EXHIBIT 10.6
SAN DIEGO TECH CENTER
R & D BUILDING LEASE BETWEEN
SORRENTO TECH ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP
AND
WIRELESS FACILITIES INC., A NEW YORK CORPORATION
BASIC LEASE TERMS OF R & D BUILDING LEASE
BETWEEN
SORRENTO TECH ASSOCIATES
AND
WIRELESS FACILITIES INC.
The following Basic Lease Terms constitute a general summary for the San
Diego Tech Center R & D Building Lease to which they are attached. This
summary is for convenience only; the terms and provisions of the Lease attached
hereto are controlling.
1. Landlord: Sorrento Tech Associates, a California limited partnership.
2. Tenant: Wireless Facilities Inc., a New York Corporation.
3. Premises: Approximately 5,695 rentable square feet in the building
located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, commonly
known as Xxxxx 000 xx Xxxxxxxx 0 of the San Diego Tech Center.
4. Lease Term: 33 Months.
5. Commencement Date: December 1, 1996.
6. Rent:
(a) Initial Term Rent:
(i) Months 1-9: $.80 NNN per rentable square
foot per month.
(ii) Months 10-21: $.85 NNN per rentable square
foot per month.
(iii) Months 22-33: $.90 NNN per rentable square
foot per month.
(b) Additional Charges:
Tenant's Share of Building Expenses = 12.6%.
Tenant's Share of Project Expenses = .9%.
7. Security Deposit: $6,150.00.
8. Permitted Use: General office, research and development uses.
9. Tenant Improvement Allowance: $2,000.00
10. Insurance: Tenant to obtain insurance as described in Section 16 of the
Lease.
11. Address for Payments and Notices to Landlord:
c/o Sentre Partners
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000.
12. Address for Notices to Tenant:
Wireless Facilities Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
TABLE OF CONTENTS
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Page
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1. Definitions......................................................... 1
1.1 Location of Definitions..................................... 1
2. Premises............................................................ 2
2.1 Premises/Building/Building Real Property Defined............ 2
2.2 Building Common Area Defined................................ 2
2.3 Project Defined............................................. 2
2.4 Project Common Area and Project Real Property Defined....... 3
2.5 Rentable Area Defined....................................... 3
2.6 Building Rentable Area Defined.............................. 3
2.7 Project Rentable Area Defined............................... 3
3. Term................................................................ 4
3.1 Initial Term................................................ 4
4. Rent; Additional Charges............................................ 4
4.1 Rent........................................................ 4
4.2 Additional Charges.......................................... 4
4.3 Manner of Payment........................................... 4
5. Additional Charges for Expenses..................................... 5
5.1 Definitions................................................. 5
5.2 Special Allocations......................................... 10
5.3 Payment of Tenant's Building Share and Tenant's Project
Share of Building Expenses and Project Expenses............. 10
5.4 Partial Year Adjustments.................................... 11
5.5 Tenant's Right to Audit Landlord's Records.................. 11
5.6 Objections to Statements.................................... 11
6. Security Deposit.................................................... 12
6.1 Landlord's Obligations...................................... 12
7. Acceptance of Premises.............................................. 12
7.1 Acceptance of Premises...................................... 12
7.2 Tenant Improvement Allowance................................ 13
8. Common Areas........................................................ 13
8.1 Right to Use Common Area................................... 13
8.2 Alteration of Building or Project Common Areas.............. 13
9. Use................................................................. 14
9.1 Office Use.................................................. 14
9.2 No Nuisance................................................. 14
9.3 Compliance with Laws........................................ 14
9.4 Hazardous Materials......................................... 14
10. Alterations and Tenant's Property................................... 16
10.1 Alterations Defined......................................... 16
10.2 Removal of Property......................................... 16
11. Repairs and Other Work.............................................. 17
12. Liens............................................................... 17
13. Subordination....................................................... 18
14. Inability to Perform................................................ 19
15. Destruction......................................................... 19
15.1 Repair...................................................... 19
15.2 Tenant's Right to Terminate................................. 20
15.3 Landlord's Right to Terminate............................... 20
15.4 Extent of Repair Obligations................................ 20
15.5 Arbitration................................................. 21
15.6 Non- Application of Certain Statutes.................... 21
16. Insurance......................................................... 21
16.1 Insurance on Tenant's Property.......................... 21
16.2 Tenant's Liability Insurance............................ 22
16.3 Form of Policies........................................ 22
16.4 Compliance with Insurance Requirements.................. 23
16.5 Landlord's Insurance.................................... 23
17. Eminent Domain.................................................... 23
17.1 Effect of Taking........................................ 23
17.2 Award................................................... 24
17.3 Abatement of Rent....................................... 24
17.4 Temporary Taking........................................ 24
18. Assignment........................................................ 24
18.1 Consent Required........................................ 24
18.2 Notice.................................................. 25
18.3 No Release.............................................. 25
18.4 Cost of Processing Request.............................. 26
18.5 Corporation or Partnership Transfers.................... 26
18.6 Assumption of Obligations............................... 26
18.7 No Signs................................................ 26
18.8 Upon Termination........................................ 27
19. Utilities and Services............................................ 27
19.1 Landlord to Furnish..................................... 27
19.2 Excess Usage............................................ 27
19.3 Interruption of Service................................. 27
19.4 Security Systems and Programs........................... 28
19.5 No Liability............................................ 28
20. Default........................................................... 28
20.1 Events Constituting Default............................. 28
20.2 Remedies................................................ 29
20.3 Remedies Cumulative..................................... 31
20.4 Recovery Against landlord............................... 31
20.5 Events of Default by Landlord........................... 31
21. Insolvency or Bankruptcy.......................................... 32
22. Fees and Expenses; Indemnity; Payment............................. 33
22.1 Landlord's Right to Remedy Defaults..................... 33
22.2 Indemnity............................................... 33
22.3 Assumption of Risk...................................... 34
22.4 Payment of Sums Due..................................... 34
22.5 Interest on Past Due Obligations; Service Charge........ 34
23. Access to Premises................................................ 35
23.1 Landlord's Right to Enter............................... 35
23.2 Means of Entry.......................................... 35
24. Notices........................................................... 36
25. No Waiver......................................................... 36
26. Tenant's Certificates............................................. 37
27. Rules and Regulations............................................. 37
28. Tenant's Taxes.................................................... 37
29. Authority......................................................... 38
30. Miscellaneous..................................................... 38
30.1 Asbestos Disclosure..................................... 38
30.2 Financial Statements.................................... 38
30.3 References.............................................. 38
30.4 Successors and Assigns.................................. 39
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30.5 Severability 39
30.6 Construction 39
30.7 Integration 40
30.8 Surrender 40
30.9 Quiet Enjoyment 40
30.10 Holding Over 40
30.11 Time of Essence 41
30.12 Broker's Commissions 41
30.13 No Merger 41
30.14 Consents 41
30.15 Survival 41
30.16 Amendments 41
30.17 Attorney's Fees 42
30.18 Arbitration of Disputes 42
30.19 Early Termination of Lease 44
EXHIBIT A - Floor Plan
EXHIBIT B - Site Plan
EXHIBIT D - Rules and Regulations
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SAN DIEGO TECH CENTER
OFFICE BUILDING LEASE BETWEEN
SORRENTO TECH ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP
AND WIRELESS FACILITIES INC., A NEW YORK CORPORATION
THIS LEASE, dated as of November 15, 1995, for purposes of reference
only, is made and entered into by and between SORRENTO TECH ASSOCIATES, a
California limited partnership ("Landlord"), and WIRELESS FACILITIES INC., a New
York Corporation ("Tenant").
Landlord and Tenant hereby covenant and agree as follows:
1. Definitions.
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1.1 Location of Definitions. For convenience of reference only, the
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following terms are defined in the Section indicated:
(a) AAA - 30.18(a)
(b) Additional Charges - 4.2
(c) Alterations - 10.1
(d) Asbestos Reports - 30.1
(e) Assignment - 18.1
(f) Building - 2.1
(g) Buildings - 2.3
(h) Building Common Area(s) - 2.2
(i) Building Expenses - 5.1(c)
(j) Building Real Property - 2.1
(k) Building Rentable Area - 2.6
(l) Commencement Date - 3.1
(m) Damaged Property - 15.1
(n) Expiration Date - 3.1
(o) Hazardous Material - 9.4
(p) Landlord's Expense Statement - 5.3
(q) Partial Year - 5.4
(r) Premises - 2.1
(s) Project - 2.3
(t) Project Common Area(s) - 2.4
(u) Project Expenses - 5.1(d)
(v) Project Real Property - 2.4
(w) Project Rentable Area - 2.7
(x) Real Estate Taxes - 5.1(a)
(y) Related Entities - 22.2
(z) Relocation Notice - 30.19
(aa) Rent - 4.1
(ab) Rentable Area - 2.5
(ac) Security Deposit - 6
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(ad) Space Plan - 7.1
(ae) Sublease - 18.1
(af) Substitute Premises - 30.19
(ag) Commencement Date - 3.1
(ah) Tenant Improvements - 7.1
(ai) Tenant Owned Property - 10.2
(aj) Tenant's Agents - 22.2
(ak) Tenant's Building Share - 5.1 (e)
(al) Tenant's Delay - 3.1
(am) Term - 3.1
(a0) The worth at the time of award - 20.2(f)
2. Premises.
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2.1 Premises/Building/Building Real Property Defined. Subject to
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the terms, covenants and conditions hereinafter set forth, Landlord hereby
leases to Tenant and Tenant hereby hires from Landlord those premises (the
"Premises") consisting of the area shown on the floor plan(s) attached hereto as
Exhibit "A" located in the building located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, commonly known as Building 3 of the San Diego Tech Center (the
"Building"). The Building and the real property upon which the Building is
located, together with the utilities, facilities, drives, walkways and other
amenities directly appurtenant to and servicing the Building are herein
sometimes collectively called the "Building Real Property". The exact boundary
of the Premises shall be constructed, and shall extend to the unfinished
surface of all floors and the underside of the structural concrete slab forming
the ceiling of the Premises. Landlord shall have the right at Landlord's sole
discretion to lease portions of the Building for retail and other uses from time
to time, and Landlord makes no representations or warranties as to the character
of nature of any of the tenancies in the Building. Landlord shall have the
exclusive right to determine the nature, location, and mix of tenants of the
Building and of the Project and all other matters relating to the operation
thereof.
2.2 Building Common Area Defined. The terms "Building Common Area"
----------------------------
and "Building Common Areas" shall mean spaces, facilities, and installations
such as toilets, janitor, telephone, electrical, and mechanical rooms and
closets, trash facilities, stairs, public lobbies, corridors and other
circulation areas, wherever located in the Building, and all other areas of
the Building not leased or intended by Landlord to be leased to tenants, as may
be designated by Landlord from time to time.
2.3 Project Defined. The Building is part of a real estate project
---------------
commonly known as the San Diego Tech Center (the "Project"). For
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purposes of this Lease, the Project shall be deemed to consist of the Building,
Buildings 1,2, 3D, 4, 5A, 5B and 5C, a free-standing restaurant, a free-standing
athletic club, an aerobic center, a racquetball court, two tennis courts, two
volleyball courts, walking/running paths, landscape, sidewalks and adjacent
parking areas and all appurtenances to the foregoing, all as shown on the site
plan attached hereto as Exhibit "B". The Building and Buildings 1,2, 3D, 4, 5,
5A, 5B and 5C (including common areas within said Buildings) are sometimes
herein collectively called the "Buildings").
2.4 Project Common Area and Project Real Property Defined.
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The term "Project Common Area" and "Project Common Areas" shall mean all
portions of the Project other than (i) the Buildings (but including the aerobic
center and racquetball court if they are located in any of the Buildings), and
(ii) the Building Common Areas. The real property upon which the Project Common
Areas are located, together with the utilities, facilities, drives, walkways and
other amenities appurtenant to or servicing the Project Common Areas, are
herein sometimes collectively called the "Project Real Property." Tenant
acknowledges and agrees that Landlord, in its sole discretion, may relocate,
eliminate, alter or otherwise make such decisions with respect to the various
components or Project Common Areas as Landlord in good xxxxx xxxxx appropriate.
2.5 Rentable Area Defined. For purposes of this Lease, the "Rentable
---------------------
Area" of the Premises shall be 5,695 rentable square feet; provided, however,
that Landlord makes no representations or warranties as to the exact square
footage in the Premises. Tenant, at Tenant's expense, reserves the right to have
the Premises. Tenant, as Tenant's expense, reseves the right to have the
Premises measured by a qualified architect using BOMA standards. If the results
of such measurement indicate that the Rentable Areas as stated in this Lease is
inaccurate, then Rentable Area shall be adjusted accordingly by written
amendment to this Lease.
2.6 Building Rentable Area Defined. For purposes of this Lease, the
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"Building Rentable Area" shall be 45,145 rentable square feet, consisting of
rentable square feet in the Building; provided, however, that Landlord makes no
representations or Warranties as to the exact square footage in the Building.
2.7 Project Rentable Area Defined. For purposes of this Lease, the
-----------------------------
"Project Rentable Area" shall be 632,809 square feet, consisting of rentable
square feet contained in the Buildings; provided, however, that Landlord makes
no representations or warranties as to the exact square footage in the Project.
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3. Term.
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3.1 Term. The parties intend that the initial term of this Lease (the
----
"Term") shall be thirty-three months and shall commence on December 1, 1996 (the
"Commencement Date"), and shall expire on August 31, 1999, unless sooner
terminated pursuant to the terms of this Lease. The date on which this Lease
expires shall be referred to herein as the "Expiration Date." If the Premises is
ready for occupancy prior to the Commencement Date then Tenant shall be allowed
early occupancy of the Premises.
4. Rent; Additional Charges.
------------------------
4.1 Rent. Tenant shall pay to Landlord $.80 NNN per month per
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rentable square foot for months 1-9, and $.85 NNN per month per rentable square
foot for months 10-21, and $.90 NNN per month per rentable square foot for
months 22-33. Rent shall be payable by Tenant monthly beginning on the
Commencement Date and thereafter on or before the first day of each month, in
advance. If Rent is not received by the tenth day of the month, then Tenant will
incur a late fee of $500.00 and be subject to interest charges as set forth in
Section 22.5. The first time Rent is late, Landlord agrees to issue Tenant a
warning and not assess the late fee. If the Commencement Date should occur on a
day other than the first day of a calendar month, or the Expiration Date should
occur on a day other than the last day of a calendar month, then the Rent for
such fractional month shall be prorated upon a daily basis based upon a thirty
(30) day calendar month, and based upon the rate for the immediately following
or preceding month.
4.2 Additional Charges. Tenant shall pay to Landlord in equal
------------------
monthly installments on or before the first day of each month, in advance and at
the place where the Rent is payable, all charges, fees and expenses and other
amounts whatsoever as provided in or due under this Lease ("Additional
Charges"), including without limitation all amounts due pursuant to the
provisions of Article 5 and the Exhibits hereto. Landlord shall have the same
remedies for Tenant's failure to pay any item of Additional Charges when due as
for failure to pay any installment of Rent when due. For purposes of determining
Landlord's remedies in the event of Tenant's default and calculatimg amounts due
thereunder, Additional Charges shall be deemed to be Rent. Except as otherwise
provided in this Lease, Landlord shall maintain the Building and Project in good
order, condition and repair, which costs shall be included in Additional Charges
hereunder.
4.3 Manner of Payment. All payments of Rent and Additional Charges
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shall be made without prior demand and without offset, deduction
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or counterclaim, in lawful money of the United States of America. Such payments
shall be made at the address for Landlord specified herein or at such other
place as Landlord shall designate from time to time.
5. Additional Charges for Expenses.
-------------------------------
5.1 Definitions. For purposes of this Article 5, the following terms
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shall have the following meanings:
(a) "Real Estate Taxes" shall mean all general real property
taxes and general and special assessments, transit charges or fees, fees or
assessments, housing fund assessments, payments in lieu of taxes, and any tax,
fee or excise levied or assessed (whether at the date of this Lease or
thereafter) (i) on the Building Real Property or Project Real Property, any
portion thereof or Landlord's interest therein, or Landlord's personal property
used in the operation of the Building or the Project Common Areas, (ii) on the
use or occupancy of the Building Real Property or the Project Real Property or
any portion thereof, including any tax or levy made against Rent, Additional
Charges, or gross receipts from the Building or the Project Common Areas, (iii)
in connection with the business of renting space in the Building or the Project
Common Areas, or (iv) as a result of the transfer of any interest in the
Building Real Property or Project Real Property or any portion thereof or
interest therein, that are now or hereafter levied or assessed by the United
States of America, the State of California, or any political subdivision, public
corporation, district or other political or public entity. Real Estate Taxes
shall also include any other tax, fee or other excise, however described, that
may be levied or assessed as a substitute for, in whole or in part, any other
Real Estate Taxes. Real Estate Taxes shall not include income, franchise,
inheritance or capital stock taxes, unless, resulting from a change in the
method of taxation, any of such taxes is levied or assessed against Landlord as
a substitute for, in whole or in part, any other tax, assessment or charge that
would otherwise constitute a Real Estate Tax. Real Estate Taxes shall not
include those amounts payable by Tenant pursuant to Section 28, or similar
amounts attributable to other tenants of the Building.
(b) Notwithstanding anything to the contrary contained herein,
Real Estate Taxes shall not include income tax, excess profits or revenue tax,
---
excise tax, inheritance tax, gift tax, gains tax, franchise tax, transfer tax
(as opposed to increases in Real Estate Taxes resulting from a transfer of any
interest in the Building Real Property or Project Real Property), corporation
tax, capital levy, estate, succession or other similar tax or charge that may be
payable by or chargeable to Landlord under any present or future laws.
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(c) "Building Expenses" shall mean the costs and expenses
directly and reasonably paid or incurred by Landlord in connection with the
management, operation, maintenance and repair of the Building, including,
without limitation, (i) Real Estate Taxes related to the Building Real Property,
(ii) the cost of heating, ventilation, air conditioning, steam, electricity,
gas, domestic water, sewer services, mechanical, elevator and other systems and
all other utilities, and the cost of supplies and equipment and maintenance and
service contracts in connection therewith, (iii) the cost of repairs,
replacements, general maintenance and cleaning, trash removal and other service
agreements, (iv) the cost of such fire, extended coverage, boiler, sprinkler,
apparatus, public liability, property damage, rent, earthquake and other
insurance as Landlord is required to carry under this Lease or reasonably deems
it appropriate to carry or is required to carry by any mortgagee under any
mortgage against the Building Real Property or any portion thereof or interest
therein with respect to the Building or any of Landlord's or a property
manager's personal property used in the operation of the Building, (v) the cost
of any capital improvements made to the Building after the date of this Lease as
a labor-saving measure or to effect other economies in the operation or
maintenance of the Building to the extent such improvements result in a
reduction of Building Expenses (amortized over such reasonable period as
Landlord shall determine), or made to the Building after the date of this Lease
that are required under any governmental law or regulation that was not
applicable to the Building at the date of this Lease (amortized over the useful
life of the improvement), together with interest on the unamortized balance(s)
at the rate of ten percent (10%) per annum or such higher market rate as may
have been paid by Landlord on funds borrowed for the purpose of constructing
such capital improvements, (vi) costs of maintenance, repair and replacement of
the roof of the Building, (vii) all supplies, materials, equipment and tools
used in the management, operation and maintenance of the Building, including any
rental fees, (viii) all costs and fees for licenses, inspections or permits that
Landlord may be required to obtain with respect to the Building, (ix) exterior
and interior landscaping, and (x) any other reasonable expenses of any other
kind whatsoever reasonably incurred in managing, operating, maintaining and
repairing the Building. Building Expenses shall not include any of the
---
following: (a) legal fees, brokerage commissions, advertising costs or other
related expenses incurred in connection with the leasing of the Building; (b)
repairs, alterations, additions, improvements or replacements made to rectify or
correct any defect in the design, materials or workmanship of the Building or
Building Common Areas; (c) costs incurred in connection with damage or repairs
which are covered under any insurance policy carried by Landlord in connection
with the Building or Building Common Areas; (d) costs associated with damage or
repairs to the Building or Building Common Areas necessitated by the
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willful negligence or willful misconduct of Landlord or Landlord's agents; (e)
executive salaries or salaries of service personnel to the extent that such
salaries are payable in connection with services other than in connection with
the management, operation, repair or maintenance of the Building or Building
Common Areas; (f) the cost of off-site service personnel to the extent that such
personnel are not engaged in the management, operation, repair or maintenance of
the Building or Building Common Areas; (g) Landlord's general overhead expenses
not related to the Building Common Areas; (h) payments of principal or interest
on any mortgage or other encumbrance (other than those related to capital
improvements as provided herein); (i) legal fees, accountant fees, and other
expenses incurred in connection with disputes with other tenants or occupants of
the Building or associated with the enforcement of any other leases or defense
of Landlord's title to or interest in the Building or any part thereof; (j)
costs (including permit, license and inspection fees) incurred in renovating or
otherwise improving, decorating, painting or altering space for other tenants or
other occupants of vacant space in the Building; (k) costs incurred due to a
violation of Landlord or any other tenant in the Building of the terms and
conditions of any lease; (l) services or installations furnished to any tenant
in the Building which are not furnished to Tenant or quantities of such services
furnished to any tenant in the Building which are also furnished to Tenant but
are furnished to other tenants in an amount materially in excess of that which
would represent a fair proportion of such services; and (m) the cost of any
service provided to Tenant or other occupants of the Building for which Landlord
is entitled to be reimbursed. Landlord shall not collect in excess of one
hundred percent (100%) of all Building Expenses.
(d) "Project Expenses" shall mean the costs and expenses directly
and reasonably paid or incurred by Landlord in connection with the management,
operation, maintenance and repair of the Project Common Areas, including,
without limitation (i) Real Estate Taxes related to Project Real Property, (ii)
the cost of heating, ventilation, air conditioning, steam, electricity, gas,
domestic water, sewer services, mechanical, elevator and other systems and all
other utilities, and the costs of supplies and equipment and maintenance and
service contracts in connection therewith, (iii) the cost of repairs,
replacements, general maintenance and cleaning, including the cost of janitorial
and other service agreements and trash removal, (iv) the cost of such fire,
extended coverage, boiler, sprinkler, apparatus, public liability, property
damage, rent, earthquake and other insurance as landlord reasonably deems it
appropriate to carry or is required to carry by any mortgagee under any mortgage
against the Project Common Areas or any portion thereof or interest therein with
respect to the Project Common Areas or any of Landlord's or a property
manager's personal property used
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in the operation of the Project Common Areas, (v) wages, salaries and other
labor costs of all on-site employees, and all off-site employees to the extent
engaged in the operation, management, maintenance and security of the Project,
including taxes, insurance, retirement, medical and other employee benefits, but
excluding leasing commission, (vi) fees, charges and other costs, including
property management fees, consulting fees, attorneys' fees and accounting fees
of all independent contractors engaged by Landlord, and all such fees reasonably
charged by Landlord if Landlord performs management services in connection with
the Project, (vii) the cost of supplying, replacing and cleaning employee
uniforms, (viii) the fair market rental value of Landlord's or the property
manager's offices in the Project (which shall be of reasonable size), to the
extent utilized for the management or operation of the Project, (ix) the costs
of any capital improvements made to the Project Common Areas after the date of
this Lease as a labor-saving measure or to effect other economies in the
operation or maintenance of the Project Common Areas to the extent such
improvements result in a reduction of Project Expenses (amortized over such
reasonable period as Landlord shall determine), or made to the Project Common
Areas after the date of this Lease that are required under any governmental law
or regulation that was not applicable to the Project Common Areas at the date of
this Lease (amortized over the useful life of the improvement), together with
interest on the unamortized balance(s) at the rate of ten percent (10%) per
annum or such higher market rate as may have been paid by Landlord on funds
borrowed for the purpose of constructing such capital improvements, (x) costs of
maintenance, repair and replacement of the roof of any portion of the Project
Common Areas, (xi) all supplies, materials, equipment and tools used in the
management, operation and maintenance of the Project Common Areas, including any
rental fees, (xii) all costs and fees for licenses, inspections or permits that
Landlord may be required to obtain in connection with the Project Common Areas,
(xiii) expenses incurred for the maintenance of art work, streetscaping and
similar enhancements of the Project which in Landlord's judgment will benefit
the Project, and (xiv) any other reasonable expenses of any other kind
whatsoever reasonably incurred in managing, operating, maintaining and repairing
the Project Common Areas. Project Expenses shall not include any of the
---
following: (a) legal fees, brokerage commissions, advertising costs or other
related expenses in connection with the leasing of the Project; (b) repairs,
alterations, additions, improvements or replacements made to rectify or correct
any defect in the design, materials or workmanship of the Project or Project
Common Areas; (c) costs incurred in connection with damage or repairs which are
covered under any insurance policy carried by Landlord in connection with the
Project or Project Common Areas; (d) costs associated with damage or repairs to
the Project or the Project Common Areas necessitated by the willful negligence
or willful misconduct of Landlord or Landlord's
-8-
agents; (3) executive salaries or salaries of service personnel to the extent
that such salaries are payable in connection with services other than in
connection with the management, operation, repair or maintenance of the Project
or Project Common Areas; (f) the cost of off-site service personnel to the
extent that such personnel are not engaged in the management, operation, repair
or maintenance of the Project or Project Common Areas; (g) Landlord's general
overhead expenses not related to the Project or Project Common Areas; (h)
payments of principal or interest on any mortgage or other encumbrance (other
than those related to capital improvements as provided herein); (i) legal fees,
accountant fees and other expenses incurred in disputes with other tenants or
occupants of the Project or associated with the enforcement of any other leases
or defense of Landlord's title to or interest in the Project or any part
thereof; (j) costs (including permit, license and inspection fees) incurred in
renovating or otherwise improving, decorating, painting or altering space for
tenants or other occupants of vacant space in the Project; (k) costs incurred
due to a violation by Landlord or any other tenant in the Project of the terms
and conditions of any lease; (l) services or installations furnished to any
tenant in the Project which are not furnished to Tenant or quantities of such
services furnished to any tenant in the Project which are also furnished to
Tenant but are furnished to other tenants in an amount materially in excess of
that which would represent a fair proportion of such services; and (m) the cost
of any service provided to Tenant or other occupants of the Project for which
Landlord is entitled to be reimbursed. Landlord shall not collect in excess of
100% of all Project Expenses.
(e) "Tenant's Building Share" shall mean 12.6% (calculated by
dividing the Rentable Area of the Premises (5,695) by the Building Rentable Area
(45,145). Tenant's Building Share of Building Expenses shall normally be
computed by multiplying such percentage by Building Expenses, but shall be
subject to adjustment as a result of special allocations made pursuant to
Section 5.2 and the provisions of Section 5.3. If the Rentable Area of the
Premises is changed for any reason, Tenant's Building Share shall be modified by
multiplying the percentage specified in this Paragraph (e) by a fraction, the
numerator of which shall be the rentable area of the Premises after such change
and the denominator of which shall be the rentable area of the Premises
immediately before such change. If the rentable area of the Building is changed
as a result of any cause not within Landlord's reasonable control (for instance,
as a result of a reduction in area due to reconstruction following fire or the
exercise or threatened exercise of the right of eminent domain), then Tenant's
Building Share shall be recalculated by dividing the rentable area of the
Premises after such occurrence by the rentable area of the entire Building after
such occurrence.
-9-
(f) "Tenant's Project Share" shall mean .9% (calculated by dividing
Rentable Area in the Premises (5,695) by the Project Rentable Area (632,809).
Tenant's Project Share of Project Expenses shall normally be computed by
multiplying such percentage by Project Expenses, but shall be subject to
adjustment as a result of special allocations made pursuant to Section 5.2 and
the provisions of Section 5.3. If the rentable area of the Premises is changed
for any reason, Tenant's Project Share shall be modified by multiplying the
percentage specified in this Paragraph (f) by a fraction, the numerator of which
shall be the rentable area of the Premises after such change and the denominator
of which shall be the rentable area of the Premises immediately before such
change. If the rentable area of the Project is changed as a result of any cause
not within Landlord's reasonable control (for instance, as a result of a
reduction in area due to reconstruction following fire or the exercise or
threatened exercise of the right of eminent domain), then Tenant's Project Share
shall be recalculated by dividing the rentable area of the Premises after such
occurrence by the rentable area of the entire Project after such occurrence.
5.2 Special Allocations. Building Expenses and Project Expenses which are,
-------------------
in Landlord's reasonable discretion, properly chargeable solely to a single
tenant or a to a group of tenants shall be so allocated. Landlord shall endeavor
to make all such allocations fairly. Any amount so allocated to Tenant shall be
paid by Tenant as Additional Charges.
5.3 Payment of Tenant's Building Share and Tenant's Project Share of
----------------------------------------------------------------
Building Expenses and Project Expenses. Except as otherwise provided herein,
--------------------------------------
Landlord shall be responsible for the management, operation, maintenance and
repair of the Building and Project. Tenant shall pay to Landlord as Additional
Charges one twelfth (1/12th) of Tenant's Building Share of Building Expenses and
one twelfth (1/12th) of Tenant's Project Share of Project Expenses,
respectively, for each year on or before the first day of each month of such
year, in advance, in an amount reasonably estimated by Landlord and billed by
Landlord to Tenant; provided that Landlord shall have the right to revise such
estimate during any year. Within one hundred twenty (120) days after the
expiration of each year, Landlord shall furnish Tenant with a statement
("Landlord's Expense Statement"), certified as true and correct by an accounting
or auditing officer of Landlord or a property manager, setting forth in
reasonable detail the actual amount of Building Expenses and Project Expenses
for such year, and Tenant's Building Share of Building Expenses and Tenant's
Project Share of Project Expenses, respectively. If the actual amount of
Tenant's Building Share or Tenant's Project Share of Building Expenses or
Project Expenses, respectively, due for such year differs from the estimated
amount of Tenant's Building Share or Tenant's
-10-
Project Share of Building Expenses or Project Expenses, respectively, paid by
Tenant for such year, the difference shall be paid by Tenant within thirty (30)
days after the receipt of Landlord's Expense Statement, or refunded in cash to
Tenant within thirty (30) days after determination thereof, as the case may be.
Notwithstanding any other provision of this Lease, the aggregate sum of Tenant's
Building Share of Building Expenses and Tenant's Project Share of Project
Expenses payable by Tenant shall not exceed $.315 per rsf per month during the
first nine months of the Term, shall not exceed $.33 per rsf per month during
the following twelve months of the Term, shall not exceed $.345 per rsf per
month during the final twelve months of the Term.
5.4 Partial Year Adjustments. For the purpose of calculating Tenant's
------------------------
Building Share of Building Expenses and Tenant's Project Share of Project
Expenses, respectively, for the period between the Expiration Date or date of
early termination and the immediately preceding January 1 (each such period
being a "Partial Year"), Building Expenses and Project Expenses for the calendar
year in which the Partial Year occurs shall be reduced by multiplying such
amounts by a fraction, the numerator of which is the number of days in the
applicable Partial Year and the denominator of which is three hundred and sixty-
five (365), and monthly payments of Tenant's Building Share of estimated
Building Expenses and of Tenant's Project Share of Project Expenses shall be
based on the number of months in the applicable Partial Year.
5.5 Tenant's Right to Audit Landlord's Records. Within thirty (30) days
------------------------------------------
after Tenant's request, but not more than once per year., Landlord shall provide
Tenant with copies of Landlord's records relating to Building Expenses and
Project Expenses; provided, however, that Tenant shall reimburse Landlord for
the reasonable cost thereof. In the event of any dispute or uncertainty as to
said amounts, Tenant shall be entitled to review legible copies of all
Landlord's tax bills, invoices, files and records with respect to the disputed
items at the place where such materials are normally maintained, but not more
often than once per year.
5.6 Objections to Statements. Tenant acknowledges that landlord's
------------------------
ability to budget and incur expenses depends on the finality of Landlord's
Expense Statements and agrees that Tenant shall have sixty (60) days following
receipt of such Statements within which to raise any objection to the
calculations contained therein. Failure of Tenant to object within such sixty
(60) day period shall be deemed a waiver of any such objection, absent fraud or
manifest errors. Tenant shall continue to make all payments required hereunder
pending resolution of any such objection. No delay by Landlord in providing
any Statement
-11-
shall be deemed a default by Landlord or a waiver of Landlord's right to require
payment of Tenant's obligations for actual or estimated Building Expenses or
Project Expenses.
6. Security Deposit. This Lease shall be of no effect unless and until
----------------
Tenant deposits with Landlord Six Thousand One Hundred Fifty Dollars ($6,150.00)
in immediately available funds (the "Security Deposit") as security for the full
performance of Tenant's obligations under this Lease. Upon default by Tenant
with respect to the payment of any item of Rent or Additional Charges or any
other obligation contained herein, Landlord may use or retain all or any portion
of the Security Deposit for the payment of any Rent or Additional Charges or
other such sum in default or for the payment of any amount Landlord may spend or
may become obligated to spend by reason of Tenant's default. In the event any
portion of the Security Deposit is applied or used, Tenant shall, within five
(5) days after written notice thereof, deposit an additional amount with
Landlord sufficient to restore the Security Deposit to its original amount as
specified in their Section and Tenant's failure to do so shall constitute a
material breach of this lease. If Tenant is not in default under this Lease at
the termination hereof, Landlord shall return the Security Deposit to Tenant
within thirty (30) days after such termination, minus any amounts required to
restore the Premises to good condition and repair, including damage resulting
from removal by Tenant of its trade fixtures or equipment.
6.1 Landlord's Obligations. Landlord's obligation with respect to any
----------------------
Security Deposit is that of a debtor and not as a trustee, consequently such
sums may be commingled with rental receipts or dissipated and no interest shall
accrue thereon. In the event of the sale of the real property of which the
Premises constitute a part, Landlord or its agent shall transfer to Landlord's
successor in interest the sums held as Security Deposit and notify Tenant in
writing of such transfer and the name and address of Landlord's successor in
interest. Upon such written notification, Tenant shall have no further claim
against Landlord with respect to the Security Deposit.
7. Acceptance of Premises.
-----------------------
7.1 Acceptance of Premises. Tenant shall accept the Premises in "as
----------------------
is " condition, broom clean and free of other tenancies. LG InfoComm has
agreed to provide Tenant with use of their existing alarm system and network
cabling, which Landlord shall have no liability regarding the use or operation
thereof. By so accepting the Premises and thereafter occupying the Premises,
Tenant shall be deemed to have accepted the same and to have acknowledged that
the Premises fully comply with Landlord's obligations under this Lease.
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7.2 Tenant Improvement Allowance. Landlord shall provide Tenant
----------------------------
with a Tenant Improvement Allowance of $2,000.00 to be used towards the cost of
improvements within the Premises. Any improvements in excess of the allowance
shall be paid for by Tenant and all improvements shall be subject to the terms
as outlined in Section 11 of the Lease.
8. Common Areas.
------------
8.1 Right to Use Common Areas. Tenant and Tenant's Agents shall
-------------------------
have the right to use the Building Common Areas and Project Common Areas in
common with other persons, subject to Landlord's reasonable rules and
regulations and the provisions of this Lease. Landlord shall at all times
keep the Building Common Areas and Project Common Areas in good, clean, and
sanitary condition.
8.2 Alteration of Building or Project Common Areas. Landlord hereby
----------------------------------------------
reserves the right, at any time and from time to time, without liability to
Tenant of any kind whatsoever (including without limitation liability for loss
of business or profits), to make alterations or additions to the Building, the
Building Common Areas or the Project Common Areas; to change, add to, eliminate
or reduce the extent, size, shape, number or configuration of any aspect of the
Building, the Building Common Areas or the Project Common Areas or their
operations; to close the general public all or any portion of the Building, the
Building Common Areas or the Project Common Areas, to the extent and for the
period necessary to avoid any dedication to the public, to effect any repairs or
further construction, or in case of invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's reasonable
opinion; to change the arrangement, character, use or location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, landscaping,
toilets, mechanical, plumbing, electrical or other operating systems or any
other portions of the Building, the Building Common Areas or the Project Common
Areas; to change common area to rental space and rental space to common area; to
utilize portions of the common area for entertainment, displays, product shows,
the leasing of temporary or permanent kiosks or other such uses as, in
Landlord's judgment, tend to attract the public; and to change the name, number
or designation by which the Building is commonly known. Landlord shall have the
exclusive rights to the airspace above and around, and the subsurface below, the
Premises and other portions of the Building. Landlord shall have the exclusive
right to use all exterior walls, roofs and other portions of the Building,
including common areas, for signs, notices, and other promotional purposes.
Landlord shall, to the extent reasonably possible under the circumstances,
provide Tenant with advance notice of any such alterations which Landlord
reasonably
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anticipates will materially impair Tenant's use of the Premises, and shall
perform any such alterations in a manner so as to cause as little interference
with Tenant's use of the Premises as is reasonably possible; provided, however,
that Landlord shall not be obligated to perform work during other than normal
business hours. If such interruption persists more than five consecutive
business days, Rent hereunder shall be equitably abated as determined by
Landlord, in its sole reasonable discretion.
9. Use.
---
9.1 Office Use. The Premises shall be used for general office
----------
purposes only. Tenant shall be responsible for compliance with all zoning laws
and ordinances and Tenant acknowledges that neither Landlord nor its agents has
made any representations or warranties with respect thereto.
9.2 No Nuisance. Tenant shall not allow, suffer or permit the
-----------
Premises or any use thereof to constitute a nuisance or unreasonably interfere
with the safety, comfort or enjoyment of the Project by Landlord or any other
occupants of the Project or their customers, invitees or any others lawfully in,
upon or about the Project or its environs.
9.3 Compliance with Laws. Tenant, at Tenant's expense, shall comply
--------------------
with and cause all of Tenant's Agents to comply with all applicable laws,
ordinances, rules and regulations of governmental authorities applicable to the
Building and the Project Common Areas or the use or occupancy thereof.
9.4 Hazardous Materials. Tenant shall not cause or suffer or permit
-------------------
any Hazardous Materials to be brought upon, kept, used, discharged, deposited or
leaked in or about the Premises or any other portion of the Project by Tenant or
any of Tenant's Agents or by anyone in the Premises (other than Landlord or its
agents, employees or contractors), except to the extent such Hazardous Materials
are customarily kept or used by typical office tenants and are kept, used and
disposed of in strict compliance with all laws, ordinances and regulations
relating to Hazardous Materials. If Tenant breaches the obligations stated in
the preceding sentence, or if the presence of any Hazardous Material on the
Premises or any other portion of the Project caused or suffered or permitted by
Tenant or any of Tenant's Agents or by anyone in the Premises (other than
Landlord or its agents, employees or contractors) results in contamination of
the Premises or any other portion of the Project, or if contamination of the
Premises or any other portion of the Project by any Hazardous Material otherwise
occurs for
-14-
which Tenant is legally liable, then Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgments, damages, penalties, fines,
costs, liabilities, expenses and losses (including without limitation diminution
in value of the Project, damages for the loss of restriction on use of leasable
space or of any amenity of the Building or the Project, damages arising from any
adverse impact on marketing of space and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the term of this Lease as a result of such contamination. This indemnification
shall include, without limitation, costs incurred in connection with any
investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of any Hazardous Material present in the soil or
groundwater on or under the Premises or any other portion of the Project.
Without limiting the foregoing, if the presence of any Hazardous Material on the
Premises or any other portion of the Project caused or suffered or permitted by
Tenant or any of Tenant's Agents or by anyone in the Premises (other than
Landlord or its agents, employees or contractors) results in any contamination
of the Premises or any other portion of the Project, Tenant shall, at its sole
cost and expense, promptly take all actions necessary to return the Premises and
all other portions of the Project affected to the condition existing prior to
the introduction of any such Hazardous Material to the Premises or other
portions of the Project, provided that Landlord's approval of such actions shall
first be obtained which approval shall not be unreasonably withheld if such
actions would not potentially have any material adverse effect on the Premises
or any other portion of the Project.
"Hazardous Material" means any hazardous or toxic substance, material or
waste which is or becomes regulated by any local governmental authority, the
State of California or the United States Government. The term "Hazardous
Material" includes, without limitation, any material or substance which is (i)
defined as "hazardous waste," "extremely hazardous waste" or "restricted
hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to
Section 25140, of the California Health and Safety Code (Hazardous Waste Control
Law), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code (Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance
Account Act), (iii) defined as a "hazardous material," "hazardous substance" or
"hazardous waste" under Section 25501 of the California Health and Safety Code
(Hazardous Materials Release Response Plans and Inventory), (iv) defined as a
"hazardous substance" under Section 25281 of the California Health and Safety
Code (Underground Storage of Hazardous Substances), (v) listed under Article 9,
or defined as hazardous or extremely hazardous pursuant to Article 11, of Title
22 of the California
-15-
Code of Regulations, Division 4, Chapter 30, (vi) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1317), (vii) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq. (42 U.S.C. Section 6903), (viii) defined as a "hazardous
-- ----
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C.
-- ----
Section 9601), (ix) petroleum or (x) asbestos or asbestos-containing materials.
10. Alterations and Tenant's Property.
---------------------------------
10.1 Alterations Defined. Tenant shall not make or suffer or allow to
-------------------
be made any alterations, additions or improvements in or to the Premises (herein
collectively called "Alterations") without first obtaining Landlord's written
consent based on detailed plans and specifications submitted by Tenant (where
reasonably necessary). Landlord's consent may be withheld in Landlord's sole
discretion if Alterations may affect any portions of the Project containing
asbestos or may affect the structure or the mechanical, electrical, HVAC,
plumbing or life safety systems of the Building; otherwise Landlord's consent
shall not be unreasonably withheld.
10.2 Removal of Property. All Alterations shall become the property of
-------------------
Landlord, and shall be surrendered to Landlord, upon the expiration or earlier
termination of this Lease; provided, however, that this provision shall not
apply to movable equipment, trade fixtures, personal property or furniture
owned by Tenant ("Tenant Owned Property"). If Landlord's consent was required
for the installation of any Alteration(s), and Landlord conditioned its consent
upon the requirement that Tenant remove such Alteration(s) upon expiration or
earlier termination of this Lease, at Landlord's sole election, any or all
Alterations made by or on behalf of Tenant shall be removed from the Premises at
Tenant's sole cost and expense at the expiration or sooner termination of this
Lease and the Premises shall be restored, at Tenant's sole cost and expense, to
their condition before the making of such Alterations. Tenant shall repair at
its sole cost and expenses all damage caused to the Premises or the Building by
removal of any Alterations or Tenant Owned Property. Any Tenant Owned Property
not removed from the Premises before the expiration or earlier termination of
this Lease shall, at Landlord's option, become the property of Landlord, or
Landlord may remove them and Tenant shall pay to Landlord the cost of removal.
Tenant waives and releases its rights under Section 1019 of the California Civil
Code, or any similar law now or hereafter in effect, to the extent inconsistent
with the provisions of this Lease. Tenant shall have a one-time right to extend
the term of the lease for an additional
-16-
fifteen days (during which period Tenant shall pay rent) at the end of the term
to allow for the removal of any Tenant Owned Property.
11. Repairs and Other Work.
11.1 All repairs, replacements, and reconstruction (including without
limitation all Alterations) made by or on behalf of Tenant or any of Tenant's
Agents (as defined below) shall be made and performed (a) at Tenant's cost and
expense and at such time and in such manner as Landlord may reasonably
designate, (b) by contractors or mechanics reasonably approved by Landlord, (c)
at least equal in quality of materials and workmanship to the original work or
installation, (d) in accordance with such reasonable requirements as Landlord
may impose with respect to insurance and bonds to be obtained by Tenant in
connection with the proposed work, (e) in accordance with the Rules and
Regulations for the Building adopted by Landlord from time to time and in
accordance with all applicable laws and regulations of governmental authorities
having jurisdiction over the Premises, (f) so as not to interfere with the use
and enjoyment of the Building by Landlord, other tenants of the Building or any
other persons, and (g) in compliance with such other requirements as Landlord
may reasonably impose (including without limitation a requirement that Tenant
furnish Landlord with as-built drawings upon completion of the work). If
Landlord performs any work on Tenant's behalf pursuant to this Section, Tenant
shall pay in advance Landlord's reasonable estimate of the cost of such work,
subject to adjustment of final costs upon completion. Landlord shall not be
liable for, and there shall be no abatement of Rent or Additional Charges with
respect to, any injury to or interference with Tenant's business arising from
any injury to or interference with Tenant's business arising from any repairs,
maintenance, alteration or improvement in or to any portion of the Building,
including the Premises, or in or to the fixtures, appurtenances and equipment
therein. Tenant hereby waives and releases its rights under Sections 1941,
1941.1 and 1942 of the California Civil Code or under any similar law now or
hereafter in effect, except to the extent expressly provided herein. Tenant
specifically waives all rights to consequential damages (including without
limitation damages for lost profits and lost opportunities) arising in
connection with any repairs, maintenance, alteration or improvement in or to any
portion of the Building.
12. Liens
12.1 Tenant shall keep the Premises and the Building Real Property
free from any liens arising out of any (a) work performed or material furnished
to or for the Premises between the time Tenant has been provided access to the
Premises and the time Tenant surrenders possession of the Premises (at or after
expiration or earlier termination
-17-
of the Lease), or (b) obligations incurred by or for Tenant or any of Tenants'
Agents before or during the term of this Lease. In the event that Tenant shall
not, within thirty (30) days following notice of the imposition of any such
lien, cause same to be released of record by payment or posting of a bond fully
satisfactory to Landlord in form and substance, Landlord shall have, in addition
to all other remedies provided herein and by law, the right (but not the
obligation) to cause the lien to be released by such means as Landlord shall
reasonably deem proper, including payment of the claim giving rise to such lien.
All such sums reasonably paid by Landlord and all expenses incurred by it in
connection therewith shall be considered Additional Charges and shall be payable
by Tenant within thirty (30) days after demand. Landlord shall have the right at
all times to post and keep posted on the Premises any notices permitted or
required by law, or that Landlord shall deem proper for the protection of
Landlord, the Premises, the Building Real Property and any other party having an
interest therein, from mechanics', materialmen's and other liens. In addition to
all other requirements contained in this Lease, Tenant shall give to Landlord at
least ten (10) business days prior written notice of commencement of any
construction on the Premises.
13. Subordination.
-------------
13.1 Tenant agrees that this Lease shall be subject and subordinate at
all times to (a) all ground leases or underlying leases that may now exist or
hereafter be executed affecting the Building Real Property or any portion
thereof, (b) the lien of any mortgage or other security instrument (and any
advances thereunder) that may now exist or hereafter be executed in any amount
for which the Building Real Property or any portion thereof, any ground leases
or underlying leases, or Landlord's interest or estate therein is specified as
security; and (c) all modifications, renewals, supplements, consolidations and
replacements thereof. Notwithstanding the foregoing, Landlord shall have the
right to subordinate or cause to be subordinated to this Lease any such ground
leases, underlying leases or liens. If any ground lease or underlying lease
terminates for any reason or any mortgage or other security instrument is
foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant
shall, notwithstanding any subordination, attorn to and become the tenant of the
successor in interest to Landlord at the option of such successor in interest.
Tenant covenants and agrees to execute and deliver, within ten (10) calendar
days after demand by Landlord and in the form reasonably requested by Landlord,
any additional documents evidencing the priority or subordination of this Lease
with respect to any such ground leases, underlying leases, mortgages, or other
security instruments. Tenant's obligation to subordinate shall be conditioned
upon Tenant's receipt of a non-disturbance agreement.
-18-
14. Inability to Perform.
--------------------
14.1 Except to the extent expressly provided herein, if, by reason of
acts of God, governmental restrictions, strikes, labor disturbances, shortages
of materials or supplies or any other cause or event beyond Landlord's
reasonable control, Landlord is (i) unable to furnish or is delayed in
furnishing any utility or service required to be furnished by Landlord under the
provisions of Article 19, any other Article of this Lease, or any collateral
instrument, (ii) unable to perform or make or is delayed in performing or making
any installations, decorations, repairs, alterations, additions or improvements,
required to be performed or made under this Lease or under any collateral
instrument, or (iii) unable to fulfill or is delayed in fulfilling any of
Landlord's other obligations under this Lease or any collateral instrument, no
such inability or delay shall (a) constitute an actual or constructive eviction,
in whole or in part, (b) entitle Tenant to any abatement or diminution of Rent
or Additional Charges, (c) relieve Tenant from any of its obligations under this
Lease, or (d) impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant or by reason of injury to or interruption
of Tenant's business, or otherwise. Tenant hereby waives and releases its right
to terminate this Lease under Section 1932(1) of the California Civil Code or
under any similar law, statue or ordinance now or hereafter in effect, except to
the extent expressly provided herein. If such interruption persists more than
five consecutive business days, Rent hereunder shall be equitably abated as
determined by Landlord, in its sole reasonable discretion.
15. Destruction.
-----------
15.1 Repair. If any portion of the Building is damaged by fire,
------
earthquake, flood or other casualty (the "Damaged Property") to the extent that
such portion is rendered unusable by Tenant or renders a portion of the Premises
unusable by and the Damaged Property can, in Landlord's reasonable opinion, be
repaired within one hundred twenty (120) days after the date of damage (under a
normal construction schedule not requiring the payment of overtime or premium),
Landlord shall proceed immediately to make such repairs in accordance with
Section 15.4 below (unless this Lease is terminated pursuant to this Article
15). Landlord's opinion shall be delivered to Tenant within thirty (30) days
after the date of the damage. Landlord shall consider and include as part of its
evaluation, the period of time necessary to obtain the required approvals of the
mortgagee and insurer and governmental entities, to order and obtain materials,
and to engage contractors. Notwithstanding anything to the contrary herein, the
total destruction of the Building shall automatically terminate this Lease as of
the date of destruction.
-13-
15.2 Tenant's Right to Terminate. If such damage causes all
---------------------------
or any material portion of the Premises to be unusable by Tenant and (i) in
Landlord's reasonable opinion damage to the Damaged Property cannot be repaired
within one hundred twenty (120) days from the date of the damage (under a normal
construction schedule not requiring the payment of overtime or premium), Tenant
may terminate this Lease by delivery of written notice to Landlord within thirty
(30) days after the date of which Landlord's opinion is delivered to Tenant.
Upon termination, Rent and Additional Charges pursuant to Article 4 shall be
apportioned as of the date of the damage and all prepaid Rent and Additional
Charges pursuant to Article 4 shall be repaid.
15.3 Landlord's Right to Terminate. In the event (i) the
-----------------------------
uninsured portion of any damage to or destruction of the Building equals or
exceeds twenty-five percent (25%) of the replacement cost of the Building; or
(ii) the Lease will expire within one (1) year from the date of any material
damage to or destruction of the Premises and Tenant fails to extend the term in
accordance with any right expressly granted in this Lease within thirty (30)
days after the date of damage, Landlord may elect to terminate this Lease as
hereinafter provided. Landlord may terminate this Lease for the reason stated
in clause (i) of this Section, by delivery of written notice to Tenant within
thirty (30) days after the date of damage or destruction; and for the reason
stated in clause (ii) of this Section, by delivery of written notice to Tenant
within forty-five (45) days after the date of the damage or destruction. For
purposes of the foregoing, the uninsured portion shall not include a deficiency
in insurance proceeds to the extent caused by (i) Landlord's failure to carry
insurance required by this Lease: (ii) Landlord's election to carry require
insurance in an amount less than 100% of the replacement costs; or (iii)
Landlord's election to obtain insurance with a deductible amount or
coinsurance obligations.
15.4 Extent of Repair Obligations. If this Lease is not terminated as a
----------------------------
result of any damage to the Premises covered by Section 15.1 above, Landlord's
repair obligation shall extend to the structure of the Building and all
improvements (except those Alterations constructed or installed by Tenant)
in the Premises at the completion of construction of the Tenant Improvements,
and Tenant shall repair all other portions of the Premises (including without
limitation the Alterations, and Tenant's trade fixtures, equipment, furnishings
and other personal property). All such repairs shall be performed in a good and
workmanlike manner, with due diligence, and shall restore the items repaired to
substantially the same usefulness, design and construction as existed
immediately before the damage. All work by Tenant shall be performed in
accordance with the requirements of Section 11.2 above. Notwithstanding
anything to the contrary in this Lease, Landlord shall
-20-
not be obligated to expend on such repairs more than the amount of insurance
proceeds actually received by Landlord on account of the damage; provided,
however, that Landlord shall complete all such repairs if Tenant pays to
Landlord in advance the difference between the cost of such repairs and the
amount of insurance proceeds received by Landlord on account of the damage. In
the event of any termination of this Lease, the proceeds from any insurance paid
by reason of damage to or destruction of the Building Real Property or any
portion thereof, or any other element, component or property insured by Landlord
shall belong to and be paid to Landlord, except for proceeds payable under
Tenant's fire insurance policies. In the event of a casualty covered by
insurance which Landlord is required to carry under this Lease, Rent and
Additional charges under Article 4 above shall xxxxx commencing on the date of
the casualty and ending when the Damaged Property is repaired as aforesaid by
Landlord and the Premises are delivered to Tenant. The extent of the abatement
shall be based upon the portion of the Premises rendered untenantable,
inaccessible or unfit for use in a reasonable business manner for the purposes
stated in this Lease.
15.5 Arbitration. If the parties are unable to agree upon the
-----------
appropriate abatement of Rent and Additional charges pursuant to this Article 15
within thirty (30) days after repairs are completed, either party may submit
the dispute to arbitration in accordance with Section 30.18.
15.6 Non-Application of Certain Statutes. The provisions of this
-----------------------------------Lease, including this Article
15, constitute an express agreement between Landlord and Tenant with respect to
any and all damage to, or destruction of, all or any part of the Premises, or
any other portion of the Building. Any statute or regulation of the State of
California or any other governmental authority or body, including, without
limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with
respect to any rights or obligations concerning any such damage or destruction
in the absence of an express agreement between the parties, and any other
statute or regulation relating to damage or destruction of leased premises, now
or hereafter in effect, shall have no application to this Lease or any damage or
destruction to all or any part of the Premises or any other portion of the
Building.
16. Insurance.
---------
16.1 Insurance on Tenant's Property. Tenant shall provide insurance
------------------------------
coverage for physical loss or damage insuring the full replacement value of
Alterations, Tenant's trade fixtures, furnishings, equipment, plate glass, signs
and all other items of personal property of Tenant.
-21-
16.2 Tenant's Liability Insurance. Tenant shall procure at its cost
----------------------------
and expense and keep in effect during the term of this Lease broad form
commercial general liability insurance, and automobile liability insurance, each
with a minimum combined single limit of liability of at least One Million
Dollars each occurrence, Two Million in the aggregate, and statutory worker's
compensation insurance with a Two Million Dollar employer's liability limit
covering all of Tenant's employees. Such broad form commercial general liability
insurance shall include, without limitation, products and completed operations
liability insurance, fire legal liability insurance, contractual liability
insurance applicable to all of Tenant's indemnity obligations under this Lease,
and such other coverage as Landlord may reasonably require from time to time.
At Landlord's request, Tenant shall increase such insurance coverage to a level
that is reasonable and customary. If the parties are unable to agree on the
amount that is reasonable and customary, the matter shall be determined by
arbitration pursuant to Section 30.18 below.
16.3 Form of Policies. All insurance policies required to be
----------------
carried by Tenant under this Lease shall (i) be written by companies rated A 10
or better in "Best's Insurance Guide" and authorized to do business in
California, (ii) name Landlord, Sentre Partners Inc., and any other parties
designated by Landlord as additional insureds, (iii) as to liability coverages,
be written on an "occurrences" basis, (iv) provide that Landlord shall receive
at least thirty (30) days notice from the insurer before any cancellation or
change in coverage, and (v) contain a provision that no act or omission of
Tenant shall affect or limit the obligation of the insurer to pay the amount of
any loss sustained. Each such policy shall contain a provision that such policy
and the coverage evidenced thereby shall be primary and non-contributing with
respect to any policies carried by Landlord and that any coverage carried by
Landlord shall be excess insurance. Any deductible amounts under any insurance
policies required hereunder shall be subject to Landlord's prior written
approval (which shall not be unreasonably withheld) and in any event Tenant
shall be liable for payment of same in the event of any casualty. Tenant shall
deliver reasonably satisfactory evidence of such insurance to Landlord on or
before the Commencement Date, and thereafter at least thirty (30) days before
the expiration dates of expiring policies; and, in the event Tenant shall fail
to procure such insurance or to deliver reasonably satisfactory evidence thereof
within five (5) business days after written notice from Landlord of such
failure, landlord may, at is option and in addition to Landlord's other remedies
in the event of a default by Tenant hereunder, procure such insurance for the
account of Tenant, and the cost thereof shall be paid to Landlord as Additional
Charges. Notwithstanding the foregoing, if any such insurance expires without
having been renewed by
-00-
Xxxxxx, Xxxxxxxx shall have the option in addition to Landlord's other remedies
to procure such insurance for the account of Tenant immediately and without
notice to Tenant, and the cost thereof shall be paid to Landlord as Additional
Charges. The limits of the insurance required under this Lease shall not limit
the liability of Tenant.
16.4 Compliance with Insurance Requirements. Tenant shall not do
--------------------------------------
anything, or suffer or permit anything to be done, in or about the Premises that
shall invalidate or be in conflict with the provisions of any fire or other
insurance policies covering the Building or any property located therein.
Tenant, at Tenant's expense, shall comply with, and shall cause all occupants of
the Premises to comply with, all applicable customary rules, orders, regulations
or requirements of any board of fire underwriters or other similar body.
16.5 Landlord's Insurance. Landlord shall purchase and keep in full
--------------------
force and effect property insurance covering the Project in an amount equal to
100% of the full replacement value of the Project improvements at the time of
the loss, and at least One Million Dollars of liability insurance for each
occurrence, and Two Million Dollars in the aggregate, including coverage for
Project Common Areas. Landlord and Tenant shall cause each insurance policy
obtained by them or either of them to provide that the insurance company waives
all right of recovery by way of subrogation against either Landlord or Tenant,
as appropriate, in connection with any damage covered by any policy.
17. Eminent Domain.
--------------
17.1 Effect of Taking. If all of the Premises is condemned or taken in
----------------
any manner for public or quasi-public use, or any transfer of the Premises is
made in avoidance of an exercise of the power of eminent domain (each of which
events shall be referred to as a "taking"), this Lease shall automatically
terminate as of the date of the vesting of title as a result of such taking. If
a part of the Premises is so taken, this Lease shall automatically terminate as
to the portion of the Premises so taken as of the date of the vesting of title
as a result of such taking. If such portion of the Real Property is taken as to
render the Building incapable of economically feasible operation, this Lease may
be terminated by Landlord, as of the date of the vesting of title as a result of
such taking, by written notice to Tenant within sixty (60) days following notice
to Landlord of the date on which said vesting will occur. If such portion of the
Premises is taken as to render the Premises or the remaining portion thereof
unusable by Tenant, this Lease may be terminated by Tenant as of the date of the
vesting of title as a result of such taking, by written notice to Landlord
within sixty (60) days following notice to Tenant of the date on which said
vesting will
-23-
occur. If this Lease is not terminated as a result of any taking, Landlord shall
restore the Building to an architecturally whole unit; provided, however, that
Landlord shall not be obligated to expend on such restoration more than the
amount of condemnation proceeds actually received by Landlord, unless Tenant
pays to Landlord in advance the difference between the cost of such restoration
and the amount of the condemnation proceeds received by Landlord.
17.2 Award. Landlord shall be entitled to the entire award for any
-----
taking, including, without limitation, any award made for the value of the
leasehold estate created by this Lease. No award for any partial or entire
taking shall be apportioned, and Tenant hereby assigns to Landlord any award
that may be made in any taking, together with any and all rights of Tenant now
or hereafter arising in or to such award or any part thereof; provided, however,
that nothing contained herein shall be deemed to give Landlord any interest in
or to require Tenant to assign to Landlord any separate award made to Tenant for
its relocation expenses, the taking of personal property and fixtures belonging
to Tenant, the unamortized value of improvements made or paid for by Tenant or
the interruption of or damage to Tenant's business.
17.3 Abatement of Rent. In the event of a partial taking that does not
-----------------
result in a termination of this Lease as to the entire Premises, the Rent shall
xxxxx in proportion to the portion of the Premises taken or rendered
untenantable by such taking. Tenant hereby waives and releases its rights under
Section 1265.130 of the California Code of Civil Procedure or any similar
statute now or hereafter in effect.
17.4 Temporary Taking. If all or any portion of the Premises is taken
----------------
for a limited period of time, this Lease shall remain in full force and effect;
provided, however, that the Rent and Additional Charges payable pursuant to
Article 4 above shall xxxxx during such limited period in proportion to the
portion of the Premises taken by such taking. Landlord shall be entitled to
receive the entire award made in connection with any such temporary taking. Any
temporary taking of all or a portion of the Premises which continues for twelve
(12) months shall be deemed a permanent taking of the Premises or such portion.
18. Assignment.
----------
18.1 Consent Required. Notwithstanding the provisions of Section 30.4
----------------
below, neither Tenant nor any sublessee or assignee of Tenant shall, directly or
indirectly, voluntarily or by operation of law, sell, assign, encumber, pledge
or otherwise transfer or hypothecate all or any part of the Premises or Tenant's
leasehold estate hereunder (each such act is herein referred to as an
"Assignment"), or sublet the
-24-
Premises or any portion thereof or permit the Premises to be occupied by anyone
other than Tenant (each such act is herein referred to as a "Sublease"), without
Landlord's prior written consent in each instance, which consent shall not be
unreasonably withheld or delayed. Any Assignment or Sublease that is not in
compliance with this Article 18 shall be void and, at the option of Landlord,
shall constitute a material default by Tenant under this Lease. The acceptance
of Rent or Additional Charges by Landlord from a proposed assignee, sublessee or
occupant of the Premises shall not constitute consent to such Assignment or
Sublease by Landlord. Seventy-five percent (75%) of the total amount paid to
Tenant which is attributable to this Lease in connection with any Assignment,
and seventy-five percent (75%) of the excess of the total amount of rent and
other consideration paid under or in consideration for any sublease over the
Rent and Additional Charges payable hereunder, shall be payable to Landlord as
Additional Charges. The right to such amounts is expressly reserved from the
grant of Tenant's leasehold estate for the benefit of Landlord. Tenant shall use
reasonable diligent efforts to collect all such amounts. Landlord shall have the
right from time to time, upon reasonable advance notice, to review Tenant's
records relating to any such amounts payable to or received by Tenant.
18.2 Notice. Any request by Tenant for Landlord's consent to a
------
specific Assignment or Sublease shall include (a) the name of the proposed
assignee, sublessee or occupant, (b) the nature of the proposed assignee's,
sublessee's or occupant's business to be carried on in the Premises, (c) a copy
of the proposed Assignment or Sublease, and (d) such financial information (in
the event of an Assignment) and such other information as Landlord may
reasonably request concerning the proposed assignee, sublessee or occupant or
its business. Landlord shall respond in writing, stating the reasons for any
disapproval, within fifteen (15) business days after receipt of all information
reasonably necessary to evaluate the proposed Assignment or Sublease. If
Landlord fails to respond in writing within such fifteen (15) business day
period, and further fails to respond within five (5) business days after
Landlord's actual receipt of written notice from Tenant of Landlord's failure to
respond within such period, Tenant's request shall be deemed approved.
18.3 No Release. No consent by Landlord to any Assignment or Sublease
----------
by Tenant, and no specification in this Lease of a right of Tenant's to make any
Assignment or Sublease, shall relive Tenant of any obligation to be performed by
Tenant under this Lease, whether arising before or after (a) the Assignment or
Sublease or (b) any extension of the Term (pursuant to exercise of an option
granted in this Lease). The consent by Landlord to any Assignment or Sublease
shall not relieve Tenant or any successor of Tenant from the obligation to
obtain Landlord's express written consent to any other Assignment or Sublease.
-25-
18.4 Cost of Processing Request. Tenant shall pay to Landlord the
--------------------------
reasonable amount of Landlord's cost of reviewing and processing every proposed
Assignment or Sublease (including, without limitation, reasonable accountants'
and attorneys' fees) and the reasonable amount of all direct and indirect
expenses incurred by Landlord arising from any assignee, occupant or sublessee
taking occupancy (including, without limitation, freight elevator operation for
moving of furnishings and trade fixtures, security service, janitorial and
cleaning service, and rubbish removal of service).
18.5 Corporation or Partnership Transfers. Any sale or other
------------------------------------
transfer, including without limitation by consolidation, merger or
reorganization, of a majority of the voting stock of Tenant or any beneficial
interest therein, if Tenant is a corporation, or any sale or other transfer of a
majority of the general partnership interests in Tenant or any beneficial
interest therein, if Tenant is a partnership, shall be an Assignment for
purposes of this Lease.
18.6 Assumption of Obligations. Each assignee or other transferee
-------------------------
of Tenant's interest hereunder, other than Landlord, shall assume, as provided
in this Section, all obligations of Tenant under this Lease and shall be and
remain liable jointly and severally with Tenant for the payment of Rent and
Additional Charges, and for the performance of all the terms, covenants,
conditions and agreements herein contained on Tenant's part to be performed for
the Term. Each sublessee of all or any portion of the Premises shall agree in
writing for the benefit of Landlord (a) to comply with and agree to those
provisions of this Lease as are reasonably designated by Landlord, and (b) that
such sublease (and all further subleases of any portion of the Premises) shall
terminate upon any termination of this Lease, regardless of whether or not such
termination is voluntary. No Assignment or Sublease shall be valid or effective
unless the assignee or sublessee or Tenant shall deliver to Landlord a fully-
executed counterpart of the Assignment or Sublease and an instrument that
contains a covenant of assumption by the assignee or agreement to perform
Tenant's obligations, reasonably satisfactory in substance and form to Landlord,
consistent with the requirements of this Section. The failure or refusal of the
assignee to execute such instrument of assumption shall not release or discharge
the assignee from its liability as set forth above.
18.7 No Signs. Tenant shall not place or allow to be placed in, on
--------
or about the Building or any other portion of the Project any sign or other
notice indicating Tenant's desire to assign this Lease or sublet the Premises.
-26-
18.8 Upon Termination. In the event of a termination of this
----------------
Lease by reason of Tenant's default or in the event of a mutually agreed
termination, at Landlord's option, each sublease of any portion of the Premises
shall attorn to Landlord. Each such sublessee shall be deemed to have agreed to
the provisions of this Section and any such Assignment or Sublease shall
specifically provide as such.
19. Utilities and Services.
----------------------
19.1 Landlord to Furnish. Tenant acknowledges that the Premises
-------------------
is not separately metered for electricity and therefore Tenant shall pay its
estimated prorata share of electrical usage to Landlord. Tenant's share of
electricity is estimated at approximately $.153 per rentable square foot per
month and shall be included on the monthly rent statement. The estimated rate is
subject to adjustment based on changes in use or rate increases imposed by
SDG&E. Tenant shall be permitted to separately meter the Premises for
electricity at its own expense. The cost of sewer and water will be included in
the Building Expenses unless separately metered for Tenant. Tenant will be
responsible to provide, at its cost, janitorial service, including the refilling
of soap, towel and tissue containers in the restrooms in the Premises.
19.2 Excess Usage. Whenever heat generating machines or
------------
equipment or lighting are used in the Premises by Tenant which materially
affect the temperature otherwise maintained by the air conditioning system,
Landlord shall have the right to install supplementary air conditioning
facilities in the Premises or otherwise modify the ventilating and air
conditioning system serving the Premises, and the reasonable cost of such
facilities and modifications shall be borne by Tenant. Tenant shall pay in
advance Landlord's reasonable estimate of any and all costs for additional
facilities and modifications which may be constructed by Landlord under this
Section (including without limitation the costs of labor, materials, equipment,
supervision and management fee), subject to adjustment of final costs upon
completion.
19.3 Interruption of Service. Landlord reserves the right to stop
-----------------------
the service of the heating, ventilating, air conditioning, elevator, plumbing,
electrical or other mechanical systems or facilities in the Premises or Building
when necessary by reason of accident or emergency, or for repairs, alterations,
replacements or improvements that, in the reasonable judgment of Landlord, are
desirable or necessary, until such accident or emergency shall have been
corrected or such repairs, alterations, replacements or improvements shall have
been completed. Landlord shall give Tenant advance notice of any such
interruption of services when reasonably possible, and shall restore such
services as soon as reasonably possible and in a manner so as to cause as little
-27-
interference with Tenant's use of the Premises as is reasonably possible;
provided, however, that Landlord shall not be obligated to perform work during
other than normal business hours. In addition, Landlord reserves the right to
limit, restrict or ration the use of water, electricity, gas or any other form
of energy or any other service or utility serving the Premises or the Building,
in compliance with the requirements of federal, state or local governmental
agencies or utilities suppliers in reducing energy or other resources
consumption. Tenant shall cooperate reasonably with any voluntary energy
conservation program initiated by Landlord in cooperation with the efforts of
federal, state or local governmental agencies or utilities suppliers in reducing
the consumption of energy or other resources.
19.4 Security Systems and Programs. The parties acknowledge that
-----------------------------
safety and security devices, services and programs provided by Landlord, if any,
while intended to deter crime and safety, may not in given instances prevent
theft or other criminal acts, or insure safety of persons or property. The risk
that any safety or security device, service or program may not be effective, or
may malfunction or be circumvented, is assumed by Tenant with respect to
Tenant's property and interests, and Tenant shall obtain insurance coverage to
the extent Tenant desires protection against criminal acts and other losses.
Tenant agrees to cooperate with any reasonable safety or security program
developed by Landlord or required by law.
19.5 No Liability. Landlord shall not be liable or responsible for
------------
any interruption in the services to be provided under this Article 19, or for
any interruptions of services occurring in connection with the making of
repairs, replacements or improvements to the Premises or the Building.
20. Default.
-------
20.1 Events Constituting Default. Except as otherwise provided
---------------------------
herein, the failure to perform or honor any covenant, condition or other
obligation of Tenant or the failure of any representation made by Tenant under
this Lease (including Exhibits hereto) shall constitute a default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided, if
any. Tenant shall have a period of ten (10) business days from the date due
within which to cure any default in the payment of Rent. Tenant shall have a
period of ten (10) days from the date due within which to cure any default in
the payment of Additional Charges. Tenant shall have a period of thirty (30)
days from the date of written notice from Landlord within which to cure any
other default under this Lease; provided, however, that with respect to any
default (other than a default which can be cured by the payment of money)
-28-
that cannot reasonably be cured within thirty (30) days, the default shall not
be deemed to be uncured if Tenant commences to cure within thirty (30) days from
Landlord's notice, continues to prosecute diligently the curing of such default
and actually cures such default within sixty (60) days after Landlord's notice.
20.2 Remedies. Upon the occurrence of a default by Tenant that is not cured
--------
by Tenant within the grace periods specified in Section 20.1, Landlord shall
have the following rights and remedies in addition to all other rights and
remedies available to Landlord at the law or in equity:
(a) The rights and remedies provided by California Civil Code Section
1951.2, including, but not limited to, the right to terminate Tenant's right to
possession of the Premises and to recover (i) "the worth at the time of award"
(as defined in Section 20.2(f) below) of the unpaid Rent and Additional Charges
which shall have been earned at the time of termination; plus (ii) the worth at
the time of award of the amount by which the unpaid Rent and Additional Charges
which would have been earned after termination until the time of award shall
exceed the amount of loss of such Rent and Additional Charges 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 and Additional Charges for the balance of
the term of this Lease after the time of award shall exceed the amount of loss
of such Rent and Additional Charges 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 would be likely to result therefrom (including,
without limitation, attorney's and accountants' fees, costs of alterations of
the Premises, interest costs and brokers' fee incurred upon any reletting of the
Premises);
(b) The rights and remedies provided by California Civil Code Section
1951.4 (Landlord may continue the Lease in effect after Tenant's breach and
abandonment and recover Rent and Additional Charges as they become due). Acts of
maintenance or preservation, efforts to relet the Premises or the appointment of
a receiver upon Landlord's initiative to protect its interest under this Lease
shall not of themselves constitute a termination of Tenant's right to
possession;
(c) The right and power to enter the Premises and remove therefrom all
persons and property, to store such property in a public warehouse or elsewhere
at the cost of and for the account of Tenant, and to sell such property and
apply the proceeds therefrom pursuant to applicable California law. In such
event, Landlord may from time to time
-29-
sublet the Premises or any part thereof for such term or terms (which may extend
beyond the Term) and at such rent and such other terms as Landlord in its sole
discretion may deem advisable, with the right to make alterations and repairs to
the Premises. Upon each such subletting, rents received from such subletting
shall be applied by Landlord, first, to payment of any indebtedness other than
Rent and Additional Charges due hereunder from Tenant to Landlord; second, to
the payment of any costs of such subletting (including with limitation
attorneys' and accountants' fees, costs of alterations of the Premises,
interests costs, and brokers' fees) and of any such alterations and repairs;
third, to payment of Rent and Additional Charges due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
Rent and Additional Charges as they become due hereunder. If any rental or other
charges due under such sublease shall not be promptly paid to Landlord by the
sublessee(s), or if such rentals received from such subletting during any month
are less than Rent and Additional Charges to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to Landlord as well as any
unpaid indebtedness other than Rent and Additional Charges due hereunder from
Tenant to Landlord and the costs of such subletting (including without
limitation attorneys' and accountants' fees, costs of alterations of the
Premises, interests costs and brokers' fees), and any other amounts due Landlord
under this Section. Such deficiency shall be calculated and paid monthly. For
all purposes set forth in this Section, Landlord is hereby irrevocably appointed
attorney-in-fact for Tenant, with power of substitution. No taking possession of
the Premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Tenant. Landlord's subletting the Premises without termination shall not
constitute a waiver of Landlord's right to elect to terminate this Lease for
such previous breach;
(d) The right to have a court appointed receiver appointed for
Tenant, upon application by Landlord, to take possession of the Premises, to
apply any rental collected from the Premises and to exercise all other rights
and remedies granted to Landlord pursuant to Section 20.2(c); and
(e) The right to specific performance of any or all of Tenant's
obligations hereunder, and to damages for delay in or failure to such
performance.
(f) For purposes of Section 20.2(a) the "worth at the time of award"
of the amounts referred to in subparagraphs (i) and (ii) shall be computed with
interest at the Interest Rate per annum or the maximum rate allowed by law; the
"worth at the time of award" of the amount referred to in subparagraph (iii)
shall be computed by discounting
-30-
such amount at the discount rate of the Federal Reserve Bank of San Francisco at
the time of the award plus one percent (1%); and "Rent and Additional Charges"
with respect to each month shall be calculated by adding (a) one twelfth
(1/12th) of the Rent payable for a full lease year at the time of default, plus
(b) the monthly average of the Additional Charges payable by Tenant hereunder
for the year immediately before the year in which the default occurred, or if
the default occurs in the first year of the Term, Landlord's estimate of
Additional Charges which would have been payable monthly by Tenant during that
year. For purposes of computing amounts that would have accrued after the time
of award, increases in Rent and Additional Charges shall be projected based upon
the average rate of inflation from the Commencement Date through the time of
award; provided, however, that in no event shall Rent be deemed to decrease
after the time of award, nor shall Additional Charges under Article 5 be deemed
to be less than zero.
20.3 Remedies Cumulative. The exercise of any remedy provided by law or the
-------------------
provisions of this Lease shall not exclude other remedies unless they are
expressly excluded by this Lease. Tenant hereby waives any right of redemption
or relief from forfeiture following the termination of, or exercise of any
remedy by Landlord with respect to, this Lease.
20.4 Recovery Against Landlord. Tenant shall look solely to Landlord's
-------------------------
interest in the Building Real Property (including any proceeds of sale of the
Building Real Property and insurance proceeds received by Landlord with respect
to the Building Real Property) for the recovery as provided under applicable law
of any judgment against Landlord; provided, however, that Tenant shall not be
entitled to recover out of any insurance proceeds received by Landlord which
Landlord is applying or has a good faith intention to apply to work on the
Building. Landlord, or if Landlord is a partnership, its partners whether
general or limited, or if Landlord or any constituent partner or Landlord is a
corporation, its directors, officers and shareholders, shall never be personally
liable for any such judgment.
20.5 Events of Default by Landlord. The failure by Landlord to observe or
-----------------------------
perform any of the covenants, conditions, or provisions of this Lease to be
observed or performed by Landlord, where such failure shall continue for a
period of thirty (30) days after written notice thereof by Tenant to Landlord,
shall be deemed to be a default by Landlord under this Lease, provided,
however, that if the nature of Landlord's default is such that more than thirty
(30) days are reasonably required for its cure, then Landlord shall not be
deemed to be in default if Landlord commences such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to completion,
provided that
-31-
the default shall actually be cured within one hundred eighty (180) days after
notice. Notwithstanding the foregoing, Tenant shall give written notice of any
default by Landlord to all mortgagees under mortgages encumbering all or any
portion of the Building Real Property or any interest therein of which Tenant
has received written notice, and Landlord shall not be deemed to be in default
unless no mortgagee has commenced to cure such default or commenced foreclosure
proceedings within thirty (30) days (or such longer period as is reasonably
required, but not to exceed one hundred eighty (180) days) after such mortgagee
has received such notice.
21. Insolvency or Bankruptcy.
------------------------
21.1 The occurrence of any of the following shall, at Landlord's
option, constitute a breach of this Lease by Tenant: (i) the appointment of a
receiver to take possession of all or substantially all of the assets of Tenant
or the Premises, (ii) an assignment by Tenant for the benefit of creditors,
(iii) any action taken or suffered by Tenant under any insolvency, bankruptcy,
reorganization, moratorium or other debtor relief act or statute, whether now
existing or hereafter amended or enacted, (iv) the filing of any voluntary
petition in bankruptcy by Tenant, or the filing of any involuntary petition by
Tenant's creditors, which involuntary petition remains undischarged for a
period of thirty (30) days, (v) the attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or the Premises, if such
attachment or other seizure remains undismissed or undischarged for a period of
ten (10) business days after the levy thereof, (vi) the admission by Tenant in
writing of its inability to pay its debts as they become due, (vii) the filing
by Tenant of any answer admitting or failing timely to contest a material
allegation of a petition filed against Tenant in any proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation or
dissolution of Tenant or similar relief, or (viii) if within thirty (30) days
after the commencement of any proceeding against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statue, law or regulation, such
proceeding shall not have been dismissed. Upon the occurrence of any such event
or at any time thereafter, this Lease shall terminate five (5) days after
written notice of termination from Landlord to Tenant. In no event shall this
Lease be assigned or assignable by operation of law or by voluntary or
involuntary bankruptcy proceedings or otherwise, and in no event shall this
Lease or any right or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency or reorganization proceedings. If, upon the occurrence of
any of the events enumerated above, under applicable law Tenant or the trustee
in bankruptcy has the right to affirm this Lease and continue to perform the
obligations of
-32-
Tenant hereunder, Tenant or such trustee shall, in such time period as may be
permitted by the bankruptcy court having jurisdiction, cure all defaults of
Tenant outstanding hereunder as of the date of the affirmance of this Lease and
provide to Landlord such adequate assurances as may be necessary to ensure
Landlord of the continued performance of Tenant's obligations under this Lease.
Notwithstanding the provisions of Section 20.1, there shall be no cure periods
for any breach of default under this Article 21.
22. Fees and Expenses; Indemnity; Payment.
-------------------------------------
22.1 Landlord's Right to Remedy Defaults. If Tenant shall default in
-----------------------------------
the performance of any of its obligations under this Lease after notice of
expiration of the applicable cure period, if any, Landlord, at any time
thereafter and without additional notice, may remedy such default for Tenant's
account and at Tenant's expense, without thereby waiving any other rights or
remedies of Landlord with respect to such default. Notwithstanding the
foregoing, Landlord shall have the right to cure any failure by Tenant to
perform any of its obligations under this Lease without notice to Tenant if such
failure results in an immediate threat to life or safety of any person, or
impairs the Building or its efficient operation.
22.2 Indemnity. Subject to the provisions of Section 15.6 and except
---------
to the extent caused by the gross negligence or wilful misconduct of the party
seeking indemnification, Tenant shall indemnify Landlord, all partners of any
partnership constituting Landlord, and their respective officers, directors,
shareholders, employees, servants and agents, all mortgagees of Landlord's
interest in all or any portion of the Building Real Property, and the lessor or
lessors under all ground or underlying leases (sometimes collectively referred
to herein as "Related Entities") against and save Landlord and Related Entities
harmless from and defend Landlord and Related Entities through attorneys
reasonably satisfactory to Landlord which may include in-house attorneys) from
and against any and all claims, loss, cost liability, damage and expense
including, without limitation, penalties, fines and reasonable attorneys' fees,
to the extent incurred in connection with or arising from (a) any default by
Tenant in the observance or performance of any of the terms, covenants,
conditions or other obligations of this Lease to be observed or performed by
Tenant, or the failure of any representation made by Tenant in this Lease, (b)
the use or occupancy or manner of use or occupancy of the Premises by Tenant or
any person occupying the Premises, (c) any occurrence or happening on the
Premises between the Commencement Date and the time Landlord has accepted the
surrender of the Premises after the expiration or termination of this Lease, (d)
any negligence or wilful misconduct of Tenant or any person claiming through or
under
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Tenant, or of the contractors, subcontractors, agents, servants, employees, or
licensees of Tenant or any person claiming through or under Tenant (collectively
"Tenant's Agents") in the Premises or anyone in the Premises (other, than
Landlord or Landlord's agents, employees or contractors), including without
limitation, any negligence or wilful misconduct in the making or performing of
any Alterations, (e) any negligence or wilful misconduct of Tenant or any
subtenant of the Premises or any of their respective employees while on the
Building Real Property, (f) Landlord's inability to obtain access to any portion
of the Premises with respect to which Landlord has not been furnished a key (if
locked) or access has been otherwise restricted, or (g) the use by Tenant or any
of Tenant's Agents of any Project Common Area or Building Common Area.
22.3 Assumption of Risk. Neither Landlord nor any Related Entities
------------------
shall be liable for any damage or damages of any nature whatsoever to persons or
property caused by explosion, fire, theft or breakage, vandalism, falling
plaster, by sprinkler, drainage or plumbing systems, or air conditioning
equipment, by failure for any cause to supply adequate drainage, by the
interruption of any public utility or service, by steam, gas, electricity,
water, rain or other substances leaking, issuing or flowing into any part of the
Premises, by natural occurrence, acts of the public enemy, riot, strike,
insurrection, war, court order, requisition or order of governmental body or
authority, or by anything done or omitted to be done by any tenant, occupant or
person in the Building, it being agreed that Tenant shall be responsible for
obtaining appropriate insurance to protect its interests.
22.4 Payment of Sums Due. Except as otherwise provided, Tenant
-------------------
shall pay to Landlord, within thirty (30) days after delivery by Landlord to
Tenant of bills or statements therefor, all Additional Charges and reasonable
expenditures made and reasonable monetary obligations incurred by Landlord in
collecting or attempting to collect the Rent, any Additional Charges or any
other sum actually due under this Lease or in enforcing or attempting to enforce
any rights of Landlord under this Lease or pursuant to law, including without
limitation reasonable attorneys' fees.
22.5 Interest On Past Due Obligations; Service Charge. Unless
------------------------------------------------
otherwise specifically provided herein, any amount due from Tenant to Landlord
under this Lease which is not paid within ten (10) business days from the date
when due shall bear interest from the due date until paid at the lesser of the
highest rate than permitted by law or a rate per annum which is equal to four
percent (4%) plus the highest rate identified by Bank of America NT&SA as its
"reference rate" between the date such amount was due and the date such payment
was received. The
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payment of such interest or service charge (or both) shall not alone excuse or
cure any default under the Lease.
23. Access to Premises.
------------------
23.1 Landlord's Right to Enter. Landlord reserves for itself and its
-------------------------
agents, employees and independent contractors the right to enter the Premises at
all reasonable times (upon reasonable telephonic notice, if possible) to inspect
the Premises, to supply any service to be provided by Landlord to Tenant
hereunder, to show the Premises to prospective purchasers, mortgagees or (during
the last twelve (12) months of the Lease only) tenants, to post notices of
nonresponsibility, to determine whether Tenant is complying with its obligations
under this Lease, and to alter, improve or repair the Premises or any other
portion of the Building. Landlord's right to enter the Premises shall include
the right to grant access to the Premises to governmental or utility employees.
Landlord may erect, use and maintain scaffolding, pipes, conduits, and other
necessary structures in and through the Premises or any other portion of the
Building where reasonably required by the character of the work to be performed
in making repairs or improvements, provided that the entrance to the Premises
shall not be blocked thereby, and that there is no unreasonable interference
with the business of Tenant. In the event of an emergency Landlord shall have
the right to enter the Premises at any time without notice. Tenant hereby waives
any claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, any
right to abatement or Rent or Additional Charges, or any other loss occasioned
by Landlord's exercise of any of its rights under this Article 23. Any entry to
the Premises or portions thereof obtained by Landlord in accordance with this
Article 23 shall not be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive, of
Tenant from the Premises or any portion thereof. Landlord shall perform all work
pursuant to this Section as quickly as is reasonably possible and in a manner
designed to cause as little interference with Tenant's use of the Premises as is
reasonably possible; provided, however, that Landlord shall not be obligated to
perform work during other than normal business hours. Tenant waives all rights
to consequential damages (including without limitation damages for lost profits
and lost opportunities) arising in connection with Landlord's exercise of its
right under this Section.
23.2 Means of Entry. Landlord shall have the right to use any and all
--------------
means that Landlord may deem necessary or proper to open doors in an emergency,
in order to obtain entry to any portion of the Premises.
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24. Notices. Except as otherwise provided in this Lease, any payment
-------
required to be made and any bills, statements, notices, demands, requests or
other communications given or required to be given under this Lease shall be
effective only if rendered or given in writing, sent by personal delivery or
registered or certified mail, return receipt requested, or by overnight courier
service, addressed (a) to Tenant at the Premises, (b) to Landlord c/o The
Property Manager, 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, or
(c) to such other address as either Landlord or Tenant may designate as its new
address in California for such purpose by notice given to the other in
accordance with the provisions of this Section. Any such xxxx, statement,
notice, demand, request or other communication shall be deemed to have been
rendered or given on the date of receipt or refusal to accept delivery.
25. No Waiver. Neither this Lease nor any term or provision hereof may be
---------
waived, and no breach thereof shall be waived, except by a written instrument
signed by the party against which the enforcement of the waiver is sought. No
failure by Landlord to insist upon the strict performance of any obligation of
Tenant under this Lease or to exercise any right, power or remedy consequent
upon a breach thereof, no acceptance of full or partial Rent or Additional
Charges during the continuance of any such breach, no course of conduct between
Landlord and Tenant, and no acceptance of the keys to or possession of the
Premises before the termination of the Term by Landlord or any employee of
Landlord shall constitute a waiver of any such breach or a waiver or
modification of any term, covenant or condition of this Lease or operate as a
surrender of this Lease. No waiver of any breach shall affect or alter this
Lease, but each and every term, covenant and condition of this Lease shall
continue in full force and effect with respect to any other then-existing or
subsequent breach thereof. No payment by Tenant or receipt by Landlord of a
lesser amount than the aggregate of all Rent and Additional Charges then due
under this Lease shall be deemed to the other than on account of the first items
of such Rent and Additional Charges then accruing or becoming due, unless
Landlord elects otherwise. No endorsement or statement on any check and no
letter accompanying any check of other payment of Rent or Additional Charges in
any such lesser amount and no acceptance by Landlord of any such check or other
payment shall constitute an accord and satisfaction. Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such Rent or Additional Charges or to pursue any other legal remedy.
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26. Tenant's Certificates.
---------------------
26.1 Tenant, at any time during the term of this Lease and from time
to time, within ten (10) days after written request, shall execute, acknowledge
and deliver to Landlord, addressed (at Landlord's request) to any prospective
purchaser, ground or underlying lessor or mortgagee of any part of the Building
Real Property, and estoppel certificate in reasonable and customary form and
substance. Tenant's failure to do so within such ten (10) day period shall be
conclusive upon Tenant that all facts set forth in Landlord's proposed
certificate are true and correct. In addition, Tenant shall be liable for all
loss, cost or expense resulting from the failure of or delay in any sale or
funding of any loan or other transaction caused by Tenant's failure to timely
furnish any such certificate may be relied upon by any prospective purchaser,
ground or underlying lessor or mortgagee of all or any part of the Building Real
Property.
27. Rules and Regulations.
---------------------
27.1 Tenant shall faithfully observe and comply with, and shall cause
all occupants of the Premises and Tenant's Agents to observe and comply with,
the rules and regulations, attached to this Lease as Exhibit D relating to the
Building and the Project Common Areas and all reasonable modifications thereof
and additions thereto from time to time put into effect by Landlord. Landlord
shall not be responsible for the nonperformance by any other tenant or occupant
of the Project of any of such rules and regulations. In the event of any
conflict between any such rule or regulation and this Lease, this Lease shall
govern.
28. Tenant's Taxes.
--------------
28.1 In addition to all other sums to be paid by Tenant under this
Lease, Tenant shall pay, before delinquency, any and all taxes levied or
assessed during the term of this Lease, whether now customary or within the
contemplation of the parties hereto, (a) upon, measured by or reasonably
attributable to the equipment, furniture, fixtures and other personal property
located in the Premises, including without limitation any Alterations, (b) upon
or measured by Rent or Additional Charges, or both, payable under this Lease,
including without limitation any gross income tax or excise tax levied by the
City and County of San Diego, the State of California, the Federal Government or
any other governmental body with respect to the receipt of such rental; (c) 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; or (d) upon this transaction or any
-37-
document to which Tenant is a party creating or transferring an interest or an
estate in the Premises. Tenant shall reimburse Landlord upon demand for any and
all such taxes paid or payable by Landlord (other than state and federal,
personal or corporate income taxes measured by the net income of Landlord from
all sources).
29. Authority. If either party signs as a corporation or partnership or
---------
other entity, each of the persons executing this Lease on behalf of such party
does hereby covenant and warrant that such party is a duly authorized and
existing entity, that such party has and is qualified to do business in
California, that the entity has full right and authority to enter into this
Lease, and that each and both of the persons signing on behalf of the entity is
and are authorized to do so.
30. Miscellaneous.
-------------
30.1 Asbestos Disclosure. Tenant acknowledges that it has been
-------------------
furnished with and has reviewed a copy of the two reports prepared by the Szaras
Company, dated September 12, 1991 and January 20, 1992, respectively, regarding
the presence of asbestos in the Project (the "Asbestos Reports"). The Asbestos
Reports are hereby accepted and approved by Tenant. Tenant acknowledges that
Landlord has not made any representations or warranties as to the content,
accuracy or completeness of the Asbestos Reports, and that Landlord has merely
provided the Asbestos Reports for the information of Tenant. Tenant shall not
maintain any physical contact with the affected area described in the Asbestos
Reports and shall prohibit Tenant's Agents from doing the same. Tenant shall
notify Tenant's Agents of the presence of asbestos and shall share copies of the
Asbestos Reports with all Tenant's Agents and shall comply with all governmental
laws and regulations relating to disclosure, notification and warnings with
respect to the contents of the Asbestos Reports. If any asbestos is discovered
in the Premises, and is not attributable to any act or omission of Tenant or its
agents, then Landlord shall cause it to be removed at its cost, and shall
perform any required or necessary repairs or cleanup related to such removal.
30.2 Financial Statements. Upon Landlord's written request from time
--------------------
to time (not more frequently than once per year), Tenant shall promptly furnish
Landlord with certified financial statements reflecting Tenant's then-current
financial condition, in such form and detail as Landlord may reasonably request;
provided, however, that so long as the stock of Tenant is traded on a national
exchange, Tenant may furnish an annual report instead of financial statements.
30.3 References. All personal pronouns used in this Lease, whether
----------
used in the masculine, feminine or neuter gender, shall include
-38-
all other genders; the singular shall include the plural, and vice versa. The
use herein of the words "including" or "include" when following any general
statement, term or matter shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as "without limitation", or "but not limited to", or words of similar import) is
used with reference thereto. All references to "mortgage" and "mortgagee" shall
include deeds of trust and beneficiaries under deeds of trust, respectively. All
Exhibits referenced herein and attached to this Lease are hereby incorporated in
this Lease by this reference. The captions preceding the Sections and Articles
of this Lease have been inserted solely as a matter of convenience and such
captions in no way define or limit the scope or intent of any provision of this
Lease.
30.4 Successors and Assigns. The terms, covenants and conditions contained
----------------------
in this Lease shall bind and inure to the benefit of Landlord and Tenant and
except as otherwise provided herein, their respective personal representatives
and successors and assigns; provided, however, that upon the sale, assignment or
transfer by Landlord (or by any subsequent Landlord) of its interest in the
Building as owner or lessee, including any transfer upon or in lieu of
foreclosure or by operation of law, Landlord (or subsequent Landlord) shall be
relieved from all subsequent obligations or liabilities under this Lease, and
all obligations subsequent to such sale, assignment or transfer (but not any
obligations or liabilities that have accrued prior to the date of such sale,
assignment or transfer) shall be binding upon the grantee, assignee or other
transferee of such interest. Any such grantee, assignee or transferee, by
accepting such interest, shall be deemed to have assumed such subsequent
obligations and liabilities.
30.5 Severability. If any provision of this Lease or the application
------------
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall remain in effect and shall be enforceable to the full extent permitted by
law.
30.6 Construction. This Lease shall be governed by and construed in
------------
accordance with the laws of the State of California applicable to leases of real
property made and entirely performed in California. Any actions or proceedings
brought under this Lease, or with respect to any matter arising under or out of
this Lease, shall be brought and tried only in courts located in the City and
County of San Diego, California (excepting appellate courts).
-39-
30.7 Integration. The terms of this Lease (including the Exhibits
-----------
hereto) are intended by the parties as a final expression of their agreement
with respect to such terms as are included in this Lease and may not be
contradicted by evidence of any prior or contemporaneous agreement, arrangement,
understanding or negotiation (whether oral or written). The parties further
intend that this Lease constitutes the complete and exclusive statement of its
terms, and no extrinsic evidence whatsoever may be introduced in any judicial
proceeding involving this Lease. Neither Landlord nor Landlord's agents have
made any representations or Warranties with respect to the Premises, the
Building, the Building Real Property, or any other portion of the Project or
this Lease except as expressly set forth herein. The language in all parts of
this Lease shall in all cases be construed as a whole and in accordance with its
fair meaning and not restricted for or against any party.
30.8 Surrender. Upon the expiration or sooner termination of the
---------
Term, Tenant will quietly and peacefully surrender to Landlord the Premises in
the condition in which they are required to be kept as provided in Articles 10
and 11, ordinary wear and tear excepted. Upon expiration or earlier termination
of this Lease, Tenant shall, immediately upon request of Landlord, execute,
acknowledge and deliver to Landlord a recordable deed quitclaiming to Landlord
any interest of Tenant in the Premises, the Building Real Property and this
Lease.
30.9 Quiet Enjoyment. Upon Tenant paying the Rent and Additional
---------------
Charges and performing all of Tenant's obligations under this Lease, Tenant may
peacefully and quietly enjoy the Premises during the Term as against all persons
or entities claiming by or through Landlord; subject, however, to the provisions
of this Lease and to any mortgages or ground or underlying leases referred to in
Article 13.
30.10 Holding Over. If Tenant shall hold over after the expiration
------------
of the Term, Tenant shall pay Rent equal to one hundred fifty percent (150%) of
the Rent payable during the final full lease year (exclusive of abatements, if
any), together with an amount reasonably estimated by Landlord for the monthly
Additional Charges payable under this Lease, and shall otherwise be on the terms
and conditions herein specified so far as applicable (but expressly excluding
all renewal or extension rights). No holding over by Tenant after the Term shall
operate to extend the Term. In the event of any holding over without Landlord's
prior written consent, Tenant shall indemnify Landlord against all claims for
damages by any other tenant to whom Landlord may have leased all or any part of
the Premises commencing upon or after the expiration of the Term, Any holding
over with Landlord's written consent shall be construed as a tenancy at
sufferance or from month to month, at Landlord's option. Any holding over
without Landlord' written consent
-40-
shall entitle Landlord to reenter the Premises as provided in Article 20, and to
enforce all other rights and remedies provided by law or this Lease.
30.11 Time of Essence. Time is of the essence of each and every provision
---------------
of this Lease.
30.12 Broker's Commissions. Each party represents and warrants to the
--------------------
other that it has not entered into any agreement, or incurred or created any
obligation which might require the other party to pay any broker's commission,
finder's fee or other commission or fee relating to the leasing of the Premises,
except that Landlord shall pay to Xxxxx & Xxxxx and Sentre Partners a leasing
commission on the transaction. Each party shall indemnify, defend and hold
harmless the other and the other's constituent partners and their respective
officers, directors, agents and employees from and against all other claims for
any commissions or fees made by anyone claiming by or through the indemnifying
party.
30.13 No Merger. The voluntary or other surrender or termination of this
---------
Lease by Tenant, or a mutual cancellation thereof shall not work a merger, but,
at Landlord' sole option, shall either terminate all existing subleases or
subtenancies or shall operate as an assignment to Landlord of all such subleases
or subtenancies. Tenant agrees that in the event Tenant becomes the owner of the
Building Real Property, Tenant's leasehold hereunder shall not then or
thereafter merge with the fee estate and Tenant hereby irrevocably surrenders
any right to effect such merger and this Lease shall continue in full force and
effect.
30.14 Consents. Unless otherwise expressly provided in this Lease, all
--------
consents and approvals to be given by Landlord or Tenant shall not be
unreasonably withheld.
30.15 Survival. All of Tenant's and Landlord's covenants and obligations
--------
contained in this Lease which by their nature might not be fully performed or
capable of performance before the expiration or earlier termination of this
Lease shall survive such expiration or earlier termination. No provision of this
Lease providing for termination in certain events shall be construed as a
limitation or restriction of Landlord's or Tenant's rights and remedies at law
or in equity available upon a breach by the other party of this Lease.
30.16 Amendments. No amendments or modifications of this Lease or any
----------
agreements in connection therewith shall be valid unless in writing duly
executed by both Landlord and Tenant. No amendment to this
-41-
Lease shall be binding on any mortgagee of Landlord (or purchaser at any
foreclosure sale) unless such mortgagee shall have consented thereto in writing.
30.17 Attorneys' Fees. If Landlord becomes a party to any litigation
---------------
not initiated by Tenant concerning this Lease, the Premises or the Building Real
Property by reason of any act or omission of Tenant or its authorized
representatives, and not by reason of Landlord's own act or omission or any act
or omission of Landlord's authorized representatives, Tenant shall be liable to
Landlord for reasonable attorneys' fees and court costs incurred by Landlord in
the litigation.
If either party commences an action against the other party arising
out of or in connection with this Lease, or institutes any proceeding in a
bankruptcy or similar court which has jurisdiction over the other party or any
or all of its property or assets, the prevailing party shall be entitled to have
and recover from the losing party reasonable attorneys' fees and court costs.
30.18 Arbitration of Disputes.
-----------------------
(a) If arbitration is expressly provided for in this Lease as a
dispute resolution procedure, the arbitration shall be conducted as provided in
this Article, except as otherwise provided in this Lease. All proceedings shall
be conducted according to the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"), or its successor organization, except as
hereinafter provided. No action at law or in equity in connection with any such
dispute shall be brought until arbitration hereunder shall have been waived,
either expressly or pursuant to this Article. The judgment upon the award
rendered in any arbitration hereunder shall be final and binding on both parties
hereto and may be entered in any court having jurisdiction thereof.
(b) During an arbitration proceeding pursuant to this Article, the
parties shall continue to perform and discharge all of their respective
obligations under this Lease, except as otherwise provided in this Lease.
(c) Unless arbitration is specified as a dispute resolution
procedure as to a particular dispute hereunder, disputes under this Lease shall
not be resolved by arbitration unless both parties agree in writing to do so,
and disputes shall be resolved as otherwise provided by law.
-42-
(d) All disputes that may be arbitrated in accordance with this
Article shall be raised by notice to the other party, which notice shall state
with particularity the nature of the dispute and the demand for relief, making
specific reference by article number and title of the provisions of this Lease
alleged to have given rise to the dispute. The notice shall also refer to this
Article and shall state whether or not the party giving the notice demands
arbitration under this Article. If no such demand is contained in the notice,
the other party against whom relief is sought shall have the right to demand
arbitration under this Article within ten (10) business days after such notice
is received. Unless one of the parties demands arbitration, the provisions of
this Article shall be deemed to have been waived with respect to the dispute in
question.
(e) The notice specified in Paragraph (d) above shall identify
the arbitrator to act on the notifying party's behalf. The arbitrator shall be a
person who has demonstrated at least ten (10) years of experience in commercial
real estate matters and, in particular, the subject matter of the dispute in
question. Within ten (10) business days after receipt of the notice of
arbitration, the other party shall notify the first party of the identity of the
arbitrator to act on such other party's behalf, which arbitrator shall be
similarly qualified. If such party fails to identify its arbitrator within ten
(10) business day period, the arbitrator named by the notifying party shall be
the only arbitrator to resolve the dispute. If two (2) arbitrators are chosen
pursuant to the foregoing, they shall meet within ten (10) business days after
the second arbitrator is appointed and, if within ten (10 business days after
such first meeting the two arbitrators shall be unable to agree promptly upon a
resolution of the dispute, they shall appoint a third arbitrator, who shall be
similarly qualified. In the event they are unable to agree upon such appointment
within five (5) business days after expiration of such ten (10) day period, the
third arbitrator shall be selected by the parties themselves, if they can agree
thereon, within a further period of ten (10) business days. If the parties do
not so agree, either party, on behalf of both, may request appointment of such a
qualified person by the AAA. If the AAA shall refuse or be unable to provide
such selection, the arbitrator shall be appointed by any successor organization
providing substantially the same services, and in the absence of such an
organization, by the Presiding Judge of the California Superior Court for the
City and County of San Diego. The arbitrator(s) so selected shall resolve the
dispute. The arbitration proceedings shall take place at a mutually acceptable
location in the City and County of San Diego.
(f) When resolving any dispute, the arbitrators shall apply the
pertinent provisions of this Lease without departure therefrom
-43-
in any respect. The arbitrators shall not have the power to change any of the
provisions of this Lease, but this Article shall not prevent in any appropriate
case the interpretation, construction and determination by the arbitrators of
the applicable provisions of this Lease to the extent necessary in applying the
same to the matters to be determined by arbitration.
(g) Except as otherwise expressly provided in this Lease, the
cost of the arbitration, including reasonable attorneys' and expert witness
fees, shall be borne by the unsuccessful party (as determined by the
arbitrators).
30.19 Early Termination of Lease. Tenant shall have the right to
--------------------------
terminate this Lease twelve months prior to the scheduled Expiration Date.
Tenant may elect to terminate the Lease on November 30, 1998, by providing
irrevocable written notice ("Notice of Early Termination") to Landlord. Such
Notice of Early Termination must be delivered to Landlord no later than July 31,
1998. If a Notice of Early Termination is not received by Landlord by July 31,
1998, then this right of early termination shall expire and shall no longer be
in effect.
IN WITNESS WHEREOF, Landlord and Tenant have each caused their duly
authorized representative to execute this Lease on their behalf as of the date
first above written.
LANDLORD: TENANT:
-------- ------
SORRENTO TECH ASSOCIATES, a WIRELESS FACILITIES INC.,
California limited partnership a New York Corporation
By Xxxxxx Canyon RPF Realty Corp.,
a Connecticut Corporation,
General Partner By /s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx
Chief Executive Office
By /s/ Xxxx X. Xxxxx
----------------------------
----------------------------
Xxxx X. Xxxxx
Vice President
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EXHIBIT A
Floor Plan
[OFFICE LAYOUT PLAN GOES HERE]
EXHIBIT B
Site Plan
[THE MAP OF THE SITE PLAN GOES HERE]
EXHIBIT D
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF OFFICE BUILDING LEASE
(Capitalized terms shall have the meaning set forth in the Lease.)
1. Parking-General. Subject to compliance with the rules and regulations set
---------------
forth below in paragraph 2, so long as the Lease to which this Exhibit D is
attached remains in effect, Tenant or persons designated by Tenant shall be
entitled to non-exclusive use of unreserved surface parking areas located at the
Project. All persons utilizing the Project parking facilities shall comply with
the rules and regulations set forth below. Landlord reserves the right to modify
and/or adopt such other reasonable and non-discriminatory rules and regulations
for the Project parking as it deems necessary. Landlord may refuse to permit any
person who violates the rules and regulations to park in the Project parking
facilities. Any violation of this Parking Agreement shall subject the violator's
car to removal from the Project parking facilities at the violator's expense.
2. Parking-Rules and Regulations.
-----------------------------
(a) Cars must be parked entirely within the stall lines painted on the
floor.
(b) All directional signs and arrows must be observed.
(c) The speed limit shall be 5 miles per hour.
(d) Parking is prohibited:
(1) In areas not striped for parking;
(2) In fire lanes;
(3) Where "no parking" signs are posted;
(4) In cross-hatched areas; and
(5) In such other areas as may be designated by Landlord.
(e) Every xxxxxx is required to park and lock his or her own car. All
responsibility for theft and/or damage to cars, other personal
property or persons is assumed by the xxxxxx.
(f) No more than one vehicle may be parked in any one parking space.
Washing, waxing, cleaning or servicing of any vehicle by a xxxxxx
and/or his agents is prohibited.
(g) Tenant shall acquaint all its officers and employees with these
rules and regulations.
3. Asbestos.
--------
(a) Tenant has been provided with the Asbestos Reports described in
Section 30.1 of the Lease. The reports contain a management plan
and procedures.
(b) It is important to the health and safety of everyone in the Project
that the procedures described in the management plan and in the Asbestos Reports
be strictly followed. If Tenant has reason to believe that anyone is not
following these procedures, that there is asbestos in any area of the Building
or Project not indicated in the
C-1
Asbestos Reports, or that any asbestos containing materials
have been damaged, Tenant shall immediately contact Landlord
or its property manager. Tenant shall not fail to follow the
attached procedures in any way and must obtain the property
manager's approval as to any work to be done by Tenant or
any of Tenant's Agents if the work involves any procedures
to be done in any area containing asbestos. The property
manager may withhold consent to any such work if the
property manager is of the opinion that the work may create
a danger to the employee, or others in the Building or
Project.
4. Miscellaneous.
-------------
(a) No sign, placard, picture, advertisement, name or notice
shall be inscribed, displayed or printed or affixed on or to
any part of the Building without the written consent of
Landlord, first had and obtained, and Landlord shall have
the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the
expense of Tenant. All signs or lettering on doors shall
conform to Landlord's sign criteria for the Building. Tenant
shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may
appear unsightly from outside the Premises.
(b) Tenant shall not alter any lock or install any new or
additional locks or any bolts on any door of the Premises
without obtaining the prior express written consent of
Landlord which consent shall not be unreasonably withheld.
(c) Toilet rooms, urinals, wash bowls and other apparatus shall
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, and the expense of any
breakage, stoppage or damage resulting from the violation of
this rule shall be borne by Tenant or those employees or
invitees of Tenant who shall have caused it.
(d) Tenant shall not use, keep or permit to be used or kept, any
foul or noxious gas or substance in the Premises, or permit
or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having
business therein, nor shall any animals or birds be brought
in or kept in or about the Premises or the Building.
(e) Tenant shall not use or keep in the Premises any flammable
or combustible fluid or material, including, but not limited
to, kerosene or gasoline. Tenant shall not use any method of
heating or air conditioning other than that supplied or
installed by Landlord.
(f) Upon the termination of its tenancy, Tenant shall deliver to
Landlord the keys for all offices, rooms and toilet rooms
which shall have been furnished to Tenant or which Tenant
shall have had made, and in the event of loss of any keys so
furnished, shall pay Landlord therefor.
(g) Tenant shall not lay linoleum, tile, carpet or any other
similar floor covering so that the same shall be affixed to
the floor of the Premises in any manner, without obtaining
the prior express written consent of Landlord which consent
shall not be unreasonably withheld. The expense of repairing
any damage resulting from a violation of this rule or
removal of any floor covering shall be
D-2
borne by Tenant, or by the contractors, employees or invitees of Tenant who
caused the damage.
(h) Landlord reserves the right to exclude or expel from the Buildings any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Project.
(i) Landlord shall have the right exercisable without notice, to change the
name and the street address of the Building of which the Premises are a
part.
(j) Tenant shall not disturb, solicit, or canvas any occupant of the Building
or Project and shall cooperate to prevent same.
(k) Without the written consent of Landlord, Tenant shall not use the name of
the Building or the Project in connection with or in promotion or
advertising of the business of Tenant except as Tenant's address.
(l) All exterior window coverings, whether curtains, blinds or otherwise, used
by Tenant shall be approved in writing by Landlord. Landlord intends that
all window coverings in the Project be uniform and standard in color,
texture and appearance and Tenant shall have no right to deviate from or
change the exterior window coverings approved by Landlord.
(m) Tenant shall comply with all documents, instruments and covenants recording
against the Project, including, without limitation, the covenants,
conditions and restrictions of the Xxxx/Mira Mesa Industrial Park.
D-1
FIRST AMENDMENT TO OFFICE LEASE
This First Amendment to Office Lease (this "First Amendment"), entered into
as of August 31, 1998, by and between SAN DIEGO TECH CENTER, LLC, a Delaware
limited liability company (successor in interest under the Lease to Sorrento
Tech Associates) ("Landlord"), and Wireless Facilities, Inc., a Delaware
Corporation ("Tenant") modifies that certain lease dated November 15, 1995 (the
"Lease"), by and between Sorrento Tech Associates, a California limited
partnership ("Original Landlord"), and Tenant. All capitalized terms in this
First Amendment and not defined shall have the meanings set forth in the Lease.
The parties hereto desire that the Lease be modified to provide for, among
other things, the relocation of the existing Premises in the building located at
0000 Xxxxxxxx Xxxx, Xxxxx 000, to the Revised Premises in the building located
at 0000 Xxxxxxxx Xxxx, Xxxxx 000.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree to the above Recitals
and as follows:
1. Revised Premises. Landlord leases to Tenant and Tenant takes from
----------------
Landlord, upon all terms and conditions of the Lease except to the extent they
are inconsistent with this First Amendment, Suite 100 in the building located at
0000 Xxxxxxxx Xxxx, constituting approximately 15,555 rentable square feet
("Revised Premises"), as shown on Exhibit "A" attached hereto and made a part
thereof. Landlord will release Tenant from all obligations to the existing
Premises in the building located at 0000 Xxxxxxxx Xxxx upon the commencement of
the Term of the Revised Premises.
2. Term. The Term of the Revised Premises shall commence on approximately
----
Oct 1st, 1998 and shall terminate on September 30, 2002. Tenant acknowledges
that the delivery of the Revised Premises shall be subject to the timely
vacation of such space by Kokusai Communications Systems, and Landlord shall not
be liable for any delay in possession that might be caused by Kokusai
Communications Systems.
3. Rent. Rent and Additional Charges for the Revised Premises shall be
----
payable in the same manner and at the same time as called for under the Lease
with respect to the Premises, and shall be payable at the following rates:
10/1/98-9/30/99 $1.35 NNN Per Rentable Square Foot Per Month;
10/1/99-9/30/00 $1.40 NNN Per Rentable Square Foot Per Month;
10/1/00-9/30/01 $1.46 NNN Per Rentable Square Foot Per Month;
10/1/01-9/30/02 $1.51 NNN Per Rentable Square Foot Per Month.
Effective Oct 1st, 1998, Tenant's Building Share of Additional Charges
for Building Expenses for the Revised Premises shall be 15.18% (15,555 rsf
/102,456 rsf) and Tenant's Project Share of Additional Charges for Project
Expenses for the Revised Premises shall be 2.46% (15,555 rsf /632,809 rsf). In
addition, because the first floor of Building 4 has a common electric meter,
Tenant will pay its prorata share of both the first floor and house electric
meters.
4. Tenant Improvements. Tenant shall except the Revised Premises in
-------------------
"as-is" condition, vacant and broom clean, except that Landlord shall be
responsible for the cost of demising the Revised Premises as shown on Exhibit
"A". Tenant shall receive a tenant improvement allowance ("Tenant Improvement
Allowance") in the amount of $30,000.00 to be used for modifications by Tenant
to the Premises. Any improvements in excess of the $30,000.00 allowance shall
be at the Tenant's sole cost and expense.
5. Security Deposit. Landlord currently holds a Security Deposit of
----------------
$6,150.00. Upon execution of this First Amendment, Tenant shall pay to Landlord
in immediately available funds an amount equal to $20,913.45, in order to
increase the amount of the Security Deposit to $27,063.45, which is equal to the
first month's Rent and Additional Charges for the Revised Premises.
6. Parking. During the Term of the First Amendment, Tenant shall be
-------
entitled to fifteen (15) parking access cards in the reserved lot adjacent to
Building 4.
7. Broker's Commission. Tenant represents and warrants to Landlord that
-------------------
it has not entered into any agreement or incurred or created any obligation
which might require Landlord to pay any broker's commission, finder's fee or
other commission or relating to the leasing of the Premises as hereby amended.
Tenant shall indemnify, defend and hold Landlord harmless and Landlord's
constituent partners and their respective officers, directors, agents and
employees from and against all claims for any such commission of fees made by
anyone claiming by or through Tenant.
8. Miscellaneous.
-------------
8.1 Further Assurances. Each of the parties hereto agrees to execute
------------------
all documents and instruments and to take all other actions as may specifically
be provided for herein or in the Lease as may be required in order to consummate
the purposes of this First Amendment.
8.2 No Third Parties. Except as specifically set forth herein, no
----------------
third party shall be benefited by any of the provisions of this First Amendment,
nor shall any such third party have the right to rely in any manner upon any of
the terms hereof, and none of the covenants, representations, warranties or
agreements herein contained shall run in favor of any third party not
specifically referenced herein.
8.3 Legal Expenses. The prevailing party in any litigation or
--------------
dispute over rights, remedies or duties arising under this First Amendment shall
be entitled to recover, in addition to other appropriate relief, its reasonable
costs and expenses, including without limitations, attorneys' fees and court
costs. Such entitlement shall include costs and expenses incurred in the
collection of any judgment or settlement.
8.4 Integration; Interpretation. This First Amendment in combination
---------------------------
with the Lease contains or expressly incorporates by reference the entire
agreement of the parties with respect to the matters contemplated herein and
supersedes all prior negotiations.
8.5 Construction. The parties acknowledge that each party and its
------------
counsel have reviewed this First Amendment. The parties agree that the rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this First
Amendment.
8.6 No Defaults. Tenant hereby represents and warrants that it is
-----------
not in default under the Lease nor do any facts or circumstances exist which
with the passage of time or giving of notice, or both, could ripen into a
default.
8.7 Severability. If any provision of this First Amendment or of the
------------
Lease shall be determined by a court of competent jurisdiction to be invalid,
illegal, or unenforceable, that portion shall be deemed severed therefrom and
the remaining parts shall remain in full force as though the invalid, illegal,
or unenforceable portion had never been a part thereof.
8.8 Lease in full force and effect. All other terms and conditions
------------------------------
of the lease shall remain in full force and effect except to the extent modified
by this First Amendment.
IN WITNESS WHEREOF, this First Amendment has been executed as of the date first
above set forth.
LANDLORD: TENANT:
SAN DIEGO TECH CENTER, LLC, WIRELESS FACILITIES, INC.,
a Delaware limited liability company a Delaware Corporation
By: San Diego Realty Fund 5, By: /s/ Xxxxxx Xxxxxx
a California limited liability Company, --------------------------------
Its administrative Member
Xxxxxx Xxxxxx
-----------------------------------
Print Name
By: /s/ Xxxxxxx X. Xxxxxxxx 9-3-98
---------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxx Date
Date: 9/4/98
----------------------------
EXHIBIT A
Revised Premises
[PARTIAL PLAN-BUILDING 4 SAN DIEGO TECH MAP GOES HERE]
SECOND AMENDMENT TO OFFICE LEASE
This Second Amendment to Office Lease (this "Second Amendment"), entered
into as of February 24, 1999, by and between SAN DIEGO TECH CENTER, LLC, a
Delaware limited liability company (successor in interest under the Lease to
Sorrento Tech Associates) ("Landlord"), and Wireless Facilities, Inc., a
Delaware Corporation ("Tenant") modifies that certain lease dated November 15,
1995, by and between Sorrento Tech Associates, a California limited partnership
("Original Landlord"), and Tenant and further modified by that First Amendment
to Office Lease dated August 31, 1998 (collectively the "Lease"). All
capitalized terms in this Second Amendment and not defined shall have the
meanings set forth in the Lease.
The parties hereto desire that the Lease be modified to provide for, among
other things, the addition of 9,744 rentable square feet to the Premises and the
extension of the term of the Lease by an additional twelve months with the new
Expiration Date being September 30, 2003.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree to the
above Recitals and as follows:
1. Additional Premises. Landlord leases to Tenant and Tenant takes from
-------------------
Landlord, upon all terms and conditions of the Lease except to the extent they
are inconsistent with this Second Amendment, Suite 220 in the building located
at 0000 Xxxxxxxx Xxxx, constituting approximately 9,744 rentable square feet
(the "Additional Premises"), as shown on Exhibit "A" attached hereto and made a
part thereof. The 9,744 rentable square feet in the Additional Premises shall be
added to the 15,555 rentable square feet in the Premises and the amended
Premises shall consist of a total of 25,299 rentable square feet.
2. New Expiration Date. The Term of the Lease for the Premises is hereby
-------------------
amended to provide for a new Expiration Date. The Term of the Lease shall be
extended by an additional twelve months and the new Expiration Date shall be
September 30, 2003. Rent due for the Premises for the additional twelve-month
period of October 1, 2002 through September 30, 2003 shall be payable as shown
in Paragraph 3 below.
3. Rent. Rent for 5,000 rentable square feet of the Additional Premises
shall commence on June 1, 1999. Rent for 4,744 rentable square feet of the
Additional Premises shall be abated for the period of June 1, 1999 through
September 30, 1999. Rent for the remaining 4,744 rentable square feet of the
Additional Premises shall commence on October 1, 1999. Rent shall be payable at
the following rates:
6/1/99 -9/30/99 $1.35 NNN Per Rentable Square Foot Per Month;
10/1/99-9/30/00 $1.40 NNN Per Rentable Square Foot Per Month;
10/1/00-9/30/01 $1.46 NNN Per Rentable Square Foot Per Month;
10/1/01-9/30/02 $1.51 NNN Per Rentable Square Foot Per Month; and
10/1/02-9/30/03 $1.57 NNN Per Rentable Square Foot Per Month;
Effective April 1, 1999, Tenant's Building Share of Additional Charges for
Building Expenses and Tenant's Project Share of Additional Charges for Project
Expenses shall be adjusted for the increase in rentable square feet contained in
the Additional Premises. In addition, Tenant shall pay its prorata share of the
second floor and house electric meters.
4. Tenant Improvements. Tenant shall except the Additional Premises in
-------------------
"as-is" condition, vacant and broom clean on March 1, 1999. Tenant shall receive
a tenant improvement allowance in the amount of $80,000.00 to be used for
modifications by Tenant to the Premises. Any improvements in excess of the
$80,000.00 allowance shall be at the Tenant's sole cost and expense.
5. Security Deposit. Landlord currently holds a Security Deposit of
----------------
$27,063.45. Upon execution of this Second Amendment, Tenant shall pay to
Landlord in immediately available funds an amount equal to $15,590.40 (which is
equal to one month's Rent and estimated Additional Charges for the Additional
Premises) in order to increase the amount of the Security Deposit to $42,653.85.
6. Parking. Tenant shall be entitled to the use of ten (10) additional
-------
parking access cards in the reserved lot adjacent to Building 4. Tenant
currently has the use of fifteen (15) parking access cards and with the addition
of these ten (10) parking access cards shall bring the total number of parking
access cards issued to Tenant to twenty-five (25) cards.
7. Broker's Commission. Tenant represents and warrants to Landlord that
-------------------
it has not entered into any agreement or incurred or created any obligation
which might require Landlord to pay any broker's commission, finder's fee or
other commission or relating to the leasing of the Premises as hereby amended.
Tenant shall indemnify, defend and hold Landlord harmless and Landlord's
constituent partners and their respective officers, directors, agents and
employees from and against all claims for any such commission or fees made by
anyone claiming by or through Tenant.
8. Miscellaneous.
-------------
8.1 Further Assurances. Each of the parties hereto agrees to execute
------------------
all documents and instruments and to take all other actions as may specifically
be provided for herein or in the Lease as may be required in order to
consummate the purposes of this Second Amendment.
8.2 No Third Parties. Except as specifically set forth herein, no
----------------
third party shall be benefited by any of the provisions of this Second
Amendment, nor shall any such third party have the right to rely in any manner
upon any of the terms hereof, and none of the covenants, representations,
warranties or agreements herein contained shall run in favor of any third party
not specifically referenced herein.
8.3 Legal Expenses. The prevailing party in any litigation or
--------------
dispute over rights, remedies or duties arising under this Second Amendment
shall be entitled to recover, in addition to other appropriate relief, its
reasonable costs and expenses, including without limitations, attorneys' fees
and court costs. Such entitlement shall include costs and expenses incurred in
the collection of any judgement or settlement.
8.4 Integration; Interpretation. This Second Amendment in combination
---------------------------
with the Lease contains or expressly incorporates by reference the entire
agreement of the parties with respect to the matters contemplated herein and
supersedes all prior negotiations.
8.5 Construction. The parties acknowledge that each party and its
------------
counsel have reviewed this Second Amendment. The parties agree that the rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Second
Amendment.
8.6 No Defaults. Tenant hereby represents and warrants that it is not
-----------
in default under the Lease nor do any facts or circumstances exist which with
the passage of time or giving of notice, or both, could ripen into a default.
8.7 Severability. If any provision of this Second Amendment or of the
------------
Lease shall be determined by a court of competent jurisdiction to be invalid,
illegal, or unenforceable, that portion shall be deemed severed therefrom and
the remaining parts shall remain in full force as though the invalid, illegal,
or unenforceable portion had never been a part thereof.
8.8 Lease in full force and effect. All other terms and conditions of
------------------------------
the lease shall remain in full force and effect except to the extent modified by
this Second Amendment.
IN WITNESS WHEREOF, this Second Amendment has been executed as of the date first
above set forth.
LANDLORD: TENANT:
SAN DIEGO TECH CENTER, LLC, WIRELESS FACILITIES, INC.
a Delaware limited liability company a Delaware Corporation
By: San Diego Realty Fund 5, a By: /s/ Xxxxxx Xxxxxx
California limited liability --------------------------
Company, Its administrative Print Name
Member
By: /s/ Xxxxxxx X. Xxxxxxxx 3-2-99
-------------------------------- --------------------------
Xxxxxxx X. Xxxxxxxx Date
Date: 8/9/99
------------------------------
EXHIBIT A
ADDITIONAL PREMISES
[THE FLOOR PLAN FOR ADDITIONAL PREMISES GOES HERE]
