EXHIBIT 10.16
OFFICE BUILDING LEASE
BETWEEN
MIP PROPERTIES, INC.
LANDLORD
AND
NEPTUNE SYSTEMS, INC.
--------------------------------------------------------
TENANT
TABLE OF CONTENTS
1. BASIC LEASE TERMS. . . . . . . . . . . . . . . . . . . . . . . 1
2. PREMISES AND COMMON AREAS. . . . . . . . . . . . . . . . . . . 3
3. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. POSSESSION . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. OPERATING EXPENSES . . . . . . . . . . . . . . . . . . . . . . 6
7. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . 10
8. USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10. BROKERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11. SURRENDER; HOLDING OVER. . . . . . . . . . . . . . . . . . . . 13
12. TAXES ON TENANT'S PROPERTY . . . . . . . . . . . . . . . . . . 14
13. ALTERATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 14
14. REPAIRS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
15. LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16. ENTRY BY LANDLORD. . . . . . . . . . . . . . . . . . . . . . . 18
17. UTILITIES AND SERVICES . . . . . . . . . . . . . . . . . . . . 18
18. ASSUMPTION OF RISK AND INDEMNIFICATION . . . . . . . . . . . . 19
19. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
20. DAMAGE OR DESTRUCTION. . . . . . . . . . . . . . . . . . . . . 22
21. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . 25
22. DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . 26
23. LANDLORD'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . 29
24. ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . 29
25. SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . 33
26. ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . . 34
27. BUILDING PLANNING. . . . . . . . . . . . . . . . . . . . . . . 34
28. RULES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . 35
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S
MORTGAGEES AND LESSORS . . . . . . . . . . . . . . . . . . . . 35
30. DEFINITION OF LANDLORD . . . . . . . . . . . . . . . . . . . . 35
31. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
32. PARKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
33. FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . 38
34. SIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
35. LIMITATION ON LIABILITY; REAL ESTATE INVESTMENT TRUST. . . . . 39
36. FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . 39
37. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . 40
38. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 40
39. EXECUTION OF LEASE . . . . . . . . . . . . . . . . . . . . . . 41
SIGNATURE PAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(i)
EXHIBITS
OUTLINE OF FLOOR PLAN OF PREMISES. . . . . . . . . . . . . . . .Exhibit "A"
RENTABLE SQUARE FEET AND USABLE SQUARE FEET. . . . . . . . . . .Exhibit "B"
WORK LETTER AGREEMENT. . . . . . . . . . . . . . . . . . . . . .Exhibit "C"
NOTICE OF LEASE TERM DATES AND TENANT'S PERCENTAGE . . . . . . .Exhibit "D"
STANDARDS FOR UTILITIES AND SERVICES . . . . . . . . . . . . . .Exhibit "E"
ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . . .Exhibit "F"
RULES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . .Exhibit "G"
TENANT'S INSURANCE REQUIREMENTS. . . . . . . . . . . . . . . . .Exhibit "H"
(ii)
OFFICE BUILDING LEASE
THIS OFFICE BUILDING LEASE ("Lease") is entered into as of the 26 day
of July 26, 1994 by and between MIP PROPERTIES, INC. ("Landlord"), and
NEPTUNE SYSTEMS, INC., A Pennsylvania corporation ("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms
have the following definitions and meanings:
(a) LANDLORD:
MIP Properties, Inc.,
a Maryland corporation
(b) LANDLORD'S ADDRESS (FOR NOTICES):
MIP Properties, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention; ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or such other place as Landlord may from time to time designate by notice to
Tenant.
(c) TENANT:
NEPTUNE SYSTEMS. INC., A Pennsylvania corporation
(d) TENANT'S ADDRESS (PREMISES):
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
(e) DEVELOPMENT: The parcels of real property commonly known as The
Security Building located at 102 and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and a
parking garage commonly known as the Autoport on First Avenue
between Pine and Pacific in the City of Long Beach (the "City"),
County of Los Angeles: (the "County"), State of California
("State").
(f) BUILDING: A thirteen-story office building (plus basement)
located within the Development, containing approximately 125,000
RENTABLE SQUARE FEET (subject to adjustment as provided in
EXHIBIT "B"), with the street address of 102 and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(g) PREMISES: Those certain premises known as Suite(s) 820
1.
as generally shown on the floor plan(s) attached hereto as
EXHIBIT "A", located on the eighth floor(s) of the Building, and
containing approximately 4,000 Rentable Square Feet and 3,478
Usable Square Feet (subject to adjustment as provided in EXHIBIT
"B" and EXHIBIT "D").
(h) TENANT'S PERCENTAGE: Tenant's percentage of the twelve stories of
the Building which are used for office purposes (aggregating
107,066 square feet). Tenant's percentage shall be calculated on
a Rentable Square Foot Basis, which initially is 3.74 %, subject
to final determination as provided in EXHIBIT "B" and EXHIBIT
"D".
(i) TERM: Two (2) Lease Years and Six (6) Months.
(j) ESTIMATED COMMENCEMENT DATE: September 1, 1994
ESTIMATED EXPIRATION DATE: February 28, 1997
(k) COMMENCEMENT DATE: The earlier of (i) the date Tenant occupies
all or a portion of the Premises (other than in connection with
the construction of the same), and (ii) the later of (A) the date
that the Premises are Ready For Occupancy, and (B) July 11, 1994.
(l) INITIAL MONTHLY BASE RENT: $ .90 PER square foot, subject to
adjustment as provided in SUBPARAGRAPH 1(m) below and as
otherwise provided in this Lease.
(m) ADJUSTMENT TO MONTHLY BASE RENT: Monthly Base Rent will be
adjusted in accordance with the following:
LEASE YEAR OR MONTHS MONTHLY BASE RENT
-------------------- -----------------
Months 1 through 12 $ .90 per square foot
Months 13 through 24 $ .95 per square foot
Months 25 through 30 $1.00 per square foot
(n) OPERATING EXPENSE ALLOWANCE: Operating Expense Allowance means
that portion of Tenant's Percentage of Operating Expenses as
described in PARAGRAPH 6 below which Landlord has included in
Monthly Base Rent, which, for purposes of this Lease, will be an
amount equal a Base Year 1994.
2.
(o) SECURITY DEPOSIT: $ 3,600.00
(p) TENANT IMPROVEMENTS: All tenant improvements installed or to be
installed by Landlord or Tenant within the Premises to prepare
the Premises for occupancy shall be pursuant to the terms of the
Work Letter Agreement attached hereto as Exhibit "C".
(q) TENANT IMPROVEMENT ALLOWANCE: $10.25 per Rentable Square
Foot of the Premises, to be applied as provided in the Work
Letter Agreement attached hereto as EXHIBIT "C". The total number
of Usable Square Feet of the Premises for purposes of
establishing the Tenant Improvement Allowance amount is 4,000
Rentable Square Feet. Such figure shall not be adjusted.
(r) PERMITTED USE: General Office and no other use without the
express written consent of Landlord, which consent Landlord may
withhold in its sole and absolute discretion.
(s) PARKING: 12 parking spaces subject to the terms and conditions
of PARAGRAPH 32 below and the Rules and Regulations regarding
parking contained in Exhibit "G". All parking shall be in the
Autoport.
(t) BROKER(S): ▇▇▇▇▇▇▇ & Wakefield of California, Inc.
(u) GUARANTOR(S): ▇▇▇ ▇▇▇▇
(v) INTEREST RATE: shall mean two percent (2%) in excess of the prime
lending or reference rate of ▇▇▇▇▇ Fargo Bank N.A. or any
successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the
Interest Rate imposition; provided, however, the Interest Rate
will in no event exceed the maximum interest rate permitted to be
charged by applicable law.
(w) EXHIBITS: A through H , inclusive, which Exhibits are attached
to this Lease and incorporated herein by this reference. As
provided in PARAGRAPH 3 below, a completed version of Exhibit "D"
will be delivered to Tenant after Landlord delivers possession of
the Premises to Tenant.
(x) Addendum: Lease Addendum is attached to this Lease and
incorporated herein by this reference.
This PARAGRAPH 1 represents a summary of the basic terms and definitions of
this Lease. In the event of any inconsistency between the terms contained in
this PARAGRAPH 1 and any specific provision of this Lease, the terms of the
more specific provision shall prevail.
PREMISES AND COMMON AREAS.
3.
(a) PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises as improved or to be improved with the Tenant
Improvements described in the Work Letter Agreement, a copy of which is
attached hereto as Exhibit "C".
(b) MUTUAL COVENANTS. Landlord and Tenant agree that the letting and
hiring of the Premises is upon and subject to the terms, covenants and
conditions contained in this Lease and each party covenants as a material
part of the consideration for this Lease to keep and perform its respective
obligations under this Lease.
(c) TENANT'S USE OF COMMON AREAS. During the Term of this Lease, Tenant
shall have the nonexclusive right to use in common with Landlord and all
persons, firms and corporations conducting business in the Development and
their respective customers, guests, licensees, invitees, subtenants,
employees and agents (collectively, "Development Occupants"), subject to the
terms of this Lease, the Rules and Regulations referenced in PARAGRAPH 32
below and all covenants, conditions and restrictions now or hereafter
affecting the Development, the following common areas of the Building and/or
the Development (collectively, the "Common Areas"):
(i) The Building's common entrances, hallways, lobbies, public
restrooms on multi-tenant floors, elevators, stairways and accessways, loading
docks, ramps, drives and platforms and any passageways and serviceways
thereto, and the common pipes, conduits, wires and appurtenant equipment
within the Building which serve the Premises (collectively, "Building Common
Areas"), and
(ii) The parking facilities of the Development which serve the
Building (subject to the provisions of EXHIBIT "G"), loading and unloading
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways,
landscaped areas, plaza areas, fountains and similar areas and facilities
situated within the Development and appurtenant to the Building which are not
reserved for the exclusive use of any Development Occupants (collectively,
"Development Common Areas").
(d) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and
access to the Premises and parking to be provided to Tenant under this Lease
is not interfered with in an unreasonable manner, Landlord preserves for
itself and for all other owner(s) and operator(s) of the Development Common
Areas and the balance of the Development, the right from time to time to: (i)
install, use, maintain, repair, replace and relocate pipes, ducts, conduits,
wires and appurtenant meters and equipment above the ceiling surfaces, below
the floor surfaces, within the walls and in the central core areas of the
Building; (ii) make changes to the design and layout of the Development,
including, without limitation, changes to buildings, driveways, entrances,
loading and unloading areas, direction of traffic, landscaped areas and
walkways, and, subject to the parking provisions contained in PARAGRAPH 32
and EXHIBIT "G", parking spaces and parking areas; and (iii) use or close
temporarily the Common Areas and/or other portions of the Development while
engaged in making improvements, repairs or alterations to the Building, the
Development, or any portion thereof.
4.
3. TERM. The term of this Lease ("Term") will be for the period
designated in SUBPARAGRAPH 1(i), commencing on the Commencement Date, and
ending on the last day of the month in which the expiration of such period
occurs, including any extensions of the Term pursuant to any provision of
this Lease or written agreement of the parties. Notwithstanding the
foregoing, if the Commencement Date falls on any day other than the first day
of a calendar month then the Term of this Lease will be measured from the
first day of the month following the month in which the Commencement Date
occurs. Each consecutive twelve (12) month period of the Term of this Lease,
commencing on the Commencement Date, will be referred to herein as a "Lease
Year". Landlord's Notice of Lease Term Dates and Tenant's Percentage
("Notice"), in the form of EXHIBIT "D" attached hereto, will set forth the
Commencement Date, the date upon which the Term of this Lease shall end, the
Rentable Square Feet within the Premises and the Building, and Tenant's
Percentage and will be delivered to Tenant after Landlord delivers possession
of the Premises to Tenant. The Notice will be binding upon Tenant unless
Tenant objects to the Notice in writing within five (5) days of Tenant's
receipt of the Notice, in which case Landlord and Tenant shall cooperate in
good faith to finalize the Notice.
4. POSSESSION.
(a) DELIVERY OF POSSESSION. Landlord agrees to deliver possession
of the Premises to Tenant in accordance with the terms of the Work Letter
Agreement attached hereto as EXHIBIT "C". Notwithstanding the foregoing,
Landlord will not be obligated to deliver possession of the Premises to
Tenant until Landlord has received from Tenant all of the following: (i) a
copy of this Lease fully executed by Tenant and, if required by Landlord, a
guaranty of Tenant's obligations under this Lease, executed by the
guarantor(s) set forth in SUBPARAGRAPH 1(u); (ii) the Security Deposit and
the first installment of Monthly Base Rent; (iii) executed copies of policies
of insurance or certificates thereof as required under PARAGRAPH 19 of this
Lease; (iv) copies of all governmental permits and authorizations, if any,
required in connection with Tenant's operation of its business within the
Premises; and (v) if Tenant is a corporation or partnership, such evidence of
due formation, valid existence and authority to execute this Lease as
Landlord may reasonably require, which may include, without limitation, a
certificate of good standing, certificate of secretary, articles of
incorporation, statement of partnership, resolutions of the board of
directors or other similar documentation.
SEE LEASE ADDENDUM
(b) CONDITION OF PREMISES. Prior to the Commencement Date and in
accordance with the Work Letter Agreement attached hereto as EXHIBIT "C",
Landlord and Tenant will jointly conduct a walk-through inspection of the
Premises and will jointly prepare a punch-list ("Punch-List") of items required
to be installed by Landlord under the Work Letter Agreement which require
finishing or correction. The Punch-List will not include any items of damage to
the Premises caused by Tenant's move-in or early entry, if permitted, which
damage will be corrected or repaired by Landlord, at Tenant's expense or, at
Landlord's election, by Tenant, at Tenant's expense. Other than the items
specified in the Punch-List, by taking possession of the Premises, Tenant will
be deemed to have accepted the Premises in its condition on the date of delivery
of possession and to have acknowledged that the Tenant Improvements have been
installed as required by the Work Letter Agreement and that there are no
additional items needing work or repair. Landlord will cause all items in the
Punch-List to be repaired or corrected within thirty (30) days following the
preparation of the Punch-List or as soon as practicable after the preparation of
the Punch-List. Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with
5.
respect to the Premises, the Building, the Development or any portions
thereof or with respect to the suitability of same for the conduct of
Tenant's business and Tenant further acknowledges that Landlord will have no
obligation to construct or complete any additional buildings or improvements
within the Development.
5. RENT.
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly
Base Rent for the Premises (subject to adjustment as hereinafter provided) in
advance on the first day of each calendar month during the term without prior
notice or demand, except that Tenant agrees to pay the Monthly Base Rent for
the first month of the Term directly to Landlord concurrently with Tenant's
delivery of the executed Lease to Landlord. If the Term of this Lease
commences or ends on a day other than the first day of a calendar month, then
the rent for such period will be prorated in the proportion that the number
of days this Lease is in effect during such period bears to the number of
days in such month. All rent must be paid to Landlord, without any deduction
or offset, in lawful money of the United States of America, at the address
designated by Landlord on Tenant's monthly rent statement or to such other
person or at such other place as Landlord may from time to time designate in
writing. Monthly Base Rent will be adjusted during the Term of this Lease as
provided in SUBPARAGRAPH 1(m).
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant
hereunder, including, without limitation, payments for Operating Expenses,
insurance, repairs and parking, will be considered additional rent for
purposes of this Lease, and the word "rent" as used in this Lease will
include all such additional rent unless the context specifically or clearly
implies that only Monthly Base Rent is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any
item of additional rent will be subject to interest and a late charge as
provided in SUBPARAGRAPH 22(f) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. In addition to Monthly Base Rent,
throughout the Term of this Lease, Tenant agrees to pay Landlord as
additional rent in accordance with the terms of this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇▇▇▇▇▇ of Operating Expenses as defined below to the extent Tenant's
Percentage of Operating Expenses EXCEEDS TENANT'S OPERATING EXPENSE
ALLOWANCE; The term "Operating Expenses" means: all direct costs and expenses
of operation and maintenance of the Building and the Common Areas as
determined by standard accounting practices, calculated assuming the Building
is ninety-five percent (95%) occupied, including the following costs by way
of illustration but not limitation, but excluding those items specifically
set forth in SUBPARAGRAPH 6(c) below: Real Property Taxes and Assessments (as
defined in SUBPARAGRAPH 6(b) below) and any taxes or assessments imposed in
lieu thereof; any and all assessments imposed with respect to the Building
pursuant to any covenants, conditions and restrictions affecting the
Development, the Common Areas or the Building; water and sewer charges and
the costs of electricity, heating, ventilating, air conditioning and other
utilities; utility surcharges and any other costs, levies or assessments
resulting from sta???s or regulations promulgated by any government or
quasi-government authority in connection with the provided however, that in
no event shall the amount paid by Tenant as additional rent for Tenant's
Percentage of Operating Expenses which exceed Tenant's Operating Expense
Allowance increase in any succeeding year of the Term by an amount greater
than 5.0% over that amount paid in like manner for the immediately preceding
one year of the Term.
6.
use, occupancy or alteration of the Building or the Premises or the parking
facilities serving the Building or the Premises; costs of insurance obtained
by Landlord pursuant to PARAGRAPH 19 of this Lease; waste disposal and
janitorial services; security; labor; costs incurred in the management of the
Building, including, without limitation: (i) supplies, (ii) wages and
salaries (and payroll taxes and similar governmental charges related thereto)
of employees used in the management, operation and maintenance of the
Building, (iii) Building management office rental, supplies, equipment and
related operating expenses, and (iv) a management/administrative fee
determined as a percentage of the annual gross revenues of the Building and
an administrative fee for the management of the Development Common Area
determined as a percentage of Development Common Area Operating Expenses;
supplies, materials, equipment and tools including rental of personal
property used for maintenance; repair and maintenance of the elevators and
the structural portions of the Building, including the plumbing, heating,
ventilating, air-conditioning and electrical systems installed or furnished
by Landlord; maintenance, costs and upkeep of all parking and Development
Common Areas; depreciation on a straight line basis and rental of personal
property used in maintenance; amortization on a straight line basis over the
useful life (together with interest at the Interest Rate on the unamortized
balance) of all capitalized expenditures which are: (i) reasonably intended
to produce a reduction in operating costs or energy consumption, or (ii)
required under any governmental law or regulation that was not applicable to
the Building at the time it was originally constructed, or (iii) for
replacement of any Building equipment needed to operate the Building at the
same quality levels as prior to the replacement; costs and expenses of
gardening and landscaping; maintenance of signs (other than signs of
individual tenants of the Building, but including multiple tenant signs);
personal property taxes levied on or attributable to personal property used
in Connection with the Building or the Common Areas; reasonable accounting,
audit, verification, legal and other consulting fees; and costs and expenses
of resurfacing, repairing, maintenance, painting, lighting, leaning, refuse
removal, and similar items, including appropriate reserves.
(b) REAL PROPERTY TAXES AND ASSESSMENTS. The term "Real Property Taxes
and Assessments", means: any form of assessment, license fee, license tax,
business license fee, commercial rental tax, levy, charge, improvement bond,
tax or similar imposition imposed by any authority having the direct power to
tax, including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement or special assessment
district thereof, as against any legal or equitable interest of Landlord in
the Premises, Building, Common Areas or the Development, adjusted to reflect
an assumption that the Building is fully assessed for real property tax
purposes as a completed building ready for occupancy, including the following
by way of illustration but not limitation:
(i) Any tax on Landlord's "right" to rent or "right" to other
income from the Premises or as against Landlord's business of leasing the
Premises;
(ii) Any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax, it being acknowledged by
Tenant and Landlord that Proposition 13 was adopted by the voters of the
State of California in the June, 1978 election and that assessments, taxes,
fees, levies and charges may be imposed by governmental agencies for such
services as fire protection, street, sidewalk and road maintenance, refuse
removal and for other governmental services formerly provided without charge
to property owners or
7.
occupants. It is the intention of Tenant and Landlord that all such new and
increased assessments, taxes, fees, levies and charges be included within the
definition of "real property taxes" for the purposes of this Lease;
(iii) Any assessment, tax, fee, levy or charge allocable to or
measured by the area of the Premises or other premises in the Building or the
rent payable by Tenant hereunder or other tenants of the Building, including,
without limitation, any gross receipts tax or excise tax levied by state,
city or federal government, or any political subdivision thereof, with
respect to the receipt of such rent, or upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises, or any portion thereof but not on
Landlord's other operations;
(iv) Any assessment, tax, fee, levy or charge upon this
transaction or any document to which Tenant is a party, creating or
transferring an interest or an estate in the Premises; and/or
(v) Any assessment, tax, fee, levy or charge by any governmental
agency related to any transportation plan, fund or system (including
assessment districts) instituted within the geographic area of which the
Building is a part.
(c) ITEMS EXCLUDED FROM OPERATING EXPENSES. Notwithstanding the
provisions of Subparagraphs 6(a) and 6(b) above to the contrary, "Operating
Expenses" will not include: Landlord's federal or State income, franchise,
inheritance or estate taxes; costs incurred by Landlord for the repair of
damage to the Building to the extent that Landlord is reimbursed by insurance
or condemnation proceeds or by tenants, warrantors or other third persons;
depreciation, amortization and interest payments, except as specifically
provided above, and except on materials, tools, supplies and vendor-type
equipment purchased by Landlord to enable Landlord to supply services
Landlord might otherwise contract for with a third party, where such
depreciation, amortization and interest payments would otherwise have been
included in the charge for such third party's services, all as determined in
accordance with standard accounting practices; brokerage commissions,
finders' fees, attorneys' fees, space planning costs and other costs incurred
by Landlord in leasing or attempting to lease space in the Building; costs of
a capital nature, including, without limitation, capital improvements,
capital replacements, capital repairs, capital equipment and capital tools,
all as determined in accordance with standard accounting practices (provided,
however, the capital expenditures described in SUBPARAGRAPH 6(a) above will
in any event be included in the definition of Operating Expenses); payments
for any deed of trust or other debt encumbering the Building or the
Development; costs, including permit, license and inspection costs, occurred
with respect to the installation of tenant improvements for tenants in the
Building (including the original Tenant Improvements for the Premises), or
incurred in renovating or otherwise improving, decorating, painting or
redecorating space for tenants or other occupants of the Building, including
space planning and interior design costs and fees; 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 (provided,
however, that Operating Expenses will include 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 [illegible] relating to the
maintenance of standards required of Landlord under the Lease); except for the
8.
administrative/management fees described in SUBPARAGRAPH 6(a) above, costs of
Landlord's general corporate overhead; and all terms and services for which
Tenant or any other tenant in the Building reimburses Landlord (other than
through operating expense pass-through provisions).
(d) ESTIMATE STATEMENT. Prior to the Commencement Date and on or about
March 1st of each subsequent calendar year during the Term of this Lease,
Landlord will endeavor to deliver to Tenant a statement ("Estimate
Statement") wherein Landlord will estimate both the Operating Expenses and
Tenant's Percentage of Operating Expenses for the then current calendar year.
If the estimate of Tenant's Percentage of Operating Expenses in the Estimate
Statement exceeds Tenant's Operating Expense Allowance, Tenant agrees to pay
Landlord, as "Additional Rent", one-twelfth (1/12th) of such excess each
month thereafter, beginning with the next installment of rent due, until such
time as Landlord issues a revised Estimate Statement or the Estimate
Statement for the succeeding calendar year; except that, concurrently with
the regular monthly rent payment next due following the receipt of each such
Estimate Statement, Tenant agrees to pay Landlord an amount equal to one
monthly instalment of such excess (less any applicable Operating Expenses
already paid) multiplied by the number of months from January, in the current
calendar year, to the month of such rent payment next due, all months
inclusive. If at any time during the Term of this Lease, but not more often
than quarterly, Landlord reasonably determines that Tenant's Percentage of
Operating Expenses for the current calendar year will be greater than the
amount set forth in the then current Estimate Statement, Landlord may issue a
revised Estimate Statement and Tenant agrees to pay Landlord receipt of the
revised Estimate Statement, the difference between the amount owed by Tenant
[illegible] such revised Estimate Statement and the amount owed by Tenant under
the original Estimate Statement for the portion of the then current calendar
year which has expired. Thereafter Tenant agrees to pay Tenant's Percentage of
Operating Expenses based on such revised Estimate Statement until Tenant
receives the next calendar year's Estimate Statement or a new revised Estimate
Statement for the current calendar year. In the event Tenant's Percentage of
Operating Expenses for any calendar year is less than Tenant's Operating
Expense Allowance, Tenant will not be entitled to a credit against any rent,
additional rent or Tenant's Percentage of future Operating Expenses payable
hereunder. Notwithstanding anything to the contrary set forth in this
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ may, but shall be under no obligation to, separately
account for any item of Operating Expenses and allocate the same exclusively
among such tenants of the Development as Landlord reasonably determines to
have received all or substantially all of the benefit attributable to such
item. In such event, Tenant's Percentage of such Operating Expenses shall be
a percentage of the total of such costs which is determined by dividing the
Rentable Square Footage of the Premises by the Rentable Square Footage of all
such benefitted tenants.
(e) ACTUAL STATEMENT. By March 1st of each calendar year during
the term of this Lease; Landlord will also endeavor to deliver to Tenant a
statement ("Actual Statement") which states the actual Operating Expenses for
the preceding calendar year. If the Actual Statement reveals that Tenant's
Percentage of the actual Operating Expenses is more than the total Additional
Rent paid by Tenant for Operating Expenses on account of the preceding
calendar year, Tenant agrees to pay Landlord the difference in a lump sum
within ten (10) days of receipt of the Actual Statement. If the Actual
Statement reveals that Tenant's Percentage of the actual Operating Expenses
is less than the Additional Rent paid by Tenant for Operating concurrently
with the regular monthly rent payment next due following
9.
Expenses on account of the preceding calendar year, Landlord will credit any
overpayment toward the next monthly installment(s) of Tenant's Percentage of
the Operating Expenses due under this Lease.
(f) MISCELLANEOUS. Any delay or failure by Landlord in delivering
any Estimate Statement or Actual Statement pursuant to this PARAGRAPH 6 will
not constitute a waiver of its right to require an increase in rent nor will
it relieve Tenant of its obligations pursuant to this Paragraph 6, except
that Tenant will not be obligated to make any payments based on such Estimate
Statement or Actual Statement until ten (10) days after receipt of such
Estimate Statement or Actual Statement. Even though the Term has expired and
Tenant has vacated the Premises, when the final determination is made of
Tenant's Percentage of the actual Operating Expenses for the year in which
this Lease terminates, Tenant agrees to promptly pay any increase due over
the estimated expenses paid and, conversely, any overpayment made in the
event said expenses decrease shall promptly be rebated by Landlord to Tenant.
Prior to the expiration or sooner termination of the Lease Term and
Landlord's acceptance of Tenant's surrender of the Premises, Landlord will
have the right to estimate the actual Operating Expenses for the then current
Lease Year and to collect from Tenant prior to Tenant's surrender of the
Premises, Tenant's Percentage of any excess of such actual Operating Expenses
over the estimated Operating Expenses paid by Tenant in such Lease Year.
Notwithstanding anything to the contrary set forth in this PARAGRAPH 6, with
respect to the period set forth in SUBPARAGRAPH 1(n) (the "Base Year"), when
calculating the Operating Expenses attributable to the Base Year, such
Operating Expenses shall not include any increase in Real Property Taxes and
Assessments attributable to special assessments, charges, costs, or fees, or
due to modifications or changes in governmental laws or regulations,
including but not limited to the institution of a split tax roll, and
Operating Expenses shall exclude market-wide labor-rate increases due to
extraordinary circumstances, including, but not limited to, boycotts and
strikes, and utility rate increases due to extraordinary circumstances
including, but not limited to, conservation surcharges, boycotts, embargoes
or other shortages and amortized costs relating to capital improvements. The
amount of Real Property Taxes and Assessments for the Base Year attributable
to the valuation of the Development, inclusive of tenant improvements, shall
be known as "Base Taxes". If, in any comparison year subsequent to the Base
Year, the amount of Base Taxes decreases, then for purposes of all subsequent
comparison years, including the comparison year in which such decrease in
Real Property Taxes and Assessments occurred, the Operating Expense Allowance
shall be decreased by an amount equal to the decrease in Real Property Taxes
and Assessments.
7. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant will deposit with Landlord the Security Deposit designated in
SUBPARAGRAPH 1(o). The Security Deposit is in an amount equal to one hundred
ten percent (110%) of the highest Monthly Base Rent amount anticipated for
the initial Lease Term. The Security Deposit will be held by Landlord as
security for the full and faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the Term hereof. If Tenant fully and faithfully performs its
obligations under this Lease, including, without limitation, surrendering the
Premises upon the expiration or sooner termination of this Lease in
compliance with SUBPARAGRAPH 11(a) below, the Security Deposit or any balance
thereof will be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest hereunder) within thirty (30) days following
the expiration of the Lease Term or as required under applicable law,
provided that Landlord may retain the Security Deposit until such time as any
outstanding rent or additional rent amount has been
10.
determined and paid in full. The Security Deposit is not, and may not be
construed by Tenant to constitute, rent for the last month or any portion
thereof. If Tenant defaults with respect to any provisions of this Lease
including, but not limited to, the provisions relating to the payment of rent
or additional rent, Landlord may (but will not be required to) use, apply or
retain all or any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of Tenant's default
or to compensate Landlord for any loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of the Security Deposit is so used
or applied, Tenant agrees, within ten (10) days after Landlord's written
demand therefor, to deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount and Tenant's failure to
do so shall constitute a default under this Lease. Landlord is not required
to keep Tenant's Security Deposit separate from its general funds, and Tenant
is not entitled to interest on such Security Deposit. Should Landlord sell
its interest in the Premises during the term hereof and deposit with the
purchaser thereof the then unappropriated Security Deposit funds, Landlord
will be discharged from any further liability with respect to such Security
Deposit. Upon any and each increase to Monthly Base Rent during the Lease
term, Landlord will have the right to require that Tenant increase the amount
of the Security Deposit proportionate to such increase to Monthly Base Rent.
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the
use or uses set forth in SUBPARAGRAPH 1(r) only, and Tenant will not use or
permit the Premises to be used for any other purpose without the prior
written consent of Landlord, which consent Landlord may withhold in its sole
and absolute discretion. Nothing in this Lease will be deemed to give Tenant
any exclusive right to such use in the Building or the Development.
(b) COMPLIANCE. At Tenant's sole cost and expense, Tenant agrees
to procure, maintain and hold available for Landlord's inspection, all
governmental licenses and permits required for the proper and lawful conduct
of Tenant's business from the Premises, if any. Tenant agrees not to use,
alter or occupy the Premises or allow the Premises to be used, altered or
occupied in violation of, and Tenant, at its sole cost and expense, agrees to
use and occupy the Premises and cause the Premises to be used and occupied in
compliance with: (i) any and all laws, statutes, zoning restrictions,
ordinances, rules, regulations, orders and rulings now or hereafter in force
and any requirements of any insurer, insurance authority or duly constituted
public authority having jurisdiction over the Premises, the Building or the
Development now or hereafter in force, (ii) the requirements of the Board of
Fire Underwriters and any other similar body (iii) the Certificate of
Occupancy issued for the Building, and (iv) any recorded covenants,
conditions and restrictions and similar regulatory agreements, if any, which
affect the use, occupation or alteration of the Premises, the Building and/or
the Development. Tenant agrees to comply with the Rules and Regulations
referenced in PARAGRAPH 28 below. Tenant agrees not to do or permit anything
to be done in or about the Premises which will in any manner obstruct or
interfere with the rights of other tenants or occupants of the Development,
or injure or unreasonably annoy them, or use or allow the Premises to be used
for any unlawful or unreasonably objectionable purpose. Tenant agrees not to
cause, maintain or permit any nuisance or waste in or about the Premises or
elsewhere within the Development. Tenant agrees not to place a load upon the
Premises
11.
exceeding the average pounds of live load per square foot of floor area
specified for the Building by Landlord's architect, with the partitions to be
considered a part of the live load. Landlord reserves the right to reasonably
prescribe the weight and positions of safes, files and heavy equipment which
Tenant desires to place in the Premises so as to distribute properly the
weight thereof. Tenant agrees to install, maintain and use Tenant's business
machines and mechanical equipment which may cause vibration or noise that may
be transmitted to the Building structure or to any other space in the
Building in a manner so as to eliminate or minimize such vibration or noise.
Tenant will be responsible for all structural engineering required to
determine structural load, as well as the expense thereof. Notwithstanding
anything contained in this Lease to the contrary, all transferable
development rights related in any way to the Development are and will remain
vested in Landlord, and Tenant hereby waives any rights thereto.
(c) HAZARDOUS MATERIALS. Except for ordinary and general office
supplies typically used in the ordinary course of business within office
buildings, such as copier toner, liquid paper, glue, ink and common household
cleaning materials (some or all of which may constitute "Hazardous Materials"
as defined in this Lease), Tenant agrees not to cause or permit any Hazardous
Materials [illegible], stored, used, handled, generated, released or disposed of
on, in, under or about the Premises, the building, the Common Areas or any
other portion of the Development by Tenant, its agents, employees,
subtenants, assignees, contractors or invitees (collectively, "Tenant's
Parties"), without the prior written consent of Landlord, which consent
Landlord may withhold in its sole and absolute discretion. Upon the
expiration or sooner termination of this Lease, Tenant agrees to remove from
the Premises, the Building and the Development, at its [illegible] cost and
expense, any and all Hazardous Materials, including any equipment or systems
containing Hazardous Materials which are installed, brought upon, stored,
used, generated or released upon, in or under the Premises, the Building
and/or the Development or any portion thereof by Tenant or any of Tenant's
Parties. To the fullest extent permitted by law, Tenant agrees to promptly
indemnify, protect, defend and hold harmless Landlord and Landlord's
partners, officers, directors, employees, agents, successors and assigns
(collectively, "Landlord Indemnified Parties") from and against any and all
claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation,
clean-up, removal, remediation and restoration costs, sums paid in settlement
of claims, attorneys' fees, consultant fees and expert fees and court costs)
which arise or result from the presence of Hazardous Materials on, in or
about the Premises, the Building or any other portion of the Development and
which are caused or permitted by Tenant or any of Tenant's Parties. Tenant
agrees to promptly notify Landlord of any release of Hazardous Materials in
the Premises, the Building or any other portion of the Development which
Tenant becomes aware of during the term of this Lease, whether caused by
Tenant or any other persons or entities. In the event of any release of
Hazardous Materials caused or permitted by Tenant or any of Tenant's Parties,
Landlord shall have the right to cause Tenant to immediately take all steps
Landlord deems necessary or appropriate to remediate such release and prevent
any similar future release to the satisfaction of Landlord and Landlord's
mortgagee(s). As used in this Lease, the term "Hazardous Materials" shall
mean and include any hazardous or toxic materials, substances or wastes as
now or hereafter designated under any law, statute, ordinance, rule,
regulation, order or ruling of any agency of the State, the United States
Government or any local governmental authority, including, without
limitation, asbestos, petroleum, petroleum hydrocarbons and petroleum based
products, urea formaldehyde foam insulation, polychlorinated
12.
biphenyls ("PCBs"), and freon and other chlorofluorocarbons. The provisions
of this SUBPARAGRAPH 8(c) will survive any termination of this Lease.
9. NOTICES. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery (including delivery
by overnight courier or an express mailing service) or by mail, if sent by
registered or certified mail. Notices to Tenant shall be sufficient if
delivered to Tenant at the Premises and notices to Landlord shall be
sufficient if delivered to Landlord at the address designated in SUBPARAGRAPH
1(b). Either party may specify a different address for notice purposes by
written notice to the other, except that the Landlord may in any event use
the Premises as Tenant's address for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated
this Lease are stated in SUBPARAGRAPH 1(t). Each party represents and
warrants to the other, that, to its knowledge, no other broker, agent or
finder (a) negotiated or was instrumental in negotiating or consummating this
Lease on its behalf, and (b) is or might be entitled to a commission or
compensation in connection with this Lease. Landlord and Tenant each agree to
promptly indemnify, protect, defend and hold harmless the other from and
against any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs (including
attorneys' fees and court costs) resulting from any breach by the
indemnifying party of the foregoing representation, including, without
limitation, any claims that may be asserted by any broker, agent or finder
undisclosed by the indemnifying party. The foregoing mutual indemnity shall
survive the expiration or earlier termination of this Lease.
11. SURRENDER: HOLDING OVER.
(a) SURRENDER. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not constitute a merger, and
shall, at the option of Landlord, operate as an assignment to Landlord of any
or all subleases or subtenancies. Upon the expiration or sooner termination
of this Lease, Tenant agrees to peaceably surrender the Premises to Landlord
broom clean and in a state of firstclass order, repair and condition,
ordinary wear and tear and casualty damage (if this Lease is terminated as a
result thereof pursuant to PARAGRAPH 20) excepted, with all of Tenant's
personal property and Alterations (as defined in PARAGRAPH 13) removed from
the Premises to the extent required under PARAGRAPH 13 and all damage caused
by such removal repaired as required by PARAGRAPH 13. Prior to the date
Tenant is to actually surrender the Premises to Landlord, Tenant agrees to
give Landlord reasonable prior notice of the exact date Tenant will surrender
the Premises so that Landlord and Tenant can schedule a walk-through of the
Premises to review the condition of the Premises and identify the Alterations
and personal property which Tenant is to remove and any repairs Tenant is to
make upon surrender of the Premises. The delivery of keys to any employee of
Landlord or to Landlord's agent or any employee thereof alone will not be
sufficient to constitute a termination of this Lease or a surrender of the
Premises.
(b) HOLDING OVER. Tenant will not be permitted to hold over
possession of the Premises after the expiration or earlier termination of the
term without the express written consent of Landlord, which consent Landlord
may withhold in its sole discretion. If Tenant holds over after the
expiration or earlier termination
13.
of the Term, Landlord may, at its option, treat Tenant as a tenant at
sufferance only, and such continued occupancy by Tenant shall be subject to
all of the terms, covenants and conditions of this Lease, so far as
applicable, except that the Monthly Base Rent for any such holdover period
shall be equal to the greater of (i) one hundred twenty five percent (125%)
of the Monthly Base Rent in effect under this Lease immediately prior to such
holdover, or (ii) the then currently scheduled rental rate for comparable
space in the Building, in either event prorated on a daily basis. Acceptance
by Landlord of rent after such expiration or earlier termination will not
result in a renewal of this Lease. The foregoing provisions of this PARAGRAPH
11 are in addition to and do not affect Landlord's right of re-entry or any
rights of Landlord under this Lease or as otherwise provided by law. If
Tenant fails to surrender the Premises upon the expiration of this Lease in
accordance with the terms of this PARAGRAPH 11 despite demand to do so by
Landlord, Tenant agrees to promptly indemnify, protect, defend and hold
Landlord harmless from all claims, damages, judgments, suits, causes of
action, losses, liabilities, penalties, fines, expenses and costs (including
attorneys' fees and costs), including, without limitation, costs and expenses
incurred by Landlord in returning the Premises to the condition in which
Tenant was to surrender it and claims made by any succeeding tenant founded
on or resulting from Tenant's failure to surrender the Premises.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before
delinquency, all taxes and assessments (real and personal) levied against (a)
any personal property or trade fixtures placed by Tenant in or about the
Premises (including any increase in the assessed value of the Premises based
upon the value of any such personal property or trade fixtures); and (b) any
Tenant Improvements or Alterations in the Premises (whether installed and/or
paid for by Landlord or Tenant) to the extent such items are assessed at a
valuation higher than the valuation at which tenant improvements conforming
to Landlord's building standard tenant improvements are assessed. If any
such taxes or assessments are levied against Landlord or Landlord's property,
Landlord may, after written notice to Tenant (and under proper protest if
requested by Tenant) pay such taxes and assessments, in which event Tenant
agrees to reimburse Landlord all amounts paid by Landlord within ten (10)
business days after demand by Landlord; provided, however, Tenant, at its
sole cost and expense, will have the right, with Landlord's cooperation, to
bring suit in any court of competent jurisdiction to recover the amount of
any such taxes and assessments so paid under protest.
13. ALTERATIONS. After installation of the initial Tenant Improvements
for the Premises pursuant to EXHIBIT "C", Tenant may, at its sole cost and
expense, make alterations, additions, improvements and decorations to the
Premises (collectively, "Alterations") subject to and upon the following
terms and conditions:
(a) Tenant may not make any Alterations which: (i) affect any area
outside the Premises; (ii) affect the Building's structure, equipment, services
or systems, or the proper functioning thereof, or Landlord's access thereto;
(iii) affect the outside appearance, character or use of the Building or the
Building Common Areas; (iv) in the reasonable opinion of Landlord, lessen the
value of the Building; or (v) will violate or require a change in any occupancy
certificate applicable to the Premises.
(b) Before proceeding with any Alterations which are not
prohibited in SUBPARAGRAPH 13(a) above, Tenant must first obtain Landlord's
written approval of the plans, specifications and working
14.
drawings for such Alterations, which approval Landlord will not unreasonably
withhold or delay; provided, however, Landlord's prior approval will not be
required for any such Alterations which are not prohibited by SUBPARAGRAPH
13(a) above and which cost less than Two Thousand Five Hundred Dollars
($2,500) as long as (i) Tenant delivers to Landlord notice and a copy of any
final plans, specifications and working drawings for any such Alterations at
least ten (10) days prior to commencement of the work thereof, and (ii) the
other conditions of this PARAGRAPH 13 are satisfied, including, without
limitation, conforming to Landlord's rules, regulations and insurance
requirements which govern contractors. Landlord's approval of plans,
specifications and/or working drawings for Alterations will not create any
responsibility or liability on the part of Landlord for theft completeness,
design sufficiency, or compliance with applicable permits, laws, rules and
regulations of governmental agencies or authorities. In approving any
Alterations, Landlord reserves the right to require Tenant to increase its
Security Deposit to provide Landlord with additional reasonable security for
the removal of such Alterations by Tenant as may be required by this Lease.
(c) Alterations may be made or installed only by contractors and
subcontractors which have been approved by Landlord, which approval Landlord
will not unreasonably withhold or delay; provided, however, Landlord reserves
the right to require that Landlord's contractor for the Building be given the
first opportunity to bid for any Alteration work. Before proceeding with any
Alterations, Tenant agrees to provide Landlord with ten (10) days' prior
written notice and Tenant's contractors must obtain, on behalf of Tenant and
at Tenant's sole cost and expense: (i) all necessary governmental permits and
approvals for the commencement and completion of such Alterations; and (ii)
if requested by Landlord, a completion and lien indemnity bond, or other
surety, reasonably satisfactory to Landlord for such Alterations. Throughout
the performance of any Alterations, Tenant agrees to obtain, or cause its
contractors to obtain, workers compensation insurance and general liability
insurance in compliance with the provisions of PARAGRAPH 19 of this Lease.
(d) All Alterations must be performed: (i) in accordance with the
approved plans, specifications and working drawings; (ii) in a lien-free and
first-class and workmanlike manner; (iii) in compliance with all applicable
permits, laws, statutes, ordinances, rules, regulations, orders and rulings
now or hereafter in effect and imposed by any governmental agencies and
authorities which assert jurisdiction; (iv) in such a manner so as not to
interfere with the occupancy of any other tenant in the Building, nor impose
any additional expense upon nor delay Landlord in the maintenance and
operation of the Building; and (v) at such times, in such manner, and
subject to such rules and regulations as Landlord may from time to time
reasonably designate.
(e) The Tenant Improvements, including, without limitation, all
affixed sinks, dishwashers, microwave ovens and other fixtures, and all
Alterations will become the property of Landlord and will remain upon and be
surrendered with the Premises at the end of the Term of this Lease; provided,
however, Landlord may, by written notice delivered to Tenant concurrently
with Landlord's approval of the final working drawings for any Alterations,
identify those Alterations which Landlord will require Tenant to remove at
the end of the Term of this Lease. Landlord may also require Tenant to remove
Alterations which Landlord did not have the opportunity to approve as
provided in this PARAGRAPH 13. If Landlord requires Tenant to remove any
Alterations, Tenant, at its sole cost, agrees to remove the identified
Alterations on or
15.
before the expiration or sooner termination of this Lease and repair any
damage to the Premises caused by such removal (or, at Landlord's option,
Tenant agrees to pay to Landlord all of Landlord's costs of such removal and
repair).
(f) Tenant agrees to pay Landlord, as additional rent, the
reasonable costs of professional services and costs for general conditions of
Landlord's third party consultants if utilized by Landlord (but not
Landlord's "in-house" personnel) for review of all plans, specifications and
working drawings for any Alterations, within ten (10) business days after
Tenant's receipt of invoices either from Landlord or such consultants. In
addition, Tenant agrees to pay Landlord, within ten (10) business days after
completion of any Alterations, a fee to cover Landlord's costs of supervising
and administering the installation of such Alterations, in the amount of
eight percent (8%) of the cost of such Alterations, but in no event less than
Two Hundred Fifty Dollars ($250.00).
(g) All articles of personal property owned by Tenant or installed
by Tenant at its expense in the Premises (including Tenant's business and
trade fixtures, furniture, movable partitions and equipment [such as telephones,
copy machines, computer terminals, refrigerators and facsimile machines]) will
be and remain the property of Tenant, and must be removed by Tenant from the
Premises, at Tenant's sole cost and expense, on or before the expiration or
sooner termination of this Lease. Tenant agrees to repair any damage caused
by such removal at its cost on or before the expiration or sooner termination
of this Lease.
(h) If Tenant fails to remove by the expiration or sooner
termination of this Lease all of its personal property, or any Alterations
identified by Landlord for removal, Landlord may, at its option, treat such
failure as a hold-over pursuant to SUBPARAGRAPH 11(b) above, and/or Landlord
may (without liability to Tenant for loss thereof) treat such personal
property and/or Alterations as abandoned and, at Tenant's sole cost and in
addition to Landlord's other rights and remedies under this Lease, at law or
in equity: (a) remove and store such items; and/or (b) upon ten (10) days'
prior notice to Tenant, sell, discard or otherwise dispose of all or any such
items at private or public sale for such price as Landlord may obtain or by
other commercially reasonable means. Tenant shall be liable for all costs of
disposition of Tenant's abandoned property and Landlord shall have no
liability to Tenant with respect to any such abandoned property. Landlord
agrees to apply the proceeds of any sale of any such property to any amounts
due to Landlord under this Lease from Tenant (including Landlord's attorneys'
fees and other costs incurred in the removal, storage and/or sale of such
items), with any remainder to be paid to Tenant.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to repair and maintain
the structural portions of the Building and the plumbing, heating,
ventilating, air conditioning, elevator and electrical systems installed or
furnished by Landlord, unless such maintenance and repairs are (i)
attributable to items installed in Tenant's Premises which are above standard
interior improvements (such as, for example, custom lighting, special HVAC
and/or electrical panels or systems, kitchen or restroom facilities and
appliances constructed or installed within Tenant's Premises) or (ii) caused
in part or in whole by the act, neglect or omission of any duties by, Tenant,
its agents, servants, employees or invitees, in which case Tenant will pay to
Landlord, as
16.
additional rent, the reasonable cost of such maintenance and repairs.
Landlord will not be liable for any failure to make any such repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given
to Landlord by Tenant. Except as provided in PARAGRAPH 20, Tenant will not
be entitled to any abatement of rent and Landlord will not have any liability
by reason of any injury to or interference with Tenant's business arising
from the making of any repairs, alterations or improvements in or to any
portion of the Building or the Premises or in or to fixtures, appurtenances
and equipment therein. Tenant waives the right to make repairs at Landlord's
expense under any law, statute, ordinance, rule, regulation, order or ruling
(including, without limitation, to the extent the Premises are located in
California, the provisions of California Civil Code Sections 1941 and 1942
and any successor statutes or laws of a similar nature).
(b) TENANT'S OBLIGATIONS. Tenant agrees to keep, maintain and
preserve the Premises in first class condition and repair and, when and if
needed, at Tenant's sole cost and expense, to make all repairs to the
Premises and every part thereof. Any such maintenance and repairs will be
performed by Landlord's contractor, or at Landlord's option, by such
contractor or contractors as Tenant may choose from an approved list to be
submitted by Landlord. Tenant agrees to pay all costs and expenses incurred
in such maintenance and repair within seven (7) days after billing by
Landlord or such contractor or contractors. Tenant agrees to cause any
mechanics' liens or other liens arising as a result of work performed by
Tenant or at Tenant's direction to be eliminated as provided in PARAGRAPH 15
below. Except as provided in SUBPARAGRAPH 14(a) above, Landlord has no
obligation to alter, remodel, improve, repair, decorate or paint the Premises
or any part thereof.
(c) TENANT'S FAILURE TO REPAIR. If Tenant refuses or neglects to
repair and maintain the Premises properly as required hereunder to the
reasonable satisfaction of Landlord, Landlord, at any time following ten (10)
days from the date on which Landlord makes a written demand on Tenant to
effect such repair and maintenance, may enter upon the Premises and make such
repairs and/or maintenance, and upon completion thereof, Tenant agrees to pay
to Landlord as additional rent, Landlord's costs for making such repairs
plus an amount not to exceed ten percent (10%) of such costs for overhead,
within ten (10) days of receipt from Landlord of a written itemized ▇▇▇▇
therefor. Any amounts not reimbursed by Tenant within such ten (10) day
period will bear interest at the Interest Rate until paid by Tenant.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or
other liens to be filed against all or any part of the Development, the
Building or the Premises, nor against Tenant's leasehold interest in the
Premises, by reason of or in connection with any repairs, alterations
improvements or other work contracted for or undertaken by Tenant or any
other act or omission of Tenant or tenant's agents, employees, contractors,
licensees or invitees. At Landlord's request, Tenant agrees to provide
Landlord with enforceable, conditional and final lien releases (or other
evidence reasonably requested by Landlord to demonstrate protection from
liens) from all persons furnishing labor and/or materials at the Premises.
Landlord will have the right at all reasonable times to post on the Premises
and record any notices of non-responsibility which it deems necessary for
protection from such liens. If any such liens are filed, Tenant will, at its
sole cost, promptly cause such liens to be released of record or bonded so
that it no longer affects title to the Development, the Building or the
Premises. If Tenant fails to cause any such liens to be so
17.
released or bonded within ten (10) days after filing thereof, such failure
will be deemed a material breach by Tenant under this Lease without the
benefit of any additional notice or cure period described in PARAGRAPH 22
below, and Landlord may, without waiving its rights and remedies based on
such breach, and without releasing Tenant from any of its obligations, cause
such liens to be released by any means it shall deem proper, including
payment in satisfaction of the claims giving rise to such liens. Tenant
agrees to pay to Landlord within ten (10) days after receipt of invoice from
Landlord, any sum paid by Landlord to remove such liens, together with
interest at the Interest Rate from the date of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will
at all times have the right to enter the Premises to inspect the same, to
supply janitorial service and any other service to be provided by Landlord to
Tenant hereunder, to show the Premises to prospective purchasers or tenants,
to post notices of nonresponsibility, and/or to repair the Premises as
permitted or required by this Lease. In exercising such entry rights,
Landlord will endeavor to minimize, as reasonably practicable, the
interference with Tenant's business, and will provide Tenant with reasonable
advance notice of any such entry (except in emergency situations). Landlord
may, in order to carry out such purposes, erect scaffolding and other
necessary structures where reasonably required by the character of the work
to be performed. Landlord will at all times have and retain a key with which
to unlock all doors in the Premises, excluding Tenant's vaults and safes.
Landlord will have the right to use any and all means which Landlord may
reasonably deem proper to open said doors in an emergency in order to obtain
entry to the Premises. Any entry to the Premises obtained by Landlord by any
of said means, or otherwise, will not be construed or deemed to be a
forcible or unlawful entry into the Premises, or an eviction of Tenant from
the Premises. Landlord will not be liable to Tenant for any damages or losses
for any entry by Landlord.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease so
long as the Premises are occupied, Landlord agrees to furnish or cause to be
furnished to the Premises the utilities and services described in the
Standards for Utilities and Services attached hereto as EXHIBIT "E", subject
to the conditions and in accordance with the standards set forth therein.
Landlord may require Tenant from time to time to provide Landlord with a list
of Tenant's employees and/or agents which are authorized by Tenant to
subscribe on behalf of Tenant for any additional services which may be
provided by Landlord. Any such additional services will be provided to Tenant
at Tenant's cost. Landlord will not be liable to Tenant for any failure to
furnish any of the foregoing utilities and services if such failure is caused
by all or any of the following: (i) accident, breakage or repairs; (ii)
strikes, lockouts or other labor disturbance or labor dispute of any
character; (iii) governmental regulation, moratorium or other governmental
action or inaction; (iv) inability despite the exercise of reasonable
diligence to obtain electricity, water or fuel; or (v) any other cause beyond
Landlord's reasonable control. In addition, in the event of any stoppage or
interruption of services or utilities, Tenant shall not be entitled to any
abatement or reduction of rent (except as expressly provided in SUBPARAGRAPHS
20(f) OR 21(b) if such failure results from a damage or taking described
therein), no eviction of Tenant will result from such failure and Tenant will
not be relieved from the performance of any covenant or agreement in this
Lease because of such failure. In the event of any failure, stoppage or
interruption thereof, Landlord agrees to diligently attempt to resume service
promptly. If Tenant requires or utilizes more water or electrical power than
is considered reasonable or normal by Landlord, Landlord may at its option,
require Tenant to pay, as additional rent, the cost, as fairly determined by
Landlord, incurred by such
18.
extraordinary usage and/or Landlord may install separate meter(s) for the
Premises, at Tenant's sole expense, and Tenant agrees thereafter to pay all
charges of the utility providing service and Landlord will make an
appropriate adjustment to Tenant's Operating Expenses calculation to account
for the fact Tenant is directly paying such metered charges, provided Tenant
will remain obligated to pay its proportionate share of Operating Expenses
subject to such adjustment.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) TENANT'S ASSUMPTION OF RISK AND WAIVER. Tenant, as a material
part of the consideration to Landlord, hereby agrees that neither Landlord
nor any Landlord Indemnified Parties will be liable to Tenant for, and Tenant
expressly assumes the risk of and waives any and all claims it may have
against Landlord or any Landlord Indemnified Parties with respect to, (i) any
and all damage to property or injury to persons in, upon or about the
Premises, the Building or the Development resulting from any act or omission
of Landlord or of any Landlord Indemnified Party, (ii) any such damage caused
by other tenants or persons in or about the Building or the Development, or
caused by quasi-public work, (iii) any damage to property entrusted to
employees of the Building, (iv) any loss of or damage to property by theft or
otherwise, or (v) any injury or damage to persons or property resulting from
any casualty, explosion, falling plaster or other masonry or glass, steam,
gas, electricity, water or rain which may leak from any part of the Building
or any other portion of the Development or from the pipes, appliances or
plumbing works therein or from the roof, street or subsurface or from any
other place, or resulting from dampness. Notwithstanding anything to the
contrary contained in this Lease, neither Landlord nor any Landlord
Indemnified Parties will be liable for consequential damages arising out of
any loss of the use of the Premises or any equipment or facilities therein by
Tenant or any Tenant Parties or for interference with light or other
incorporeal hereditaments. Tenant agrees to give prompt notice to Landlord in
case of fire or accidents in the Premises or the Building, or of defects
therein or in the fixtures or equipment.
(b) TENANT'S INDEMNIFICATION OF LANDLORD. Tenant will be liable
for, and agrees to promptly indemnify, protect, defend and hold harmless
Landlord and Landlord's partners, officers, directors, employees, agents,
successors and assigns (collectively, "Landlord Indemnified Parties"), from
and against, any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs, including
attorneys' fees and court costs (collectively, "Indemnified Claims"), arising
or resulting from (i) any act or omission of Tenant or any of Tenant's
agents, employees, contractors, subtenants, assignees, licensees or invitees
(collectively, "Tenant Parties"); (ii) the use of the Premises and Common
Areas and conduct of Tenant's business by Tenant or any Tenant Parties, or
any other activity, work or thing done, permitted or suffered by Tenant or
any Tenant Parties, in or about the Premises, the Building or elsewhere
within the Development; and/or (iii) any default by Tenant of any obligations
on Tenant's part to be performed under the terms of this Lease. In case any
action or proceeding is brought against Landlord or any Landlord Indemnified
Parties by reason of any such Indemnified Claims, Tenant, upon notice from
Landlord, agrees to defend the same at Tenant's expense by counsel approved
in writing by Landlord, which approval Landlord will not unreasonably
withhold.
19.
(c) SURVIVAL: NO RELEASE OF INSURERS. Tenant's indemnification
obligations under SUBPARAGRAPH 18(b) will survive the expiration or earlier
termination of this Lease. Tenant's covenants, agreements and indemnification
obligation in SUBPARAGRAPHS 18(a) AND 18(b) above, are not intended to and
will not relieve any insurance carrier of its obligations under policies
required to be carried by Tenant pursuant to the provisions of this Lease.
19. INSURANCE.
(a) TENANT'S INSURANCE. On or before the earlier to occur of (i)
thirty (30) days after Tenant executes the Lease, or (ii) the date Tenant
commences any work of any type in the Premises pursuant to this Lease (which
may be prior to the Commencement Date), and continuing throughout the entire
Term hereof and any other period of occupancy, Tenant agrees to keep in full
force and effect, at its sole cost and expense, the following insurance:
(i) "All Risks" property insurance including at least the
following perils: fire and extended coverage, smoke damage, vandalism,
malicious mischief, sprinkler leakage (including earthquake sprinkler
leakage). This insurance policy must be upon all property owned by Tenant,
for which Tenant is legally liable, or which is installed at Tenant's
expense, and which is located in the Building including, without limitation,
any Tenant Improvements which satisfy the foregoing qualification and any
Alterations, and all furniture, fittings, installations, fixtures and any
other personal property of Tenant, in an amount not less than the full
replacement cost thereof. If there is a dispute as to full replacement cost,
the decision of Landlord or any mortgagee of Landlord will be presumptive.
(ii) One (1) year insurance coverage for business interruption and
loss of income and extra expense insuring the same perils described in
SUBPARAGRAPH 19(a)(i) above, in such amounts as will reimburse Tenant for any
direct or indirect loss of earnings attributable to any such perils including
prevention of access to the Premises, Tenant's parking areas or the Building
as a result of any such perils.
(iii) Commercial General Liability Insurance or Comprehensive
General Liability Insurance on an occurrence form) insuring bodily injury,
personal injury and property damage including the following divisions and
extensions of coverage: Premises and Operations; Owners and Contractors
protective; blanket contractual liability (including, coverage for Tenant's
indemnity obligations under this Lease); products and completed operations,
liquor liability (if Tenant serves alcohol on the Premises); and fire and
water damage legal liability in an amount sufficient to cover the replacement
value of the Premises, including Tenant improvements, that are rented under
the terms of this Lease. Such insurance must have the following minimum
limits of liability: bodily injury, personal injury and property damage
$500,000 each occurrence, provided that if liability coverage is provided by a
Commercial General Liability policy the general aggregate limit shall apply
separately and in total to this location only (per location general
aggregate), and provided further, such minimum limits of liability may be
adjusted from year to year to reflect increases in coverages as recommended
by Landlord's insurance carrier as being prudent and commercially reasonable
for tenants of first class office buildings comparable to the Building,
rounded to the nearest five hundred thousand dollars.
20.
(iv) Comprehensive Automobile Liability insuring bodily injury and
property damage arising from all owned, non-owned and hired vehicles, if any,
with minimum limits of liability of $500,000 per accident.
(v) Worker's Compensation as required by the laws of the State of
California with the following minimum limits of liability: Coverage A
-statutory benefits; Coverage B - $500,000 per accident and disease.
(vi) Any other form or forms of insurance as Tenant or Landlord or
any mortgagees of Landlord may reasonably require from time to time in form,
in amounts, and for insurance risks against which, a prudent tenant would
protect itself, but only to the extent coverage for such risks and amounts
are available in the insurance market at commercially acceptable rates.
Landlord makes no representation that the limits of liability required to be
carried by Tenant under the terms of this Lease are adequate to protect
Tenant's interests and Tenant should obtain such additional insurance or
increased liability limits as Tenant deems appropriate.
(b) SUPPLEMENTAL TENANT INSURANCE REQUIREMENTS.
(i) All policies must be in a form reasonably satisfactory to
Landlord and issued by an insurer admitted to do business in the State of
California.
(ii) All policies must be issued by insurers with a
policyholder rating of "A" and a financial rating of "X" in the most recent
version of Best's Key Rating Guide.
(iii) All policies must contain a requirement to notify
Landlord (and Landlord's property manager and any mortgagees or ground
lessors of Landlord who are named as additional insureds, if any) in writing
not less than thirty (30) days prior to any material change, reduction in
coverage, cancellation or other termination thereof. Tenant agrees to
deliver to Landlord, as soon as practicable after placing the required
insurance, but in any event within the time frame specified in SUBPARAGRAPH
19(a) above, certificate(s) of insurance and/or if required by Landlord,
certified copies of each policy evidencing the existence of such insurance
and Tenant's compliance with the provisions of this PARAGRAPH 19. Tenant
agrees to cause replacement policies or certificates to be delivered to
Landlord not less than thirty (30) days prior to the expiration of any such
policy or policies. If any such initial or replacement policies or
certificates are not furnished within the time(s) specified herein, Tenant
will be deemed to be in material default under this Lease without the benefit
of any additional notice or cure period provided in SUBPARAGRAPH 22(a)
(iii) below, and Landlord will have the right, but not the obligation, to
procure such insurance as Landlord deems necessary to protect Landlord's
interests at Tenant's expense. If Landlord obtains any insurance that is the
responsibility of Tenant under this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ agrees to deliver
to Tenant a written statement setting forth the cost of any such insurance
and showing in reasonable detail the manner in which it has been computed and
Tenant agrees to promptly reimburse Landlord for such costs as additional
rent.
21.
(iv) General Liability and Automobile Liability policies under
SUBPARAGRAPHS 19(a)(iii) and (iv) must name Landlord and Landlord's property
manager (and at Landlord's request, Landlord's mortgagees and ground lessors
of which Tenant has been informed in writing) as additional insureds and must
also contain a provision that the insurance afforded by such policy is
primary insurance and any insurance carried by Landlord and Landlord's
property manager or Landlord's mortgagees or ground lessors, if any, will be
excess over and noncontributing with Tenant's insurance.
(c) TENANT'S USE. Tenant will not keep, use, sell or offer for
sale in or upon the Premises any article which may be prohibited by any
insurance policy periodically in force covering the Building or the
Development Common Areas. If Tenant's occupancy or business in, or on, the
Premises, whether or not Landlord has consented to the same, results in any
increase in premiums for the insurance periodically carried by Landlord with
respect to the Building or the Development Common Areas or results in the
need for Landlord to maintain special or additional insurance, Tenant agrees
to pay Landlord the cost of any such increase in premiums or special or
additional coverage as additional rent within ten (10) days after being
billed therefor by Landlord. In determining whether increased premiums are a
result of Tenant's use of the Premises, a schedule issued by the organization
computing the insurance rate on the Building, the Development Common Areas or
the Tenant Improvements showing the various components of such rate, will be
conclusive evidence of the several items and charges which make up such rate.
Tenant agrees to promptly comply with all reasonable requirements of the
insurance authority or any present or fixture insurer relating to the
Premises.
(d) CANCELLATION OF LANDLORD'S POLICIES. If any of Landlord's
insurance policies are cancelled or cancellation is threatened or the
coverage reduced or threatened to be reduced in any way because of the use of
the Premises or any part thereof by Tenant or any assignee or subtenant of
Tenant or by anyone Tenant permits on the Premises and, if Tenant fails to
remedy the condition giving rise to such cancellation, threatened
cancellation, reduction of coverage, threatened reduction of coverage,
increase in premiums, or threatened increase in premiums, within forty-eight
(48) hours after notice thereof, Tenant will be deemed in material default of
this Lease and Landlord may, at its option, either terminate this Lease or
enter upon the Premises and attempt to remedy such condition, and Tenant
shall promptly pay Landlord the reasonable costs of such remedy as additional
rent. If Landlord is unable, or elects not to remedy such condition, then
Landlord will have all of the remedies provided for in this Lease in the
event of a default by Tenant.
(e) WAIVER OF SUBROGATION. See Lease Addendum.
20. DAMAGE OR DESTRUCTION.
(a) PARTIAL DESTRUCTION. If the Premises or the Building are
damaged by fire or other casualty to an extent not exceeding twenty-five
percent (25%) of the full replacement cost thereof, and Landlord's
contractor reasonably estimates in a writing delivered to Landlord and Tenant
that the damage thereto may be
22.
repaired, reconstructed or restored to substantially its condition
immediately prior to such damage within one hundred eighty (180) days from
the date of such casualty, AND Landlord will receive insurance proceeds
sufficient to cover the costs of such repairs, reconstruction and restoration
(including proceeds from Tenant and/or Tenant's insurance which Tenant is
required to deliver to Landlord pursuant to SUBPARAGRAPH 20(e) below to cover
Tenant's obligation for the costs of repair, reconstruction and restoration
of any portion of the Tenant Improvements and any Alterations for which
Tenant is responsible under this Lease), then Landlord agrees to commence and
proceed diligently with the work of repair, reconstruction and restoration
and this Lease shall continue in full force and effect.
(b) SUBSTANTIAL DESTRUCTION. Any damage or destruction to the
Premises or the Building which Landlord is not obligated to repair pursuant
to SUBPARAGRAPH 20(a) above shall be deemed a substantial destruction. In the
event of a substantial destruction, Landlord may elect to either:
(i) repair, reconstruct and restore the portion of the
Building or the Premises damaged by such casualty, in which case this Lease
shall continue in full force and effect, subject to Tenant's termination
right contained in SUBPARAGRAPH 20(d) below; or
(ii) terminate this Lease effective as of the date which is
thirty (30) days after Tenant's receipt of Landlord's election to so
terminate.
(c) NOTICE. Under any of the conditions of SUBPARAGRAPH 20(a) or
(b) above, Landlord agrees to give written notice to Tenant of its intention
to repair or terminate, as permitted in such paragraphs, within the earlier
of sixty (60) days after the occurrence of such casualty, or fifteen (15)
days after Landlord's receipt of the estimate from Landlord's contractor (the
applicable time period to be referred to herein as the "Notice Period").
(d) TENANT'S TERMINATION RIGHTS. If Landlord elects to repair,
reconstruct and restore pursuant to SUBPARAGRAPH 20(b)(i) hereinabove, and if
Landlord's contractor estimates that as a result of such damage, Tenant
cannot be given reasonable use of and access to the Premises within three
hundred sixty-five (365) days after the date of such damage, then Tenant may
terminate this Lease effective upon delivery of written notice to Landlord
within ten (10) days after Landlord delivers notice to Tenant of its election
to so repair, reconstruct or restore.
(e) TENANT'S COSTS AND INSURANCE PROCEEDS. In the event of any
damage or destruction of all or any part of the Premises, Tenant agrees to
immediately (i) notify Landlord thereof, and (ii) deliver to Landlord all
property insurance proceeds received by Tenant with respect to any Tenant
Improvements and any Alterations, but excluding proceeds for Tenant's
furniture, fixtures, equipment and other personal property, whether or not
this Lease is terminated as permitted in this PARAGRAPH 20, and Tenant hereby
assigns to Landlord all rights to receive such insurance proceeds. If, for
any reason (including Tenant's failure to obtain insurance for the full
replacement cost of any Tenant Improvements and any Alterations from any and
all casualties), Tenant fails to receive insurance proceeds covering the full
replacement cost of any Tenant Improvements and any Alterations which are
damaged, Tenant will be deemed to have
23.
self-insured the replacement cost of such items, and upon any damage or
destruction thereto, Tenant agrees to immediately pay to Landlord the full
replacement cost of such items, less any insurance proceeds actually received
by Landlord from Landlord's or Tenant's insurance with respect to such items.
(f) ABATEMENT OF RENT. In the event of any damage, repair,
reconstruction and/or restoration described in this PARAGRAPH 20, rent will
be abated or reduced, as the case may be, in proportion to the degree to
which Tenant's use of the Premises is impaired during such period of repair
until such use is restored. Except for abatement of rent as provided
hereinabove, Tenant will not be entitled to any compensation or damages for
loss of, or interference with, Tenant's business or use or access of all or
any part of the Premises resulting from any such damage, repair,
reconstruction or restoration.
(g) INABILITY TO COMPLETE. Notwithstanding anything to the
contrary contained in this PARAGRAPH 20, if Landlord is obligated or elects
to repair, reconstruct and/or restore the damaged portion of the Building or
the Premises pursuant to SUBPARAGRAPH 20(a) OR 20(b)(i) above, but is delayed
from completing such repair, reconstruction and/or restoration beyond the
date which is one hundred eighty (180) days after the date estimated by
Landlord's contractor for completion thereof by reason of any causes (other
than delays caused by Tenant, its subtenants, employees, agents or
contractors) which are beyond the reasonable control of Landlord as described
in Paragraph 33, then either Landlord or Tenant may elect to terminate this
Lease upon ten (10) days' prior written notice given to the other after the
expiration of such one hundred eighty (180) day period.
(h) DAMAGE NEAR END OF TERM. Landlord and Tenant shall each have
the right to terminate this Lease if any damage to the Premises or the
Building occurs during the last twelve (12) months of the Term of this Lease
where Landlord's contractor estimates in a writing delivered to Landlord and
Tenant that the repair, reconstruction or restoration of such damage cannot
be completed within sixty (60) days after the date of such casualty. If
either party desires to terminate this Lease under this SUBPARAGRAPH (h), it
shall provide written notice to the other party of such election within ten
(10) days after receipt of Landlord's contractor's repair estimates.
(i) WAIVER OF TERMINATION RIGHT. Landlord and Tenant agree that
the foregoing provisions of this PARAGRAPH 20 are to govern their respective
rights and obligations in the event of any damage or destruction and
supersede and are in lieu of the provisions of any applicable law, statute,
ordinance, rule, regulation, order or ruling now or hereafter in force which
provide remedies for damage or destruction of leased premises (including,
without limitation, to the extent the Premises are located in California, the
provisions of California Civil Code Section 1932, Subsection 2, and Section
1933, Subsection 4 and any successor statute or laws of a similar nature).
(j) TERMINATION. Upon any termination of this Lease under any of
the provisions of this PARAGRAPH 20, the parties will be released without
further obligation to the other from the date possession of the Premises is
surrendered to Landlord except for items which have accrued and are unpaid as
of the date of termination and matters which are to survive any termination
of this Lease as provided in this Lease.
24.
21. EMINENT DOMAIN.
(a) SUBSTANTIAL TAKING. If the whole of the Premises, or such part
thereof as shall substantially interfere with Tenant's use and occupancy of
the Premises, as contemplated by this Lease, is taken for any public or
quasi-public purpose by any lawful power or authority by exercise of the
right of appropriation, condemnation or eminent domain, or sold to prevent
such taking, either party will have the right to terminate this Lease
effective as of the date possession is required to be surrendered to such
authority.
(b) PARTIAL TAKING; ABATEMENT OF RENT. In the event of a taking of
a portion of the Premises which does not substantially interfere with
Tenant's use and occupancy of the Premises, then, neither party will have the
right to terminate this Lease and Landlord will thereafter proceed to make a
functional unit of the remaining portion of the Premises (but only to the
extent Landlord receives proceeds therefor from the condemning authority),
and rent will be abated with respect to the part of the Premises which Tenant
is deprived of on account of such taking. Notwithstanding the immediately
preceding sentence to the contrary, if any part of the Building or the
Development is taken (whether or not such taking substantially interferes
with Tenant's use of the Premises), Landlord may terminate this Lease upon
thirty (30) days' prior written notice to Tenant if Landlord also terminates
the leases of the other tenants of the Building which are leasing comparably
sized space for comparable lease terms.
(c) CONDEMNATION AWARD. In connection with any taking of the
Premises or the Building, Landlord will be entitled to receive the entire
amount of any award which may be made or given in such taking or
condemnation, without deduction or apportionment for any estate or interest
of Tenant, it being expressly understood and agreed by Tenant that no portion
of any such award will be allowed or paid to Tenant for any so-called bonus
or excess value of this Lease, and such bonus or excess value will be the
sole property of Landlord. Tenant agrees not to assert any claim against
Landlord or the taking authority for any compensation because of such taking
(including any claim for bonus or excess value of this Lease); provided,
however, if any portion of the Premises is taken, Tenant will have the right
to recover from the condemning authority (but not from Landlord) any
compensation as may be separately awarded or recoverable by Tenant for the
taking of Tenant's furniture, fixtures, equipment and other personal property
within the Premises, for Tenant's relocation expenses, and for any loss of
goodwill or other damage to Tenant's business by reason of such taking.
(d) TEMPORARY TAKING. In the event of taking of the Premises or
any part thereof for temporary use, (i) this Lease will remain unaffected
thereby and rent will not ▇▇▇▇▇, and (ii) Tenant will be entitled to receive
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if such taking
remains in force at the expiration or earlier termination of this Lease,
Tenant will then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under PARAGRAPH 11 with respect to surrender
of the Premises and upon such payment Tenant will be excused from such
obligations. For purpose of this SUBPARAGRAPH 21(d), a temporary taking shall
be defined as a taking for a period of ninety (90) days or less.
25.
22. DEFAULTS AND REMEDIES.
(a) The occurrence of any one or more of the following events will
be deemed a default by Tenant:
(i) The abandonment of the Premises by Tenant, which for
purposes of this Lease means any absence by Tenant from the Premises for five
(5) business days or longer while in default of any other provision of this
Lease and, with respect to ground floor space only, any vacation of the
Premises, which for purposes of this Lease means any absence by Tenant from
the Premises for thirty (30) days or longer whether or not Tenant is in
default under any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by Tenant hereunder,
as and when due, where such failure continues for a period of three (3) days
after written notice thereof from Landlord to Tenant; provided, however, that
any such notice will be in lieu of, and not in addition to, any notice
required under applicable law (including, without limitation, to the extent
the Premises are located in California, the provisions of California Code of
Civil Procedure Section 1161 regarding unlawful detainer actions or any
successor statute or law of a similar nature).
(iii) The failure by Tenant to observe or perform any of
the express or implied covenants or provisions of this Lease to be observed
or performed by Tenant, other than as specified in SUBPARAGRAPH 22 (i) OR
(ii) above, where such failure continues for a period of ten (10) days after
written notice thereof from Landlord to Tenant. The provisions of any such
notice will be in lieu of, and not in addition to, any notice required under
applicable law (including, without limitation, to the extent the Premises
are located in California, California Code of Civil Procedure Section 1161
regarding unlawful detainer actions and any successor statute or similar
law). If the nature of Tenant's default is such that more than ten (10) days
are reasonably required for its cure, then Tenant will not be deemed to be in
default if Tenant, with Landlord's concurrence, commences such cure within
such ten (10) day period and thereafter diligently prosecutes such cure to
completion.
(iv) (A) The making by Tenant of any general assignment for
the benefit of creditors; (B) the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days);
(C) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days; or (D) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease where such seizure is not discharged within
thirty (30) days.
(b) LANDLORD'S REMEDIES; TERMINATION. In the event of any default
by Tenant, in addition to any other remedies available to Landlord at law or
in equity under applicable law (including, without limitation, to the extent
the Premises are located in California, the remedies of Civil Code Section
1951.4 and any successor statute or similar law), Landlord will have the
immediate right and option to terminate this Lease
26.
and all rights of Tenant hereunder. If Landlord elects to terminate this
Lease then, to the extent permitted under applicable law, Landlord may
recover from Tenant:
(i) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rent loss that Tenant proves could have been
reasonably avoided, plus
(iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time of award
exceeds the amount of such rent loss that Tenant proves could be reasonably
avoided; plus
(iv) 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,
results therefrom including, but not limited to: attorneys' fees and costs;
brokers' commissions, the costs of refurbishment, alterations, renovation and
repair of the Premises, and removal (including the repair of any damage
caused by such removal) and storage (or disposal) of Tenant's personal
property, equipment, fixtures, Alterations, the Tenant Improvements and any
other items which Tenant is required under this Lease to remove but does not
remove, as well as the unamortized value of any free rent, reduced rent, free
parking, reduced rate parking and any Tenant Improvement Allowance or other
costs or economic concessions provided, paid, granted or incurred by Landlord
pursuant to this Lease. The unamortized value of such concessions shall be
determined by taking the total value of such concessions and multiplying such
value by a fraction, the numerator of which is the number of months of the
Lease Term not yet elapsed as of the date on which the Lease is terminated,
and the denominator of which is the total number of months of the Lease Term.
As used in SUBPARAGRAPHS 22(b)(i) AND (ii) above, the "worth at the time of
award" is computed by allowing interest at the Interest Rate. As used in
SUBPARAGRAPH 22(b)(iii) above, the "worth at the time of award" is computed
by discounting such amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award plus one percent (1%).
(c) LANDLORD'S REMEDIES: RE-ENTRY RIGHTS. In the event of any
default by Tenant, in addition to any other remedies available to Landlord
under this Lease, at law or in equity, Landlord will also have the right,
with or without terminating this Lease, to reenter the Premises and remove
all persons and property from the Premises; such property may be removed and
stored in a public warehouse or elsewhere and/or disposed of at the cost of
and for the account of Tenant in accordance with the provisions of
SUBPARAGRAPH 13(i) of this Lease or any other procedures permitted by
applicable law. No re-entry or taking possession of the Premises by Landlord
pursuant to this SUBPARAGRAPH 22(c) will be construed as an election to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decided by a court of competent
jurisdiction.
27.
(d) LANDLORD'S REMEDIES: RE-LETTING. In the event of the vacation
or abandonment of the Premises by Tenant or in the event that Landlord elects
to re-enter the Premises or takes possession of the Premises pursuant to
legal proceeding or pursuant to any notice provided by law, then if Landlord
does not elect to terminate this Lease, Landlord may from time to time,
without terminating this Lease, either recover all rent as it becomes due or
relet the Premises or any part thereof on terms and conditions as Landlord in
its sole discretion may deem advisable with the right to make alterations and
repairs to the Premises in connection with such reletting. If Landlord
elects to relet the Premises, then rents received by Landlord from such
reletting will be applied: first, to the payment of any indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the payment of
any cost of such reletting; third, to the payment of the cost of any
alterations and repairs to the Premises incurred in connection with such
reletting; fourth, to the payment of rent due and unpaid hereunder and the
residue, if any, will be held by Landlord and applied to payment of future
rent as the same may become due and payable hereunder. Should that portion
of such rents received from such reletting during any month, which is applied
to the payment of rent hereunder, be less than the rent payable during that
month by Tenant hereunder, then Tenant agrees to pay such deficiency to
Landlord immediately upon demand therefor by Landlord. Such deficiency will
be calculated and paid monthly.
(e) LANDLORD'S REMEDIES; PERFORMANCE FOR TENANT. All covenants and
agreements to be performed by Tenant under any of the terms of this Lease are
to be performed by Tenant at Tenant's sole cost and expense and without any
abatement of rent. If Tenant fails to pay any sum of money owed to any party
other than Landlord, for which it is liable under this Lease, or if Tenant
fails to perform any other act on its part to be performed hereunder, and
such failure continues for ten (10) days after notice thereof by Landlord,
Landlord may, without waiving or releasing Tenant from its obligations, but
shall not be obligated to, make any such payment or perform any such other
act to be made or performed by Tenant. Tenant agrees to reimburse Landlord
upon demand for all sums so paid by Landlord and all necessary incidental
costs, together with interest thereon at the Interest Rate, from the date of
such payment by Landlord until reimbursed by Tenant. This remedy shall be in
addition to any other right or remedy of Landlord set forth in this PARAGRAPH
22.
(f) LATE PAYMENT. If Tenant fails to pay any installment of rent
within five (5) days of when due or if Tenant fails to make any other payment
for which Tenant is obligated under this Lease within five (5) days of when
due, such late amount will accrue interest at the Interest Rate and Tenant
agrees to pay Landlord as additional rent such interest on such amount from
the date such amount becomes due until such amount is paid. In addition,
Tenant agrees to pay to Landlord concurrently with such late payment amount;
as additional rent, a late charge equal to five percent (5%) of the amount
due to compensate Landlord for the extra costs Landlord will incur as a
result of such late payment. The parties agree that (i) it would be
impractical and extremely difficult to fix the actual damage Landlord will
suffer in the event of Tenant's late payment, (ii) such interest and late
charge represents a fair and reasonable estimate of the detriment that
Landlord will suffer by reason of late payment by Tenant, and (iii) the
payment of interest and late charges are distinct and separate in that the
payment of interest is to compensate Landlord for the use of Landlord's
monies by Tenant, while the payment of late charges is to compensate Landlord
for Landlord's processing,
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administrative and other costs incurred by Landlord as a result of Tenant's
delinquent payments. Acceptance of any such interest and late charge will not
constitute a waiver of the Tenant's default with respect to the overdue
amount, or prevent Landlord from exercising any of the other rights and
remedies available to Landlord. If Tenant incurs a late charge more than
three (3) times in any period of twelve (12) months during the Lease term,
then, notwithstanding that Tenant cures the late payments for which such late
charges are imposed, Landlord will have the right to require Tenant
thereafter to pay all installments of Monthly Base Rent quarterly in advance
throughout the remainder of the Lease term.
(g) LIEN FOR RENT. Tenant hereby grants to Landlord a lien and
security interest on all property of Tenant now or hereafter placed in or upon
the Premises including, but not limited to, all fixtures, machinery, equipment,
furnishings and other articles of personal property, and all proceeds of the
sale or other disposition of such property (collectively, the "Collateral") to
secure the payment of all rent to be paid by Tenant pursuant to this Lease.
Such lien and security interest shall be in addition to any landlord's lien
provided by law. This Lease shall constitute a security agreement under the
Commercial Code of the State so that Landlord shall have and may enforce a
security interest in the Collateral. Tenant agrees to execute as debtor and
deliver such financing statement or statements and any further documents as
Landlord may now or hereafter reasonably request to protect such security
interest pursuant to such code. Landlord may also at any time file a copy of
this Lease as a financing statement. Landlord, as secured party, shall be
entitled to all rights and remedies afforded as secured party under such code,
which rights and remedies shall be in addition to Landlord's liens and rights
provided by law or by the other terms and provisions of this Lease.
(h) RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies
of Landlord contained in this Lease will be construed and held to be cumulative,
and no one of them will be exclusive of the other, and Landlord shall have the
right to pursue any one or all of such remedies or any other remedy or relief
which may be provided by law or in equity, whether or not stated in this Lease.
Nothing in this PARAGRAPH 22 will be deemed to limit or otherwise affect
Tenant's indemnification of Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance
of any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord will
not be deemed in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to completion. Upon
any default by Landlord, Tenant may exercise any of its rights provided at law
or in equity, subject to the limitations on liability set forth in PARAGRAPH 35
of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTION ON TRANSFER. Except as expressly provided in this
PARAGRAPH 24, Tenant will not, either voluntarily or by operation of law, assign
or encumber this Lease or any interest herein or sublet the Premises or any part
thereof, or permit the use or occupancy of the Premises by any party other than
Tenant
29.
(any such assignment, encumbrance, sublease or the like will sometimes be
referred to as a "Transfer"), without the prior written consent of Landlord,
which consent Landlord will not unreasonably withhold.
(b) CORPORATE AND PARTNERSHIP TRANSFERS. For purposes of this
PARAGRAPH 24, if Tenant is a corporation, partnership or other entity, any
transfer, assignment, encumbrance or hypothecation of twenty-five percent
(25%) or more (individually or in the aggregate) of any stock or other
ownership interest in such entity, and/or any transfer, assignment,
hypothecation or encumbrance of any controlling ownership or voting interest
in such entity, will be deemed a Transfer and will be subject to all of the
restrictions and provisions contained in this PARAGRAPH 24. Notwithstanding
the foregoing, the immediately preceding sentence will not apply to any
transfers of stock of Tenant if Tenant is a publicly-held corporation and
such stock is transferred publicly over a recognized security exchange or
over-the-counter market.
(c) PERMITTED CONTROLLED TRANSFERS. Notwithstanding the provisions of
this PARAGRAPH 24 to the contrary, Tenant may assign this Lease or sublet the
Premises or any portion thereof ("Permitted Transfer"), without Landlord's
consent and without extending any sublease termination option to Landlord, to
any parent, subsidiary or affiliate corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity which acquires
all the assets of Tenant's business as a going concern, provided that: (i) at
least twenty (20) days prior to such assignment or sublease, Tenant delivers to
Landlord the financial statements and other financial and background information
of the assignee or sublessee described in SUBPARAGRAPH 24(d) below; (ii) an
assignment, the assignee assumes, in full, the obligations of Tenant under this
Lease (or if a sublease, the sublessee of a portion of the Premises or term
assumes, in full, the obligations of Tenant with respect to such portion); (iii)
the financial net worth of the assignee or sublessee as of the time of the
proposed assignment or sublease equals or exceeds that of Tenant as of the date
of execution of this Lease; (iv) Tenant remains fully liable under this Lease;
and (v) the use of the Premises under PARAGRAPH 8 remains unchanged.
(d) TRANSFER NOTICE. If Tenant desires to effect a Transfer, then at
least thirty days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name, address and business of the proposed
assignee, sublessee or other transferee (sometimes referred to hereinafter as
"Transferee"), reasonable information (including references) concerning the
character, ownership, and Financial condition of the proposed Transferee, the
transfer Date, any ownership or commercial relationship between Tenant and the
proposed Transferee, and the consideration and all other material terms and
conditions of the proposed transfer, all in such detail as landlord may
reasonably require. If Landlord reasonably requests additional detail, the
transfer Notice will not be deemed to have been received until Landlord receives
such additional detail, and Landlord may withhold consent to any transfer until
such information is provided to it.
(e) LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's
receipt of any Transfer Notice, and any additional information requested by
Landlord concerning the proposed Transferee's financial responsibility, Landlord
will elect to do one of the following:
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(i) consent to the proposed Transfer;
(ii) refuse such consent, which refusal shall be on reasonable
grounds including, without limitation, those set forth in SUBPARAGRAPH 24(f)
below; or
(iii) terminate this Lease as to all or such portion of the
Premises which is proposed to be sublet or assigned and recapture all or such
portion of the Premises for reletting by Landlord.
(f) REASONABLE DISAPPROVAL. Landlord and Tenant hereby acknowledge
that Landlord's disapproval of any proposed Transfer pursuant to SUBPARAGRAPH
24(e) will be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i) if the
Building is less than eighty percent (80%) occupied, if the net effective rent
payable by the Transferee (adjusted on a rentable square foot basis) is less
than the net effective rent then being quoted by Landlord for new leases in the
Building for comparable size space for a comparable period of time; (ii) the
proposed Transferee is a governmental entity; (iii) the portion of the Premises
to be sublet or assigned is irregular in shape with inadequate means of ingress
and egress; (iv) the use of the Premises by the Transferee (A) is not permitted
by the use provisions in PARAGRAPH 8 hereof, or (B) violates any exclusive use
granted, by Landlord to another tenant in the Building; (v) the Transfer would
likely result in a significant and inappropriate increase in the use of the
parking areas or Development Common Areas by the Transferee's employees or
visitors, and/or significantly increase the demand upon utilities and services
to be provided by Landlord to the Premises; (vi) the Transferee does not have
the financial capability to fulfill the obligations imposed by the transfer and
this Lease; or (vii) the Transferee is not in Landlord's reasonable opinion
consistent with Landlord's desired tenant mix. In the event Landlord withholds
or conditions its consent and Tenant or any proposed Transferee claims that
Landlord has unreasonably withheld or delayed its consent under SUBPARAGRAPH
24(f) or otherwise has breached or acted unreasonably under this PARAGRAPH 24,
their sole remedies shall be a declaratory judgment and an injunction for the
relief sought without any monetary damages, and Tenant hereby waives all other
remedies on its own behalf and, to the extent permitted under all applicable
laws, on behalf of the proposed Transferee. In any such action, each party shall
bear its own attorneys' fees. Tenant shall indemnify, defend and hold harmless
Landlord from any and all liability, losses, claims, damages, costs, expenses,
causes of action and proceedings involving any third party or parties (including
without limitation Tenant's proposed subtenant or assignee) who claim they were
damaged by Landlord's wrongful withholding or conditioning of Landlord's
consent.
(g) ADDITIONAL CONDITIONS. A condition to Landlord's consent to any
Transfer of this Lease will, be the delivery to Landlord of a true copy of the
fully executed instrument of assignment, sublease, transfer or hypothecation,
and, in the case of an assignment, the delivery to Landlord of an agreement
executed by the Transferee in form and substance reasonably satisfactory to
Landlord, whereby the Transferee assumes and agrees to be bound by all of the
terms and provisions of this Lease and to perform all of the obligations of
Tenant hereunder. As a condition for granting its consent to any assignment or
sublease, Landlord may require that the assignee or sublessee remit directly to
Landlord on a monthly basis, all monies due to Tenant by said assignee or
sublessee. As a condition to Landlord's consent to any sublease, such sublease
must provide that it is subject and subordinate to this Lease and to all
mortgages; that Landlord may enforce the
31.
provisions of the sublease, including collection of rent; that in the event
of termination of this Lease for any reason, including without limitation a
voluntary surrender by Tenant, or in the event of any reentry or repossession
of the Premises by Landlord, Landlord may, at its option, either (i)
terminate the sublease, or (ii) take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, in which case such
sublessee will attorn to Landlord, but that nevertheless Landlord will not
(1) be liable for any previous act or omission of Tenant under such sublease,
(2) be subject to any defense or offset previously accrued in favor of the
sub lessee against Tenant, or (3) be bound by any previous modification of
any sublease made without Landlord's written consent, or by any previous
prepayment by sublessee of more than one month's rent.
(h) EXCESS RENT. If Landlord consents to any assignment of this
Lease, Tenant agrees to pay to Landlord, as additional rent, all sums and other
consideration payable to and for the benefit of Tenant by the assignee on
account of the assignment, as and when such sums and other consideration are due
and payable by the assignee to or for the benefit of Tenant (or, if Landlord so
requires, and without any release of Tenant's liability for the same, Tenant
agrees to instruct the assignee to pay such sums and other consideration
directly to Landlord). If for any proposed sublease Tenant receives rent or
other consideration, either initially or over the term of the sublease, in
excess of the rent fairly allocable to the portion of the Premises which is
subleased based on square footage, Tenant agrees to pay to Landlord as
additional rent the excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt. In calculating excess rent or
other consideration which may be payable to Landlord under this paragraph,
Tenant will be entitled to deduct commercially reasonable third party
brokerage commissions and attorneys fees and other amounts reasonably and
actually expended by Tenant in connection with such assignment or subletting if
acceptable written evidence of such expenditures is provided to Landlord.
(i) TERMINATION RIGHTS. If Tenant requests Landlord's consent to any
assignment or subletting of all or a portion of the Premises, Landlord will have
the right, as provided in SUBPARAGRAPH 24(e), to terminate this Lease as to all
or such portion of the Premises which is proposed to be sublet or assigned
effective as of the date Tenant proposes to sublet or assign all or less than
all of the Premises. Landlord's right to terminate this Lease as to less than
all of the Premises proposed to be sublet or assigned will not terminate as to
any future additional subletting or assignment as a result of Landlord's consent
to a subletting of less than all of the Premises or Landlord's failure to
exercise its termination right with respect to any subletting or assignment.
Landlord will exercise such termination right, if at all, by giving written
notice to Tenant within thirty (30) days of receipt by Landlord of the Financial
responsibility information required by this PARAGRAPH 24. Tenant understands and
acknowledges that the option, as provided in this PARAGRAPH 24, to terminate
this Lease as to all or such portion of the Premises which is proposed to be
sublet or assigned rather than approve the subletting or assignment of all or a
portion of the Premises, is a material inducement for Landlord's agreeing to
lease the Premises to Tenant upon the terms and conditions herein set forth. In
the event of any such termination with respect to less than all of the Premises,
the cost of segregating the recaptured space from the balance of the Premises
will be paid by Tenant and Tenant's future monetary obligations under this Lease
will be reduced proportionately on a square footage basis to correspond to the
balance of the Premises which Tenant continues to lease.
32.
(j) NO RELEASE. No Transfer will release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to pay the
rent and to perform all other obligations to be performed by Tenant hereunder.
Landlord may require that any Transferee remit directly to Landlord on a monthly
basis, all monies due Tenant by said Transferee. However, the acceptance of rent
by Landlord from any other person will not be deemed to be a waiver by Landlord
of any provision hereof. Consent by Landlord to one Transfer will not be deemed
consent to any subsequent Transfer. In the event of default by any Transferee of
Tenant or any successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such Transferee or successor. Landlord may consent to
subsequent assignments of this Lease or sublettings or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions will not relieve Tenant of liability under this Lease.
(k) ADMINISTRATIVE AND ATTORNEYS' FEES. If Tenant effects a
Transfer or requests the consent of Landlord to any Transfer (whether or not
such Transfer is consummated), then, upon demand, Tenant agrees to pay
Landlord a non-refundable administrative fee of Two Hundred Fifty Dollars
($250), plus any reasonable attorneys' and paralegal fees incurred by
Landlord in connection with such Transfer or request for consent (whether
attributable to Landlord's in-house attorneys or paralegals or otherwise) not
to exceed One Hundred Dollars ($100) for each one thousand (1,000) rentable
square feet of area contained within the Premises or portion thereof to be
assigned or sublet. Acceptance of the Two Hundred Fifty Dollar ($250)
administrative fee and/or reimbursement of Landlord's attorneys' and
paralegal fees will in no event obligate Landlord to consent to any proposed
Transfer.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the Development, or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building; and (ii) the lien
of any mortgage or deed of trust which may now exist or hereafter be executed
for which the Building, the Development or any leases thereof, or Landlord's
interest and estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord reserves the right to subordinate any
such ground leases or underlying leases or any such liens to this Lease. If any
such ground lease or underlying lease terminates for any reason or any such
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, at the election of Landlord's successor in interest,
Tenant agrees to attorn to and become the tenant of such successor in which
event Tenant's right to possession of the Premises will not be disturbed as long
as Tenant is not in default under this Lease. Tenant hereby waives its rights
under any law which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure proceeding or sale. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form
reasonably required by Landlord, any additional documents evidencing the
priority or subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any
33.
such mortgage or deed of trust. If Tenant fails to sign and return any such
documents within ten (10) days of receipt, Tenant will be in default
hereunder.
26. ESTOPPEL CERTIFICATE.
(a) TENANT'S OBLIGATIONS. Within ten (10) days following any
written request which Landlord may make from time to time, Tenant agrees to
execute and deliver to Landlord a statement, in a form substantially similar
to the form of Exhibit "F" attached hereto or as may reasonably be required
by Landlord's lender, certifying: (i) the date of commencement of this Lease;
(ii) the fact that this Lease is unmodified and in full force and effect (or,
if there have been modifications, that this Lease is in full force and
effect, and stating the date and nature of such modifications); (iii) the
date to which the rent and other sums payable under this Lease have been
paid; (iv) that there are no current defaults under this Lease by either
Landlord or Tenant except as specified in Tenant's statement; and (v) such
other matters reasonably requested by Landlord. Landlord and Tenant intend
that any statement delivered pursuant to this PARAGRAPH 26 may be relied upon
by any mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein.
(b) TENANT'S FAILURE TO DELIVER. Tenant's failure to deliver such
statement within such time will be conclusive upon Tenant (i) that this Lease
is in full force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one (1) month's rent has
been paid in advance. Without limiting the foregoing, if Tenant fails to
deliver any such statement within such ten (10) day period, Landlord may
deliver to Tenant an additional request for such statement and Tenant's
failure to deliver such statement to Landlord within ten (10) days after
delivery of such additional request will constitute a default under this
Lease. Tenant agrees to indemnify and protect Landlord from and against any
and all claims, damages, losses, liabilities and expenses (including
attorneys' fees and costs) attributable to any failure by Tenant to timely
deliver any such estoppel certificate to Landlord as required by this
PARAGRAPH 26.
27. BUILDING PLANNING. If Landlord requires the Premises for use in
conjunction with another suite or for Other reasons connected with the
planning program for the Building, Landlord will have the right, upon sixty
(60) days' prior written notice to Tenant, to move Tenant to Other space in
the Building of substantially similar size as the Premises and with tenant
improvements of substantially similar age, quality and layout as then
existing in the Premises. Any such relocation will be at Landlord's cost and
expense, including the cost of providing such substantially similar tenant
improvements (but not any furniture or personal property) and Tenant's
reasonable moving, telephone installation and stationary reprinting costs.
If, Landlord so relocates Tenant, the terms and conditions of this Lease will
remain in full force and effect and' apply to the new space, except that (a)
a revised EXHIBIT "A" will become part of this Lease and will reflect the
location of the new space, (b) PARAGRAPH 1 of this Lease will be amended to
include and state all correct data as to the new space, (c) the new space
will thereafter be deemed to be the "Premises", and (d) all economic terms
and conditions (e.g. rent, total Operating Expense Allowance, etc.) will be
adjusted on a per square foot basis based on the total number of rentable
square feet of area contained in the new space. Landlord and Tenant agree to
cooperate fully with one another in order to minimize the inconvenience of
Tenant resulting from any such relocation. However, if the new space does
not meet with Tenant's
34.
reasonable approval, Tenant will have the right to cancel this Lease upon
giving Landlord thirty (30) days' notice within ten (10) days of receipt of
Landlord's relocation notification; provided, however, Landlord has the
right, by written notice to Tenant given within ten (10) days following
receipt of Tenant's cancellation notice to rescind Landlord's relocation
notice, in which event Landlord's relocation notice will be rescinded,
Tenant's cancellation notice will be cancelled and this Lease will remain in
full force and effect. If Tenant cancels this Lease pursuant to this
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ agrees to vacate the Building and the Premises within
thirty (30) days of its delivery to Landlord of the notice of cancellation.
28. Tenant agrees to faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked EXHIBIT "G" and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord will not be responsible
to Tenant for the violation or nonperformance by any other tenant or occupant of
the Building of any of the Rules and Regulations.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
(a) MODIFICATIONS. If, in [ILLEGIBLE] or entering into any
Financing or ground lease for Any portion of the Building and/or the
Development the lender or ground lessor requests modifications to this Lease,
Tenant, [ILLEGIBLE] after request therefor, agrees to execute an amendment
to this Lease incorporating such [ILLEGIBLE] modifications are reasonable and
do not increase the obligations of Tenant [ILLEGIBLE] affect the
leasehold estate created by this Lease.
(b) CURE RIGHTS. In the event of [ILLEGIBLE] Landlord, Tenant will
give notice by registered or certified mail to any beneficiary [ILLEGIBLE] or
mortgage covering the Premises or wound lessor of Landlord whose address has
been [ILLEGIBLE] Tenant agrees to offer such beneficiary, mortgagee or ground
lessor a reasonable [ILLEGIBLE] with respect to any such beneficiary or
mortgagee, time to obtain [ILLEGIBLE] and Tenant's rights hereunder, by power
of sale or a judicial if such should be necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease,
so far as covenants or obligations on the part of Landlord are concerned,
means and includes only the owner or owners, at the time in question, of the
fee title of the Premises or the lessees under any ground lease, if any. In
the event of any transfer, assignment or other conveyance or transfers of any
such title (other than a transfer for security purposes only), Landlord
herein named (and in case of any subsequent transfers or conveyances, the
theft grantor) will be automatically relieved from and after the date of such
transfer, assignment or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained
in this Lease thereafter to be performed, so long as the transferee assumes
in writing all such covenants and obligations of Landlord arising after the
date of such transfer. Landlord and Landlord's transferees and assignees
have the absolute right to transfer all or any portion of their respective
title and interest in the Development, the Building, the Premises and/or this
Lease without the consent of Tenant, and such transfer
35.
or subsequent transfer will not be deemed a violation on Landlord's part of
any of the terms and conditions of this Lease.
31. WAIVER. The waiver by either party of any breach of any term,
covenant or condition herein contained will not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or condition
herein contained, nor will any custom or practice which may develop between
the parties in the administration of the terms hereof be deemed a waiver of
or in any way affect the right of either party to insist upon performance in
strict accordance with said terms. The subsequent acceptance of rent or any
other payment hereunder by Landlord will not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. No acceptance by Landlord of a lesser sum than the
basic rent and additional rent or other sum then due will be deemed to be
other than on account of the earliest installment of such rent or other
amount due, nor will any endorsement or statement on any check or any letter
accompanying any check be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such installment or other amount or pursue any other remedy
provided in this Lease. The consent or approval of Landlord to or of any act
by Tenant requiring Landlord's consent or approval will not be deemed to
waive or render unnecessary Landlord's consent or approval to or of any
subsequent similar acts by Tenant.
32. PARKING.
(a) GRANT OF PARKING RIGHTS. So long as this Lease is in effect
and provided Tenant is not in default hereunder, Landlord grants to Tenant
and Tenant's Authorized Users (as defined below) a license to use the number
and type of parking spaces designated in SUBPARAGRAPH 1(s) subject to the
terms and conditions of this PARAGRAPH 32 and the Rules and Regulations
regarding parking contained in EXHIBIT "G" attached hereto. As consideration
for the use of such parking spaces, Tenant agrees to pay to Landlord or, at
Landlord's election, directly to Landlord's parking operator, as additional
rent under this Lease, the prevailing parking rate for each such parking
space as established by Landlord in its discretion from time to time. Tenant
agrees that all parking charges will be payable on a monthly basis
concurrently with each monthly payment of Monthly Base Rent. Tenant agrees to
submit to Landlord or, at Landlord's election, directly to Landlord's parking
operator with a copy to Landlord, written notice in a form reasonably
specified by Landlord containing the names, home and office addresses and
telephone numbers of those persons who are authorized by Tenant to use
Tenant's parking spaces on a monthly basis ("Tenant's Authorized Users") and
shall use its best efforts to identify each vehicle of Tenant's Authorized
Users by make, model and license number. Tenant agrees to deliver such notice
prior to the beginning of the Term of this Lease and to periodically update
such notice as well as upon specific request by Landlord or Landlord's
parking operator to reflect changes to Tenant's Authorized Users or their
vehicles.
(b) VISITOR PARKING. So long as this Lease is in effect, Tenant's
visitors and guests will be entitled to use those specific parking areas
which are designated for short term visitor parking and which are located
within the surface parking area(s), if any, and/or within the parking
structure(s) which serve the Building.
36.
Visitor parking will be made available at a charge to Tenant's visitors and
guests, with the rate being established by Landlord in its discretion from
time to time. Tenant, at its sole cost and expense, may elect to validate
such parking for its visitors and guests. All such visitor parking will be on
a non-exclusive, in common basis with all other visitors and guests of the
Development.
(c) USE OF PARKING SPACES. Tenant will not use or allow any of
Tenant's Authorized Users to use any parking spaces which have been
specifically assigned by Landlord to other tenants or occupants or for other
uses such as visitor parking or which have been designated by any
governmental entity as being restricted to certain uses. Tenant will not be
entitled to increase or reduce its parking privileges applicable to the
Premises during the Term of the Lease except as follows: If at any time
Tenant desires to increase or reduce the number of parking spaces allocated
to it under the terms of this Lease, Tenant must notify Landlord in writing
of such desire and Landlord will have the right, in its sole and absolute
discretion, to either (a) approve such requested increase in the number of
parking spaces allocated to Tenant (with an appropriate increase to the
additional rent payable by Tenant for such additional spaces based on the
then prevailing parking rates), (b) approve such requested decrease in the
number of parking spaces allocated to Tenant (with an appropriate reduction
in the additional rent payable by Tenant for such eliminated parking spaces
based on the then prevailing parking rates), or (c) disapprove such requested
increase or decrease in the number of parking spaces allocated to Tenant.
Promptly following receipt of Tenant's written request, Landlord will provide
Tenant with written notice of its decision including a statement of any
adjustments to the additional rent payable by Tenant for parking under the
Lease, if applicable. No parking stalls will be allocated to Tenant with
respect to any space leased by Tenant under the Lease which consists of less
than the fill incremental amounts of Rentable Square Footage, if any,
required for parking stalls.
(d) GENERAL PROVISIONS. Landlord reserves the right to set and
increase monthly fees and/or daily and hourly rates for parking privileges
from time to time during the Term of the Lease. Landlord may assign any
unreserved and unassigned parking spaces and/or make all or any portion of
such spaces reserved, if Landlord reasonably determines that it is necessary
for orderly and efficient parking or for any other reasonable reason. Failure
to pay the rent for any particular parking spaces or failure to comply with
any terms and conditions of this Lease applicable to parking may be treated
by Landlord as a default under this Lease and, in addition to all other
remedies available to Landlord under the Lease, at law or in equity, Landlord
may elect to recapture such parking spaces for the balance of the Term of
this Lease if Tenant does not cure such failure within the applicable cure
period set forth in PARAGRAPH 22 of this Lease. In such event, Tenant and
Tenant's Authorized Users will be deemed visitors for purposes of parking
space use and will be entitled to use only those parking areas specifically
designated for visitor parking subject to all provisions of this Lease
applicable to such visitor parking use. Tenant's parking rights and
privileges' described herein are personal to Tenant and may not be assigned
or transferred, or otherwise conveyed, without Landlord's prior written
consent, which consent Landlord may withhold in its sole and absolute
discretion. In any event, under no circumstances may Tenant's parking rights
and privileges be transferred, assigned or otherwise conveyed separate and
apart from Tenant's interest in this Lease.
(e) COOPERATION WITH TRAFFIC MITIGATION MEASURES. Tenant agrees to
use its reasonable, good faith efforts to cooperate in traffic mitigation
programs which may be undertaken by Landlord independently,
37.
or in cooperation with local municipalities or governmental agencies or other
property owners in the vicinity of the Building. Such programs may include,
but will not be limited to, carpools, vanpools and other ridesharing
programs, public and private transit, flexible work hours, preferential
assigned parking programs and programs to coordinate tenants within the
Development with existing or proposed traffic mitigation programs.
(f) COOPERATION RULES AND REGULATIONS. Tenant and Tenant's
Authorized Users shall comply with all rules and regulations regarding
parking set forth in EXHIBIT "G" attached hereto and Tenant agrees to cause
its employees, subtenants, assignees, contractors, suppliers, customers and
invitees to comply with such rules and regulations. Landlord reserves the
right from time to time to modify and/or adopt such other reasonable and
non-discriminatory rules and regulations for the parking facilities as it
deems reasonably necessary for the operation of the parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in
or prevented from the performance of any act required under this Lease by
reason of strikes, lockouts, labor troubles, inability to procure standard
materials, failure of power, restrictive governmental laws, regulations or
orders or governmental action or inaction (including failure, refusal or
delay in issuing permits, approvals and/or authorizations which is not the
result of the action or inaction of the party claiming such delay), riots,
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease,
then performance of such act will be excused for the period of the delay and
the period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this PARAGRAPH 33
will not operate to excuse Tenant from prompt payment of rent or any other
payments required under the provisions of this Lease.
34. SIGNS. Landlord will designate the location on the Premises,
if any, for one or more Tenant identification sign(s). Tenant agrees to have
Landlord install and maintain Tenant's identification sign(s) in such
designated location in accordance with this PARAGRAPH 34 at Tenant's sole
cost and expense. Tenant has no right to install Tenant identification signs
in any other location in, on or about the Premises or the Development and
will not display or erect any other signs, displays or other advertising
materials that are visible from the exterior of the Building or from within
the Building in any interior or exterior common areas. The size, design,
color and other physical aspects of any and all permitted sign(s) will be
subject to (i) Landlord's written approval prior to installation, which
approval may be withheld in Landlord's discretion, (ii) any covenants,
conditions or restrictions governing the Premises, and (iii) any applicable
municipal or governmental permits and approvals. Tenant will be responsible
for all costs for installation, maintenance, repair and removal of any Tenant
identification sign(s). If Tenant fails to remove Tenant's sign(s) upon
termination of this Lease and repair any damage caused by such removal,
Landlord may do so at Tenant's expense. Tenant agrees to reimburse Landlord
for all costs incurred by Landlord to effect any installation, maintenance or
removal on Tenant's account, which amount will be deemed additional rent, and
may include, without limitation, all sums disbursed, incurred or deposited by
Landlord including Landlord's costs, expenses and actual attorneys' fees with
interest thereon at the Interest Rate from the date of Landlord's
38.
demand until paid by Tenant. Any sign rights granted to Tenant under this
Lease are personal to Tenant and may not be assigned, transferred or
otherwise conveyed to any assignee or subtenant of Tenant consent, which
consent Landlord may withhold in its sole and absolute discretion.
35. LIMITATION ON LIABILITY; REAL ESTATE INVESTMENT TRUST.
(a) In consideration of the benefits accruing hereunder, Tenant on
behalf of itself and all successors and assigns of Tenant covenants and
agrees that, in the event of any actual or alleged failure, breach or default
hereunder by Landlord, Tenant's recourse against Landlord for monetary
damages will be limited to the lesser of (i) Landlord's interest in the
Building including, subject to the prior rights of any Mortgagee, Landlord's
interest in the rents of the Building, or (ii) the equity interest Landlord
would have in and to the Building if the Building were encumbered by debt in
an amount equal to eighty percent (80%) of the value of the Building, and any
insurance proceeds payable to Landlord.
(b) Landlord operates as a real estate investment trust. The
obligations of Landlord under this Lease shall be binding only on Landlord
and not upon any of the shareholders, directors, officers, trustees,
advisors, managers or employees of Landlord in their individual capacities,
and with respect to any obligations of Landlord to Tenant, Tenant shall look
solely to the assets of Landlord and not to the assets of any such
shareholder, director, officer, trustee, advisor, manager or employee of
Landlord in the exercise of any rights or remedies under this Lease.
(c) If Landlord in good faith determines that its status as a real
estate investment trust under the applicable provisions of the Internal
Revenue Code of 1986, as heretofore or hereafter amended, will be jeopardized
because of any provision of this Lease, Landlord may request reasonable
amendments to this Lease and Tenant shall not unreasonably withhold or delay
its consent thereto, provided that such modifications do not in any way (i)
increase the obligations of Tenant under this Lease or (ii) adversely affect
any rights or benefits to Tenant under this Lease. Landlord shall pay all
reasonable costs incurred by Tenant, including without limitation, reasonable
legal fees incurred for reviewing any such proposed modifications.
(d) Tenant agrees that Landlord need not itself directly manage or
otherwise service all or any part of the Premises, and that Landlord may
cause any management, maintenance, operation, construction and other services
to be performed by Landlord's agents, who shall act as independent
contractors, provided, however, that such agreement by Tenant shall not be
deemed in any manner to release Landlord from any of its obligations set
forth in this Lease.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by
Landlord and at any time during the Term of this Lease upon ten (10) days
prior written notice from Landlord, Tenant agrees to provide Landlord with a
current financial statement for Tenant and any guarantors of Tenant and
financial statements for the two (2) years prior to the current financial
statement year for Tenant and any guarantors of Tenant. Such statements are
to be prepared in accordance with generally accepted accounting principles
and, if such is the normal practice of Tenant, audited by an independent
certified public accountant.
39.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent required under this Lease and paying all other
charges and performing all of the covenants and provisions on Tenant's part to
be observed and performed under this Lease, Tenant may peaceably and quietly
have, hold and enjoy the Premises in accordance with this Lease.
38. MISCELLANEOUS.
(a) GOVERNING LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(c) PROFESSIONAL FEES AND COSTS. If either Landlord or Tenant
should bring suit against the other with respect to this Lease, then all
costs and expenses, including without limitation, actual professional fees
and costs such as appraisers', accountants' and attorneys' fees and costs,
incurred by the prevailing party therein shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action and shall be
enforceable whether or not the action is prosecuted to judgment.
(d) TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words used in any
gender include other genders. The paragraph headings of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(e) TIME. Time is of the essence with respect to the performance
of every provision of this Lease in which time of performance is a factor.
(f) PRIOR AGREEMENT; AMENDMENTS. Lease constitutes and is intended
by the parties to be a final, complete and exclusive statement of their
entire agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and
understandings of any kind relating to the subject matter of this Lease.
There are no other agreements, understandings, representations, warranties,
or statements, either oral or in written form, concerning the subject matter
of this Lease. No alteration, modification, amendment or interpretation of
this Lease shall be binding on the parties unless contained in a writing
which is signed by both parties.
(g) SEPARABILITY. Any provision of this Lease which shall prove to
be invalid, void or illegal in no way affects, impairs or invalidates any
other provision hereof, and such other provisions shall remain in full force
and effect.
40.
(h) RECORDING. Neither Landlord nor Tenant shall record this Lease
nor a short form memorandum thereof without the consent of the other.
(i) COUNTERPARTS. 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.
(j) NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's
relationship with other tenants. Accordingly, Tenant agrees that it, and its
partners, officers, directors, employees and attorneys, shall not
intentionally and voluntarily disclose the terms and conditions of this Lease
to any newspaper or other publication or any other tenant or apparent
prospective tenant of the Building or other portion of the Development, or
real estate agent, either directly or indirectly, without the prior written
consent of Landlord, provided, however, that Tenant may disclose the terms to
prospective subtenants or assignees under this Lease.
39. EXECUTION OF LEASE.
(a) JOINT AND SEVERAL OBLIGATIONS. If more than one person
executes this Lease as Tenant, their execution of this Lease will constitute
their covenant and agreement that (i) each of them is jointly and severally
liable for the keeping, observing and performing of all of the terms,
covenants, conditions, provisions and agreements of this Lease to be kept,
observed and performed by Tenant, and (ii) the term "Tenant" as used in this
Lease means and includes each of them jointly and severally. The act of or
notice from, or notice or refund to, or the signature of any one or more of
them, with respect to the tenancy of this Lease, including, but not limited
to, any renewal, extension, expiration, termination or modification of this
Lease, will be binding upon each and all of the persons executing, this Lease
as Tenant with the same force and effect as if each and all of them had so
acted or so given or received such notice or refund or so signed.
(b) TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this
Lease as a corporation or partnership, then Tenant and the persons executing
this Lease on behalf of Tenant represent and warrant that such entity is duly
qualified and in good standing to do business in California and that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf, and in the case of a
corporation, in accordance with a duly adopted resolution of the board of
directors of Tenant, a copy of which is to be delivered to Landlord on
execution hereof, if requested by Landlord, and in accordance with the
by-laws of Tenant, and, in the case of a partnership, in accordance with the
partnership agreement and the most current amendments thereto, if any, copies
of which are to be delivered to Landlord on execution hereof, if requested by
Landlord, and that this Lease is binding upon Tenant in accordance with its
terms.
(c) EXAMINATION OF LEASE. Submission of this instrument by
Landlord to Tenant for examination or signature by Tenant does not constitute
a reservation of or option for lease, and it is not effective as a lease or
otherwise until execution by and delivery to both Landlord and Tenant.
41.
[SIGNATURE PAGE FOLLOWS]
42.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed
by their duly authorized representatives as of the date first above written.
LANDLORD: MIP PROPERTIES, INC.,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
[Print Name] ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
[Print Title] Vice President
-------------------
TENANT: NEPTUNE SYSTEMS, INC.,
a Pennsylvania corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
[Print Name] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
[Print Title] President
-------------------
43.
[DIAGRAM]
RENTABLE SQUARE FEET AND USABLE SQUARE FEET
1. The term "Rentable Square Feet" as used in the Lease will be deemed
to include: (a) with respect to the Premises, the usable area of the Premises
determined in accordance with the Method for Measuring Floor Area in Office
Buildings, ANSI Z65.1-1980 (the "BOMA Standard"), plus a pro rata portion of
the main lobby area on the ground floor and all elevator machine rooms,
electrical and telephone equipment rooms and mail delivery facilities and
other areas used by all tenants of the Building, if any, plus (i) for single
tenancy floors, all the area covered by the elevator lobbies, corridors,
special stairways, restrooms, mechanical rooms, electrical rooms and
telephone closets on such floors, or (ii) for multiple tenancy floors, a
pro-rata portion of all of the area covered by the elevator lobbies,
corridors, special stairways, restrooms, mechanical rooms, electrical rooms
and telephone closets on such floor; and (b) with respect to the Building,
the total rentable area for all floors in the Building computed in accordance
with the provisions of SUBPARAGRAPH 1 (a) above. In calculating the "Rentable
Square Feet" of the Premises or the Building, the area contained within the
exterior walls of the Building, stairs, fire towers, vertical ducts, elevator
shafts, flues, vents, stacks and major pipe shafts will be excluded.
Additionally, the first floor and basement shall be excluded for purposes of
calculating Tenant's Percentage.
2. The term "Usable Square Feet" as used in EXHIBIT "C" with respect
to the Premises will be deemed to include the usable area of the Premises as
determined in accordance with the BOMA Standard.
3. For purposes of establishing the initial Tenant's Percentage,
Tenant's Operating Expense Allowance, Monthly Base Rent, and Security Deposit
as shown in PARAGRAPH 1 of the Lease, the number of Rentable Square Feet of
the Premises is deemed to be as set forth in SUBPARAGRAPH 1(g) of the Lease,
and the number of Rentable Square Feet of the Building is deemed to be as set
forth in SUBPARAGRAPH 1(f) of the Lease. For purposes of establishing the
amount of the Tenant Improvement Allowance in EXHIBIT "C", the number of
Usable Square Feet of the Premises is deemed to be as set forth in
SUBPARAGRAPH 1(q). From time to time at Landlord's option, Landlord's
architect may redetermine the actual number of Rentable Square Feet of the
Premises, and the Building, and the actual number of Usable Square Feet of
the Premises respectively, based upon the criteria set forth in PARAGRAPH 1
AND PARAGRAPH 2 above, which determination will be conclusive, and thereupon
Tenant's Percentage, Tenant's Operating Expense Allowance, Monthly Base Rent
and the Security Deposit and the Tenant Improvement Allowance will be
adjusted accordingly.
EXHIBIT "B"
WORK LETTER AGREEMENT
This Work Letter Agreement, is entered into as of the 26 day of July,
1994, by and between MIP PROPERTIES, INC. ("Landlord") and NEPTUNE SYSTEMS,
INC., a Pennsylvania corporation ("Tenant").
RECITALS
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work
Letter Agreement may apply thereto) and in consideration of the mutual
covenants hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE. Within ten (10) days after the execution of
the Lease, Landlord shall deliver to Tenant, for Tenant's review and
approval, a schedule (the "Work Schedule") setting forth a time table for the
planning and completion of the installation of the Tenant Improvements to be
constructed in the Premises, and the Commencement Date for the term of the
Lease. The Work Schedule shall set forth each of the various items of work to
be done by or approval to be given by Landlord and Tenant in connection with
the completion of the Tenant Improvements. Such Schedule shall be submitted
to Tenant for its approval and, upon approval by both Landlord and upon
Tenant, such Schedule shall become the basis for completing the Tenant
Improvement work. If Tenant shall fail to approve the Work Schedule, as it
may be modified after discussions between Landlord and Tenant or to deliver
to space planner electrical requirements, telephone requirements, plumbing
requirements, security requirements and special finishes within five (5)
working days after the date such Schedule is first received by Tenant,
Landlord may, at its option, terminate the Lease and all of its obligations
thereunder.
2. TENANT IMPROVEMENTS. Reference herein to "Tenant Improvements"
shall include all work to be done in the Premises pursuant to the Tenant
Improvement Plans described in PARAGRAPH 3 below, including, but not limited
to, partitioning, doors, ceilings, floor coverings, wall finishes (including
paint and wallcovering), electrical (including lighting, switching,
telephones, outlets, etc.), plumbing, heating, ventilating and air
conditioning, fire protection, cabinets and other millwork.
3. TENANT IMPROVEMENT PLANS. Tenant has met with Landlord's architect
and/or space planner for the purpose of preparing a space plan for the layout
of the Premises prior to lease execution. Based upon such space plan,
Landlord's architect shall prepare final working drawings and specifications
for the Tenant Improvements. Such final working drawings and specifications
may be referred to herein as the "Tenant Improvement Plans" or "Approved
Plans". The Tenant Improvements Plans must be consistent with
EXHIBIT "C" - PAGE 1
Landlord's standard specifications (the "Standards") for tenant improvements
for the Building, as the same may be changed from time to time by Landlord.
Immediately after the execution of the Lease, Landlord shall cause the
space planner and Landlord's engineer to prepare detailed construction
drawings and specifications (the "Working Drawings") for the Tenant
Improvements based strictly upon the Preliminary Plans. Upon delivery of the
Working Drawings by Landlord or its representative to Tenant, Tenant shall
have five (5) business days in which to given written notice to Landlord of
Tenant's acceptance or rejection of the Working Drawings. Unless Landlord
receives Tenant's written rejection within said five (5) business day period,
the drawings shall be deemed approved by Tenant ("Approved Plans"). Such
Approved Plans shall create no responsibility or liability in the Landlord
for the completeness of such plans, their design sufficiency or compliance
with applicable statutes, ordinances or regulations. Within a reasonable
period after Tenant's approval or deemed approval of the Approved Plans,
Landlord will furnish to Tenant a final work cost based upon the Approved
Plans ("Final Cost Quotation") and an estimated Tenant Improvement
Construction Schedule. The final cost quotation shall include without
limitation, costs of standard and non-standard work, architectural and
engineering fees, governmental agency fees, Landlord's general contractor's
overhead and supervision fees, and landlord's administrative fees. If the
Final Cost Quotation is not greater than the Tenant Improvement Allowance,
Landlord shall authorize construction to commence, subject to the Tenant's
payment of the Construction Payment as defined below. Landlord has a
pre-approved selected contractor to perform work in the Building.
If the Final Cost Quotation is greater than the approved Tenant
Improvement Allowance, Tenant shall have two (2) business days in which to
give written notice to Landlord's Construction Manager of Tenant's acceptance
or rejection of the Final Cost Quotation. If Tenant rejects the Final Cost
Quotation, Tenant shall meet with Landlord, the Space Planner and Landlord's
contractor within two (2) business days to make revisions. All costs of
Tenant initiated changes requiring such revisions including charges for
attending the meeting shall be included in the cost of Tenant Improvements.
Following such revisions, Landlord shall submit to Tenant, as soon as
reasonably practicable, a new Final Cost Quotation, and the same procedure
will be followed as set forth above until Tenant has approved the Approved
Plans and the Final Cost Quotation, Tenant shall forthwith deposit with
Landlord an amount (the "Construction Payment") equal to the difference
between the Tenant's Allowance and the approved Final Cost Quotation.
Landlord shall not authorize construction to commence until Landlord has
received the Construction Payment. Any time consumed in revising the Working
Drawings or revising the Final Cost Quotation shall be considered a Tenant
Delay and shall not delay the Commencement Date of the Lease. Landlord,
through its agent, will provide construction management and will charge a
reasonable supervision fee of five (5%) percent of the construction costs
against the tenant improvements allowance of ________________________________
Dollars ($[illegible]) and for any change orders initiated by the Tenant
after the Tenant has approved the approved plans and the final cost
quotation. All supervision of construction and subcontractors shall be
performed by the general contractor. Tenant shall be responsible for any and
all change orders required to comply with any governmental and/or code
requirements.
EXHIBIT "C" - PAGE 2
4. NON-STANDARD TENANT IMPROVEMENTS. In preparation of preliminary
plans and Approved Plans, no deviation shall be permitted from the Standards
with respect to entry doors and hardware, entry graphics, location of entry
graphics, ceiling systems, demising partitions, life safety systems,
electrical systems, H.V.A.C. systems and security camera locations
guidelines, or perimeter window coverings. Subject to Landlord's approval,
Tenant may deviate from other Standards, provided that no deviation shall be
of lesser quality than the Standards and Landlord has determined in its sole
discretion that the deviations are of a nature and quality that are
consistent with the overall objectives of the Landlord for the building. Any
such deviations must conform to applicable governmental regulations, must not
require additional building services, delay the Construction Schedule, or be
of a nature of quality inconsistent with Landlord's overall plan or objective
for the Building.
5. FINAL PRICING AND DRAWING SCHEDULE. After the preparation of the
Working Drawings and specifications and after Tenant's written approval
thereof, in accordance with the Work Schedule, such drawings shall thereafter
be submitted to the appropriate government body by Landlord's architect for
plan checking and the issuance of a building permit. Landlord, with Tenant's
cooperation, shall cause to be made any changes in the plans and
specifications necessary to obtain the building permit. Concurrent with the
plan checking, Landlord shall have prepared a final pricing for Tenant's
approval, in accordance with the Work Schedule, taking into account any
modification which may be required to reflect changes in the plans and
specifications required by the City of County in which the Premises are
located.
All Tenant Improvements to be constructed or installed in the Premises
shall be performed by Landlord's designated general contractor in accordance
with the Approved Plans. No work shall commence until the Approved Plans are
filed with the governmental agencies having jurisdiction thereof and all
required building permits have been obtained. Landlord shall have not
obligation to Tenant for defects in design, workmanship or materials, but
shall use its reasonable best efforts to enforce the contractor's obligations
therefor. Any changes to the construction work may be made only upon written
request by Tenant approved in writing by Landlord, or as may be required by
any governmental agency, or as may be required due to structural or
unanticipated field conditions, in each instance evidenced by a written
change order describing the change.
In the event Tenant desires any work in addition to the Base Building
Improvements and the Tenant Improvements in accordance with the Approved
Plans to be performed in the Premises (the "Additional Tenant Work"), Tenant,
at Tenant's expense, shall cause plans and specifications for such work to be
prepared by arranging therefor with Landlord's architect and pay for time and
monies extended by Landlord's construction manager to review and approve
such additional Tenant work. All plans and specifications for Additional
Tenant Work shall be subject to review and approval by Landlord to insure,
among other things, that the work is comparable with all other construction
and all electrical and mechanical systems within the Building. Upon such
written request, and approval of same by Landlord, Landlord shall submit to
Tenant, for approval, a field order describing the change, cost proposal and
Tenant Improvement Construction Schedule Adjustment. Tenant shall approve
the change order, in writing, within two (2) business days following receipt
thereof, and together with said approval shall pay Landlord the cost of such
agreed upon change. Landlord may refuse to make any changes until Tenant so
approves in writing the description thereof, the cost proposal and the Tenant
Improvement Construction Schedule Adjustment, and
EXHIBIT "C" - PAGE 3.
until Tenant makes such payment. In the event Tenant fails to approve same
within the two (2) business day period, then Landlord may elect (i) to agree
to the foregoing on Tenant's behalf, Tenant to promptly pay the required
amounts to Landlord; (ii) to withdraw the change request on Tenant's behalf;
or (iii) to proceed with the Tenant Improvements, delaying any portion as
reasonably necessary to accommodate the change request. Any time consumed for
changes to the Tenant Improvements, or delays pursuant to clause (iii) above,
shall be considered a Tenant Delay and shall not delay the Commencement Date
of the Lease.
Tenant shall not engage its own contractor or subcontractor to perform
any Tenant Improvement construction. Tenant shall engage its own Landlord
approved security and telephone company. Tenant's telephone company must
coordinate all work through the Landlord's telephone vendor responsible for
the main telephone rise and cables.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. After the Tenant Improvement
Plans have been prepared and approved, the final pricing has been approved
and a building permit for the Tenant Improvements has been issued, Landlord
shall enter into a construction contract with its contractor for the
installation of the Tenant Improvements in accordance with the Tenant
Improvement Plans. Landlord shall supervise the completion of such work and
shall use its best efforts to secure substantial completion of the work in
accordance with the Work Schedule. The cost of such work shall be paid as
provided in Paragraph 7 hereof. Landlord shall not be liable for any direct
or indirect damages as a result of delays in construction beyond Landlord's
reasonable control, including, but not limited to, acts of God, inability
to secure governmental approvals or permits, governmental restrictions,
strikes; availability of materials or labor or delays by Tenant (or its
architect or anyone performing services on behalf of Tenant).
7. PAYMENT OF COST OF THE TENANT IMPROVEMENTS. The Tenant Improvement
Allowance set forth in SUBPARAGRAPH 1(q) of the Lease shall be used only for:
(a) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical,
plumbing and structural and structural drawings and of all other aspects of
the Tenant Improvement Plans. The Tenant Improvement Allowance will not be
used for the payment of extraordinary design work not included within the
scope of Landlord's building standard improvements or for payments to any
other consultants, designers or architects other than Landlord's architect
and/or space planner.
(b) The payment of plan check, permit and license fees relating to
construction of the Tenant Improvements.
(c) Construction of the Tenant Improvements including, without
limitation, the following:
(i) Installation within the Premises of all partitioning,
doors, floor coverings, ceilings, wall coverings and painting, millwork and
similar items.
EXHIBIT "C" - PAGE 4.
(ii) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the Premises.
(iii) The furnishing and installation of all duct work,
terminal boxes, diffusers and accessories required for the completion of the
heating, ventilation and air conditioning systems within the Premises,
including the cost of meter and key control for after-hour air conditioning.
(iv) Any additional Tenant requirements including, but not
limited to, odor control, special heating, ventilation and air conditioning,
noise or vibration control or other special systems.
(v) All fire and life safety control systems such as fire
walls, sprinklers, halon, fire alarms, including piping, wiring and
accessories installed within the Premises.
(vi) All plumbing, fixtures, pipes and accessories to be
installed within the Premises.
(vii) Testing and inspection costs.
(viii) Contractor's fees, including but not limited to any
fees based on general conditions.
(d) All other costs to be expended by Landlord in the construction
of the Tenant Improvements, including those costs incurred by Landlord for
construction of elements of the Tenant Improvements in the Premises, which
construction was performed by Landlord prior to the execution of this Lease
by Landlord and Tenant (i.e., during or after the construction of the base
Building) and which construction is for the benefit of tenants and is
customarily performed by Landlord prior to the execution of leases for such
space in the Building for reasons of economics (examples of such construction
would include the extension of mechanical [including heating, ventilation and
air conditioning systems] and electrical distribution systems outside of the
core of the Building, wall construction, column enclosures and painting
outside of the core of the Building, ceiling hanger wires and window
treatment).
(e) The cost of each item shall be charged against the Tenant
Improvement Allowance. In the event that the cost of installing the Tenant
Improvements, as established by Landlord's final pricing schedule, shall
exceed the Tenant Improvement Allowance, or if any of the Tenant Improvements
are not to be paid out of the Tenant Improvement Allowance as provided in
PARAGRAPH 7(c)(i) above, the excess shall be paid by Tenant to Landlord prior
to the commencement of construction of the Tenant Improvements.
(f) In the event that, after the Tenant Improvement Plans have
been prepared and a price therefore established by Landlord, Tenant shall
require any changes or substitutions to the Tenant Improvement Plans, any
additional costs thereof shall be paid by Tenant to Landlord prior to the
commencement of such work. Landlord shall have the right to decline Tenant's
request for a change to the Tenant Improvement Plans if such changes are
inconsistent with PARAGRAPHS 3 AND 4 above, or if the change would, in
Landlord's opinion, unreasonably delay construction of the Tenant
Improvements.
EXHIBIT "C" - PAGE 5.
(g) In the event that the cost of the Tenant Improvements
increases as set forth in Landlord's final pricing due to the requirements of
any governmental agency, Tenant shall pay Landlord the amount of such
increase within five (5) days of Landlord's written notice; provided,
however, that Landlord shall first apply toward such increase any remaining
balance in the Tenant Improvement Allowance.
(h) Any unused portion of the Tenant Improvement Allowance upon
completion of the Tenant Improvements shall not be refunded to Tenant or
available to Tenant as a credit against any obligations of Tenant under the
Lease.
(i) As used in this Work Letter Agreement, the term "Usable Area"
means Usable Square Feet of the Premises, as set forth in SUBPARAGRAPH 1(q)
of the Lease.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the
date first above written.
LANDLORD: MIP PROPERTIES,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
-------------------------------
[Print Name] ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
[Print Title] Vice President
---------------------
TENANT: NEPTUNE SYSTEMS INC.
a Pennsylvania corporation
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇
-------------------------------
[Print Name] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
[Print Title] President
---------------------
EXHIBIT "C" - PAGE 6.
NOTICE OF LEASE TERM DATES
AND TENANT'S PERCENTAGE
To:______________________________ ("Tenant") Date:_____________
_________________________________
_________________________________
Re: Lease dated ________________, 19____ (the "Lease"),.between
_________________________________ as Landlord, and
_________________________________ as Tenant,
concerning Suite __________ located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Premises").
To Whom It May Concern:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted by the Tenant as being
substantially complete in accordance with the subject Lease and that there is
no deficiency in construction except as may be indicated on the "Punch-List"
prepared by Landlord and Tenant, a copy of which is attached hereto.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the Lease the Commencement Date is
_______________, 199____, and the Term of the Lease will expire on
__________________________.
3. That in accordance with the Lease, rent commenced to accrue on
_______________, 199___.
4. If the Commencement Date of the Lease is other than the first day
of the month, the first billing will contain a pro rata adjustment. Each
billing thereafter will be for the full amount of the monthly installment as
provided for in the Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the Term of the Lease. Your rent checks should be made
payable to __________________________ at
____________________________________________________________.
6. The number of Rentable Square Feet within the Premises is
____________________ square feet as determined by Landlord's architect in
accordance with the terms of the Lease.
EXHIBIT "D" - PAGE 1.
7. The number of Rentable Square Feet within the Building (not including
the first floor and the basement) is 107,066 square feet as determined by
Landlord's architect in accordance with the terms of the Lease.
8. Tenant's Percentage, as adjusted based upon the number of Rentable
Square Feet within the Premises, is _____________ %.
9. Tenant shall have the right to ______________ (____) parking
space(s) in the parking garage known as the Autoport. Such space(s): shall
_____ shall not _____ be reserved. Tenant's initial parking charge per space
shall be $__________ per month, due and payable to Landlord on the first day
of each and every month during the Term of the Lease.
Sincerely,
[SIGNATURE BLOCK]
The foregoing notice terms and dates are hereby accepted by the
undersigned tenant and shall be deemed incorporated into and made a part of
the Lease.
TENANT: [SIGNATURE BLOCK]
EXHIBIT "D" - PAGE 2.
STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto.
Subject to the terms and conditions of the Lease and provided Tenant
remains in occupancy of the Premises, Landlord will provide or make available
the following utilities and services:
1. Provide non-attended automatic elevator facilities at all times.
2. On Monday through Friday, except holidays, from 8:00 a.m. to 5:00
p.m. (and other times for a reasonable additional charge to be fixed by
Landlord), ventilate the Premises and furnish air conditioning or heating on
such days and hours, when in the reasonable judgment of Landlord it may be
required for the comfortable occupancy of the Premises. The air conditioning
system achieves maximum cooling when the window coverings are extended to the
full length of the window opening and adjusted to a 45 DEG. angle upwards.
Landlord will not be responsible for room temperatures if Tenant does not
keep all window coverings in the Premises extended to the full length of the
window opening and adjusted to a 45 DEG. angle upwards whenever the system is
in operation. Tenant agrees to cooperate fully at all times with Landlord,
and to abide by all reasonable regulations and requirements which Landlord
may prescribe for the proper function and protection of said air
conditioning, system. Tenant agrees not to connect any apparatus, device,
conduit or pipe to the chilled and hot water air conditioning supply lines of
the Building. Tenant further agrees that neither Tenant nor its servants,
employees, agents, visitors, licensees or contractors shall at any time enter
the mechanical installations or facilities of the Building or the Development
or adjust, tamper with, touch or otherwise in any manner affect said
installations or facilities. The cost of maintenance and service calls to
adjust and regulate the air conditioning system will be charged to Tenant if
the need for maintenance work results from either Tenant's adjustment of room
thermostats or Tenant's failure to comply with its obligations under this
Exhibit, including keeping window coverings extended to the full length of
the window opening, and adjusted to a 45 DEG. angle upwards. Such work will
be charged at hourly rates equal to then-current journeyman's wages for air
conditioning mechanics.
3. Landlord will make available to the Premises, 24 hours per day,
seven days a week, during the usual business hours on business days, electric
current as required by the Building standard office lighting and fractional
horsepower office business machines including copiers, personal computers and
word processing. equipment in an amount not to exceed six (6) ▇▇▇▇▇ per
square foot per normal business day. Tenant agrees, should its electrical
installation or electrical consumption be in excess of the aforesaid quantity
or extend beyond normal business hours, to reimburse Landlord monthly for the
measured consumption at the average cost per kilowatt hour charged to the
Building during the period. If a separate meter is not installed at Tenant's
cost, such excess cost will be established by an estimate agreed upon by
Landlord and Tenant, and if the parties fail to agree, such cost will be
established by an independent licensed engineer selected in Landlord's
reasonable discretion, whose fee shall be shared equally by Landlord and
Tenant. Tenant agrees not to use any apparatus or device in, upon or about
the Premises (other than standard office business
EXHIBIT "E" - PAGE 1.
machines, personal computers and word processing equipment) which may in any
way increase the amount of such services usually furnished or supplied to
said Premises, and Tenant further agrees not to connect any apparatus or
device with wires, conduits or pipes, or other means by which such services
are supplied, for the purpose of using additional or unusual amounts of such
services without the written consent of Landlord. Should Tenant use the same
to excess, the refusal on the part of Tenant to pay upon demand of Landlord
the amount established by Landlord for such excess charge will constitute a
breach of the obligation to pay rent under this Lease and will entitle
Landlord to the rights therein granted for such breach. Tenant's use of
electric current will never exceed the capacity of the feeders to the
Building or the risers or wiring installation and Tenants will not install or
use or permit the installation or use of any computer or electronic data
processing equipment in the Premises (except standard office business
machines, personal computers and word processing equipment) without the prior
written consent of Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purpose
in addition to ordinary drinking and lavatory purposes, of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant
agrees to pay Landlord for the cost of the meter and the cost of the
installation thereof and throughout the duration of Tenant's occupancy Tenant
will keep said meter and installation equipment in good working order and
repair at Tenant's own cost and expense, in default of which Landlord may
cause such meter and equipment to be replaced or repaired and collect the
cost thereof from Tenant. Tenant agrees to pay for water consumed, as shown
on such meter, and when bills are rendered, and on default in making such
payment, Landlord may pay such charges and collect the same from Tenant. Any
such costs or expenses incurred, or payments made by Landlord for any of the
reasons or purposes hereinabove stated will be deemed to be additional rent
payable by Tenant and collectible by Landlord as such.
5. Landlord will provide janitor service to the Premises, provided the
same are used exclusively as offices, and are kept reasonably in order by
Tenant, and unless otherwise agreed to by Landlord and Tenant no one other
than persons approved by Landlord shall be permitted to enter the Premises
for such purposes of the Premises are not used exclusively as offices, they
will be kept clean and in order by Tenant, at Tenant's expense, and to the
satisfaction of Landlord, and by persons approved by Landlord. Tenant agrees
to pay to Landlord the cost of removal of any of Tenant's refuse and rubbish
to the extent that the same exceeds the refuse and rubbish usually attendant
upon the use of the Premises as offices.
6. Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electrical systems, when necessary, by reason
of accident or emergency or for repairs, alterations or improvements, when in
the judgment of Landlord such actions are desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
Landlord will have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning or electric service, when
prevented from so doing by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules, orders, ordinances, directions,
regulations or by reason of the requirements of any federal, state, county or
municipal authority or failure of gas, oil or other suitable fuel supply or
inability by exercise of reasonable diligence to obtain gas, oil or other
suitable fuel supply. It is expressly understood and agreed
EXHIBIT "E" - PAGE 2.
that any covenants on Landlord's part to furnish any services pursuant to any
of the terms, covenants, conditions, provisions or agreements of this Lease,
or to perform any act or thing for the benefit of Tenant, will not be deemed
breached if Landlord is unable to furnish or perform the same by virtue of a
strike or labor trouble or any other cause whatsoever beyond Landlord's
control.
EXHIBIT "E" - PAGE 3.
ESTOPPEL CERTIFICATE
The undersigned, __________________________________________ ("Tenant"),
hereby certifies to ________________________________ as follows:
1. Attached hereto is a true, correct and complete copy of that
certain lease dated _________________, 19____, between
______________________________________________, as Landlord and Tenant (the
"Lease"), regarding the premises located at __________________________________
____________________________________________________________ (the "Premises").
The Lease is now in full force and effect and has not been amended, modified
or supplemented, except as set forth in PARAGRAPH 4 below.
2. The Term of the Lease commenced on ____________, 19___
3. The Term of the Lease shall expire on _________, 19___
4. The Lease has: [INITIAL ONE]
(____) not been amended, modified, supplemented, extended, renewed or
assigned.
(____) been amended, modified, supplemented, extended, renewed or assigned
by the following described terms or agreements, copies of which are
attached hereto:
________________________________________________________________
________________________________________________________________
________________________________________________________________
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the Lease
will be assigned to __________________________________________________
__________________________________________________________ and that no
modification, adjustment, revision or cancellation of the Lease or
amendments thereto shall be effective unless written consent of ______
_________________________________________________________ is obtained,
and that until further notice, payments under the Lease may continue
as heretofore.
7. The amount of Monthly Base Rent is $__________________
The amount of the security deposit (if any) is $____________________
EXHIBIT "F" - PAGE 1.
No other security deposits have been made except as follows:________
______________________________________________________________________________
9. Tenant is paying the full lease rental which has been paid in full as
of the date hereof. No rent or other charges under the Lease have been paid for
more than thirty (30) days in advance of its due date except as
follows:_______________________________________________________________________
_______________________________________________________________________________
10. All work required to be performed by Landlord under the Lease has been
completed except as follows: __________________________________________________
_______________________________________________________________________________
11. There are no defaults on the part of the Landlord or Tenant under the
Lease except as follows: ______________________________________________________
_______________________________________________________________________________
12. Neither Landlord nor Tenant has any defense as to its obligations
under the Lease and claims no set-off or counterclaim against the other party
except as follows:_____________________________________________________________
_______________________________________________________________________________
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies other than as
provided in the Lease except as follows:_______________________________________
______________________________________________________________________________.
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified
The foregoing certification is made with the knowledge that
___________________________________ is about to fund a loan to Landlord [or
_________________________________________ is about to purchase the Development
(or part thereof) from Landlord] and that _____________________________________
is relying upon the representations herein made by Tenant in funding such loan
[or in purchasing the Development (or part thereof)].
IN WITNESS WHEREOF, this certificate has been duly executed and delivered
by the authorized officers of the undersigned tenant as of _____________, 19___.
TENANT: [SIGNATURE BLOCK]
EXHIBIT "F" - PAGE 2.
[SAMPLE ONLY]
[NOT FOR EXECUTION]
EXHIBIT "F" - PAGE 3.
RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS. The following rules and regulations
govern the use of the Building and the Development Common Areas. Tenant will
be bound by such rules and regulations and agrees to cause Tenant's
Authorized Users, its employees, subtenants, assignees, contractors,
suppliers, customers and invitees to observe the same.
1. Except as specifically provided in the Lease to which these Rules
and Regulations are attached, no sign, placard, picture, advertisement, name
or notice may be installed or displayed on any part of the outside or inside
of the Building or the Development without the prior written consent of
Landlord. Landlord will have the right to remove, at Tenant's expense and
without notice, any sign installed or displayed in violation of this rule.
All approved signs or lettering on doors and walls are to be printed,
painted, affixed or inscribed at the expense of Tenant and under the
direction of Landlord by a person or company designated or approved by
Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant will
immediately discontinue such use. Tenant agrees not to place anything against
or near glass partitions or doors or windows which may appear unsightly from
outside the Premises including from within any interior common areas
3. Tenant will not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Development. The halls,
passages, exits, entrances, elevators and stairways are not open to the
general public, but are open, subject to reasonable regulations, to Tenant's
business invitees. Landlord will in all cases retain the right to control and
prevent access thereto of all persons whose presence in the reasonable
judgment of Landlord would be prejudicial to the safety, character,
reputation and interest of the Development and its tenants, provided that
nothing herein contained will be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of its business,
unless such persons are engaged in illegal or unlawful activities. No tenant
and no employee or invitee of any tenant will go upon the roof of the
Building.
4. Tenant will not obtain for use on the Premises ice, drinking water,
food, food vendors, beverage, towel or other similar services or accept
barbering or bootblacking service upon the Premises, except at such
reasonable hours and under such reasonable regulations as may be fixed by
Landlord. Landlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, sales and displays of products, goods and wares in
all portions of the Development except for such activities as may be
expressly requested by a tenant and conducted solely within such requesting
tenant's premises. Landlord reserves the right to restrict and regulate the
use of the common areas of the Development and Building by invitees of
tenants providing services to tenants on a periodic or daily basis including
food and beverage vendors. Such restrictions may include limitations on time,
place, manner and duration of access to a tenant's premises for such purposes
Without limiting the foregoing, Landlord may require that such parties use
service elevators, halls,
EXHIBIT "G" - PAGE 1.
passageways and stairways for such purposes to preserve access within the
building for tenants and the general public.
5. Landlord reserves the right to require tenants to periodically
provide Landlord with a written list of any and all business invitees which
periodically or regularly provide goods and services to such tenants at the
premises. Landlord reserves the right to preclude all vendors from entering
or conducting business within the Building and the Development if such
vendors are not listed on a tenant's list of requested vendors.
6. Landlord reserves the right to exclude from the Building between
the hours of 6:00 p.m. and 8:00 a.m. the following business day, or such
other hours as may be established from time to time by Landlord, and on
Sundays and legal holidays, any person unless that person is known to the
person or employee in charge of the Building or has a pass or is properly
identified. Tenant will be responsible for all persons for whom it requests
passes and will be liable to Landlord for all acts of such persons. Landlord
will not be liable for damages for any error with regard to the admission to
or exclusion from the Building of any person. Landlord reserves the right to
prevent access to the Building in case of invasion, mob, riot, public
excitement or other commotion by closing the doors or by other appropriate
action.
7. The directory of the Building or the Development will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom.
8. All cleaning and janitorial services for the Development and the
Premises will be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved
by Landlord will be employed by Tenant or permitted to enter the Development
for the purpose of cleaning the same. Tenant will not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises.
9. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install any new additional lock or bolt on
any door of the Premises. Tenant, upon the termination of its tenancy, will
deliver to Landlord the keys to all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, will pay Landlord
therefor.
10. If Tenant requires telegraphic, telephonic, burglar alarm,
satellite dishes, antennae or similar services, it will first obtain
Landlord's approval, and comply with, Landlord's reasonable rules and
requirements applicable to such services, which may include separate
licensing by, and fees paid to, Landlord.
11. Freight elevator(s) will be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord, in its
discretion, deems appropriate. No equipment, materials, furniture, packages,
supplies, merchandise or other property will be received in the Building or
carried in the elevators except between such hours and in such elevators as
may be designated by Landlord. Tenant's initial move in and
EXHIBIT "G" - PAGE 2.
subsequent deliveries of bulky items, such as furniture, safes and
similar items will, unless otherwise agreed in writing by Landlord, be made
during, the hours of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday.
Deliveries during normal office hours shall be limited to normal office
supplies and other small items. No deliveries will be made which impede or
interfere with other tenants or the operation of the Building.
12. Tenant will not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord will have the right to prescribe the
weight, size and position of all equipment, materials, furniture or other
property brought into the Building. Heavy objects will, if considered
necessary by Landlord, stand on such platforms as determined by Landlord to
be necessary to properly distribute the weight, which platforms will be
provided at Tenant's expense. Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted
to the structure of the building or to any space therein to such a degree as
to be objectionable to any tenants in the Building or Landlord, are to be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devises sufficient to eliminate noise or vibration. The
persons employed to move such equipment in or out of the Building must be
reasonably acceptable to Landlord. Landlord will not be responsible for loss
of, or damage to, any such equipment or other property from any cause, and
all damage done to the Building by maintaining or moving such equipment or
other property will be repaired at the expense of Tenant.
13. Tenant will not use or keep in the Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant will not use or permit to be used in the Premises any foul or noxious
gas or substance, or permit or allow 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 or vibrations, nor will Tenant bring into
or keep in or about the Premises any birds or animals.
14. Tenant will not use any method of heating or air conditioning other
than that supplied by Landlord without Landlord's prior written consent.
15. Tenant will not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning and to comply with
any governmental energy-saving rules, laws or regulations of which Tenant has
actual notice, and will refrain from attempting to adjust controls. Tenant
will keep corridor doors closed, and shall keep all window coverings pulled
down.
16. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
Without the written consent of Landlord, Tenant will not use the name of the
Building or the Development in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
17. Tenant will close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and lighting or gas
before Tenant and its employees leave the Premises. Tenant will be
EXHIBIT "G" - PAGE 3.
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus
will not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from any
violation of this rule will be borne by the tenant who, or whose employees or
invitees, break this rule. Cleaning of equipment of any type is prohibited.
Shaving is prohibited.
19. Tenant will not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to
the general public in or on the Premises. Tenant will not make any
room-to-room solicitation of business from other tenants in the Development.
Tenant will not use the Premises for any business or activity other than that
specifically provided for in this Lease. Canvassing, soliciting and
distribution of handbills or any other written material, and peddling in the
Development are prohibited, and Tenant will cooperate with Landlord to
prevent such activities.
20. Tenant will not install any radio or television antenna,
loudspeaker, satellite dishes or other devices on the roof(s) or exterior
walls of the Building or the Development. Tenant will not interfere with
radio or television broadcasting or reception from or in the Development or
elsewhere.
21. Except for the ordinary hanging of pictures and wall decorations,
Tenant will not ▇▇▇▇, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to the Premises.
Tenant will not cut or bore holes for wires. Tenant will not affix any floor
covering to the floor of the Premises in any manner except as approved by
Landlord. Tenant shall repair any damage resulting from noncompliance with
this rule.
22. Tenant will not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
23. Landlord reserves the right to exclude or expel from the
Development any person who, in Landlord's judgment, is intoxicated or under
the influence of liquor or drugs or who is in violation of any of the Rules
and Regulations of the Building.
24. Tenant will store all its trash and garbage within its Premises or
in other facilities provided by Landlord. Tenant will not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary
and customary manner of trash and garbage disposal. All garbage and refuse
disposal is to be made in accordance with directions issued from time to time
by Landlord.
25. The Premises will not be used for lodging or for the storage of
merchandise held for sale to the general public, or for lodging or for
manufacturing of any kind, nor shall the Premises be used for any
EXHIBIT "G" - PAGE 4.
improper, immoral or objectionable purpose. No cooking will be done or
permitted on the Premises without Landlord's consent, except the use by
Tenant of Underwriters' Laboratory approved equipment for brewing coffee,
tea, hot chocolate and similar beverages shall be permitted, and the use of a
microwave oven for employees use will be permitted, provided that such
equipment and use is in accordance with all applicable federal, state, county
and city laws, codes, ordinances, rules and regulations.
26. Neither Tenant nor any of its employees, agents, customers and
invitees may use in any space or in the public halls of the Building or the
Development any hand truck except those equipped with rubber tires and side
guards or such other material-handling equipment as Landlord may approve.
Tenant will not bring, any other vehicles of any kind into the Building.
27. Tenant agrees to comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
28. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors
locked and other means of entry to the Premises closed.
29. To the extent Landlord reasonably deems it necessary to exercise
exclusive control over any portions of the Common Areas for the mutual
benefit of the tenants in the Building or the Development, Landlord may do so
subject to reasonable, non-discriminatory additional rules and regulations.
30. Landlord may prohibit smoking in the Building and may require
Tenant and any of its employees, agents, clients, customers, invitees and
guests who desire to smoke, to smoke within designated smoking areas within
the Development.
31. Tenant's requirements will be attended to only upon appropriate
application to Landlord's asset management office for the Development by an
authorized individual of Tenant. Employees of Landlord will not perform any
work or do anything outside of their regular duties unless under special
instructions from Landlord, and no employee of Landlord will admit any person
(Tenant or otherwise) to any office without specific instructions from
Landlord.
32. These Rules and Regulations are in addition to, and will not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Landlord may waive any one
or more of these Rules and Regulations for the benefit of Tenant or any other
tenant, but no such waiver by Landlord will be construed as a waiver of such
Rules and Regulations in favor of Tenant or any other tenant, nor prevent
Landlord from thereafter enforcing any such Rules and Regulations against any
or all of the tenants of the Development.
33. Landlord reserves the right to make such other and reasonable and
nondiscriminatory Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and cleanliness of the
Development and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations herein above stated and any
additional reasonable and non-discriminatory rules
EXHIBIT "G" - PAGE 5.
and regulations which are adopted. Tenant is responsible for the observance
of all of the foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
B. PARKING RULES AND REGULATIONS. The following rules and regulations
govern the use of the parking facilities which serve the Building. Tenant
will be bound by such rules and regulations and agrees to cause its
employees, subtenants, assignees, contractors, suppliers, customers and
invitees to observe the same:
1. Tenant will not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, subtenants, customers or invitees
to be loaded, unloaded or parked in areas other than those designated by
Landlord for such activities. No vehicles are to be left in the parking areas
overnight and no vehicles are to be parked in the parking areas other than
normally sized passenger automobiles, motorcycles and pick-up trucks. No
extended term storage of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a
single parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles
per hour.
5. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles or on ramps;
(c) where "no parking" signs are posted,
(d) in cross-hatched areas; and
(e) in such other areas as may be designated from time to time by
Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord,
to tow any vehicle if such vehicle's audio theft alarm system remains engaged
for an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at such
car owner's expense. Tenant agrees to use its best efforts to acquaint its
employees, subtenants, assignees, contractors, suppliers, customers and
invitees with these parking provisions, rules and regulations.
EXHIBIT "G" - PAGE 6.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Parking identification
devices, if utilized by Landlord, must be displayed as requested and may not
be mutilated in any manner. The serial number of the parking identification
device may not be obliterated. Parking identification devices, if any, are
not transferable and any device in the possession of an unauthorized holder
will be void. Landlord reserves the right to refuse the sale of monthly
stickers or other parking identification devices to Tenant or any of its
agents, employees or representatives who willfully refuse to comply with
these rules and regulations and all unposted city, state or federal
ordinances, laws or agreements.
10. Loss or theft of parking identification devices or access cards
must be reported to the management office in the Development immediately, and
a lost or stolen report must be filed by the Tenant or user of such parking
identification device or access card at the time. Landlord has the right to
exclude any vehicle from the parking facilities that does not have a parking
identification device or valid access card. Any parking identification
device or access card which is reported lost or stolen and which is
subsequently found in the possession of an unauthorized person will be
confiscated and the illegal holder will be subject to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord
must be reported, itemized in writing and delivered to the management office
located within the Development within ten (10) business days after any
claimed damage or loss occurs. Any claim not so made is waived. Landlord is
not responsible for damage by water or fire, or for the acts or omissions of
others, or for articles left in vehicles. In any event, the total liability
of Landlord, if any, is limited to Two Hundred Fifty Dollars ($250.00) for
all damages or loss to any car. Landlord is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to
make or allow any exceptions to these rules and regulations, without the
express written consent of Landlord. Any exceptions to these rules and
regulations made by the parking operators, managers or attendants without the
express written consent of Landlord will not be deemed to have been approved
by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord,
to tow any vehicles which are used or parked in violation of these rules and
regulations.
14. Landlord reserves the right from time to time to modify and/or
adopt such other reasonable and non-discriminatory rules and regulations for
the parking facilities as it deems reasonably necessary for the operation of
the parking facilities.
LANDLORD RESERVES THE RIGHT TO ESTABLISH AND CHANGE PARKING FEES AND TO MODIFY
AND/OR ADOPT SUCH OTHER REASONABLE AND NON-DISCRIMINATORY RULES AND REGULATIONS
FOR THE PARKING FACILITIES AS IT DEEMS NECESSARY FOR THE OPERATION OF THE
PARKING FACILITIES. LANDLORD MAY REFUSE TO PERMIT ANY PERSON WHO VIOLATES THESE
RULES TO PARK IN THE PARKING FACILITIES, AND ANY VIOLATION OF THE RULES SHALL
SUBJECT THE CAR TO REMOVAL.
EXHIBIT "G" - PAGE 7.
TENANT'S INSURANCE REQUIREMENTS
This outlines the insurance requirements of your Lease. To assure
compliance with these terms, we suggest you send a copy of this Exhibit to
your insurer or agent. Initial Certificates must be provided to Landlord
thirty (30) days after execution of the Lease, renewals ten (10) days before
expiration.
1. Comprehensive or Commercial General Liability Insurance:
$000,000 Combined Single Limit. each occurrence
$000,000 Aggregate (minimum) this location
$000,000 Products/Completed Operations Aggregate
$50,000 Fire Legal Liability Limit, per fire
Bodily Injury, Property Damage, Personal Injury and Advertising
Injury; Blanket Contractual Liability; Products and Completed
Operations Liability, Landlord as an Additional Insured; Severability
of Interest, permitting cross liability among insureds; provision
stating that tenant's insurance is primary and non-contributing with
any insurance carried by Landlord.
2. Tenant's Property Insurance:
All Risks coverage of Property owned by Tenant or for which the Tenant
is legally liable; replacement cost basis, covering no less than 90%
of all values.
3. Tenant's Business Interruption Insurance (if requested):
All Risks coverage of operations at leased premises; covering
one-years business interruption due to insured peril.
4. Tenant's Workers' Compensation and Employer's Liability Insurance (if
requested):
Statutory Limits and terms required by state of leased premises;
$500,000 Employer's Liability Limit.
5. Tenant's Automobile Insurance (if requested):
$500,000 Combined Limit per accident; covering all owned,
non-owned, hired autos (Symbol 1 - any auto).
All insurance is to be with licensed insurers having a Best's rating of "A
10" or better, and must include the following:
Waiver of Subrogation in favor of Landlord in accordance with Lease
Addendum.
EXHIBIT "H" - PAGE 1.
Thirty (30) day pre-notice of cancellation/non renewal to Landlord
SEND CERTIFICATE TO:
MIP Properties, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PLEASE INCLUDE:
Tenant Name:________________________________________________
Premises Location:__________________________________________
Lease Execution Date:_______________________________________
EXHIBIT "H" - PAGE 2.
LEASE ADDENDUM
This lease addendum ("Lease Addendum") is attached to and made a part of
that certain lease dated as of July 26, 1994 (the "Lease") by and between MIP
PROPERTIES, INC., a Maryland Corporation ("Landlord") and NEPTUNE SYSTEMS,
INC., a Pennsylvania Corporation ("Tenant"). If there is any conflict or
inconsistency between this Lease Addendum and the other provisions of the
Lease, then the provisions of this Lease Addendum shall control and govern in
the interpretation and construction of the Lease.
ADDENDUM TO PARAGRAPH 1(m) ENTITLED "BASIC LEASE TERMS - ADJUSTMENT TO
MONTHLY BASE RENT". Anything contained in the Lease to the contrary
notwithstanding, should the cost of completing the tenant improvements to the
Premises as provided for in the Lease which are incurred by Landlord on
behalf of Tenant exceed the aggregate Tenant Improvement Allowance as
provided in Paragraph 1(q) of this Lease, then the amount by which the cost
of the tenant improvements exceed the aggregate Tenant Improvement Allowance
shall be divided by thirty (30) and the quotient resulting therefrom shall
then be divided by 4,000 square feet and the quotient resulting therefrom
shall be then added to the Monthly Base Rent as set forth for each month in
Paragraph 1(m) hereof and the sum resulting therefrom shall be deemed the
Monthly Base Rent under this Lease.
ADDENDUM TO PARAGRAPH 4(a) ENTITLED "DELIVERY OF POSSESSION". Anything
contained in the Lease to contrary notwithstanding, if Landlord is unable to
deliver possession of the Premises to Tenant in accordance with the Work
Letter Agreement attached as Exhibit "C", Landlord shall not be subject to
any liability for the failure to so deliver possession, and such failure
shall not affect the validity of this Lease nor the obligations of Tenant
hereunder, nor extend the Term; provided however, the Monthly Base Rent
accruing from and after the Commencement Date, shall be abated in an amount
equal to two (2) days rent for each one (1) day by which the date of delivery
of possession of the Premises exceeds the date of delivery of possession of
the Premises called for in the Work Letter Agreement attached as Exhibit "C".
If and to the extent that Landlord is unable to deliver timely possession of
the Premises to Tenant in accordance with the Work Letter Agreement due to
delays by Tenant or failure by Tenant to timely provide Landlord with plans,
specifications, information, approvals, consents or the like, as required in
accordance with the Work Letter Agreement, or under this Lease, then delivery
of the Premises shall be the date on which possession would have been
delivered but for the delays and/or failures of Tenant and the Monthly Base
Rent shall accrue in accordance with the Commencement Date as provided in the
Lease and Tenant shall not be entitled to any abatement of rent. In addition,
if and to the extent that Landlord is unable to deliver timely possession of
the Premises to Tenant in accordance with the Work Letter Agreement due to
delays caused by any law, regulation, ordinance, interpretation or order of
any public agency or insurance carrier or landlord's inability
(notwithstanding Landlord's due diligence) to obtain building permits or
other delays beyond the reasonable control of Landlord, or delays due to
special lead items requested by Tenant, Tenant shall not be entitled to any
abatement of rent for any delays and/or failures resulting therefrom.
If Landlord does not deliver possession of the Premises to Tenant on or
before October 3, 1994, for reasons other than (i) delays by Tenant, (ii)
Tenant's failure to timely provide Landlord with plans, specifications,
information, approvals, consents or the like as required by the Work Letter
Agreement, (iii) delays due to special lead items requested by Tenant, (iv)
delays caused by any law, regulation, ordinance, interpretation or order of
any public agency or insurance carrier, (v) delays caused landlord's
inability (notwithstanding Landlord's due diligence) to obtain building
permits, or (vi) other delays beyond the reasonable control of Landlord, then
Tenant may terminate this Lease by giving notice to Landlord on or before
October 10, 1994 and, in such event, neither party shall have any further
duty, liability or responsibility to the other on account of this Lease from
and after the date notice is given to Landlord of Tenant's termination of
this Lease.
ADDENDUM TO PARAGRAPH 22(e) ENTITLED "WAIVER OF SUBROGATION". Anything
contained in the Lease to the contrary notwithstanding, any policy or
policies of fire, extended coverage or similar casualty insurance or of
liability insurance that either party obtains in connection with the Premises
or Tenant's personal property therein shall, to the extent the same can be
obtained without undue expense, include a clause or endorsement denying the
insurer any rights of subrogation against the other party to the extent
rights have been waived by the insured prior to the occurrence of injury or
loss. Landlord and Tenant waive any rights of recovery against the other for
injury or loss due to hazards covered by insurance containing such a waiver
of subrogation clause or endorsement to the extent of the injury or loss
covered thereby.
"LANDLORD"
MIP PROPERTIES, INC.
a Maryland Corporation
Dated: 8-4-94 By: /s/ [illegible]
-------------------- ---------------------------------
Its: Vice President
--------------------------------
"TENANT"
NEPTUNE SYSTEMS, INC.
a Pennsylvania Corporation
Dated: 8-1-94 By: /s/ [illegible]
-------------------- ---------------------------------
Its: President
--------------------------------
