions or floors of
the Premises or of the Building, and any defacement, damage or injury caused by
Tenant, Tenant's agents or employees, shall be paid for by Tenant.
18. No water cooler, air conditioning unit or system or other apparatus shall be
installed or used by Tenant without the written consent of Landlord.
19. Canvassing, soliciting and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
20. Landlord shall at all times have the right, by Landlord's representatives or
agents, to enter the Premises and show the same to persons wishing to lease
them, and may, at any time within sixty (60) days preceding the termination of
Tenant's Lease term, place upon the doors and windows of the Premises a "For
Rent" sign, which notice shall not be removed by Tenant.
21. Tenant shall not obstruct or interfere with the rights of other Tenants of
the Building, or of persons having business in the Building, or in any way
injure or annoy such Tenants or persons.
22. Tenant shall not commit any act or permit anything in or about the Building
which shall or might subject Landlord to any liability or responsibility for
injury to any person or property by reason of any business or operation being
carried on in or bout the Building or for any other reason.
23. Tenant shall not use the Building for lodging, sleeping, cooking, or for any
immoral or illegal purpose or for any purpose that will damage the Building, or
the reputation thereof, or for any purposes other than those specified in the
Lease.
24. Tenant shall not bring any Hazardous Materials onto the Premises except for
those which are in general commercial use and are incidental to Tenant's
business office operations and only in quantities suitable for immediate use.
25. Smoking is prohibited in all enclosed Common Areas of the Building,
including, without limitation, the main lobby, atrium, all hallways, all
elevators, all elevator lobbies, all restrooms and the parking structure.
26. Landlord reserves the right to close and lock the Building on Saturdays,
Sundays and legal holidays, and on any other days between the hours of 6:30 p.m.
and of 6:30 a.m. of the following day. If Tenant uses the Premises during such
periods, Tenant shall be responsible for securely locking any doors it may have
opened for entry.
PARKING RULES
1. Parking areas shall be used only for parking vehicles no longer than full
size, passenger automobiles herein called "Permitted Size Vehicles". Vehicles
other that Permitted Size Vehicles are herein referred to as "Oversized
Vehicles".
2. Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, agents, suppliers, shippers,
customers or invitees to be loaded, unloaded, or parked in areas other than
those designated by Landlord for such activities.
3. Landlord reserves the right to relocate all or a part of parking spaces from
floor to floor, within one floor, and/or to reasonably adjacent offsite
location(s), and to reasonably allocate them between compact and standard size
spaces, as long as the same complies with applicable laws, ordinances and
regulations.
4. Users of the parking area will obey all posted signs and park only in the
areas designated for vehicle parking.
5. Landlord will not be responsible for any damage to vehicles, injury to
persons or loss of property, all of which risks are assumed by the party using
the parking area.
6. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure or Common Areas is strictly prohibited.
7. Tenant shall be responsible for seeing that all of its employees, agents and
invitees comply with the applicable parking rules, regulations, laws and
agreements.
8. Landlord reserves the right to modify these rules and/or adopt such other
reasonable and on discriminatory rules and regulations as it may deem necessary
for the proper operation of the parking area.
9. Such parking use as is herein provided is intended merely as a license only
and no bailment is intended or shall be created hereby.
Landlord Initials:___________
Tenant Initials:___________
Exhibit "D"
WORK LETTER AGREEMENT
THIS EXHIBIT is made this 1st day of July ,1997, by and between STEVENS CREEK
OFFICE CENTER OF SANTA CLARA, ("Landlord"), and, EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation, ("Tenant").
1. Landlord shall, at Landlord's expense, complete the construction of the
improvements to the Premises as described and delineated in the space plans
attached hereto as Exhibit "D-1" and in accordance with the building standards.
Landlord shall cause to be prepared final drawings for the Tenant Improvements
that are consistent with the space plans and the building standards. As soon as
such Construction Drawings are completed, Landlord shall deliver the same to
Tenant. Such Constriction Drawings shall be reviewed and approved by Tenant
within three (3) business days after delivery by Landlord and four (4) copies of
such Construction Drawings shall be initialed and dated by Landlord and Tenant.
2. Tenant shall be solely responsible for the suitability for the Tenant's needs
and business of the design and function of the Tenant Improvements. Tenant shall
also be responsible for procuring or installing in the Premises any trade
fixtures, equipment, furniture, furnishings, telephone equipment or other
personal property to be used in the Premises by Tenant, and the cost of such
personal property shall be paid by Tenant. Tenant shall conform to the Building
wiring standards in installing any telephone equipment and shall be subject to
any and all rules of the site construction.
3. If Tenant shall request any change, addition or alteration in the plans, the
building standards or the approved Construction Drawings, Landlord shall
promptly give Tenant a written estimate of (a) the cost of engineering and
design services to prepare a change order ("Change Order") in accordance with
such request, (b) the cost of the work to be performed pursuant to such Change
Order, and (c) the time delay expected because of such requested Change Order>
Within three (3) business days following Tenant's receipt of the foregoing
written estimate, Tenant shall notify Landlord in writing whether it approves
such written estimate. If Tenant approves such written estimate, Tenant shall
accompany such approval with a good check made payable to Landlord in the amount
of the estimated cost of preparing the Change Order and performing the work
thereof, and the foregoing shall constitute Landlord's authorization to proceed.
If such written authorization and check are not received by Landlord within such
three (3) business days period, Landlord shall not be obligated to prepare the
Change Order or perform any work in connection therewith. Upon completion of the
work of the Change Order and submission of the final cost thereof by Landlord to
Tenant, Tenant shall promptly pay any such additional amounts due Landlord; any
savings shall, at Landlord's option, either by refunded to Tenant or credited
against any other Change Order sums which are due Landlord by Tenant.
4. If the completion of the Tenant Improvements in the Premises is delayed (i)
at the request of Tenant, (ii) by Tenant's failure to comply with the foregoing
provisions, (iii) by changes in the work requested (whether or not Tenant
authorizes Landlord to proceed therewith) or ordered by Tenant or by extra work
ordered by Tenant, or (iv) because Tenant chooses to have additional work
performed by Landlord, then Tenant shall be responsible for all limitation, any
costs and expenses attributable to increases in labor or materials, and there
shall be no delay in the commencement of Tenant's obligation to pay Rent if the
completion of the Tenant Improvements is delayed as a result of the foregoing.
5. Landlord and Tenant agree that the Tenant Improvements shall be completd in
three (3) phases, subject to the expansion space commencement dates. Suite 230
will be completed within forty-five days (45) following Tenants occupancy of
Suites 220 and 224, pursuant to Section 3.2 of the Lease.
IN WITNESS WHEREOF, the parties have executed this Work Letter Agreement this
9th day of July, 1997.
LANDLORD: TENANT:
STEVENS CREEK OFFICE CENTER EXCALIBUR TECHNOLOGIES CORPORATION.
OF SANTA CLARA a Delaware corporation
By:/s/Louie P. Tersini By: /s/James H. Buchanan
---------------------- -------------------------
Louie P. Tersini Its: Chief Financial Officer
Owner
Exhibit "D - 1"
SPACE PLAN
THIS EXHIBIT is made this 1st day of July ,1997, by and between STEVENS CREEK
OFFICE CENTER OF SANTA CLARA, ("Landlord"), and, EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation, ("Tenant").
ADDENDUM
THIS ADDENDUM TO LEASE is made this 1st day of July ,1997, by and between
STEVENS CREEK OFFICE CENTER OF SANTA CLARA, ("Landlord"), and, EXCALIBUR
TECHNOLOGIES CORPORATION, a Delaware corporation, ("Tenant").
50. Base Rent: Tenant shall pay to Landlord "Base Rent" for the Premises,
Suite #230, as follows:
Months 1 - 12 $2,276.30 per month, $27,315.60 per annum
Months 13 - 24 $2,343.25 per month, $28,119.00 per annum
Months 25 - 36 $2,410.20 per month, $28,922.40 per annum
Total rent obligation is $84,357.00, pursuant to the terms and conditions of
paragraph 4.3, hereinabove.
51.Expansion Space: Landlord and Tenant have mutually agreed that Tenant shall
lease Premises known as Suite #220 and #224, following the expiration of the
current Tenant's, in possession, lease agreements, i.e., July 31, 1997 and
October 31, 1997, respectively. The Expansion Space commencement date shall
be the earlier of (i) the date Tenant occupies the Expansion space, or (ii)
the date on which Substantial Completion of the expansion space improvements
has been achieved. For purposes of the Addendum, the term "Substantial
Completion" shall mean the date upon which Landlord's General Contractor has
issued a notice of substantial completion with respect to the Expansion Space
Improvements
a. Expansion of Suite #220; Effective as of the Expansion Space Commencement
Date, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, that certain space, consisting of 865 Rentable square feet and as
shown on Exhibit "B-1". Effective as of the Expansion Space Commencement
Date. Whenever the term "Premises" is used in the Lease, such term shall
include the original Premises and the Expansion Space as if it were part of
the original Premises. The lease by Tenant of the Expansion Space shall
continue until the expiration of the original term pursuant to Section 1.5 of
the Lease.
(i) Adjustments: Commencing from and after the Expansion Commencement
Date, the Expansion Space shall be deemed to be a part of the Premises and
shall be subject to all the terms, covenants and conditions of the Lease,
except that the following terms shall be deemed amended to provide as
follows:
(a) Premises: The Premises shall be adjusted from 1,339 rentable square
feet to 2,204 rentable square feet.
(b) Expansion Space Commencement Date: August 1, 1997
pursuant to Section 1.5 of the Lease.
(c) Base Rent:: The Base Rent then being paid shall be increased by the
sum of One Thousand Six Hundred Dollars and Twenty-Five Cents ($1,600.25),
per month (which sum shall be prorated if the expansion space commencement
date occurs on a date other that the first day of a calendar month on the
basis of a thirty (30) day month. The Base Rent pursuant to Section 50, shall
be increased on the respective anniversary dates hereinabove, as follows:
Months 13 - 24 $1,643.50 per month, $19,722.00 per annum
Months 25 - 36 $1,686.75 per month, $20,241.00 per annum
(d) Operating Expense Increase: Tenant's share of the Operating Expense
Increase shall be increased from 4.05% to 6.666% as define in Sections 1.10
and 4.2 of the Lease.
(e) Parking Spaces: The number of parking spaces shall be increase from
Six (6) to Nine (9) .
(f) Delay in Possession: Possession shall be deliverd by Landlord to
Tenant pursuant to Section 3.2 of the Lease.
(g) Tenant Improvements: Landlord shall construct the
expansion space improvements, as defined in Exhibit(s) "D"
and "D-1", attached hereto.
b. Expansion of Suite #224; Effective as of the Expansion Space Commencement
Date, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, that certain space, consisting of 659 Rentable square feet and as
shown on Exhibit "B-1". Effective as of the Expansion Space Commencement
Date. Whenever the term "Premises" is used in the Lease, such term shall
include the original Premises and the Expansion Space as if it were part of
the original Premises. The lease by Tenant of the Expansion Space shall
continue until the expiration of the original term pursuant to Section 1.5 of
the Lease.
(i) Adjustments: Commencing from and after the Expansion Commencement
Date, the Expansion Space shall be deemed to be a part of the Premises and
shall be subject to all the terms, covenants and conditions of the Lease,
except that the following terms shall be deemed amended to provide as
follows:
(a) Premises: The Premises shall be adjusted from 2,204 rentable square
feet to 2,863 rentable square feet.
(b) Expansion Space Commencement Date: November 1, 1997 and ending
pursuant to Section 1.5 of the Lease.
(c) Base Rent: The Base Rent then being paid shall be increased by the
sum of One Thousand One Hundred Twenty Dollars and Thirty Cents ($1,120.30),
per month (which sum shall be prorated if the expansion space commencement
date occurs on a date other that the first day of a calendar month on the
basis of a thirty (30) day month. The Base Rent pursuant to Section 50 and
Section 51a(b) herein, shall be increased on the respective anniversary
dateshereinabove, as follows:
Months 13 - 24 $1,153.25 per month, $13,839.00 per annum
Months 25 - 36 $1,186.20 per month, $14,234.40 per annum
(d) Operating Expense Increase: Tenant's share of the Operating Expense
Increase shall be increased from 6.666% to 8.659% as define in Sections 1.10
and 4.2 of the Lease.
(e) Parking Spaces: The number of parking spaces shall be increase from
Nine (9) to Twelve (12) .
(e) Delay in Possession: Possession shall be deliverd by Landlord to
Tenant pursuant to Section 3.2 of the Lease.
(f) Tenant Improvements: Landlord shall construct the
expansion space improvements, as defined in Exhibit(s) "D" and "D-1",
attached hereto.
52. Option to Renew: Provided that Tenant is not in default of the terms and
conditions of this Lease, Tenant shall have one (1) option to extend the Term of
this Lease for an additional period of three (3) years on the same terms and
conditions provided herein, except that the Base Rent for the extended term
shall be adjusted by Ninety-Five (95%) of the then Prevailing Market Rental
Value. However, in no event shall the Base Annual Rent be less than amount
payable under the terms of the Lease immediately prior to the commencement of
the applicable Option Term. The Option shall be exercised by written notice to
Landlord one hundred twenty (120) days prior to the expiration of the Lease.
Dates Referenced Herein and Documents Incorporated by Reference
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