LEASE BETWEEN THE IRVINE COMPANY LLC AND AUTOWEB, INC LEASE (Short Form)
Exhibit 10.1
BETWEEN
THE
IRVINE COMPANY LLC
AND
AUTOWEB,
INC
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(Short
Form)
THIS
LEASE is made as of March
11, 2020 ,
by and between
THE IRVINE COMPANY
LLC, a Delaware limited liability company, hereafter called
“Landlord,” and
AUTOWEB, INC, a Delaware
corporation, hereafter called “Tenant.”
ARTICLE
1. BASIC LEASE PROVISIONS
Each
reference in this Lease to the “Basic Lease Provisions” shall mean
and refer to the following collective terms, the application of
which shall be governed by the provisions in the remaining Articles
of this Lease.
1.
Tenant’s Trade Name:
N/A
2.
Premises:
Suite
No.(s):
250 (the Premises
are more particularly described in Section 2.1.)
Address
of Building: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Project
Description:
Oak
Creek Business Center (as shown on Exhibit Y to this Lease)
3.
Use of Premises: General office and for
no other use.
4.
Estimated Commencement Date: August 1,
2020
6.
Basic
Rent:
|
Months
of Term or Period
|
Monthly
Rate Per Rentable Square Foot
|
Monthly
Basic Rent
|
|
1 to
12
|
$1.95
|
$23,505.30
|
|
13 to
24
|
$2.04
|
$24,590.16
|
|
25 to
36
|
$2.13
|
$25,675.02
|
|
37 to
48
|
$2.23
|
$26,880.42
|
|
49 to
60
|
$2.33
|
$28,085.82
|
Notwithstanding the
above schedule of Basic Rent to the contrary, as long as Tenant is
not in Default (as defined in Section 14.1) under this Lease,
Tenant shall be entitled to an abatement of 3 full calendar months
of Basic Rent in the aggregate amount of $70,515.90 (i.e.,
$23,505.30 per month) (the “Abated Basic Rent”) for the first
3 full calendar months of the Term (the “Abatement Period”). In the event
Tenant Defaults at any time during the Term, all unamortized Abated
Basic Rent (i.e. based upon the amortization of the Abated Basic
Rent in equal monthly amounts during the initial Term, without
interest) shall immediately become due and payable. The payment by
Tenant of the Abated Basic Rent in the event of a Default shall not
limit or affect any of Landlord’s other rights, pursuant to
this Lease or at law or in equity. Only Basic Rent shall be abated
during the Abatement Period and all other additional rent and other
costs and charges specified in this Lease shall remain due and
payable pursuant to the provisions of this Lease.
7.
Expense Recovery Period: Every twelve
month period during the Term (or portion thereof during the first
and last Lease years) ending June 30.
8.
Floor Area of Premises: approximately
12,054 rentable square feet
Floor Area of Building: approximately
44,572 rentable square feet
9.
Security Deposit: $137,715.22 (subject
to reduction as set forth in Section 4.3)
10.
Broker(s): Irvine Management Company
(“Landlord’s
Broker”) is the agent of Landlord exclusively and
▇▇▇▇▇ ▇▇▇▇ LaSalle (“Tenant’s Broker”) is the
agent of Tenant exclusively.
11.
Parking: 43 parking spaces in accordance
with the provisions set forth in Exhibit F to this Lease.
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12.
Address
for Payments and Notices:
|
LANDLORD
Payment
Registration Address:
Email ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
to request an account for the Tenant
Payment Portal.
|
TENANT
AUTOWEB,
INC
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Notice
Address:
THE
IRVINE COMPANY LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Senior Vice President, Property Operations, Irvine Office
Properties
with a
copy of notices to:
IRVINE
MANAGEMENT COMPANY
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Senior Vice President, Operations Office Properties
|
|
LIST OF LEASE EXHIBITS (All exhibits,
riders and addenda attached to this Lease are hereby incorporated
into and made a part of this Lease):
|
Exhibit
A
|
Description
of Premises
|
|
Exhibit
B
|
Operating
Expenses
|
|
Exhibit
C
|
Utilities
and Services
|
|
Exhibit
D
|
Tenant’s
Insurance
|
|
Exhibit
E
|
Rules
and Regulations
|
|
Exhibit
F
|
Parking
|
|
Exhibit
G
|
Additional
Provisions
|
|
Exhibit
G-I
|
First
Right Space
|
|
Exhibit
H
|
Landlord’s
Disclosures
|
|
Exhibit
I
|
Landlord
Waiver
|
|
Exhibit
X
|
Work
Letter
|
|
Exhibit
Y
|
Project
Description
|
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ARTICLE
2. PREMISES
2.1. LEASED
PREMISES. Landlord leases to Tenant and Tenant leases from
Landlord the Premises shown in Exhibit A (the “Premises”), containing
approximately the floor area set forth in Item 8 of the Basic Lease
Provisions (the “Floor
Area”). The Premises are located in the building
identified in Item 2 of the Basic Lease Provisions (the
“Building”),
which is a portion of the project described in Item 2 (the
“Project”).
Landlord and Tenant stipulate and agree that the Floor Area of
Premises set forth in Item 8 of the Basic Lease Provisions is
correct.
2.2. ACCEPTANCE
OF PREMISES. Tenant acknowledges that neither Landlord nor
any representative of Landlord has made any representation or
warranty with respect to the Premises, the Building or the Project
or the suitability or fitness of either for any purpose, except as
set forth in this Lease. Tenant acknowledges that the flooring
materials which may be installed within portions of the Premises
located on the ground floor of the Building may be limited by the
moisture content of the Building slab and underlying soils. The
taking of possession or use of the Premises by Tenant for any
purpose other than construction shall conclusively establish that
the Premises and the Building were in satisfactory condition and in
conformity with the provisions of this Lease in all respects,
except for those matters which Tenant shall have brought to
Landlord's attention on a written punch list. The list shall be
limited to any items required to be accomplished by Landlord under
the Work Letter attached as Exhibit X, and shall be delivered to
Landlord within thirty (30) days after the
Commencement Date. Landlord shall diligently complete all punch
list items of which it is notified as provided above. Nothing
contained in this Section 2.2 shall affect the commencement of the
Term or the obligation of Tenant to pay rent or Landlord’s
covenants and agreements set forth elsewhere in this Lease or the
repairs and services required of Landlord under this
Lease.
ARTICLE
3. TERM
3.1. GENERAL.
The term of this Lease (“Term”) shall be for the period
shown in Item 5 of the Basic Lease Provisions. The Term shall
commence (“Commencement
Date”) on the earlier of (a) the date the Premises are
deemed “ready for occupancy” (as hereinafter defined)
and possession thereof is delivered to Tenant, or (b) the date
Tenant commences its regular business activities within the
Premises. Promptly following request by Landlord, the parties shall
memorialize on a form provided by Landlord (the "Commencement Memorandum") the actual
Commencement Date and the expiration date (“Expiration Date") of this Lease; should
Tenant fail to execute and return the Commencement Memorandum to
Landlord within 10 business days (or provide specific written
objections thereto within that period), then Landlord's
determination of the Commencement and Expiration Dates as set forth
in the Commencement Memorandum shall be conclusive. The Premises
shall be deemed “ready for
occupancy” when Landlord, to the extent
applicable, (i)
has substantially
completed all the work required to be completed by Landlord
pursuant to the Work Letter (if any) attached to this Lease but for
minor punch list matters, and (ii) has obtained the requisite
governmental approvals for Tenant’s occupancy in connection
with such work.
3.2. DELAY
IN POSSESSION. If Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant on or before
the Estimated Commencement Date set forth in Item 4 of the Basic
Lease Provisions, this Lease shall not be void or voidable nor
shall Landlord be liable to Tenant for any resulting loss or
damage. However, Tenant shall not be liable for any rent until the
Commencement Date occurs as provided in Section 3.1 above, except
that if Landlord’s failure to substantially complete all work
required of Landlord pursuant to Section 3.1(i) above is
attributable to any action or inaction by Tenant (including without
limitation any Tenant Delay described in the Work Letter, if any,
attached to this Lease), then the Premises shall be deemed ready
for occupancy, and Landlord shall be entitled to full performance
by Tenant (including the payment of rent), as of the date Landlord
would have been able to substantially complete such work and
deliver the Premises to Tenant but for Tenant’s
delay(s).
3.3. TERMINATION
RIGHT FOR LATE DELIVERY. Notwithstanding Section 3.2 above,
if the Commencement Date has not occurred on or before the Required
Completion Date (defined below), Tenant, as its sole remedy, may
terminate this Lease by giving Landlord written notice of
termination on or before the earlier to occur of: (i) 5 business
days after the Required Completion Date; and (ii) the Commencement
Date. In such event, this Lease shall be deemed null and void and
of no further force and effect and Landlord shall promptly refund
any prepaid Rent and Security Deposit, if any, previously advanced
by Tenant under this Lease and, so long as Tenant has not
previously defaulted under any of its obligations under
Exhibit X, Work Letter, the
parties hereto shall have no further responsibilities or
obligations to each other with respect to this Lease. The
“Required Completion
Date” shall mean the date which is 22 weeks following
the date the building permit for the tenant improvement work (as
described in Exhibit X) has
been obtained. Landlord and Tenant acknowledge and agree that: (i)
the determination of the Commencement Date shall take into
consideration the effect of any Tenant Delays; and (ii) the
Required Completion Date shall be postponed by the number of days
the Commencement Date is delayed due to events of force
majeure.
ARTICLE
4. RENT AND OPERATING EXPENSES
4.1. BASIC
RENT. From and after the Commencement Date, Tenant shall pay
to Landlord without deduction or offset a Basic Rent for the
Premises in the total amount shown (including subsequent
adjustments, if any) in Item 6 of the Basic Lease Provisions (the
“Basic Rent”).
If the Commencement Date is other than the first day of a calendar
month, any rental adjustment shown in Item 6 shall be deemed to
occur on the first day of the next calendar month following the
specified monthly anniversary of the Commencement Date. The Basic
Rent shall be due and payable in advance commencing on the
Commencement Date and continuing thereafter on the first day of
each successive calendar month of the Term, as prorated for any
partial month. No demand, notice or invoice shall be required. An
installment in the amount of 1 full month’s Basic Rent, at
the initial rate specified in Item 6 of the Basic Lease Provisions,
and 1 month’s estimated Tenant’s Share of Operating
Expenses shall be delivered to Landlord concurrently with
Tenant’s execution of this Lease and shall be applied against
the Operating Expenses first due hereunder.
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4.2. OPERATING
EXPENSES. Tenant shall pay Tenant’s Share of Operating
Expenses in accordance with Exhibit
B of this Lease.
4.3. SECURITY
DEPOSIT. Concurrently with Tenant’s delivery of this
Lease, Tenant shall deposit with Landlord the sum, if any, stated
in Item 9 of the Basic Lease Provisions (the “Security Deposit”), to be held by
Landlord as security for the full and faithful performance of
Tenant’s obligations under this Lease, to pay any rental
sums, including without limitation such additional rent as may be
owing under any provision hereof, and to maintain the Premises as
required by this Lease. Upon any Default by Tenant, Landlord may
apply all or part of the Security Deposit as full or partial
compensation. If any portion of the Security Deposit is so applied,
Tenant shall within 5 business days after written demand by
Landlord deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Landlord shall
not be required to keep the Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on the
Security Deposit. In no event may Tenant utilize all or any portion
of the Security Deposit as a payment toward any rental sum due
under this Lease. Any unapplied balance of the Security Deposit
shall be returned to Tenant or, at Landlord’s option, to the
last assignee of Tenant’s interest in this Lease within 30
days following the termination of this Lease and Tenant’s
vacation of the Premises. Tenant hereby waives the provisions of
Section 1950.7 of the California Civil Code, or any similar or
successor laws now or hereafter in effect. Notwithstanding the
foregoing, provided that: (a) no uncured Default has occurred at
any time during the Term of this Lease, and (b) Tenant shall
demonstrate to Landlord that Tenant has achieved positive cash flow
from operations over the then most recent 12-month period as
demonstrated by Tenant’s financial statements certified as
correct by an authorized officer of Tenant, then upon written
request of Tenant Landlord shall authorize in writing consecutive
reductions to the required Security Deposit amount in accordance
with the following schedule: (i) by written request delivered at
any time after the 12th full
month of the Term, a reduction in the amount of $33,148.50, (ii) by
written request delivered at any time after the 24th full month of the Term, a reduction in
the amount of $34,233.36, and (iii) by written request delivered at
any time after the 36th full
month of the Term, a reduction in the amount of $35,438.76. Any
such reductions shall include all prior reductions that have not
previously been returned. Such reductions shall be returned to
Tenant in the form of a credit against the Basic Rent and Operating
Expenses next coming due hereunder. Unless the financial statements
and other information provided by Tenant to Landlord to demonstrate
compliance with the foregoing reduction provisions are publicly
available in filings made with the Securities and Exchange
Commission, except to the extent disclosure is required by law,
Landlord shall keep confidential any financial statements marked or
otherwise designated by Tenant as “confidential” and
shall not disclose same, without Tenant’s consent, to any
person or entity other than Landlord’s financial, legal and
other consultants with a “need to know”; provided,
however, that Landlord may disclose same to any prospective lender
or buyer or pursuant to legal requirement.
ARTICLE
5. USES
5.1. USE.
Tenant shall use the Premises only for the purposes stated in Item
3 of the Basic Lease Provisions and for no other use whatsoever.
Tenant shall not do or permit anything to be done in or about the
Premises which will in any way interfere with the rights or quiet
enjoyment of other occupants of the Building or the Project, or use
or allow the Premises to be used for any unlawful purpose, nor
shall Tenant permit any nuisance in the Premises or the Project.
Tenant shall comply at its expense with all present and future
laws, ordinances and requirements of all governmental authorities
that pertain to Tenant or its use of the Premises, and with all
energy usage reporting requirements of Landlord. Pursuant to
California Civil Code § 1938, Landlord hereby states that the
Premises have not undergone inspection by a Certified Access
Specialist (CASp) (defined in California Civil Code §
55.52(a)(3)). Pursuant to Section 1938 of the California Civil
Code, Landlord hereby provides the following notification to
Tenant: “A Certified Access Specialist (CASp) can inspect the
subject premises and determine whether the subject premises comply
with all of the applicable construction-related accessibility
standards under state law. Although state law does not require a
CASp inspection of the subject premises, the commercial property
owner or lessor may not prohibit the lessee or tenant from
obtaining a CASp inspection of the subject premises for the
occupancy or potential occupancy of the lessee or tenant, if
requested by the lessee or tenant. The parties shall mutually agree
on the arrangements for the time and manner of the CASp inspection,
the payment of the fee for the CASp inspection, and the cost of
making any repairs necessary to correct violations of construction
related accessibility standards within the premises.”
Landlord shall correct, repair and/or replace any non- compliance
of the Building and/or the Common Areas with all building permits
and codes in effect and applicable as of the execution of this
Lease, including without limitation, the provisions of Title III of
the Americans With Disabilities Act (“ADA”). Said costs of compliance
shall be Landlord’s sole cost and expense and shall not be
part of Project Costs. Landlord shall correct, repair or replace
any non-compliance of the Building and the Common Areas with any
revisions or amendments to applicable building codes, including the
ADA, becoming effective after the execution of this Lease, provided
that the amortized cost of such repairs or replacements (amortized
over the useful life thereof) shall be included as Project Costs
payable by Tenant. All other ADA compliance issues which pertain to
the Premises, including without limitation, in connection with
Tenant’s construction of any Alterations or other
improvements in the Premises (and any resulting ADA compliance
requirements in the Common Areas required as a result of any
Alterations which are not typical office improvements if Landlord
shall consent to same as more particularly provided in Section 7.3
of this Lease) and the operation of Tenant’s business and
employment practices in the Premises, shall be the responsibility
of Tenant at its sole cost and expense. The repairs, corrections or
replacements required of Landlord or of Tenant under the foregoing
provisions of this Section 5.1 shall be made promptly following
notice of non-compliance from any applicable governmental
agency.
5.2. SIGNS.
Landlord shall affix and maintain a sign (restricted solely to
Tenant’s name/logo as set forth herein or such other name as
Landlord may consent to in writing) adjacent to the entry door of
the Premises, together with a listing for Tenant’s name as
set forth herein in the lobby directory of the Building. Tenant
shall not place or allow to be placed any other sign, decoration or
advertising matter of any kind that is visible from the exterior of
the Premises, except as set forth in Exhibit G.
5.3. HAZARDOUS
MATERIALS. Tenant shall not generate, handle, store or
dispose of hazardous or toxic materials (as such materials may be
identified in any federal, state or local law or regulation) in the
Premises or Project without the prior
written consent of Landlord. Notwithstanding the foregoing, Tenant
shall have the right, without obtaining prior written consent of
Landlord, to utilize within the Premises reasonable quantities of
standard office products that may contain Hazardous Materials so
long as the same are used and disposed of in compliance with
applicable laws. Tenant acknowledges that it has read, understands
and, if applicable, shall comply with the provisions of
Exhibit H to this Lease, if
that Exhibit is attached.
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ARTICLE
6. LANDLORD SERVICES
6.1. UTILITIES
AND SERVICES. Landlord and Tenant shall be responsible to
furnish those utilities and services to the Premises to the extent
provided in Exhibit C,
subject to the conditions and payment obligations and standards set
forth in this Lease. Landlord’s failure to furnish, or any
interruption, diminishment or termination of, services due to the
application of laws, the failure of any equipment, the performance
of repairs, improvements or alterations, utility interruptions or
the occurrence of an event of force majeure (defined in Section
20.7) shall not render Landlord liable to Tenant, constitute a
constructive eviction of Tenant, give rise to an abatement of Rent,
nor relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a material portion of the
Premises, are made untenantable for a period in excess of 5
consecutive business days as a result of a service interruption
that is reasonably within the control of Landlord to correct and
through no fault of Tenant and for reasons other than as
contemplated in Article 11, then Tenant, as its sole remedy, shall
be entitled to receive an abatement of Rent payable hereunder
during the period beginning on the 6th consecutive business day of the service
interruption and ending on the day the service has been
restored.
6.2. OPERATION
AND MAINTENANCE OF COMMON AREAS. During the Term, Landlord
shall operate, maintain and repair all Common Areas within the
Building and the Project in a high quality manner and as required
pursuant to Section 5.1 above. The term “Common Areas” shall mean all areas
within the Building and the Project which are not held for
exclusive use by persons entitled to occupy space.
6.3. USE
OF COMMON AREAS. The occupancy by Tenant of the Premises
shall include the use of the Common Areas in common with Landlord
and with all others for whose convenience and use the Common Areas
may be provided by Landlord, subject, however, to compliance with
Rules and Regulations described in Article 17 below. Landlord may
temporarily close any portion of the Common Areas for repairs,
remodeling and/or alterations, to prevent a public dedication or
the accrual of prescriptive rights, or for any other reasonable
purpose, provided that Tenant continues to be afforded reasonable
access to and use of the Premises and parking areas (except in
emergencies). To the extent feasible, all repairs shall be
performed at a time and in a manner so as not to unreasonably
interfere with Tenant's normal business operations.
ARTICLE
7. REPAIRS AND MAINTENANCE
7.1. TENANT’S
MAINTENANCE AND REPAIR. Subject to Articles 11 and 12 and
Landlord’s obligations set forth in Section 7.2 below, Tenant
at its sole expense shall make all repairs necessary to keep the
interior of Premises and all improvements and fixtures therein in
good condition and repair, excepting ordinary wear and tear.
Tenant’s maintenance obligation shall include without
limitation all appliances, interior glass, doors, door closures,
hardware, fixtures, electrical, plumbing, fire extinguisher
equipment and other equipment installed in the Premises, together
with any supplemental HVAC equipment servicing only the Premises.
Should Landlord or its management agent agree to make a repair on
behalf of Tenant and at Tenant’s request, Tenant shall
promptly reimburse Landlord as additional rent for all reasonable
costs incurred (including the standard supervision fee) upon
submission of an invoice. If Tenant is required to make repairs to
any component of the Premises for which Landlord may have obtained
a warranty, Landlord shall, upon request by Tenant, use its good
faith efforts to pursue its rights under any such warranties for
the benefit of Tenant. Landlord shall be under no obligation to
incur any expense in connection with asserting rights under such
warranties or guaranties against either the contractor or the
manufacturer, but shall use reasonable good faith efforts to
enforce such warranties and guaranties for Tenant’s
benefit.
7.2. LANDLORD’S
MAINTENANCE AND REPAIR. Subject to Articles 11 and 12,
Landlord shall provide service, maintenance and repair with respect
to the heating, ventilating and air conditioning
(“HVAC”)
equipment of the Building (exclusive of any supplemental HVAC
equipment servicing only the Premises) and shall maintain in good
repair the Common Areas, roof, foundations, footings, the exterior
surfaces of the exterior walls of the Building (including exterior
glass), and the structural, electrical, mechanical and plumbing
systems of the Building (including elevators, if any, serving the
Building). Notwithstanding any provision of the California Civil
Code or any similar or successor laws to the contrary, Tenant
understands that it shall not make repairs at Landlord’s
expense or by rental offset. Landlord shall use reasonable efforts
to perform all repairs and replacements so as to minimize
unreasonable interference with the conduct of Tenant's business and
access to the Premises. Except as provided in Section 6.1 above and
Section 11.1 and Article 12 below, there shall be no abatement of
rent and no liability of Landlord by reason of any injury to or
interference with Tenant’s business arising from the making
of any repairs, alterations or improvements to any portion of the
Building, including repairs to the Premises, nor shall any related
activity by Landlord constitute an actual or constructive eviction.
Tenant hereby waives any and all rights under and benefits of
subsection 1 of Section 1932, and Sections 1941 and 1942 of the
California Civil Code, or any similar or successor laws now or
hereafter in effect.
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7.3. ALTERATIONS. Except for cosmetic alteration projects that do
not exceed $15,000.00 during each calendar year and that do not
affect the structural, electrical or mechanical components or
systems of the Building, are not visible from the exterior of the
Premises, do not change the basic floor plan of the Premises, and
utilize only Landlord’s building standard materials (which
work shall require notice to Landlord but not Landlord’s
consent), Tenant shall make no alterations, additions, decorations
or improvements (collectively referred to as
“Alterations”) to the Premises without the prior
written consent of Landlord. Landlord shall not unreasonably
withhold its consent to any Alterations which are not visible from
the exterior of the Premises and which do not (i) affect the
exterior of the Building, or (ii) penetrate any of the structural
portions of the Building, including, but not limited to, the roof,
or (iii) require any material change to the basic floor plan of the
Premises (including without limitation, the adding of any material
additional “office” square footage) or to any
structural or mechanical systems of the Premises, or (iv) interfere
in any manner with the proper functioning of or Landlord's access
to any mechanical, electrical, plumbing or HVAC systems, facilities
or equipment located in or serving the Building. Landlord may
impose, as a condition to its consent, any requirements that
Landlord in its discretion may deem reasonable or desirable. Tenant
shall use Landlord’s designated mechanical and electrical
contractors, obtain all required permits for the Alterations and
shall perform the work in compliance with all applicable laws,
regulations and ordinances with contractors reasonably acceptable
to Landlord. Except for cosmetic Alterations described above,
Landlord shall be entitled to a supervision fee in the amount of 5%
of the cost of the Alterations. Landlord may elect to cause its
architect to review Tenant’s architectural plans, and the
reasonable cost of that review shall be reimbursed by Tenant.
Should the Alterations proposed by Tenant and consented to by
Landlord change the floor plan of the Premises, then Tenant shall,
at its expense, furnish Landlord with as-built drawings and CAD
disks compatible with Landlord’s systems. Unless Landlord
otherwise agrees in writing, all Alterations affixed to the
Premises, including without limitation all Tenant Improvements
constructed pursuant to the Work Letter (except as otherwise
provided in the Work Letter), but excluding moveable trade
fixtures, equipment and furniture, shall become the property of
Landlord and shall be surrendered with the Premises at the end of
the Term, except that Landlord may, by notice to Tenant given at
the time of Landlord’s approval, require Tenant to remove by
the Expiration Date or sooner termination date of this Lease, all
or any Alterations installed either by Tenant or by Landlord at
Tenant’s request (collectively, the
“Required
Removables”). Tenant
shall have no obligation to remove any Tenant Improvements
constructed pursuant to the Work Letter, but only as and to the
extent set forth in the approved Plan and Cost Estimate. In
connection with its removal of Required Removables, Tenant shall
repair any damage to the Premises arising from that removal and
shall restore the affected area to its pre-existing condition,
reasonable wear and tear excepted.
7.4. MECHANIC’S
LIENS. Tenant shall keep the Premises free from any liens
arising out of any work performed, materials furnished, or
obligations incurred by or for Tenant. In the event that Tenant
shall not, within 15 days following the imposition of any lien,
cause the lien to be released of record by payment or posting of a
proper bond in accordance with California Civil Code Section 8424
or any successor statute, Landlord shall have, in addition to all
other available remedies, the right to cause the lien to be
released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so
incurred by Landlord shall be reimbursed by Tenant promptly
following Landlord’s demand. Tenant shall give Landlord no
less than 20 days’ prior notice in writing before commencing
construction of any kind on the Premises.
7.5. ENTRY
AND INSPECTION. Landlord shall at all reasonable times and
with reasonable prior verbal notice, except in emergencies or to
provide Building services, have the right to enter the Premises to
inspect them, to supply services in accordance with this Lease, to
make repairs and renovations as reasonably deemed necessary by
Landlord, and to submit the Premises to prospective or actual
purchasers or encumbrance holders (or, during the final twelve
months of the Term or when an uncured Default exists, to
prospective tenants), all without being deemed to have caused an
eviction of Tenant and without abatement of rent except as provided
elsewhere in this Lease, and Tenant shall be entitled to have an
employee of Tenant accompany the person(s) entering the Premises,
provided Tenant makes such employee available at the time Landlord
or such other party desires to enter the Premises.
ARTICLE
8. SPACE PLANNING AND SUBSTITUTION
Landlord shall have
the right, upon providing not less than 120 days prior written
notice, to move Tenant to other space of comparable size in the
Building or in the Project or in other space owned by Landlord or
its affiliate(s) in the Discovery Park project or the Sand Canyon
Business Center project; provided, however, that Landlord shall not
exercise such right during the initial 60 month Term of this Lease.
The new space shall be provided with improvements of comparable
quality to those within the Premises and shall contain similar
finishes as the Premises, approximately the same rentable square
footage as the Premises (and if the rentable square footage is
lower, the Basic Rent and Tenant’s Share shall be
appropriately reduced, but if the rentable square footage is
higher, neither the Basic Rent nor Tenant’s Share shall be
increased) and approximately the same number of work stations,
offices, breakrooms and reception areas as are contained in the
Premises as of the date Tenant receives Landlord’s notice of
relocation. Landlord shall pay the reasonable out-of-pocket costs
to relocate and reconnect Tenant’s personal property and
equipment within the new space. Landlord shall also reimburse
Tenant for such other reasonable out-of-pocket costs that Tenant
may incur in connection with the relocation. Within 10 days
following request by Landlord, Tenant shall execute an amendment to
this Lease prepared by Landlord to memorialize the relocation.
Notwithstanding the foregoing, in the event the relocation space
designated by Landlord meets the foregoing requirements but is not
acceptable to Tenant, then Tenant may, by written notice to
Landlord within 5 business days following delivery of
Landlord’s relocation notice, elect to terminate this Lease
by written notice to Landlord (the "Termination Notice"); in such event,
unless Landlord revokes in writing its relocation election within
three business days thereafter (in which case the Termination
Notice shall be null and void), this Lease shall terminate 120 days
following delivery of the Termination Notice.
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ARTICLE
9. ASSIGNMENT AND SUBLETTING
9.1. RIGHTS
OF PARTIES. Tenant shall not, directly or indirectly,
assign, sublease, transfer or encumber any interest in this Lease
or allow any third party to use any portion of the Premises
(collectively or individually, a “Transfer”) without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant agrees that it is not unreasonable
for Landlord to withhold consent to a Transfer to a proposed
assignee or subtenant who is an existing tenant or occupant of the
Building or Project or to a prospective tenant with whom Landlord
or Landlord’s affiliate has been actively negotiating. Any
attempted Transfer in violation of this Article shall be a Default
by Tenant and shall, at Landlord’s option, be void. Within 30
days after receipt of executed copies of the transfer documentation
and such other information as Landlord may request, Landlord shall
either: (a) consent to the Transfer by execution of a consent
agreement in a form reasonably designated by Landlord; or (b)
refuse to consent to the Transfer (in which case Landlord shall
specify the reasons for disapproval). Tenant hereby waives the
provisions of Section 1995.310 of the California Civil Code, or any
similar or successor Laws, now or hereinafter in effect, and all
other remedies, including, without limitation, any right at law or
equity to terminate this Lease, on its own behalf and, to the
extent permitted under all applicable laws, on behalf of the
proposed transferee. In no event shall any Transfer release or
relieve Tenant from any obligation under this Lease, as same may be
amended. Tenant shall pay Landlord a review fee of $1,000.00 for
Landlord’s review of any requested Transfer. Tenant shall pay
Landlord, as additional Rent, 50% of all rent and other
consideration for the leasehold which Tenant receives as a result
of a Transfer that is in excess of (i) the Rent payable to Landlord
for the portion of the Premises and Term covered by the Transfer,
and (ii) the direct out-of-pocket costs, as evidenced by third
party invoices provided to Landlord, incurred by Tenant to effect
the Transfer, which costs shall be amortized over the remaining
Term of this Lease or, if shorter, over the term of the sublease.
For purposes herein, such Transfer costs shall include all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer, including brokerage fees, legal fees,
construction costs, and Landlord’s review fee. Tenant is in
Default, Landlord may require that all sublease payments be made
directly to Landlord, in which case Tenant shall receive a credit
against Rent in the amount of Tenant’s share of payments
received by Landlord.
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9.2. PERMITTED
TRANSFER. Notwithstanding the foregoing, Tenant may assign
this Lease to a successor to Tenant by merger, consolidation or the
purchase of substantially all of Tenant’s assets (a
“Successor”), or
assign this Lease or sublet all or a portion of the Premises to an
Affiliate (defined below), without the consent of Landlord,
provided that all of the following conditions are satisfied (a
“Permitted
Transfer”): (i) Tenant is not then in Default
hereunder; (ii)
Tenant gives
Landlord written notice prior to such Permitted Transfer (however,
if disclosure of any such transaction is restricted by securities
or other law, then Tenant shall give Landlord written notice within
10 days after the effective date of the transfer); and (iii) the
Successor entity (other than Tenant) resulting from any merger or
consolidation of Tenant or the sale of all or substantially all of
the assets of Tenant, has a net worth at the time of the Permitted
Transfer that is at least equal to the net worth of Tenant
immediately before the Permitted Transfer. “Affiliate” shall mean an entity
controlled by, controlling or under common control with
Tenant.
9.3 APPROVED
USERS. Notwithstanding anything in this Article 9 to the
contrary, Tenant shall be permitted from time to time to permit its
clients or business associates (“Approved Users”) to temporarily
occupy space within the Premises, provided that (a) Tenant does not
separately demise such space and the Approved Users utilize, in
common with Tenant, one common entryway to the Premises as well as
certain shared central services, such as reception, photocopying
and the like; (b) the Approved Users shall not occupy, in the
aggregate, more than 10% of the rentable area in the Premises; (c)
the Approved Users occupy space in the Premises for the Permitted
Use and for no other purpose; (d) all Approved
Users shall be clients of Tenant and shall occupy space in the
Premises only so long as Tenant is providing consulting or other
services to such Approved Users; and (e) Tenant notifies Landlord,
in writing, of the identity of any such Approved Users prior to
occupancy of any portion of the Premises by such Approved Users. If
any Approved Users occupy any portion of the Premises as described
herein, it is agreed that (i) the Approved Users must comply with
all provisions of this Lease, and a default by any Approved Users
shall be deemed a Default by Tenant under this Lease; (ii) all
notices required of Landlord under this Lease shall be forwarded
only to Tenant in accordance with the terms of this Lease and in no
event shall Landlord be required to send any notices to any
Approved Users; (iii) in no event shall any use or occupancy of any
portion of the Premises by any Approved User release or relieve
Tenant from any of its obligations under this Lease; (iv) the
Approved User and its employees, contractors and invitees visiting
or occupying space in the Premises shall be deemed contractors of
Tenant for purposes of Tenant’s indemnification obligations
in Section 10.3; and (v) in no event shall the occupancy of any
portion of the Premises by Approved Users be deemed to create a
landlord/tenant relationship between Landlord and such Approved
Users, and, in all instances, Tenant shall be considered the sole
tenant under the Lease notwithstanding the occupancy of any portion
of the Premises by the Approved Users.
ARTICLE
10. INSURANCE AND INDEMNITY
10.1. INSURANCE.
Tenant, at its sole cost and expense, shall provide and maintain in
effect the insurance described in Exhibit D. Evidence of that insurance
must be delivered to Landlord prior to the Commencement Date.
Landlord shall provide the following types of insurance, with or
without deductible and in amounts and coverages as may be
reasonably determined by Landlord: (i) all risk property insurance,
subject to standard exclusions (such as, but not limited to,
earthquake and flood exclusions), covering not less than 80% of the
replacement cost of the Building and Project (the
“Property
Policy”), and (ii) liability insurance in amounts of
at least $2,000,000. In addition, Landlord may, at its election,
obtain insurance for such other risks as Landlord or its mortgagees
may from time to time deem appropriate in its sole discretion,
including without limitation, coverage for earthquake, flood, and
commercial general liability in the amounts in excess of the amount
required above.
10.2. TENANT’S
INDEMNITY. To the fullest extent permitted by law, but
subject to Section 10.4 below, Tenant shall defend, indemnify and
hold harmless Landlord and Landlord’s agents, employees,
lenders, and affiliates, from and against any and all claims,
liabilities, damages, costs or expenses arising either before or
after the Commencement Date which arise from or are caused by
Tenant’s use or occupancy of the Premises, the Building or
the Common Areas of the Project, or from the conduct of
Tenant’s business, or from any activity, work, or thing done,
permitted or suffered by Tenant or Tenant’s agents,
employees, subtenants, vendors, contractors, invitees or licensees
in or about the Premises, or from any Default in the performance of
any obligation on Tenant’s part to be performed under this
Lease, or from any negligence on the part of Tenant or
Tenant’s agents, employees, subtenants, vendors, contractors,
invitees or licensees in or about the Premises, the Building or the
Common Areas of the Project. Landlord may, at its option, require
Tenant to assume Landlord’s defense in any action covered by
this Section 10.2 through counsel reasonably satisfactory to
Landlord. Notwithstanding the foregoing, Tenant shall not be
obligated to indemnify Landlord against (and Landlord shall
reimburse Tenant for) any liability or expense to the extent it is
ultimately determined that the same was caused by the negligence or
willful misconduct of Landlord, its agents, contractors or
employees.
10.3. LANDLORD’S
NONLIABILITY. Landlord shall not be liable to Tenant, its
employees, agents and invitees, and Tenant hereby waives all claims
against Landlord, its employees and agents for loss of or damage to
any property, or any injury to any person, resulting from any
condition including, but not limited to, acts or omissions
(criminal or otherwise) of third parties and/or other tenants of
the Project, or their agents, employees or invitees, fire,
explosion, falling plaster, steam, gas, electricity, water or rain
which may leak or flow from or into any part of the Premises or
from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning,
electrical works or other fixtures in the Building, whether the
damage or injury results from conditions arising in the Premises or
in other portions of the Building, except (but subject to Section
10.4 below) to the extent resulting from the negligence of Landlord
or willful misconduct, its agents, contractors or employees.
Notwithstanding anything to the contrary contained in this Lease,
in no event shall Landlord be liable for Tenant’s loss or
interruption of business or income (including without limitation,
Tenant’s consequential damages, lost profits or opportunity
costs), or for interference with light or other similar intangible
interests.
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10.4. WAIVER
OF SUBROGATION. Landlord and Tenant each hereby waives all
rights of recovery against the other on account of loss and damage
occasioned to the property of such waiving party to the extent that
the waiving party is entitled to proceeds for such loss and damage
under any property insurance policies carried or otherwise required
to be carried by this Lease or would have been entitled to proceeds
had such party carried full replacement cost insurance coverage. By
this waiver it is the intent of the parties that neither Landlord
nor Tenant shall be liable to each other or any insurance company
(by way of subrogation or otherwise) insuring the other party for
any loss or damage insured against or required to be insured
against under any “all-risk” property insurance
policies required by this Article, even though such loss or damage
might be occasioned by the negligence of such party, its agents,
employees, contractors, guests or invitees.
ARTICLE
11. DAMAGE OR DESTRUCTION
11.1.
RESTORATION.
(a) If the Building of
which the Premises are a part is damaged as the result of an event
of casualty, then subject to the provisions below, Landlord shall
repair that damage as soon as reasonably possible unless Landlord
reasonably determines that: (i) the Premises have been materially
damaged and there is less than 1 year of the Term remaining on the
date of the casualty; (ii) any Mortgagee (defined in Section 13.1)
requires that the insurance proceeds be applied to the payment of
the mortgage debt; or (iii) proceeds necessary to pay the full cost
of the repair (excluding deductibles) are not available from
Landlord’s insurance, including without limitation earthquake
insurance. Should Landlord elect not to repair the damage for one
of the preceding reasons, Landlord shall so notify Tenant in the
“Casualty Notice” (as defined below), and this Lease
shall terminate as of the date of delivery of that
notice.
(b) As soon as
reasonably practicable following the casualty event but not later
than 60 days thereafter, Landlord shall notify Tenant in writing
(“Casualty
Notice”) of Landlord’s election, if applicable,
to terminate this Lease. If this Lease is not so terminated, the
Casualty Notice shall set forth the anticipated period for
repairing the casualty damage. If the anticipated repair period
exceeds 270 days and if the damage is so extensive as to reasonably
prevent Tenant’s substantial use and enjoyment of the
Premises, then either party may elect to terminate this Lease by
written notice to the other within 10 days following delivery of
the Casualty Notice; provided, however, that Landlord shall not
have the right to so terminate this Lease unless it also terminates
the leases of all other tenants similarly affected by the Casualty.
In addition, if, during the last 6 months of the term of the Lease
or any extension thereof, twenty percent (20%) or more of the
Premises is damaged or destroyed, or if any damage or destruction
would take more than 60 days to repair, Tenant shall have the right
to terminate the Lease as of the date of such damage or destruction
by written notice to Landlord, given within ten (10) business days
after Tenant’s receipt of the Casualty Notice.
(c) In the event that
neither Landlord nor Tenant terminates this Lease pursuant to
Section 11.1(b), Landlord shall repair all material damage to the
Premises or the Building as soon as reasonably possible and this
Lease shall continue in effect for the remainder of the Term. Upon
notice from Landlord, Tenant shall assign or endorse over to
Landlord (or to any party designated by Landlord) all property
insurance proceeds payable to Tenant under Tenant’s insurance
with respect to any Alterations. Within 15 days of demand, Tenant
shall also pay Landlord for any additional excess costs that are
determined during the performance of the repairs to such
Alterations.
(d) From and after the
casualty event, the rental to be paid under this Lease shall be
abated in the same proportion that the Floor Area of the Premises
that is rendered unusable by the damage from time to time bears to
the total Floor Area of the Premises.
(e) Notwithstanding the
provisions of subsections (a), (b) and (c) of this Section 11.1,
but subject to Section 10.4, Tenant shall not be entitled to rental
abatement or termination rights, if the damage is due to the gross
negligence or willful misconduct of Tenant or its employees,
subtenants, contractors, invitees or representatives.
11.2. LEASE
GOVERNS. Tenant and Landlord agree that the provisions of
this Lease, including without limitation Section 11.1, shall govern
any damage or destruction and shall accordingly supersede any
contrary statute or rule of law.
ARTICLE
12. EMINENT DOMAIN
Either
party may terminate this Lease if any material part of the Premises
is taken or condemned for any public or quasi-public use under Law,
by eminent domain or private purchase in lieu thereof (a
“Taking”).
Landlord shall also have the right to terminate this Lease if there
is a Taking of any portion of the Building or Project which would
have a material adverse effect on Landlord’s ability to
profitably operate the remainder of the Building. The termination
shall be effective as of the effective date of any order granting
possession to, or vesting legal title in, the condemning authority.
All compensation awarded for a Taking shall be the property of
Landlord. Tenant agrees that the provisions of this Lease shall
govern any Taking and shall accordingly supersede any contrary
statute or rule of law.
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ARTICLE
13. SUBORDINATION; ESTOPPEL CERTIFICATE
13.1. SUBORDINATION.
Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now
or subsequently arising upon the Premises, the Building or the
Project, and to renewals, modifications, refinancings and
extensions thereof (collectively referred to as a
“Mortgage”). The
party having the benefit of a Mortgage shall be referred to as a
“Mortgagee.”
This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable
subordination and attornment agreement in favor of the Mortgagee,
provided such agreement provides a non-disturbance covenant
benefitting Tenant. Alternatively, a Mortgagee shall have the right
at any time to subordinate its Mortgage to this Lease. Upon
request, Tenant, without charge, shall attorn to any successor to
Landlord’s interest in this Lease in the event of a
foreclosure of any mortgage. Tenant agrees that any purchaser at a
foreclosure sale or lender taking title under a deed in lieu of
foreclosure shall not be responsible for any act or omission of a
prior landlord unless the same relates to a default of a continuing
nature, shall not be subject to any offsets or defenses Tenant may
have against a prior landlord unless the same relates to a default
of a continuing nature, and shall not be liable for the return of
the Security Deposit not actually recovered by such purchaser nor
bound by any rent paid in advance of the calendar month in which
the transfer of title occurred; provided that the foregoing shall
not release the applicable prior landlord from any liability for
those obligations. Tenant acknowledges that Landlord’s
Mortgagees and their successors-in-interest are intended third
party beneficiaries of this Section 13.1.
13.2. ESTOPPEL
CERTIFICATE. Tenant shall, within 10 business days after
receipt of a written request from Landlord, execute and deliver a
commercially reasonable estoppel certificate in favor of those
parties as are reasonably requested by Landlord (including a
Mortgagee or a prospective purchaser of the Building or the
Project). Landlord shall, within 10 business days after receipt of
a written request from Tenant, execute and deliver a commercially
reasonable estoppel certificate in favor of those parties as are
reasonably requested by Tenant.
13.3. LANDLORD CONSENT AND
WAIVER. Landlord shall, within 10 business days after
receipt of a written request from Tenant, execute and deliver a
landlord lien waiver and consent in the form of Exhibit I hereto in favor of those
parties as are reasonably requested by Tenant (including a lender
to Tenant).
ARTICLE
14. DEFAULTS AND REMEDIES
14.1. TENANT’S
DEFAULTS. The occurrence of any one or more of the following
events shall constitute a “Default” by Tenant:
(a) The failure by
Tenant to make any payment of Rent required to be made by Tenant,
as and when due, where the failure continues for a period of 5
business days after written notice from Landlord to Tenant. The
term “Rent” as
used in this Lease shall be deemed to mean the Basic Rent and all
other sums required to be paid by Tenant to Landlord pursuant to
the terms of this Lease.
(b) The failure by
Tenant to timely deliver the documents required by the provisions
of Section 13.1, 13.2 and/or 22.2 of this Lease, where the failure
continues for a period of 5 business days after written notice from
Landlord.
(c) Except where a
specific time period is otherwise set forth for Tenant’s
performance in this Lease (in which event the failure to perform by
Tenant within such time period shall be a Default), the failure or
inability by Tenant to observe or perform any of the covenants or
provisions of this Lease to be observed or performed by Tenant,
other than as specified in any other subsection of this Section
14.1, where the failure continues for a period of 30 days after
written notice from Landlord to Tenant. However, if the nature of
the failure is such that more than 30 days are reasonably required
for its cure, then Tenant shall not be deemed to be in Default if
Tenant commences the cure within 30 days, and thereafter diligently
pursues the cure to completion.
The
notice periods provided herein are in lieu of, and not in addition
to, any notice periods provided by law, and Landlord shall not be
required to give any additional notice under California Code of
Civil Procedure Section 1161, or any successor statute, in order to
be entitled to commence an unlawful detainer
proceeding.
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14.2.
LANDLORD’S
REMEDIES.
(a) Upon the occurrence
of any Default by Tenant, then in addition to any other remedies
available to Landlord, Landlord may exercise the following
remedies:
(i) Landlord may
terminate Tenant’s right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord.
Such termination shall not affect any accrued obligations of Tenant
under this Lease. Upon termination, Landlord shall have the right
to reenter the Premises and remove all persons and property.
Landlord shall also be entitled to recover from
Tenant:
(1)
The worth at the time of award of the unpaid Rent which had been
earned at the time of termination;
(2) The worth at the
time of award of the amount by which the unpaid Rent which would
have been earned after termination until the time of award exceeds
the amount of such loss that Tenant proves could have been
reasonably avoided;
(3) The worth at the
time of award of the amount by which the unpaid Rent for the
balance of the Term after the time of award exceeds the amount of
such loss that Tenant proves could be reasonably
avoided;
(4) Any other amount
necessary to compensate Landlord for all the detriment proximately
caused by Tenant’s failure to perform its obligations under
this Lease or which in the ordinary course of things would be
likely to
result from
Tenant’s default, including, but not limited to, the cost of
recovering possession of the Premises, commissions and other
expenses of reletting, including necessary repair, renovation,
improvement and alteration of the Premises for a new tenant,
reasonable attorneys’ fees, and any other reasonable costs;
and
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(5) At Landlord’s
election, all other amounts in addition to or in lieu of the
foregoing as may be permitted by law. Any sum, other than Basic
Rent, shall be computed on the basis of the average monthly amount
accruing during the 24 month period immediately prior to Default,
except that if it becomes necessary to compute such rental before
the 24 month period has occurred, then the computation shall be on
the basis of the average monthly amount during the shorter period.
As used in subparagraphs (1) and (2) above, the “worth at the
time of award” shall be computed by allowing interest at the
rate of 10% per annum. As used in subparagraph (3) above, the
“worth at the time of award” shall be computed by
discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus 1%.
(ii) Employ
the remedy described in California Civil Code § 1951.4
(Landlord may continue this Lease in effect after Tenant’s
breach and abandonment and recover Rent as it becomes due, if
Tenant has the right to sublet or assign, subject only to
reasonable limitations).
(b) The various rights
and remedies reserved to Landlord in this Lease or otherwise shall
be cumulative and, except as otherwise provided by California law,
Landlord may pursue any or all of its rights and remedies at the
same time. No delay or omission of Landlord to exercise any right
or remedy shall be construed as a waiver of the right or remedy or
of any breach or Default by Tenant. The acceptance by Landlord of
rent shall not be a (i) waiver of any preceding breach or Default
by Tenant of any provision of this Lease, other than the failure of
Tenant to pay the particular rent accepted, regardless of
Landlord’s knowledge of the preceding breach or Default at
the time of acceptance of rent, or (ii) a waiver of
Landlord’s right to exercise any remedy available to Landlord
by virtue of the breach or Default. No payment by Tenant or receipt
by Landlord of a lesser amount than the rent required by this Lease
shall be deemed to be other than a partial payment on account of
the earliest due stipulated rent, nor shall any endorsement or
statement on any check or letter be deemed an accord and
satisfaction and Landlord shall accept the check or payment without
prejudice to Landlord’s right to recover the balance of the
rent or pursue any other remedy available to it. Tenant hereby
waives any right of redemption or relief from forfeiture under
California Code of Civil Procedure Section 1174 or 1179, or under
any successor statute, in the event this Lease is terminated by
reason of any Default by Tenant. No act or thing done by Landlord
or Landlord’s agents during the Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to
accept a surrender shall be valid unless in writing and signed by
Landlord.
14.3. LATE
PAYMENTS. Any Rent due under this Lease that is not paid to
Landlord within 5 days of the date when due shall bear interest at
the maximum rate permitted by law (not to exceed 10% per annum)
from the date due until fully paid and if any Rent due from Tenant
shall not be received by Landlord or Landlord’s designee
within 5 days after the date due, then Tenant shall pay to
Landlord, in addition to the interest, a late charge for each
delinquent payment equal to the greater of (i) 5% of that
delinquent payment or (ii) $100.00; provided, however, that
Landlord shall provide Tenant with one 5 day grace notice each
calendar year prior to imposition of a late charge.
14.4. DEFAULT
BY LANDLORD. Landlord shall not be deemed to be in default
in the performance of any obligation under this Lease unless and
until it has failed to perform the obligation within 30 days after
written notice by Tenant to Landlord specifying in reasonable
detail the nature and extent of the failure; provided, however,
that (i) in the event of an emergency involving either imminent
danger of damage to Tenant’s property or to the health or
safety of persons on site, then the foregoing 30-day period for
Landlord’s performance shall be revised to 7 days, and (ii)
if the nature of Landlord’s obligation is such that more than
30 days are required for its performance (or more than 7 days are
required in the event of an emergency), then Landlord shall not be
deemed to be in default if it commences performance within the 30
day or 7 day periods, as applicable, and thereafter diligently
pursues the cure to completion.
14.5. EXPENSES
AND LEGAL FEES. Should either Landlord or Tenant bring any
action in connection with this Lease, the prevailing party shall be
entitled to recover as a part of the action its reasonable
attorneys’ fees, and all other reasonable costs. The
prevailing party for the purpose of this paragraph shall be
determined by the trier of the facts.
14.6.
WAIVER OF JURY TRIAL/JUDICIAL
REFERENCE.
(a) LANDLORD
AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS HAD THE
ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHT TO TRIAL
BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE
AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST
THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM
OF INJURY OR DAMAGE.
(b) In the event that
the jury waiver provisions of Section 14.6(a) are not enforceable
under California law, then, unless otherwise agreed to by the
parties, the provisions of this Section 14.6(b) shall apply.
Landlord and Tenant agree that any disputes arising in connection
with this Lease (including but not limited to a determination of
any and all of the issues in such dispute, whether of fact or of
law) shall be resolved (and a decision shall be rendered) by way of
a general reference as provided for in Part 2, Title 8, Chapter 6
(§§ 638 et. seq.) of the California Code of Civil
Procedure, or any successor California statute governing resolution
of disputes by a court appointed referee. Nothing within this
Section 14.6 shall apply to an unlawful detainer
action.
14.7. SATISFACTION
OF JUDGMENT. The obligations of Landlord do not constitute
the personal obligations of the individual partners, trustees,
directors, officers, members or shareholders of Landlord or its
constituent partners or members. Should Tenant recover a money
judgment against Landlord, such judgment shall be satisfied only
from the interest of Landlord in the Project and out of the rent or
other income from such property receivable by Landlord, and no
action for any deficiency may be sought or obtained by
Tenant.
-13-
ARTICLE
15. END OF TERM
15.1. HOLDING
OVER. If Tenant holds over for any period after the
Expiration Date (or earlier termination of the Term), such tenancy
shall constitute a tenancy at sufferance only and possession shall
be subject to all of the terms of this Lease, except that the
monthly rental shall be 150% of the total monthly rental for the
month immediately preceding the date of termination, calculated on
a per diem basis. The acceptance by Landlord of monthly hold-over
rental in a lesser amount shall not constitute a waiver of
Landlord’s right to recover the full amount due unless
otherwise agreed in writing by Landlord. If Tenant fails to
surrender the Premises within 15 days following the expiration of
this Lease despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability,
including without limitation, any claims made by any succeeding
tenant relating to such failure to surrender. The foregoing
provisions of this Section 15.1 are in addition to and do not
affect Landlord’s right of re-entry or any other rights of
Landlord under this Lease or at law.
15.2. SURRENDER
OF PREMISES; REMOVAL OF PROPERTY. Upon the Expiration Date
or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good
order, condition and repair as when received or as hereafter may be
improved by Landlord or Tenant, reasonable wear and tear and
repairs which are Landlord’s obligation excepted, and shall
remove or fund to Landlord the cost of removing all wallpapering,
voice and/or data transmission cabling installed by or for Tenant
and Required Removables, together with all personal property and
debris, and shall perform all work required under Section 7.3 of
this Lease. If Tenant shall fail to comply with the provisions of
this Section 15.2, Landlord may effect the removal and/or make any
repairs, and the cost to Landlord shall be additional rent payable
by Tenant upon demand.
ARTICLE
16. PAYMENTS AND NOTICES
All
sums payable by Tenant to Landlord shall be paid, without deduction
or offset, in lawful money of the United States to Landlord at its
address set forth in Item 12 of the Basic Lease Provisions, or at
any other place as Landlord may designate in writing. Unless this
Lease expressly provides otherwise, all payments shall be due and
payable within 5 days after demand. All payments requiring
proration shall be prorated on the basis of the number of days in
the pertinent calendar month or year, as applicable. Any notice,
election, demand, consent, approval or other communication to be
given or other document to be delivered by either party to the
other may be delivered to the other party, at the address set forth
in Item 12 of the Basic Lease Provisions, by personal service or by
any courier or “overnight” express mailing service.
Either party may, by written notice to the other, served in the
manner provided in this Article, designate a different address. The
refusal to accept delivery of a notice, or the inability to deliver
the notice (whether due to a change of address for which notice was
not duly given or other good reason), shall be deemed delivery and
receipt of the notice as of the date of attempted delivery. If more
than one person or entity is named as Tenant under this Lease,
service of any notice upon any one of them shall be deemed as
service upon all of them.
ARTICLE
17. RULES AND REGULATIONS
Tenant
agrees to comply with the Rules and Regulations attached as
Exhibit E, and any
reasonable and nondiscriminatory amendments, modifications and/or
additions as may be adopted and published by written notice to
tenants by Landlord from time to time, provided such rules and
regulations adopted by Landlord after the date of this Lease shall
not impose any additional unreasonable burdens or additional
unreasonable liabilities on Tenant.
ARTICLE
18. BROKER’S COMMISSION
The
parties recognize as the broker(s) who negotiated this Lease the
firm(s) whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the
payment of brokerage commissions to those broker(s). Tenant agrees
to indemnify and hold Landlord harmless from any cost, expense or
liability (including reasonable attorneys’ fees) for any
compensation, commissions or charges claimed by any other real
estate broker or agent employed or claiming to represent or to have
been employed by Tenant in connection with the negotiation of this
Lease.
ARTICLE
19. TRANSFER OF LANDLORD’S INTEREST
Landlord shall have
the right to transfer and assign, in whole or in part, all of its
ownership interest, rights and obligations in the Building, Project
or Lease, including the Security Deposit, and upon transfer
Landlord shall be released from any further obligations hereunder,
and Tenant agrees to look solely to the successor in interest of
Landlord for the performance of such obligations and the return of
any Security Deposit, and further provided that any successor
pursuant to a voluntary, third party transfer (but not as part of
an involuntary transfer resulting from a foreclosure or deed in
lieu thereof) shall have assumed Landlord’s obligations under
this Lease either by contractual obligation, assumption agreement
or by operation of law.
ARTICLE
20. INTERPRETATION
20.1. JOINT
AND SEVERAL LIABILITY. If more than one person or entity is
named as Tenant, the obligations imposed upon each shall be joint
and several and the act of or notice from, or notice or refund to,
or the signature of, any one or more of them shall be binding on
all of them with respect to the tenancy of this Lease, including,
but not limited to, any renewal, extension, termination or
modification of this Lease.
-14-
20.2. SUCCESSORS.
Subject to Sections 13.1 and 22.3 and to Articles 9 and 19 of this
Lease, all rights and liabilities given to or imposed upon Landlord
and Tenant shall extend to and bind their respective heirs,
executors, administrators, successors and assigns.
20.3. TIME
OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of
performance is a factor.
20.4. CONTROLLING
LAW. This Lease shall be governed by and interpreted in
accordance with the laws of the State of California.
20.5. SEVERABILITY.
If any term or provision of this Lease, the deletion of which would
not adversely affect the receipt of any material benefit by either
party or the deletion of which is consented to by the party
adversely affected, shall be held invalid or unenforceable to any
extent, the remainder of this Lease shall not be affected and each
term and provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
20.6. WAIVER.
One or more waivers by Landlord or Tenant of any breach of any
term, covenant or condition contained in this Lease shall not be a
waiver of any subsequent breach of the same or any other term,
covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that
party’s consent to any subsequent act. No breach of this
Lease shall be deemed to have been waived unless the waiver is in a
writing signed by the waiving party.
20.7. INABILITY
TO PERFORM. In the event that either party shall be delayed
or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause
beyond the reasonable control of that party, then the performance
of the work or the doing of the act shall be excused for the period
of the delay and the time for performance shall be extended for a
period equivalent to the period of the delay. The provisions of
this Section 20.7 shall not operate to excuse Tenant from the
prompt payment of Rent.
20.8. ENTIRE
AGREEMENT. This Lease constitutes the entire agreement
between the parties and supersedes all prior agreements and
understandings related to the Premises. This Lease may be modified
only by a written agreement signed by Landlord and
Tenant.
20.9. QUIET
ENJOYMENT. Upon the observance and performance of all the
covenants, terms and conditions on Tenant’s part to be
observed and performed, and subject to the other provisions of this
Lease, Tenant shall have the right of quiet enjoyment and use of
the Premises for the Term without hindrance or interruption by
Landlord or any other person claiming by or through
Landlord.
20.10.
SURVIVAL. All covenants of Landlord or
Tenant which reasonably would be intended to survive the expiration
or sooner termination of this Lease, including without limitation
any warranty or indemnity hereunder, shall so survive and continue
to be binding upon and inure to the benefit of the respective
parties and their successors and assigns.
ARTICLE
21. EXECUTION
21.1. COUNTERPARTS;
DIGITAL SIGNATURES. This Lease may be executed in one or
more counterparts, each of which shall constitute an original and
all of which shall be one and the same agreement. The parties agree
to accept a digital image (including but not limited to an image in
the form of a PDF, JPEG, GIF file, or other e-signature) of this
Lease, if applicable, reflecting the execution of one or both of
the parties, as a true and correct original.
21.2. CORPORATE
AND PARTNERSHIP AUTHORITY. Each individual executing this
Lease represents and warrants to Landlord, without personal
liability, that such individual executing this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant.
21.3. EXECUTION
OF LEASE; NO OPTION OR OFFER. The submission of this Lease
to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises.
Execution of this Lease by Tenant and its return to Landlord shall
not be binding upon Landlord, notwithstanding any time interval,
until Landlord has in fact executed and delivered this Lease to
Tenant, it being intended that this Lease shall only become
effective upon execution by Landlord and delivery of a fully
executed counterpart to Tenant.
21.4. BROKER
DISCLOSURE. By the execution of this Lease, each of Landlord
and Tenant hereby acknowledge and confirm (a) receipt of a copy of
a Disclosure Regarding Real Estate Agency Relationship conforming
to the requirements of California Civil Code 2079.16, and (b) the
agency relationships specified in Item 10 of the Basic Lease
Provisions, which acknowledgement and confirmation is expressly
made for the benefit of Tenant’s Broker identified in Item 10
of the Basic Lease Provisions. If there is no Tenant’s Broker
so identified in Item 10 of the Basic Lease Provisions, then such
acknowledgement and confirmation is expressly made for the benefit
of Landlord’s Broker. By the execution of this Lease,
Landlord and Tenant are executing the confirmation of the agency
relationships set forth in Item 10 of the Basic Lease
Provisions.
ARTICLE
22. MISCELLANEOUS
22.1. NONDISCLOSURE
OF LEASE TERMS. Except to the extent disclosure is required
by law, Tenant shall keep the content of this Lease and any related
documents confidential and shall not disclose such confidential
information to any person or entity other than Tenant’s
financial, legal and space-planning consultants, provided, however,
that Tenant may disclose the terms to prospective subtenants or
assignees under this Lease or pursuant to legal
requirement.
-15-
22.2. TENANT’S
FINANCIAL STATEMENTS. The application, financial statements
and tax returns, if any, submitted and certified to by Tenant as an
accurate representation of its financial condition have been
prepared, certified and submitted to Landlord as an inducement and
consideration to Landlord to enter into this Lease. Tenant shall
during the Term furnish Landlord with current annual financial
statements accurately reflecting Tenant’s financial condition
upon written request from Landlord within 10 days following
Landlord’s request (not more than once per year); provided,
however, that so long as Tenant is a publicly traded corporation on
a nationally recognized stock exchange, the foregoing obligation to
deliver the statements shall be waived.
22.3. MORTGAGEE
PROTECTION. No act or failure to act on the part of Landlord
which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in
such a release or termination unless (a) Tenant has given notice by
registered or certified mail to any Mortgagee of a Mortgage
covering the Building whose address has been furnished to Tenant
and (b) such Mortgagee is afforded a reasonable opportunity to cure
the default by Landlord. Tenant shall comply with any written
directions by any Mortgagee to pay Rent due hereunder directly to
such Mortgagee without determining whether a default exists under
such Mortgagee’s Mortgage.
22.4. SDN
LIST. Tenant hereby represents and warrants that, to the
actual knowledge of the corporate officers of Tenant on the date of
this Lease, neither Tenant nor any officer, director, employee,
partner, member or other principal of Tenant (collectively,
“Tenant
Parties”) is listed as a Specially Designated National
and Blocked Person (“SDN”) on the list of such persons
and entities issued by the U.S. Treasury Office of Foreign Assets
Control (OFAC).
|
LANDLORD:
THE IRVINE COMPANY LLC,
a
Delaware limited liability company
By /s/ ▇▇▇▇▇▇ ▇.
Case
▇▇▇▇▇▇
▇. Case
Executive
Vice President
Office
Properties
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
Vice
President, Office Properties
Office
Properties
|
TENANT:
AUTOWEB, INC,
a Delaware corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Printed Name ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title EVP,
Chief Operating
Officer
By /s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Printed Name ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title EVP,
Chief Legal Officer and
▇▇▇▇▇▇▇▇▇
|
-▇▇-
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Exhibit
A
|
|
-17-
EXHIBIT
B
OPERATING
EXPENSES
(Net)
(a) From and after the
Commencement Date, Tenant shall pay to Landlord, as additional
rent, Tenant’s Share of all Operating Expenses, as defined in
Section (f) below, incurred by Landlord in the operation of the
Building and the Project. The term “Tenant’s Share” means that
portion of any Operating Expenses determined by multiplying the
cost of such item by a fraction, the numerator of which is the
Floor Area of Premises and the denominator of which is the total
rentable square footage, as reasonably determined from time to time
by Landlord, of (i) the Building, for expenses reasonably and
equitably determined by Landlord to benefit or relate substantially
to the Building rather than the entire Project, and (ii) all or
some of the buildings in the Project, for expenses reasonably and
equitably determined by Landlord to benefit or relate substantially
to all or some of the buildings in the Project rather than any
specific building. Landlord reserves the right to allocate to the
entire Project any Operating Expenses which may benefit or
substantially relate to a particular building within the Project in
order to maintain greater consistency of Operating Expenses among
buildings within the Project. In the event that Landlord determines
that the Premises or the Building incur a non-proportional benefit
from any expense, or is the non-proportional cause of any such
expense, Landlord may allocate a greater percentage of such
Operating Expense to the Premises or the Building. In the event
that any management and/or overhead fee payable or imposed by
Landlord for the management of Tenant’s Premises is
calculated as a percentage of the rent payable by Tenant and other
tenants of Landlord, then the full amount of such management and/or
overhead fee which is attributable to the rent paid by Tenant shall
be additional rent payable by Tenant, in full, provided, however,
that Landlord may elect to include such full amount as part of
Tenant’s Share of Operating Expenses.
(b) Commencing prior to
the start of the first full “Expense Recovery Period” of the
Lease (as defined in Item 7 of the Basic Lease Provisions), and
prior to the start of each full or partial Expense Recovery Period
thereafter, Landlord shall give Tenant a written estimate of the
amount of Tenant’s Share of Operating Expenses for the
applicable Expense Recovery Period. Tenant shall pay the estimated
amounts to Landlord in equal monthly installments, in advance,
concurrently with payments of Basic Rent. If Landlord has not
furnished its written estimate for any Expense Recovery Period by
the time set forth above, Tenant shall continue to pay monthly the
estimated Tenant’s Share of Operating Expenses in effect
during the prior Expense Recovery Period; provided that when the
new estimate is delivered to Tenant, Tenant shall, at the next
monthly payment date, pay any accrued estimated Tenant’s
Share of Operating Expenses based upon the new estimate. Landlord
may from time to time change the Expense Recovery Period to reflect
a calendar year or a new fiscal year of Landlord, as applicable, in
which event Tenant’s Share of Operating Expenses shall be
equitably prorated for any partial year.
(c) Within 180 days
after the end of each Expense Recovery Period, Landlord shall
furnish to Tenant a statement (a “Reconciliation Statement”) showing
in reasonable detail the actual or prorated Tenant’s Share of
Operating Expenses incurred by Landlord during such Expense
Recovery Period, and the parties shall within 30 days thereafter
make any payment or allowance necessary to adjust Tenant’s
estimated payments of Tenant’s Share of Operating Expenses,
if any, to the actual Tenant’s Share of Operating Expenses as
shown by the Reconciliation Statement. Any delay or failure by
Landlord in delivering any Reconciliation Statement shall not
constitute a waiver of Landlord’s right to require Tenant to
pay Tenant’s Share of Operating Expenses pursuant hereto. Any
amount due Tenant shall be credited against installments next
coming due under this Exhibit
B, and any deficiency shall be paid by Tenant together with
the next installment. Should Tenant fail to object in writing to
Landlord’s determination of Tenant’s Share of Operating
Expenses, or fail to give written notice of its intent to audit
Landlord’s Operating Expenses pursuant to the provisions of
this Exhibit B, within 180
days following delivery of Landlord’s Reconciliation
Statement, Landlord’s determination of Tenant’s Share
of Operating Expenses for the applicable Expense Recovery Period
shall be conclusive and binding on Tenant for all purposes and any
future claims by Tenant to the contrary shall be
barred.
Provided no Default
has occurred and is continuing, Tenant shall have the right to
cause a certified public accountant, engaged on a non-contingency
fee basis, to audit Operating Expenses by inspecting Landlord's
general ledger of expenses not more than once during any Expense
Recovery Period. However, to the extent that insurance premiums or
any other component of Operating Expenses is determined by Landlord
on the basis of an internal allocation of costs utilizing
information Landlord in good ▇▇▇▇▇ ▇▇▇▇▇ proprietary, such expense
component shall not be subject to audit so long as it does not
exceed the amount per square foot typically imposed by landlords of
other first class office projects in Orange County, California.
Tenant shall give notice to Landlord of Tenant's intent to audit
within 180 days after Tenant's receipt of Landlord's expense
statement which sets forth Landlord's actual Operating Expenses.
Such audit shall be conducted at a mutually agreeable time during
normal business hours at the office of Landlord or its management
agent where such accounts are maintained. If Tenant's audit
determines that actual Operating Expenses have been overstated by
more than five percent (5%), then subject to Landlord's right to
review and/or contest the audit results, Landlord shall reimburse
Tenant for the reasonable out-of-pocket costs of such audit.
Tenant's rent shall be appropriately adjusted to reflect any
overstatement in Operating Expenses. All of the information
obtained by Tenant and/or its auditor in connection with such
audit, as well as any compromise, settlement, or adjustment reached
between Landlord and Tenant as a result thereof, shall be held in
strict confidence and, except as may be required pursuant to
litigation, shall not be disclosed to any third party, directly or
indirectly, by Tenant or its auditor or any of their officers,
agents or employe es. Landlord may require Tenant's auditor to
execute a separate commercially reasonable confidentiality
agreement affirming the foregoing as a condition precedent to any
audit. In the event of a violation of this confidentiality covenant
in connection with any audit, then in addition to any other legal
or equitable remedy available to Landlord, Tenant shall forfeit its
right to any reconciliation or cost reimbursement payment from
Landlord due to said audit (and any such payment theretofore made
by Landlord shall be promptly returned by Tenant), and Tenant shall
have no further audit rights under this Lease. Notwithstanding the
foregoing, Tenant shall have no right of audit with respect to any
Expense Recovery Period unless the total Operating Expenses per
square foot for such Expense Recovery Period, as set forth in
Landlord's annual expense reconciliation, exceed the total
Operating Expenses per square foot during such Expense Recovery
Period, as increased by the percentage change in the United States
Department of Labor, Bureau of Labor Statistics, Consumer Price
Index for all Urban Consumers, Los Angeles - Riverside - Orange
County Area Average, all items (1982- 84 = 100) (the "Index"), which change in the Index shall
be measured by comparing the Index published for January of the
initial Expense Recovery Period during the Term with the Index
published for January of the applicable Expense Recovery
Period.
-18-
(d) Even though this
Lease has terminated and the Tenant has vacated the Premises, when
the final determination is made of Tenant’s Share of
Operating Expenses for the Expense Recovery Period in which this
Lease terminates, Tenant shall within 30 days of written notice pay
the entire increase over the estimated Tenant’s Share of
Operating Expenses already paid. Conversely, any overpayment by
Tenant shall be rebated by Landlord to Tenant not later than 30
days after such final determination. However, in lieu thereof,
Landlord may deliver a reasonable estimate of the anticipated
reconciliation amount to Tenant prior to the Expiration Date of the
Term, in which event the appropriate party shall fund the amount by
the Expiration Date.
(e) If, at any time
during any Expense Recovery Period, any one or more of the
Operating Expenses are increased to a rate(s) or amount(s) in
excess of the rate(s) or amount(s) used in calculating the
estimated Tenant’s Share of Operating Expenses for the year,
then the estimate of Tenant’s Share of Operating Expenses may
be increased by written notice from Landlord for the month in which
such rate(s) or amount(s) becomes effective and for all succeeding
months by an amount equal to the estimated amount of Tenant’s
Share of the increase. Landlord shall give Tenant written notice of
the amount or estimated amount of the increase, the month in which
the increase will become effective, Tenant’s Share thereof
and the months for which the payments are due. Tenant shall pay the
increase to Landlord as part of the Tenant’s monthly payments
of estimated expenses as provided in paragraph (b) above,
commencing with the month in which effective.
(f) The term
“Operating
Expenses” shall mean and include all Project Costs, as
defined in Section (g) below, and Property Taxes, as defined in
Section (h) below.
(g) The term
“Project Costs”
shall mean all expenses of operation, management, repair,
replacement and maintenance of the Building and the Project,
including without limitation all appurtenant Common Areas (as
defined in Section 6.2 of the Lease), and shall include the
following charges by way of illustration but not limitation: water
and sewer charges; insurance premiums, commercially reasonable
deductibles, or reasonable premium equivalents or deductible
equivalents should Landlord elect to self insure any risk that
Landlord is authorized to insure hereunder; license, permit, and
inspection fees; light; power; window washing; trash pickup;
janitorial services to any interior Common Areas; heating,
ventilating and air conditioning; supplies; materials; equipment;
tools; reasonable fees for consulting services; access
control/security costs, inclusive of the reasonable cost of
improvements made to enhance access control systems and procedures;
establishment of reasonable reserves for replacement of the roof of
the Building (provided that the applicable reserve shall be
utilized in full before additional Project Costs are charged for
the replacement and/or repair of the roof); costs incurred in
connection with compliance with any laws enacted after the date of
this Lease or changes in existing laws applicable to the Building
or the Project; the cost of any capital improvements or
replacements to the extent of the amortized amount thereof over the
useful life of such capital improvements or replacements (or, if
such capital improvements or replacements are anticipated to
achieve a cost savings as to the Operating Expenses, any shorter
estimated period of time over which the cost of the capital
improvements or replacements would be recovered from the estimated
cost savings) calculated at a market cost of funds, all as
determined by Landlord, for each year of useful life or shorter
recovery period of such capital expenditure whether such capital
expenditure occurs during or prior to the Term, provided that such
capital expenditures shall be limited to (i) improvements which
increase or enhance building security and/or safety (such as
lighting, life/fire safety systems, etc.), (ii) repairs or
replacements of the Building Structure, Building Systems or Common
Areas as required for functional (and not esthetic) reasons; (iii)
alterations or improvements required to comply with any law or
change in law first becoming effective as to the Building after the
date hereof; and (iv) expenditures incurred as a cost or labor
saving measure or to affect other economies in the operation or
maintenance of the Building or Project (in which event the entire
amount of any resulting cost saving may be included in Project
Costs during the applicable Expense Recovery Period but in no event
in excess of the total cost of the capital expenditure)
(collectively, “Permitted
Capital Items”); costs associated with the maintenance
of an air conditioning, heating and ventilation service agreement,
and maintenance of any communications or networked data
transmission equipment, conduit, cabling, wiring and related
telecommunications facilitating automation and control systems,
remote telecommunication or data transmission infrastructure within
the Building and/or the Project, and any other maintenance, repair
and replacement costs associated with such infrastructure; capital
costs associated with a requirement related to demands on utilities
by Project tenants, including without limitation the cost to obtain
additional voice, data and modem connections, but only to the
extent of the amortization of such capital costs over the useful
life of the item in question; labor; reasonably allocated wages and
salaries, fringe benefits, and payroll taxes for administrative and
other personnel directly applicable to the Building and/or Project,
including both Landlord’s personnel and outside personnel;
any expense incurred pursuant to Sections 6.1, 6.2, and 7.2 and
Exhibits C and F of the Lease; and reasonable overhead
and/or management fees for the professional operation of the
Project. It is understood and agreed that Project Costs may include
competitive charges for direct services (including, without
limitation, management and/or operations services) provided by any
subsidiary, division or affiliate of Landlord.
(h) The term
“Property Taxes”
as used herein shall include any form of federal, state, county or
local government or municipal taxes, fees, charges or other
impositions of every kind (whether general, special, ordinary or
extraordinary) related to the ownership, leasing or operation of
the Premises, Building or Project, including without limitation,
the following: (i) all real estate taxes or personal property taxes
levied against the Premises, the Building or Project, as such
property taxes may be reassessed from time to time; and (ii) other
taxes, charges and assessments which are levied with respect to
this Lease or to the Building and/or the Project, and any
improvements, fixtures and equipment and other property of Landlord
located in the Building and/or the Project, (iii) all assessments
and fees for public improvements, services, and facilities and
impacts thereon, including without limitation arising out of any
Community Facilities Districts, “▇▇▇▇▇ ▇▇▇▇” districts,
similar assessment districts, and any traffic impact mitigation
assessments or fees; (iv) any tax, surcharge or assessment which
shall be levied in addition to or in lieu of real estate or
personal property taxes, and (v) taxes based on the receipt of rent
(including gross receipts or sales taxes applicable to the receipt
of rent), and (vi) costs and expenses incurred in contesting the
amount or validity of any Property Tax by appropriate proceedings.
Notwithstanding the foregoing, general net income or franchise
taxes imposed against Landlord shall be excluded.
-19-
(i)
Notwithstanding the
foregoing, Operating Expenses shall exclude the
following:
(1)
Any ground lease rental;
(2) Costs incurred by
Landlord with respect to goods and services (including utilities
sold and supplied to tenants and occupants of the Building) to the
extent that Landlord is reimbursed for such costs other than
through the Operating Expense pass-through provisions of such
tenants' lease;
(3) Costs incurred by
Landlord for repairs, replacements and/or restoration to or of the
Building to the extent that Landlord is reimbursed by insurance or
condemnation proceeds or by tenants (other than through Operating
Expense pass-throughs), warrantors or other third
persons;
(4) Costs, including
permit, license and inspection costs, incurred with respect to the
installation of tenant improvements made for other tenants in the
Building or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or
other occupants of the Building;
(5)
Costs arising from Landlord's charitable or political
contributions;
(6)
Attorneys' fees and other costs and expenses incurred in connection
with negotiations or disputes with present or prospective tenants
or other occupants of the Building, except those attorneys' fees
and other costs and expenses incurred in connection with
negotiations, disputes or claims relating to items of Operating
Expenses, enforcement of rules and regulations of the Building and
such other matters relating to the maintenance of standards
required of Landlord under this Lease;
(7) Capital
expenditures as determined in accordance with generally accepted
accounting principles, consistently applied, and as generally
practiced in the real estate industry (“GAAP”), except for Permitted
Capital Items;
(8) Brokers
commissions, finders' fees, attorneys' fees, entertainment and
travel expenses and other costs incurred by Landlord in leasing or
attempting to lease space in the Building;
(9)
Expenses in
connection with services or other benefits which are not offered to
Tenant or for which Tenant is charged for directly but which are
provided to another tenant or occupant of the
Building;
(10)
Costs incurred by Landlord due to the violation by Landlord of any
law, code, regulation, or ordinance;
(11)
Overhead and profit increments paid to subsidiaries or affiliates
of Landlord for services provided to the Building to the extent the
same exceeds the costs that would generally be charged for such
services if rendered on a competitive basis (based upon a standard
of similar office buildings in the general market area of the
Premises) by unaffiliated third parties capable of providing such
service;
(12)
Interest on debt or amortization on any mortgage or mortgages
encumbering the Building;
(13)
Landlord's general
corporate overhead, except as it relates to the specific
management, operation, repair, replacement and maintenance of the
Building or Project;
(14)
Costs
of installing the initial landscaping and the initial sculpture,
paintings and objects of art for the Building and
Project;
(15)
Advertising expenditures;
(16)
Any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
(17)
Costs
associated with the operation of the business of the partnership or
entity which constitutes the Landlord, as the same are
distinguished from the costs of the operation, management, repair,
replacement and maintenance of the Project, including partnership
accounting and legal matters, costs of defending any lawsuits with
any mortgagee (except as the actions of Tenant may be in issue),
costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Project, and costs
incurred in connection with any disputes between Landlord and its
employees, between Landlord and Project management, or between
Landlord and other tenants or occupants;
(18)
The
wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Project unless
such wages and benefits are prorated to reflect time spent on
operating and managing the Project vis-à-vis time spent on
matters unrelated to operating and managing the Project; provided
that in no event shall Project Costs include wages and/or benefits
attributable to personnel above the level of portfolio property
manager or chief engineer;
(19)
Costs
incurred by Landlord for improvements or replacements (including
structural additions), repairs, equipment and tools which are of a
“capital” nature and/or which are considered
“capital” improvements or replacements under GAAP,
except for Permitted Capital Items;
-20-
(20) Legal
fees and costs, settlements, judgments or awards paid or incurred
because of disputes between Landlord and other tenants or
prospective occupants or prospective tenants/occupants or providers
of goods and services to the Project;
(21) Penalties
for late payment of any Operating Expenses by Landlord, including,
without limitation, with respect to Property Taxes, equipment
leases, etc.;
(22) Expenses
in connection with services, utilities or other benefits of a type
which are not standard for the Building and which are not available
to Tenant without specific charge therefor but which are provided
to another tenant or occupant of the Project;
(23)
Reserves of any kind, except for reserves for the replacement of
the roof as described in Section (g) above;
(24)
Except for the management fee described in Section (g) above, costs
of Landlord's general overhead and general
administrative expenses (individual, partnership or corporate, as
the case may be); and
(25)
Costs to correct, repair and/or replace the structural components
of the roof, the load-bearing walls and the foundations and
footings of the Building.
-21-
EXHIBIT
C
UTILITIES
AND SERVICES
Tenant
shall be responsible for and shall pay promptly, directly to the
appropriate supplier, all charges for electricity metered to the
Premises, telephone, telecommunications service, janitorial
service, interior landscape maintenance and all other utilities,
materials and services furnished directly to Tenant or the Premises
or used by Tenant in, on or about the Premises during the Term,
together with any taxes thereon. Landlord shall make a reasonable
determination of Tenant’s proportionate share of the cost of
water, gas, sewer, refuse pickup and any other utilities and
services that are not separately metered to the Premises and
services, and Tenant shall pay such amount to Landlord, as an item
of additional rent, within 10 days after delivery of
Landlord’s statement or invoice therefor. Alternatively,
Landlord may elect to include such cost in the definition of
Project Costs in which event Tenant shall pay Tenant’s
proportionate share of such costs in the manner set forth in
Section 4.2. Tenant shall also pay to Landlord as an item of
additional rent, within 10 days after delivery of Landlord’s
statement or invoice therefor, Landlord’s “standard
charges” (as hereinafter defined) for “after
hours” usage by Tenant of each HVAC unit servicing the
Premises. “After
hours” shall mean usage of said unit(s) before 8:00
A.M. or after 6:00 P.M. on Mondays through Fridays, before 8:00
A.M. or after 1:00 P.M. on Saturdays, and all day on Sundays and
nationally-recognized holidays. As used herein, during the initial
Term, “standard
charges” shall mean $25.25 per hour for each hour of
“after hours” use.
-22-
EXHIBIT
D
TENANT’S
INSURANCE
The
following requirements for Tenant’s insurance shall be in
effect during the Term, and Tenant shall also cause any subtenant
to comply with the requirements. Landlord reserves the right to
adopt reasonable nondiscriminatory modifications and additions to
these requirements.
1. Tenant shall
maintain, at its sole cost and expense, during the entire Term: (i)
commercial general liability insurance with respect to the Premises
and the operations of Tenant in, on or about the Premises, on a
policy form that is at least as broad as Insurance Service Office
(ISO) CGL 00 01 (if alcoholic beverages are sold on the Premises,
liquor liability shall be explicitly covered), which policy(ies)
shall be written on an “occurrence” basis and for not
less than $2,000,000 combined
single limit per occurrence for bodily injury, death, and property
damage liability, which may be accomplished by a combination of
primary and excess/umbrella coverage; (ii) workers’
compensation insurance coverage as required by law, together with
employers’ liability insurance coverage of at least
$1,000,000 each accident and each disease; (iii) with respect to
Alterations constructed by Tenant under this Lease (excluding the
Tenant Improvements constructed by Landlord pursuant to the Work
Letter), builder’s risk insurance, in an amount equal to the
replacement cost of the work; and (iv) insurance against fire,
vandalism, malicious mischief and such other additional perils as
may be included in a standard “special form” policy,
insuring all Alterations, trade fixtures, furnishings, equipment
and items of personal property in the Premises, in an amount equal
to not less than 90% of their replacement cost (with replacement
cost endorsement), which policy shall also include business
interruption coverage in an amount sufficient to cover 1 year of
loss. In no event shall the limits of any policy be considered as
limiting the liability of Tenant under this Lease.
2. All policies of
insurance required to be carried by Tenant pursuant to this
Exhibit D shall be written
by insurance companies authorized to do business in the State of
California and with a general policyholder rating of not less than
“A-” and financial rating of not less than
“VIII” in the most current Best’s Insurance
Report. The deductible or other retained limit under any policy
carried by Tenant shall be commercially reasonable, and Tenant
shall be responsible for payment of such deductible or retained
limit with waiver of subrogation in favor of Landlord. Any
insurance required of Tenant may be furnished by Tenant under any
blanket policy carried by it or under a separate policy. A
certificate of insurance, certifying that the policy has been
issued, provides the coverage required by this Exhibit and contains
the required provisions, together with endorsements acceptable to
Landlord evidencing the waiver of subrogation and additional
insured provisions required below, shall be delivered to Landlord
prior to the date Tenant is given the right of possession of the
Premises. Proper evidence of the renewal of any insurance coverage
shall also be delivered to Landlord not less than
ten (10) days prior to
the expiration of the coverage. In the event of a loss covered by
any policy under which Landlord is an additional insured, Landlord
shall be entitled to review a copy of such policy.
3. Tenant’s
commercial general liability insurance shall contain a provision
that the policy shall be primary to and noncontributory with any
policies carried by Landlord, together with a provision including
Landlord and any other parties in interest designated by Landlord
as additional insureds. Tenant’s policies described in
Subsections 1 (ii), (iii) and (iv) above shall each contain a
waiver by the insurer of any right to subrogation against Landlord,
its agents, employees, contractors and representatives. Tenant also
waives its right of recovery against Landlord and its designated
additional insureds for any deductible or retained limit under same
policies enumerated above. All of Tenant’s policies shall
contain a provision that the insurer will not cancel, reduce or
otherwise materially change the coverage provided by the policy
without first giving Landlord 10 days’ prior written notice.
Tenant shall also name Landlord as an additional insured on any
excess or umbrella liability insurance policy carried by
Tenant.
NOTICE
TO TENANT: IN ACCORDANCE WITH THE TERMS OF THIS LEASE, TENANT MUST
PROVIDE EVIDENCE OF THE REQUIRED INSURANCE TO LANDLORD’S
MANAGEMENT AGENT PRIOR TO BEING AFFORDED ACCESS TO THE
PREMISES.
-23-
EXHIBIT
E
RULES
AND REGULATIONS
The
following Rules and Regulations shall be in effect at the Building.
Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions at any time. In the case of any
conflict between these regulations and the Lease, the Lease shall
be controlling.
1. The sidewalks,
halls, passages, elevators, stairways, and other common areas shall
not be obstructed by Tenant or used by it for storage, for
depositing items, or for any purpose other than for ingress to and
egress from the Premises. Should Tenant have access to any balcony
or patio area, Tenant shall not place any furniture other personal
property in such area without the prior written approval of
Landlord.
2. Neither Tenant nor
any employee or contractor of Tenant shall go upon the roof of the
Building without the prior written consent of
Landlord.
3. Tenant shall, at
its expense, be required to utilize the third party contractor
designated by Landlord for the Building to provide any telephone
wiring services from the minimum point of entry of the telephone
cable in the Building to the Premises.
4.
No antenna or satellite dish shall be installed by Tenant without
the prior written agreement of Landlord.
5. The sashes, sash
doors, windows, glass lights, solar film and/or screen, and any
lights or skylights that reflect or admit light into the halls or
other places of the Building shall not be covered or obstructed. If
Landlord, by a notice in writing to Tenant, shall object to any
curtain, blind, tinting, shade or screen attached to, or hung in,
or used in connection with, any window or door of the Premises, the
use of that curtain, blind, tinting, shade or screen shall be
immediately discontinued and removed by Tenant. Interior of the
Premises visible from the exterior must be maintained in a visually
professional manner and consistent with a first class office
building. Tenant shall not place any unsightly items (as determined
by Landlord in its reasonable discretion) along the exterior glass
line of the Premises including, but not limited to, boxes, and
electrical and data cords. No awnings shall be permitted on any
part of the Premises.
6. The installation
and location of any unusually heavy equipment in the Premises,
including without limitation file storage units, safes and
electronic data processing equipment, shall require the prior
written approval of Landlord. The moving of large or heavy objects
shall occur only between those hours as may be designated by, and
only upon previous notice to, Landlord. No freight, furniture or
bulky matter of any description shall be received into or moved out
of the lobby of the Building or carried in any elevator other than
the freight elevator (if available) designated by Landlord unless
approved in writing by Landlord.
7. Any pipes or tubing
used by Tenant to transmit water to an appliance or device in the
Premises must be made of copper or stainless steel, and in no event
shall plastic tubing be used for that purpose.
8. Tenant shall not
place any lock(s) on any door in the Premises or Building without
Landlord’s prior written consent, which consent shall not be
unreasonably withheld. Upon the termination of its tenancy, Tenant
shall deliver to Landlord all the keys to offices, rooms and toilet
rooms and all access cards which shall have been furnished to
Tenant or which Tenant shall have had made.
9. Tenant shall not
install equipment requiring electrical or air conditioning service
in excess of that to be provided by Landlord under the Lease
without prior written approval from Landlord.
10.
Tenant shall not use space heaters within the
Premises.
11.
Tenant shall not do
or permit anything to be done in the Premises, or bring or keep
anything in the Premises, which shall in any way increase the
insurance on the Building, or on the property kept in the Building,
or interfere with the rights of other tenants, or conflict with any
government rule or regulation.
12.
Tenant shall not use or keep any foul or noxious gas or substance
in the Premises.
13.
Tenant shall not
permit the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by
reason of noise, odors and/or vibrations, or interfere in any way
with other tenants or those having business with other
tenants.
-24-
14. Tenant shall not
permit any pets or animals in or about the Building. Bona fide
service animals are permitted provided such service animals are
pre-approved by Landlord, remain under the direct control of the
individual they serve at all times, and do not disturb or threaten
others.
15. Neither Tenant nor
its employees, agents, contractors, invitees or licensees shall
bring any firearm, whether loaded or unloaded, into the Project at
any time.
16. Smoking tobacco,
including via personal vaporizers or other electronic cigarettes,
anywhere within the Premises, Building or Project is strictly
prohibited except that smoking tobacco shall be permitted outside
the Building and within the Project only in areas designated by
Landlord. Smoking, vaping, distributing, growing or manufacturing
marijuana or any marijuana derivative anywhere within the Premises,
Building or Project is strictly prohibited.
17.
Tenant shall not install an aquarium of any size in the Premises
unless otherwise approved by Landlord.
18. Tenant shall not
utilize any name selected by Landlord from time to time for the
Building and/or the Project as any part of Tenant’s corporate
or trade name. Landlord shall have the right to change the name,
number or designation of the Building or Project without liability
to Tenant. Tenant shall not use any picture of the Building in its
advertising, stationery or in any other manner.
19. Tenant shall, upon
request by Landlord, supply Landlord with the names and telephone
numbers of personnel designated by Tenant to be contacted on an
after-hours basis should circumstances warrant.
20. Landlord may from
time to time grant tenants individual and temporary variances from
these Rules, provided that any variance does not have a material
adverse effect on the use and enjoyment of the Premises by
Tenant.
-25-
EXHIBIT
F
PARKING
Tenant
shall be entitled to the number of vehicle parking spaces set forth
in Item 11 of the Basic Lease Provisions, which spaces shall be
unreserved and unassigned at no charge to Tenant during the initial
Term, on those portions of the Common Areas designated by Landlord
for parking. Tenant shall not use more parking spaces than such
number. All parking spaces shall be used only for parking of
vehicles no larger than full size passenger automobiles, sport
utility vehicles or pickup trucks. Tenant shall not permit or allow
any vehicles that belong to or are controlled by Tenant or
Tenant’s employees, suppliers, shippers, customers or
invitees to be loaded, unloaded or parked in areas other than those
designated by Landlord for such activities. If Tenant permits or
allows any of the prohibited activities described above, then
Landlord shall have the right, without notice, in addition to such
other rights and remedies that Landlord may have, to remove or tow
away the vehicle involved and charge the costs to Tenant. Parking
within the Common Areas shall be limited to striped parking stalls,
and no parking shall be permitted in any driveways, access ways or
in any area which would prohibit or impede the free flow of traffic
within the Common Areas. There shall be no parking of any vehicles
for longer than a 48 hour period unless otherwise authorized by
Landlord, and vehicles which have been abandoned or parked in
violation of the terms hereof may be towed away at the
owner’s expense. Nothing contained in this Lease shall be
deemed to create liability upon Landlord for any damage to motor
vehicles of visitors or employees, for any loss of property from
within those motor vehicles, or for any injury to Tenant, its
visitors or employees, unless ultimately determined to be caused by
the sole negligence or willful misconduct of Landlord. Landlord
shall have the right to establish, and from time to time amend, and
to enforce against all users all reasonable rules and regulations
(including the designation of areas for employee parking) that
Landlord may deem necessary and advisable for the proper and
efficient operation and maintenance of parking within the Common
Areas. Landlord shall have the right to construct, maintain and
operate lighting facilities within the parking areas; to change the
area, level, location and arrangement of the parking areas and
improvements therein; to restrict parking by tenants, their
officers, agents and employees to employee parking areas; to
enforce parking charges (by operation of meters or otherwise) after
the initial Term; and to do and perform such other acts in and to
the parking areas and improvements therein as, in the use of good
business judgment, Landlord shall determine to be advisable;
provided, however, that Landlord will use commercially reasonable
effort to minimize interference with Tenant’s access to or
use of the Premises in connection with such activities. Any person
using the parking area shall observe all directional signs and
arrows and any posted speed limits. In no event shall Tenant
interfere with the use and enjoyment of the parking area by other
tenants of the Project or their employees or invitees. Parking
areas shall be used only for parking vehicles. Washing, waxing,
cleaning or servicing of vehicles, or the storage of vehicles for
longer than 48-hours, is prohibited unless otherwise authorized by
Landlord. Notwithstanding the foregoing, subject to the execution
and delivery by Tenant and/or any applicable employee of
Landlord’s standard overnight parking form, Tenant shall have
the right to park one (1) company vehicle in the parking area for
up to seven (7) consecutive days and up to five (5) of
Tenant’s employees shall each have the right to park one (1)
passenger vehicle in the parking area for up to seven (7)
consecutive days. Tenant shall be liable for any damage to the
parking areas caused by Tenant or Tenant’s employees,
suppliers, shippers, customers or invitees, including without
limitation damage from excess oil leakage. Tenant shall have no
right to install any fixtures, equipment or personal property in
the parking areas. Tenant shall not assign or sublet any of the
vehicle parking spaces, either voluntarily or by operation of law,
without the prior written consent of Landlord, except in connection
with an authorized assignment of this Lease or subletting of the
Premises.
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-26-
EXHIBIT
G
ADDITIONAL
PROVISIONS
1. RIGHT
TO EXTEND THIS LEASE. Provided that no Default has occurred
and is continuing under any provision of this Lease, and provided
further that Tenant is occupying the entire Premises and has not
(except in connection with a Permitted Transfer of this Lease to an
Affiliate or a Successor as described in Section 9.2 hereof)
assigned or sublet any of its interest in this Lease, then Tenant
may extend the Term of this Lease for 1 extension period of 60
months. Tenant shall exercise its right to extend the Term by and
only by delivering to Landlord, not less than 10 months or more
than 12 months prior to the Expiration Date of the Term, Tenant's
irrevocable written notice of its commitment to extend (the
“Commitment
Notice”). The Basic Rent payable under the Lease
during any extension of the Term shall be determined as provided in
the following provisions.
If
Landlord and Tenant have not by then been able to agree upon the
Basic Rent for the extension of the Term, then not less than 90
days or more than 120 days prior to the Expiration Date of the
Term, Landlord shall notify Tenant in writing of the Basic Rent
that would reflect the prevailing market rental rate for a 60-month
renewal of comparable space in the Project (together with any
increases thereof during the extension period) as of the
commencement of the extension period ("Landlord's Determination"). Should
Tenant disagree with the Landlord's Determination, then Tenant
shall, not later than 20 days thereafter, notify Landlord in
writing of Tenant's determination of those rental terms
("Tenant's Determination").
Within 10 days following delivery of the Tenant's Determination,
the parties shall attempt to agree on an appraiser to determine the
fair market rental. If the parties are unable to agree in that
time, then each party shall designate an appraiser within 10 days
thereafter. Should either party fail to so designate an appraiser
within that time, then the appraiser designated by the other party
shall determine the fair market rental. Should each of the parties
timely designate an appraiser, then the two appraisers so
designated shall appoint a third appraiser who shall, acting alone,
determine the fair market rental for the Premises. Any appraiser
designated hereunder shall have an MAI certification with not less
than 5 years experience in the valuation of commercial industrial
buildings in the vicinity of the Project.
Within
30 days following the selection of the appraiser and such
appraiser's receipt of the Landlord's Determination and the
Tenant's Determination, the appraiser shall determine whether the
rental rate determined by Landlord or by Tenant more accurately
reflects the fair market rental rate for the 60-month renewal of
the Lease for the Premises, as reasonably extrapolated to the
commencement of the extension period. Accordingly, either the
Landlord's Determination or the Tenant's Determination shall be
selected by the appraiser as the fair market rental rate for the
extension period. In making such determination, the appraiser shall
consider rental comparables for the Project (provided that if there
are an insufficient number of comparables within the Project, the
appraiser shall consider rental comparables for similarly improved
space owned by Landlord in the vicinity of the Project with
appropriate adjustment for location and quality of project), but
the appraiser shall not attribute any factor for brokerage
commissions in making its determination of the fair market rental
rate. At any time before the decision of the appraiser is rendered,
either party may, by written notice to the other party, accept the
rental terms submitted by the other party, in which event such
terms shall be deemed adopted as the agreed fair market rental. The
fees of the appraiser(s) shall be borne entirely by the party whose
determination of the fair market rental rate was not accepted by
the appraiser.
Within
20 days after the determination of the fair market rental, Landlord
shall prepare an appropriate amendment to this Lease for the
extension period, and Tenant shall execute and return same to
Landlord within 10 days after Tenant’s receipt of same.
Should the fair market rental not be established by the
commencement of the extension period, then Tenant shall continue
paying rent at the rate in effect during the last month of the
initial Term, and a lump sum adjustment shall be made promptly upon
the determination of such new rental.
If
Tenant fails to timely exercise the extension right granted herein
within the time period expressly set forth for exercise by Tenant
in the initial paragraph of this Section, Tenant's right to extend
the Term shall be extinguished and the Lease shall automatically
terminate as of the expiration date of the Term, without any
extension and without any liability to Landlord. Tenant’s
rights under this Section shall belong solely to Autoweb, Inc., a
Delaware corporation, and any attempted assignment or transfer of
such rights (except in connection with a Permitted Transfer of this
Lease to an Affiliate or a Successor as described in Section 9.2
hereof) shall be void and of no force and effect. Tenant shall have
no other right to extend the Term beyond the single 60-month
extension period created by this Section. Unless agreed to in a
writing signed by Landlord and Tenant, any extension of the Term,
whether created by an amendment to this Lease or by a holdover of
the Premises by Tenant, or otherwise, shall be deemed a part of,
and not in addition to, any duly exercised extension period
permitted by this Section.
2. RIGHT
OF FIRST OFFER. Provided that no Default has occurred and is
continuing under any provision of this Lease, and provided further
that Tenant is occupying the entire Premises and has not assigned
or sublet any of its interest in the Lease (except in connection
with a Permitted Transfer of this Lease to an Affiliate or a
Successor as described in Section 9.2 hereof), Landlord hereby
grants Tenant a one-time right (“First Right”) to lease, during the
initial 60-month Term of this Lease, approximately 10,232 rentable
square feet of office space known as Suite No. 200 in the Building
and shown on Exhibit G-1
hereto (“First Right
Space”) in accordance with and subject to the
provisions of this Section; provided that this First Right shall
cease to be effective during the final 12 months of the Term unless
and until Tenant exercises its extension option set forth in
Section 1 of this Exhibit G
above. It is understood, however, that Tenant’s First Right
is expressly conditioned upon (a) the prior delivery by Tenant of
written notice to Landlord in good faith of Tenant’s need for
additional space (the “Space
Requirement Notice”), which Space Requirement Notice
shall be valid for a period of 6 months only (after which time
period, Tenant must deliver an additional Space Requirement Notice
to Landlord), and (b) Landlord, at
the time Landlord receives such Space Requirement Notice, not then
being in agreement with a third party to lease such First Right
Space. If, at any time after the Commencement Date and following
delivery of a Space Requirement Notice and while this First Right
is in effect, Landlord desires to lease the First Right Space, or
any portion thereof, to any third party, and after determining that
the existing tenant in the First Right Space will not extend or
renew the term of its lease, Landlord shall give Tenant written
notice of the basic economic terms including but not limited to the
Basic Rent, term, operating expense base, security deposit, and
tenant improvement allowance (collectively, the “Economic Terms”), upon which
Landlord is willing to lease such particular First Right Space to
Tenant or to a third party; provided that the Economic Terms shall
exclude brokerage commissions and other Landlord payments that do
not directly inure to the tenant’s benefit. It is understood
that should Landlord intend to lease other office space in addition
to the First Right Space as part of a single transaction, then
Landlord’s notice shall so provide and all such space shall
collectively be subject to the following provisions. Within 5
business days after receipt of Landlord’s notice, Tenant must
give Landlord written notice pursuant to which Tenant shall elect
to (i) lease all, but not less than all, of the space specified in
Landlord’s notice (the “Designated Space”) upon such
Economic Terms and the same non-Economic Terms as set forth in this
Lease; (ii) refuse to lease the Designated Space, specifying that
such refusal is not based upon the Economic Terms, but upon
Tenant’s lack of need for the Designated Space, in which
event Landlord may lease the Designated Space upon any terms it
deems appropriate; or (iii) refuse to lease the Designated Space,
specifying that such refusal is based upon said Economic Terms, in
which event Tenant shall also specify revised Economic Terms upon
which Tenant shall be willing to lease the Designated Space. In the
event that Tenant does not so respond in writing to
Landlord’s notice within said period, Tenant shall be deemed
to have elected clause (ii) above. Any notice given by Tenant
pursuant to either clause (i) or clause (iii) above shall be
accompanied by Tenant’s audited financial statements for the
two most recent twelve month periods, inclusive of Tenant’s
most current balance sheet; should such statements reveal that
Tenant’s net worth has materially decreased since the
execution of this Lease, then Landlord shall have no obligation to
lease the Designated Space to Tenant and may instead lease same to
a third party. In the event Tenant gives Landlord notice pursuant
to clause (iii) above, Landlord may elect to either (x) lease the
Designated Space to Tenant upon such revised Economic Terms and the
same other non-Economic Terms as set forth in this Lease, or (y)
lease the Designated Space to any third party upon Economic Terms
which are not materially more favorable to such party than those
Economic Terms proposed by Tenant. Should Landlord so elect to
lease the Designated Space to Tenant, then Landlord shall promptly
prepare and deliver to Tenant an amendment to this Lease consistent
with the foregoing, and Tenant shall execute and return same to
Landlord within 10 days. Tenant’s failure to timely return
the amendment shall entitle Landlord to specifically enforce
Tenant’s commitment to lease the Designated Space, to lease
such space to a third party, and/or to pursue any other available
legal remedy. Notwithstanding the foregoing, it is understood that
Tenant’s First Right shall be subject to any extension or
expansion rights previously granted by Landlord to any third party
tenant in the Building, as well as to any such rights which may
hereafter be granted by Landlord to any third party tenant
occupying the First Right Space or any portion thereof, and
Landlord shall in no event be obligated to initiate this First
Right prior to leasing any portion of the First Right Space to the
then-current occupant thereof. Tenant’s rights under this
Section shall be personal to the original Tenant named in this
Lease and may not be assigned or transferred (except in connection
with an assignment of this Lease pursuant to a Permitted Transfer
as described in Section 9.2 hereof). Any other attempted assignment
or transfer shall be void and of no force or effect. Time is
specifically made of the essence of this Section.
-27-
3. MONUMENT
SIGNAGE. Tenant shall have the right to install
non-exclusive signage on the shared Building monument sign, which
signage shall consist only of the name “Autoweb” or
such other name as Landlord may consent to in writing. The type,
location and design of such signage shall be subject to the prior
written approval of Landlord and the City of Irvine, and shall be
consistent with Landlord's signage criteria for the Project.
Fabrication, installation, insurance, and maintenance of such
signage shall be at Tenant’s sole cost and expense. Tenant
understands and agrees that it shall use Landlord’s
designated contractor for installing the monument signage. Should
Tenant fail to have the monument signage installed by the date that
is 12 months after the Commencement Date, then Tenant’s right
to install same thereafter shall be deemed null and void. Except
for the foregoing, no sign, advertisement or notice visible from
the exterior of the Premises shall be inscribed, painted or affixed
by Tenant on any part of the Premises without prior consent of
Landlord. Tenant’s signage right shall belong solely to
Autoweb, Inc., a Delaware corporation and may not be transferred or
assigned (except in connection with a Permitted Transfer as
described in Section 9.2 hereof) without Landlord’s prior
written consent, which may be withheld by Landlord in
Landlord’s sole discretion. In the event Tenant, exclusive of
any subtenant(s), fails to occupy at least 50% of the entire
Premises, then Tenant shall, within thirty (30) days following
notice from Landlord, remove the monument signage at Tenant’s
expense. Tenant shall also remove such signage promptly following
the expiration or earlier termination of the Lease. Any such
removal shall be at Tenant’s sole expense, and Tenant shall
bear the cost of any resulting repairs to the monument that are
reasonably necessary due to the removal.
4. MOVING
ALLOWANCE. In consideration of the execution of this Lease
by Tenant, Landlord shall reimburse Tenant the actual out-of-pocket
expenses incurred by Tenant in connection with Tenant’s move
to the Premises, which expenses shall (a) be limited to moving
costs, furniture, fixtures and equipment, and telecommunications
and cabling costs and (b) not exceed $50,000.00 in the aggregate
(“Moving
Allowance”), provided that Tenant may elect to apply
any portion of the Moving Allowance toward the increased cost of
the Tenant Improvements resulting from Changes (as defined in the
Work Letter) requested by Tenant. Tenant agrees that all such
expenses shall be supported by paid invoices. The reimbursement
shall be paid by Landlord within 30 days following receipt of those
invoices, but in no event sooner than the Commencement Date of the
Lease. Tenant agrees that any portion of the Moving Allowance not
utilized by Tenant, as evidenced in third party invoices submitted
to Landlord, by the date that is 12 months after the Commencement
Date, shall inure to the benefit of Landlord and Tenant shall not
be entitled to any credit or payment for such savings.
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▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Exhibit
G-1
First
Right Space
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EXHIBIT
H
LANDLORD’S
DISCLOSURES
SPECTRUM
The
capitalized terms used and not otherwise defined in this Exhibit
shall have the same definitions as set forth in the Lease. The
provisions of this Exhibit shall supersede any inconsistent or
conflicting provisions of the Lease.
1. Landlord has been
informed that the El Toro Marine Corps Air Station (MCAS) has been
listed as a Federal Superfund site as a result of chemical releases
occurring over many years of occupancy. Various chemicals including
jet fuel, motor oil and solvents have been discharged in several
areas throughout the MCAS site. A regional study conducted by the
Orange County Water District has estimated that groundwaters
beneath more than 2,900 acres have been impacted by
Trichloroethylene (TCE), an industrial solvent. There is a
potential that this substance may have migrated into the ground
water underlying the Premises. The U.S. Environmental Protection
Agency, the Santa ▇▇▇ Regional Water Quality Control Board, and the
Orange County Health Care Agency are overseeing the
investigation/cleanup of this contamination. To the Landlord's
current actual knowledge, the ground water in this area is used for
irrigation purposes only, and there is no practical impediment to
the use or occupancy of the Premises due to the El Toro
discharges.
-30-
EXHIBIT
I
LANDLORD
WAIVER
This
LANDLORD WAIVER (this “Waiver”) is entered into as of [
], 2020,
among
[
] (together with its successors and assigns, the
“Landlord”),
CIT NORTHBRIDGE CREDIT LLC,
as agent for certain lenders (in such capacity, and together with
its successors and assigns in such capacity, the
“Agent”),
_________________________ (together with its
permitted successors and assigns, the “Company”).
A. Landlord is the
owner of the real property located at [
] (the “Premises”).
B. Landlord has
entered into that certain [Lease
Agreement], dated as of [
], attached hereto as Exhibit A and incorporated
herein by reference (together with any renewals, extensions,
amendments, modifications, substitutions or replacements thereof,
the “Lease”)
with Company, as tenant, with respect to the Premises.
C. The Company and
certain of its affiliates have entered, and may from time to time
enter, into a loan agreement and other documents (collectively, the
“Loan
Documents”) evidencing a financing arrangement with
certain lenders for whom Agent is acting (the “Lenders”). The Company has also
agreed to secure its obligations and liabilities under the Loan
Documents (the “Obligations”) by granting a
security interest to Agent, for the benefit of the lenders, in all
of the Company’s property and all products and proceeds of
the foregoing, as more fully described in the Loan Documents
(collectively, the “Collateral”). Notwithstanding
anything in this document to the contrary, the term
“Collateral” shall expressly not include (and Agent
hereby expressly disclaims and releases any lien or security
interest in) all of the following: (i) Lessee’s contractual
rights as “Tenant” under the Lease; (ii) any cash
security deposit or letter of credit posted by Lessee or its
affiliates to Landlord as security for the payment and/or
performance of any of Lessee’s obligations under the Lease;
(iii) any deposits to impound or reserve accounts posted by Lessee
with Landlord in connection with the Lease including, without
limitation, any impounds for the payment of Operating Expenses or
other shared expenses pursuant to the terms of the Lease; and (iv)
any fixtures and/or equipment which are installed or affixed to the
Premises and which are not now or hereafter owned by Lessee,
including without limitation, HVAC equipment installed in or
serving the Premises.
As an
inducement to enter into the Loan Documents, the Agent has required
that the Company obtain this Waiver from Landlord in connection
with its lease of the Premises, and Landlord hereby agrees and
covenants with the Agent as follows:
1.
Landlord acknowledges that the Lease is in full force and effect
and it not aware of any existing material default under the Lease
except as follows:
2. Landlord disclaims
any interest superior to that of Agent in the Collateral (but only
in such property) and authorizes Agent to remove same during normal
business hours in accordance with the Loan Documents provided that
(a) Agent provides Landlord with not less than ten (10)
days'
prior written notice at the below address before entering the
Premises to inspect or remove any of the Collateral. Agent agrees
to indemnify, defend and hold Landlord harmless from and against
any loss, cost, damage or liability (including without limitation
reasonable attorneys' fees) arising out of the exercise by Agent of
its rights hereunder.
-31-
3.
[Intentionally Omitted]
4. Subject to the
provisions of paragraph 2 of this Waiver, Landlord agrees that the
Collateral may be inspected and evaluated by the Agent or its
respective designee, without necessity of court order, at any time
without payment of any fee.
5. In the event (a)
Agent provides to Landlord written notice of any default by the
Company in the payment or performance of the Obligations or any
other “Event of Default” under the Loan Documents, or
(b) Landlord provides Agent with written notice that the Lease has
been terminated (each a “Disposition Event”), Landlord
agrees that, at the Agent’s option, the Collateral may remain
upon the Premises for a period not to fifteen (15) days (the
“Disposition
Period”) after the occurrence of a Disposition Event;
provided, that upon
any such Disposition Period, the Agent shall pay rent on a per diem
basis for the Disposition Period, based upon the amount of rent set
forth in the Lease. If Agent fails to remove the Collateral during
the Disposition Period, Landlord may deal with the Collateral as
provided in the Lease or as otherwise provided by law.
6. Company
acknowledges that the undersigned may admit Agent into the Premises
pursuant hereto following request by Agent and irrespective of any
protest or objection by Company, and Company hereby irrevocably
consents to such entry. Company further waives any right to hold
the undersigned, or any of its officers, employees or agents,
liable for any damage, cost or expense resulting from any entry by
Agent and agrees to indemnify and hold the undersigned free and
harmless from any such claim of liability asserted by an employee,
agent, subtenant or assignee of Company. In addition, Company
agrees that any such entry shall not constitute a constructive
eviction under its lease of the Premises.
7. The Agent shall
promptly repair, at the Agent’s expense, or reimburse
Landlord for any physical damage to the Premises actually caused by
the conduct of any auction or sale and any removal of the
Collateral by or through Agent (ordinary wear and tear excluded).
The Agent shall not (x) be liable to Landlord for any diminution in
value caused by the absence of any removed Collateral or for any
other matter except as specifically set forth herein, or (y) have
any duty or obligation to remove or dispose of any Collateral or
other property left on the Premises by the Company.
8. Without affecting
the validity of this Waiver, any of the Obligations may be
extended, amended, or otherwise modified without the consent of
Landlord and without giving notice thereof to Landlord. This Waiver
shall inure to the benefit of the successors and assigns of the
Agent and shall be binding upon the heirs, personal
representatives, successors and assigns of Landlord. The person
signing this Waiver on behalf of Landlord represents to the Agent
that he/she has the authority to do so on behalf of
Landlord.
9. All notices
hereunder shall be in writing and sent by certified mail (return
receipt requested), overnight mail or electronic mail (with a copy
to be sent by certified or overnight mail), to the other party
at the address set forth on the signature page hereto or at such
other address as such other party shall otherwise designate in
accordance with this paragraph.
-32-
10. This Waiver may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument. Delivery of an executed
counterpart of this Waiver by facsimile, portable document format
(.pdf), or other electronic method of transmission shall be equally
as effective as delivery of an original executed counterpart of
this Waiver. Any party delivering an executed counterpart of this
Waiver by facsimile, .pdf, or other electronic method of
transmission shall also deliver an original executed counterpart of
this Waiver, but the failure to do so shall not affect the
validity, enforceability or binding effect of this
Waiver.
11. This Waiver is
governed by the laws of the State of California, without regard to
the conflict of laws provisions. The parties agree that any legal
action or proceeding with respect to any of its obligations under
this Waiver may be brought by the Agent in any state or federal
court located in Orange County, California. By its execution and
delivery of this Waiver, Lender submits to and accepts, for itself
and in respect of its property, generally and unconditionally, the
exclusive jurisdiction of those courts. Lender waives any claim
that the State of California is not a convenient forum or the
proper venue for any such action or proceeding.
12. WAIVER OF SPECIAL DAMAGES. LANDLORD
WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
LANDLORD MAY HAVE TO CLAIM OR RECOVER FROM AGENT, THE LENDERS OR
ANY OF THEIR RESPECTIVE REPRESENTATIVES IN ANY LEGAL ACTION OR
PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
13. JURY WAIVER. TO THE EXTENT PERMITTED BY
LAW, LANDLORD AND AGENT HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY
AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE BETWEEN LANDLORD AND AGENT IN ANY WAY RELATED
TO THIS WAIVER.
14. This Waiver shall
continue in full force and affect until the indefeasible payment in
full of all Obligations and termination of the Loan
Documents.
[Remainder of page intentionally blank;
signature pages follow.]
-33-
This
Waiver is executed and delivered by Landlord as of the date first
written above.
LANDLORD:
[
]
By:
Name:
Title:
Notice
Addresses:
Attention:
Facsimile:
COMPANY:
[
]
By:
Name:
Title:
Notice
Addresses:
Attention:
Facsimile:
-34-
EXHIBIT
X
WORK
LETTER BUILD TO SUIT
Landlord shall
cause its contractor to construct the tenant improvements (the
“Tenant
Improvements”) for the Premises as shown in the space
plan (the “Plan”) prepared by LPA, Inc. and
dated December 10, 2019, including all Capital Alternates and
Alternate A referenced therein, and the cost estimate (the
“Cost Estimate”)
prepared by DSC, Inc. and dated December 17, 2019. Any additional
cost resulting from changes requested by Tenant after mutual
execution and delivery of this Lease shall be borne solely by
Tenant. Unless otherwise specified in the Plan or Cost Estimate or
hereafter agreed in writing by Landlord, all materials and finishes
utilized in constructing the Tenant Improvements shall be
Landlord's building standard. Should Landlord submit any additional
plans, equipment specification sheets, or other matters to Tenant
for approval or completion, Tenant shall respond in writing, as
appropriate, within 5 business days unless a shorter period is
provided herein. Tenant shall not unreasonably withhold its
approval of any matter, and any disapproval shall be limited to
items not previously approved by Tenant in the Plan or
otherwise.
In the
event that Tenant requests any change to the Tenant Improvements
(“Change”), and
Landlord so approves such Change as provided in the paragraph next
below, Landlord shall advise Tenant by written change order as soon
as is practical of any increase in the cost to complete
(“Completion
Cost”) the Tenant Improvement work that such Change
would cause. Tenant shall approve or disapprove such change order,
if any, in writing within 2 days following Tenant’s receipt
of such change order. If Tenant approves any such change order,
Landlord, at its election, may either (i) require as a condition to
the effectiveness of such change order that Tenant pay the increase
in the “Completion Cost” to the Tenant Improvement work
attributable to such change order concurrently with delivery of
Tenant’s approval of the change order, or (ii) defer
Tenant’s payment of such increase until the date 10 days
after delivery of invoices for same, provided however, that the
increase in the Completion Cost must in any event be paid in full
prior to Tenant’s commencing occupancy of the Premises. The
increase in the Completion Cost may be paid using the Moving
Allowance. If Tenant disapproves any such change order, Tenant
shall nonetheless be responsible for the reasonable architectural
and/or planning fees incurred in preparing such change order.
Landlord shall have no obligation to interrupt or modify the Tenant
Improvement work pending Tenant's approval of a change order, but
if Tenant fails to timely approve a change order, Landlord may (but
shall not be required to) suspend the applicable Tenant Improvement
work, in which event any related delays because of such suspension
shall constitute “Tenant Delays”
hereunder.
Landlord agrees
that it shall not unreasonably withhold its consent to Tenant's
requested Changes, provided that such consent may be withheld in
all events if the requested Change (i) is of a lesser quality than
the Tenant Improvements previously approved by Landlord, (ii) fails
to conform to applicable governmental requirements, (iii) would
result in the Premises requiring building services beyond the level
normally provided to other tenants, (iv) would delay substantial
completion of the Tenant Improvements and Tenant declines to accept
such delay in writing as a Tenant Delay, (v) interferes in any
manner with the proper functioning of, or Landlord’s access
to, any mechanical, electrical, plumbing or HVAC systems,
facilities or equipment in or serving the Building, or (vi) would
have an adverse aesthetic impact to the Premises or would cause
additional expense to Landlord in reletting the
Premises.
Notwithstanding any
provision in the Lease to the contrary, if Tenant fails to comply
with any of the time periods specified in this Work Letter,
requests any changes to the work, fails to make timely payment of
any sum due hereunder, furnishes inaccurate or erroneous
specifications or other information, or otherwise delays in any
manner the completion of the Tenant Improvements or the issuance of
an occupancy certificate (any of the foregoing being referred to in
this Lease as a “Tenant
Delay”), then Tenant shall bear any resulting
additional construction cost or other expenses and the Commencement
Date shall be deemed to have occurred for all purposes, including
Tenant's obligation to pay Rent, as of the date Landlord reasonably
determines that it would have been able to deliver the Premises to
Tenant but for the collective Tenant Delays. Notwithstanding the
foregoing, except for failure to meet specified time deadlines, and
except for Tenant Delays specified in Landlord’s response to
Change requests, a Tenant Delay shall not be deemed to have
occurred unless Landlord has provided notice (which may be by
electronic mail to Tenant’s Construction Representative
notwithstanding any notice provisions or requirements in the Lease
to the contrary) to Tenant specifying that a Tenant Delay shall be
deemed to have occurred because of actions, inaction or
circumstances specified in the notice in reasonable detail. If such
actions, inaction or circumstances are not cured by Tenant within
one (1) business day after receipt of such notice
(“Count Date”),
and if such actions, inaction or circumstances otherwise qualify as
a Tenant Delay, then a Tenant Delay shall be deemed to have
occurred commencing as of the Count Date.
Landlord shall
permit Tenant and its agents to enter the Premises 30 days prior to
the Commencement Date of the Lease in order that Tenant may install
fixtures, furniture and cabling through Tenant’s own
contractors prior to the Commencement Date. Any such work shall be
subject to Landlord's prior written approval, and shall be
performed in a manner and upon terms and conditions and at times
satisfactory to Landlord's representative. The foregoing license to
enter the Premises prior to the Commencement Date is, however,
conditioned upon Tenant's contractors and their subcontractors and
employees working in harmony and not interfering with the work
being performed by Landlord. If at any time that entry shall cause
disharmony or interfere with the work being performed by Landlord,
this license may be withdrawn by Landlord upon 24 hours written
notice to Tenant. That license is further conditioned upon the
compliance by Tenant's contractors with all requirements imposed by
Landlord on third party contractors, including without limitation
the maintenance by Tenant and its contractors and subcontractors of
workers' compensation and public liability and property damage
insurance in amounts and with companies and on forms satisfactory
to Landlord, with certificates of such insurance being furnished to
Landlord prior to proceeding with any such entry. The entry shall
be deemed to be under all of the provisions of the Lease except as
to the covenants to pay Rent unless Tenant commences regular
business activities within the Premises. Landlord shall not be
liable in any way for any personal injury, and/or loss or damage of
property which may occur in connection with such entry by Tenant or
in connection with such work being performed by Tenant, the same
being solely at Tenant's risk. In no event shall the failure of
Tenant's contractors to complete any work in the Premises extend
the Commencement Date of this Lease.
Tenant
hereby designates ▇▇▇▇▇▇ ▇▇▇▇▇, Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇, as
its representative, agent and attorney-in- fact for the purpose of
receiving notices, approving submittals and issuing requests for
changes, and Landlord shall be entitled to rely upon authorizations
and directives of such person(s) as if given by Tenant. Tenant may
amend the designation of its construction representative(s) at any
time upon delivery of written notice to Landlord.
-35-
EXHIBIT
Y
PROJECT
DESCRIPTION
Oak Creek Business Center
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