Exhibit 10.2
MULTI-TENANT INDUSTRIAL LEASE
-----------------------------
(TRIPLE NET)
LANDLORD:
LBA INDUSTRIAL FUND - HOLDING CO. II, INC.,
a Delaware corporation,
and
INNSBRUCK HOLDINGS, L.P.,
a California limited partnership
TENANT:
▇.▇▇▇▇▇▇▇ CORPORATION,
a California corporation
SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS
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This SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS ("Summary") is hereby
incorporated into and made a part of the attached Multi-Tenant Industrial Lease
which pertains to the Building described in Section 1.4 below. All references in
the Lease to the "Lease" shall include this Summary. All references in the Lease
to any term defined in this Summary shall have the meaning set forth in this
Summary for such term. Any initially capitalized terms used in this Summary and
any initially capitalized terms in the Lease which are not otherwise defined in
this Summary shall have the meaning given to such terms in the Lease. If there
is any inconsistency between this Summary and the Lease, the provisions of the
Lease shall control.
1.1 Landlord's Address: LBA INDUSTRIAL FUND - HOLDING CO. II, INC.
c/o ▇▇▇▇▇▇-▇▇▇▇▇▇▇ & Associates
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and
INNSBRUCK HOLDINGS, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1.2 Tenant's Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
(Prior to the Commencement Date)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
(After the Commencement Date)
1.3 Project: The industrial development known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ Business Park in
the City of San Diego, County of San Diego, State of California, as shown on the
site plan attached hereto as Exhibit "A". The Project includes all buildings,
improvements and facilities, now or subsequently located within such development
from time to time, including, without limitation, the three (3) buildings
(including the Building) currently located within the Project, as depicted on
the site plan attached hereto as Exhibit "A", the address of which is
16680-16770 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The aggregate
rentable square feet of all of the buildings (including the Building) located
within the Project is 73,151 rentable square feet. Landlord may, from time to
time, expand or reduce the area comprising the Project.
1.4 Building: A multi-tenant industrial building located in the Project in which
the Premises is located.
1.5 Premises: Those certain premises within the Project addressed at ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, containing approximately 4,838
rentable square feet.
1.6 Tenant's Share: Tenant's Share is 6.61%, which is the ratio that the
rentable square footage of the Premises bears to the rentable square footage of
the Project. Accordingly, as more particularly set forth in Section 4 of this
Lease, Tenant shall pay to Landlord 6.61% of the Operating Expenses. Tenant's
Share is subject to adjustment in accordance with Section 1.3 of this Lease.
1.7 Commencement Date: The earlier to occur of (i) the date Tenant commences
business in the Premises or (ii) the date of Substantial Completion, as defined
in accordance with Exhibit "C". Landlord will deliver the Premises to Tenant
upon Substantial Completion, which is estimated to be March 1, 2006.
1.8 Term: Sixty-two (62) months.
1.9 Basic Rent:
Months Basic Rent
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1-14* $5,805.60**
15-27 $5,979.77
28-38 $6,159.16
39-50 $6,343.94
51-62 $6,534.25
*Including any partial month at the beginning of the Term if the Commencement
Date is not the first day of the month.
**Subject to abatement as provided in Section 3.1 below.
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1.10 Parking: Four uncovered, unreserved parking spaces per 1,000 rentable
square feet of the Premises, which equals nineteen (19) uncovered, unreserved
parking spaces. Parking will be provided at no additional cost to Tenant, other
than Tenant's Share of Operating Expenses.
1.11 Security Deposit: $31,136.00.
1.12 Permitted Use: General office use.
1.13 Brokers: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. representing Landlord and Tenant.
1.14 Interest Rate: The lesser of: (a) the prime rate announced from time to
time by ▇▇▇▇▇ Fargo Bank or, if ▇▇▇▇▇ Fargo Bank ceases to exist or ceases to
publish such rate, then the rate announced from time to time by the largest (as
measured by deposits) chartered operating bank operating in California, as its
"prime rate" or "reference rate", plus five percent (5%) per annum; or (b) the
maximum rate permitted by law.
1.15 Tenant Improvements: The tenant improvements previously installed in the
Premises, if any, and the tenant improvements to be installed in the Premises,
if any, as described in the Tenant Work Letter attached hereto as Exhibit "C".
1.16 Guarantor(s): N/A.
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TABLE OF CONTENTS
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Page
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1. Premises.............................................................1
2. Term.................................................................1
3. Rent.................................................................1
4. Common Area; Operating Expenses......................................2
5. Security Deposit.....................................................4
6. Use..................................................................4
7. Payments and Notices.................................................7
8. Brokers..............................................................7
9. Surrender; Holding Over..............................................7
10. Taxes................................................................8
11. Possession; Condition of Premises; Repairs...........................8
12. Alterations..........................................................9
13. Liens...............................................................10
14. Assignment and Subletting...........................................10
15. Entry by Landlord...................................................12
16. Utilities and Services..............................................12
17. Indemnification and Exculpation.....................................12
18. Damage or Destruction...............................................13
19. Eminent Domain......................................................14
20. Tenant's Insurance..................................................15
21. Landlord's Insurance................................................16
22. Waivers of Subrogation..............................................16
23. Tenant's Default and Landlord's Remedies............................16
24. Landlord's Default..................................................19
25. Subordination.......................................................19
26. Estoppel Certificate................................................19
27. Project Planning ("Relocation Notice")..............................20
28. Modification and Cure Rights of Landlord's Mortgagees and Lessors...20
29. Quiet Enjoyment.....................................................20
30. Transfer of Landlord's Interest.....................................20
31. Limitation on Landlord's Liability..................................20
32. Miscellaneous.......................................................21
33. Lease Execution.....................................................23
34. Waiver of Jury Trial................................................23
EXHIBITS
EXHIBIT "A" Project Site Plan
EXHIBIT "B" Intentionally Omitted
EXHIBIT "C" Work Letter Agreement
EXHIBIT "D" Sample Form of Notice of Lease Term Dates
EXHIBIT "E" Rules and Regulations
EXHIBIT "F" Sample Form of Tenant Estoppel Certificate
EXHIBIT "G" Intentionally Omitted
EXHIBIT "H" Tenant Environmental Questionnaire
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TABLE OF CONTENTS
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Abandonment..................................................................16
Actual Statement..............................................................3
Collateral...................................................................18
Common Area...................................................................2
Damage Repair Estimate.......................................................14
Declaration...................................................................2
Environmental Law.............................................................5
Environmental Permits.........................................................5
Estimate Statement............................................................3
Force Majeure Delays.........................................................22
Hazardous Materials...........................................................6
Indemnified Claims...........................................................12
Landlord......................................................................1
Landlord Indemnified Parties..................................................5
Landlord's Broker.............................................................7
Lease.........................................................................1
Operating Expenses............................................................2
PCBs..........................................................................6
Permitted Transfer...........................................................11
Permitted Transferee.........................................................11
Pre-Approved Change...........................................................9
Real Property Taxes...........................................................8
Relocation Notice............................................................19
Summary.......................................................................1
Systems.......................................................................9
Tenant........................................................................1
Tenant Change.................................................................9
Tenant Changes,...............................................................9
Tenant's Broker...............................................................7
Tenant's Monthly Operating Expense Charge.....................................3
Tenant's Parties..............................................................5
Termination Notice...........................................................20
Transfer.....................................................................10
Transfer Date................................................................11
Transfer Notice..............................................................11
Transferee...................................................................11
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MULTI-TENANT INDUSTRIAL LEASE
This LEASE ("Lease"), which includes the preceding Summary of Basic Lease
Information and Definitions ("Summary") attached hereto and incorporated herein
by this reference, is made as of the 2nd day of March, 2006, by and between LBA
INDUSTRIAL FUND - HOLDING CO. II, INC., a Delaware corporation, and INNSBRUCK
HOLDINGS, L.P., a California limited partnership (collectively, "Landlord"), and
▇.▇▇▇▇▇▇▇ CORPORATION, a California corporation ("Tenant").
1. Premises.
1.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises upon and subject to the terms, covenants and conditions
contained in this Lease to be performed by each party.
1.2 Landlord's Reservation of Rights. Provided Tenant's use of and access to the
Premises is not interfered with in an unreasonable manner, Landlord reserves the
right from time to time to install, use, maintain, repair, replace and relocate
pipes, ducts, conduits, wires and appurtenant meters and equipment above the
ceiling surfaces, below the floor surfaces and within the walls of the Building
and the Premises.
1.3 Remeasurement. From time to time at Landlord's option, Landlord's architect
may determine and redetermine the actual rentable square footage of the
Premises, the Building and other building(s) in the Project, and thereupon
Tenant's Share, Basic Rent, the Allowance, if any, and any other terms which
vary based on the rentable square footage of the Premises, the Building and/or
other buildings in the Project, will be adjusted accordingly.
2. Term.
2.1 Term; Notice of Lease Dates. The Term of this Lease shall be for the period
designated in Section 1.8 of the Summary commencing on the Commencement Date,
and ending on the expiration of such period, unless the Term is sooner
terminated or extended as provided in this Lease. Notwithstanding the foregoing,
if the Commencement Date falls on any day other than the first day of a calendar
month then the term of this Lease will be measured from the first day of the
month following the month in which the Commencement Date occurs. Within ten (10)
days after Landlord's written request, Tenant shall execute a written
confirmation of the Commencement Date and expiration date of the Term in the
form of the Notice of Lease Term Dates attached hereto as Exhibit "D". The
Notice of Lease Term Dates shall be binding upon Tenant unless Tenant objects
thereto in writing within such ten (10) day period.
2.2 Early Occupancy. If Tenant occupies the Premises prior to the Commencement
Date, such early occupancy shall be subject to all of the terms and conditions
of this Lease, including, without limitation, the provisions of Sections 17, 20
and 22 except that provided Tenant does not commence the operation of business
from the Premises, Tenant will not be obligated to pay rent during the period of
such early occupancy.
3. Rent.
3.1 Basic Rent. Tenant agrees to pay Landlord, as basic rent for the Premises,
the Basic Rent designated in Section 1.9 of the Summary. The Basic Rent shall be
paid by Tenant in advance on the first day of each and every calendar month
during the Term, except that the first full month's Basic Rent shall be paid
upon Tenant's execution and delivery of this Lease to Landlord. Basic Rent for
any partial month shall be prorated in the proportion that the number of days
this Lease is in effect during such month bears to the actual number of days in
such month. Notwithstanding anything to the contrary contained herein and
provided that Tenant faithfully performs all of the terms and conditions of this
Lease, Landlord hereby agrees to ▇▇▇▇▇ Tenant's obligation to pay monthly Basic
Rent for the first two (2) full months of the initial Term of this Lease. During
such abatement periods, Tenant shall still be responsible for the payment of all
of its other monetary obligations under this Lease. In the event of a default by
Tenant under the terms of this Lease that results in early termination pursuant
to the provisions of Section 23.1 of this Lease, then as a part of the recovery
set forth in Section 23.2 of this Lease, Landlord shall be entitled to the
recovery of the monthly Basic Rent abated under the provisions of this Section
3.1.
3.2 Additional Rent. All amounts and charges payable by Tenant under this Lease
in addition to the Basic Rent described in Section 3.1 above shall be considered
additional rent for the purposes of this Lease, and the word "rent" in this
Lease shall include such additional rent unless the context specifically or
clearly implies that only the Basic Rent is referenced. The Basic Rent and
additional rent shall be paid to Landlord as provided in Section 7, without any
prior demand therefor and without any deduction or offset, in lawful money of
the United States of America.
(1)
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3.3 Late Payments. Late payments of Basic Rent and/or any item of additional
rent will be subject to interest and a late charge as provided in Section 23.7
below.
3.4 Triple-Net Lease. All rent shall be absolutely net to Landlord so that this
Lease shall yield net to Landlord, the rent to be paid each month during the
Term of this Lease. Accordingly, except as specifically set forth herein, all
costs, expenses and obligations of every kind or nature whatsoever relating to
the Premises, and Tenant's Share of all costs, expenses and obligations of every
kind or nature whatsoever relating to the remaining portion of the Project,
which may arise or become due during the Term of this Lease shall be paid by
Tenant. Nothing herein contained shall be deemed to require Tenant to pay or
discharge any liens or mortgages of any character whatsoever which may exist or
hereafter be placed upon the Project by an affirmative act or omission of
Landlord.
4. Common Area; Operating Expenses.
4.1 Definition of Common Area. The term "Common Area" means all areas and the
improvements thereon within the exterior boundaries of the Project now or later
made available for the general use of Landlord, Tenant and other persons
entitled to occupy floor area in the Project and their customers, including,
without limitation, the parking facilities of the Project, loading and unloading
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways,
landscaped areas, and similar areas and facilities situated within the Project
which are not reserved for the exclusive use of any Project occupants. Common
Area also shall include, without limitation, the common entrances, lobbies,
restrooms on multi-tenant floors, elevators, stairways and accessways, loading
docks, ramps, drives and platforms and any passageways and serviceways thereto
to the extent not exclusively serving another tenant or contained within another
tenant's premises, and the common pipes, conduits, wires and appurtenant
equipment serving the Premises. Without limiting this definition, Landlord may
include in the Common Area those portions of the Project presently or later sold
or leased to purchasers or tenants, as the case may be, until the commencement
of construction of the building(s) thereon, at which time there shall be
withdrawn from the Common Area those areas not provided by such owner or lessee
for common use. Common Area shall not include (i) the entryway to a tenant's
premises, (ii) any improvements installed by a tenant outside of its premises,
whether with or without Landlord's knowledge or consent, or (iii) any areas or
facilities that are included in the description of premises leased to a tenant.
4.2 Maintenance and Use of Common Area. The manner in which the Common Area
shall be maintained shall be solely determined by Landlord. If any owner or
tenant of any portion of the Project maintains Common Area located upon its
parcel or demised premises (Landlord shall have the right in its sole discretion
to allow any purchaser or tenant to so maintain Common Area located upon its
parcel or demised premises and to be excluded from participation in the payment
of Operating Expenses as provided below), Landlord shall not have any
responsibility for the maintenance of that portion of the Common Area and Tenant
shall have no claims against Landlord arising out of any failure of such owner
or tenant to so maintain its portion of the Common Area. The use and occupancy
by Tenant of the Premises shall include the right to use the Common Area (except
areas used in the maintenance or operation of the Project), in common with
Landlord and other tenants of the Project and their customers and invitees,
subject to (i) any covenants, conditions and restrictions now or hereafter of
record (collectively the "Declaration"), and (ii) such reasonable,
non-discriminatory rules and regulations concerning the Project as may be
established by Landlord from time to time including, without limitation, the
Rules and Regulations attached hereto as Exhibit "E". Tenant agrees to promptly
comply with all such rules and regulations and any reasonable,
non-discriminatory amendments thereto upon receipt of written notice from
Landlord.
4.3 Control of and Changes to Common Area. Landlord shall have the sole and
exclusive control of the Common Area, as well as the right to make reasonable
changes to the Common Area. Provided Landlord does not materially interfere with
Tenant's use of and access to the Premises (except to the extent required to
comply with law), Landlord's rights shall include, but not be limited to, the
right to (a) restrain the use of the Common Area by unauthorized persons; (b)
cause Tenant to remove or restrain persons from any unauthorized use of the
Common Area if they are using the Common Area by reason of Tenant's presence in
the Project; (c) utilize from time to time any portion of the Common Area for
promotional, entertainment, and related matters; (d) temporarily close any
portion of the Common Area for repairs, improvements or alterations, to
discourage non-customer use, to prevent public dedication or an easement by
prescription from arising, or for any other reason deemed appropriate in
Landlord's judgment; and (e) reasonably change the shape and size of the Common
Area, add, eliminate or change the location of improvements to the Common Area,
including, without limitation, buildings, lighting, parking areas, landscaped
areas, roadways, walkways, drive aisles and curb cuts.
(2)
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4.4 Operating Expenses. Throughout the Term of this Lease, commencing on the
Commencement Date, Tenant agrees to pay Landlord as additional rent in
accordance with the terms of this Section 4, Tenant's Share of Operating
Expenses. As used in this Lease, the term "Operating Expenses" shall consist of
all costs and expenses for the ownership, operation, maintenance, repair and
replacement of the Project as determined by Landlord utilizing standard
accounting practices and calculated assuming the Project is one hundred percent
(100%) occupied. Operating Expenses shall include the following costs by way of
illustration but not limitation: (i) Real Property Taxes; (ii) any and all
assessments under any covenants, conditions and restrictions affecting the
Project; (iii) water, sewer and other utility charges; (iv) costs of insurance
obtained by Landlord pursuant to Section 21 of this Lease; (v) waste disposal
and janitorial services; (vi) security; (vii) labor; (viii) management costs
including, without limitation: (A) wages, salaries, pension payments, fringe
benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and
similar charges ) of property management employees, and (B) management office
rental, supplies, equipment and related operating expenses and commercially
reasonable management/administrative fees; (ix) supplies, materials, equipment
and tools including rental of personal property; (x) repair and maintenance of
all portions of the buildings within the Project, including the plumbing,
heating, ventilating, air-conditioning and electrical systems installed or
furnished by Landlord; (xi) maintenance, sweeping, repairs, resurfacing, and
upkeep of all parking and other Common Areas; (xii) amortization on a straight
line basis over the useful life (together with interest at the Interest Rate on
the unamortized balance) of all capitalized expenditures which are: (A)
reasonably intended to produce a reduction in operating charges or energy
consumption; or (B) required under any governmental law or regulation that was
not applicable to the Project at the time it was originally constructed; or (C)
for replacement or restoration of any Project equipment and/or improvements
needed to operate and/or maintain the Project at the same quality levels as
prior to the replacement or restoration; (xiii) gardening and landscaping; (xiv)
maintenance of signs (other than signs of tenants of the Project); (xv) personal
property taxes levied on or attributable to personal property used in connection
with the Common Areas; (xvi) reasonable accounting, audit, verification, legal
and other consulting fees; and (xvii) any other costs and expenses of repairs,
maintenance, painting, lighting, cleaning, and similar items, including
appropriate reserves.
4.5 Tenant's Monthly Operating Expense Charge. From and after the Commencement
Date, Tenant shall pay to Landlord, on the first day of each calendar month
during the Term of this Lease, Tenant's Share of an amount estimated by Landlord
to be the Monthly Operating Expenses for the Project for that month ("Tenant's
Monthly Operating Expense Charge").
4.6 Estimate Statement. Prior to the Commencement Date and on or about March 1st
of each subsequent calendar year during the Term of this Lease, Landlord will
endeavor to deliver to Tenant a statement ("Estimate Statement") wherein
Landlord will estimate both the Operating Expenses and Tenant's Monthly
Operating Expense Charge for the then current calendar year. Tenant agrees to
pay Landlord, as additional rent, Tenant's estimated Monthly Operating Expense
Charge each month thereafter, beginning with the next installment of rent due,
until such time as Landlord issues a revised Estimate Statement or the Estimate
Statement for the succeeding calendar year; except that, concurrently with the
regular monthly rent payment next due following the receipt of each such
Estimate Statement, Tenant agrees to pay Landlord an amount equal to one monthly
installment of Tenant's estimated Monthly Operating Expense Charge (less any
applicable Operating Expenses already paid) multiplied by the number of months
from January, in the current calendar year, to the month of such rent payment
next due, all months inclusive. If at any time during the Term of this Lease,
but not more often than quarterly, Landlord reasonably determines that Tenant's
Share of Operating Expenses for the current calendar year will be greater than
the amount set forth in the then current Estimate Statement, Landlord may issue
a revised Estimate Statement and Tenant agrees to pay Landlord, within ten (10)
days of receipt of the revised Estimate Statement, the difference between the
amount owed by Tenant under such revised Estimate Statement and the amount owed
by Tenant under the original Estimate Statement for the portion of the then
current calendar year which has expired. Thereafter, Tenant agrees to pay
Tenant's Monthly Operating Expense Charge based on such revised Estimate
Statement until Tenant receives the next calendar year's Estimate Statement or a
new revised Estimate Statement for the current calendar year.
4.7 Actual Statement. By March 1st of each calendar year during the Term of this
Lease, Landlord will also endeavor to deliver to Tenant a statement ("Actual
Statement") which states Tenant's Share of the actual Operating Expenses for the
preceding calendar year. If the Actual Statement reveals that Tenant's Share of
the actual Operating Expenses is more than the total Additional Rent paid by
Tenant for Operating Expenses on account of the preceding calendar year, Tenant
agrees to pay Landlord the difference in a lump sum within ten (10) days of
receipt of the Actual Statement. If the Actual Statement reveals that Tenant's
Share of the actual Operating Expenses is less than the Additional Rent paid by
Tenant for Operating Expenses on account of the preceding calendar year,
Landlord will credit any overpayment toward the next monthly installment(s) of
Tenant's Share of the Operating Expenses due under this Lease. Such obligation
will be a continuing one which will survive the expiration or earlier
termination of this Lease. Prior to the expiration or sooner termination of the
Lease Term and Landlord's acceptance of Tenant's surrender of the Premises,
Landlord will have the right to estimate the actual Operating Expenses for the
then current calendar year and to collect from Tenant prior to Tenant's
surrender of the Premises, Tenant's Share of any excess of such actual Operating
Expenses over the estimated Operating Expenses paid by Tenant in such calendar
year.
4.8 Miscellaneous. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Section 4 will not constitute a
waiver of its right to require an increase in additional rent for Operating
Expenses nor will it relieve Tenant of its obligations pursuant to this Section
4, except that Tenant will not be obligated to make any payments based on such
Estimate Statement or Actual Statement until ten (10) days after receipt of such
Estimate Statement or Actual Statement. If Tenant does not object to any
Estimate Statement or Actual Statement within thirty (30) days after Tenant
receives any such statement, such statement will be deemed final and binding on
Tenant. Even though the Term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Share of the actual Operating
Expenses for the year in which this Lease terminates, Tenant agrees to promptly
pay any increase due over the estimated expenses paid and, conversely, any
overpayment made in the event said expenses decrease shall promptly be rebated
by Landlord to Tenant. Such obligation will be a continuing one which will
survive the expiration or termination of this Lease. Prior to the expiration or
sooner termination of the Lease Term and Landlord's acceptance of Tenant's
surrender of the Premises, Landlord will have the right to estimate the actual
Operating Expenses for the then current calendar year and to collect from Tenant
prior to Tenant's surrender of the Premises, Tenant's Share of any excess of
such actual Operating Expenses over the estimated Operating Expenses paid by
Tenant in such calendar year.
(3)
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5. Security Deposit. Landlord hereby acknowledges the prior receipt of Eighteen
Thousand Fifty and 00/100 Dollars ($18,050.00), which was delivered to Landlord
in connection with Tenant's lease of space at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and such amount shall be applied toward the Security
Deposit set forth in Section 1.11 of the Summary and the remaining Thirteen
Thousand Eighty-Six and 00/100 Dollars ($13,086.00) of the Security Deposit
shall be paid by Tenant concurrent with Tenant's execution and delivery of this
Lease to Landlord. The Security Deposit shall be held by Landlord as security
for the full and faithful performance by Tenant of all of the terms, covenants
and conditions of this Lease to be performed by Tenant during the Term. The
Security Deposit is not, and may not be construed by Tenant to constitute, rent
for the last month or any portion thereof. If Tenant defaults with respect to
any of its obligations under this Lease, Landlord may (but shall not be required
to) use, apply or retain all or any part of the Security Deposit for the payment
of any rent or any other sum in default, or for the payment of any other amount,
loss or damage which Landlord may spend, incur or suffer by reason of Tenant's
default. Tenant hereby waives the provisions of California Civil Code Section
1950.7 and any other provisions of any law, now or hereafter enforced, which
provide that Landlord may claim from the Security Deposit only those sums
reasonably necessary to remedy defaults in the payment of rent, to repair damage
caused by Tenant or to clean the Premises, it being agreed that Landlord may, in
addition, claim those sums reasonably necessary to compensate Landlord for any
other loss or damage caused by the acts or omissions of Tenant or any Tenant's
Parties. If any portion of the Security Deposit is so used or applied, Tenant
shall, within ten (10) days after demand therefor, deposit cash with Landlord in
an amount sufficient to restore the Security Deposit to its original amount.
Landlord shall not be required to keep the Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by it, the Security Deposit or any balance thereof shall
be returned to Tenant within two (2) weeks following the expiration of the Lease
term, provided that Landlord may retain the Security Deposit until such time as
any amount due from Tenant in accordance with this Lease has been determined and
paid in full. If Landlord sells its interest in the Building during the Term and
if Landlord deposits with the purchaser the Security Deposit (or balance
thereof), then, upon such sale, Landlord shall be discharged from any further
liability with respect to the Security Deposit. If Basic Rent increases during
the Term, Tenant shall, within ten (10) days following written request from
Landlord, deposit additional sums with Landlord so that the total amount of the
Security Deposit shall at all times bear the same proportion to the increased
Basic Rent as the initial Security Deposit bore to the initial Basic Rent.
Notwithstanding the foregoing, provided Tenant is not then in default under this
Lease (and no circumstance exists that, with the giving of notice, the passage
of time, or both, would constitute a default) upon the expiration of each of the
twenty-fourth (24th), thirty-sixth (36th), forty-eighth (48th) and sixtieth
(60th) full months of the initial Term, the Security Deposit shall be reduced by
an amount equal Six Thousand Five Hundred Thirty-Four and 25/100 Dollars
($6,534.25), which amount shall be refunded to Tenant promptly after the
expiration of each applicable month.
6. Use.
6.1 General. Tenant shall use the Premises solely for the Permitted Use
specified in Section 1.12 of the Summary, and shall not use or permit the
Premises to be used for any other use or purpose whatsoever. Tenant shall
observe and comply with the "Rules and Regulations" attached hereto as Exhibit
"E", and all reasonable non-discriminatory modifications thereof and additions
thereto from time to time put into effect and furnished to Tenant by Landlord.
Landlord shall endeavor to enforce the Rules and Regulations, but shall have no
liability to Tenant for the violation or non-performance by any other tenant or
occupant of the Project of any such Rules and Regulations. Tenant shall, at its
sole cost and expense, observe and comply with all requirements of any board of
fire underwriters or similar body relating to the Premises, all recorded
covenants, conditions and restrictions now or hereafter affecting the Premises
and all laws, statutes, codes, rules and regulations now or hereafter in force
relating to or affecting the condition, use, occupancy, alteration or
improvement of the Premises (including, without limitation, the provisions of
Title III of the Americans with Disabilities Act of 1990 as it pertains to
Tenant's use, occupancy, improvement and alteration of the Premises), whether,
except as otherwise provided herein, structural or nonstructural, including
unforeseen and/or extraordinary alterations and/or improvements to the Premises
and regardless of the period of time remaining in the Lease Term. Tenant shall
not use or allow the Premises to be used (a) in violation of the Declaration or
any other recorded covenants, conditions and restrictions affecting the Project
or of any law or governmental rule or regulation, or of any certificate of
occupancy issued for the Premises, the Building and/or the Project, or (b) for
any improper, immoral, unlawful or reasonably objectionable purpose. Tenant
shall not do or permit to be done anything which will obstruct or interfere with
the rights of other tenants or occupants of the Project, or injure or annoy
them. Tenant shall not cause, maintain or permit any nuisance in, on or about
the Premises, the Building or the Project, nor commit or suffer to be committed
any waste in, on or about the Premises. Tenant and Tenant's employees and agents
shall not solicit business in the Common Area, nor shall Tenant distribute any
handbills or other advertising matter in the Common Area.
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6.2 Parking.
6.2.1 Tenant's Parking Privileges. During the Term of this Lease, Landlord shall
lease to Tenant, and Tenant shall lease from Landlord, the number of parking
privileges specified in Section 1.10 of the Summary hereof for use by Tenant's
employees in the common parking areas for the Building within the Project, as
designated by Landlord from time to time. Landlord shall at all times have the
right to establish and modify the nature and extent of the parking areas for the
Building and Project (including whether such areas shall be surface, underground
and/or other structures) as long as Tenant is provided the number of parking
privileges designated in Section 1.10 of the Summary. In addition, Landlord may,
in its sole discretion, assign any unreserved and unassigned parking privileges
and/or make all or a portion of such privileges reserved.
6.2.2 Parking Rules. The use of the parking areas shall be subject to the
Parking Rules and Regulations contained in Exhibit "E" attached hereto and any
other reasonable, non-discriminatory rules and regulations adopted by Landlord
and/or Landlord's parking operators from time to time, including any system for
controlled ingress and egress and charging visitors and invitees, with
appropriate provision for validation of such charges. Tenant shall not use more
parking privileges than its allotment and shall not use any parking spaces
specifically assigned by Landlord to other tenants of the Building or Project or
for such other uses as visitor parking. Tenant's parking privileges shall be
used only for parking by vehicles no larger than normally sized passenger
automobiles or pick-up trucks. Tenant shall not permit or allow any vehicles
that belong to or are controlled by Tenant or Tenant's employees, suppliers,
shippers, customers or invitees to be loaded, unloaded, or parked in areas other
than those designated by Landlord for such activities. If Tenant permits or
allows any of the prohibited activities described herein, then Landlord shall
have the right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and charge the cost
thereof to Tenant, which cost shall be immediately payable by Tenant upon demand
by Landlord.
6.3 Signs, Awnings and Canopies. Tenant will not place or suffer to be placed or
maintained on the roof or on any exterior door, wall or window (or within 48
inches of any window) of the Premises any sign, awning or canopy, or advertising
matter on the glass of any window or door of the Premises without Landlord's
prior written consent. Tenant agrees to maintain any such sign, awning, canopy,
decoration, lettering or advertising matter as may be approved by Landlord in
good condition and repair at all times. At the expiration or earlier termination
of this Lease, at Landlord's election, Tenant shall remove all signs, awnings,
canopies, decorations, lettering and advertising and shall repair any damage to
the Building, the Premises or the Project resulting therefrom all at Tenant's
sole cost and expense. If Tenant fails to maintain any such approved sign,
awning, decoration, lettering, or advertising, Landlord may do so and Tenant
shall reimburse Landlord for such cost plus a twenty percent (20%) overhead fee.
If, without Landlord's prior written consent, Tenant installs any sign, awning,
decoration, lettering or advertising, or fails to remove any such item(s) at the
expiration or earlier termination of this Lease, Landlord may have such item(s)
removed and stored and may repair any damage to the Building, the Premises or
the Project at Tenant's expense. The removal, repair and/or storage costs shall
bear interest until paid at the Interest Rate.
6.4 Hazardous Materials.
6.4.1 Tenant's Obligations. Tenant will (i) obtain and maintain in full force
and effect all Environmental Permits (as defined below) that may be required
from time to time under any Environmental Laws (as defined below) applicable to
Tenant or the Premises and (ii) be and remain in compliance with all terms and
conditions of all such Environmental Permits and with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in all Environmental Laws applicable to
Tenant or the Premises. As used in this Lease, the term "Environmental Law"
means any past, present or future federal, state or local statutory or common
law, or any regulation, ordinance, code, plan, order, permit, grant, franchise,
concession, restriction or agreement issued, entered, promulgated or approved
thereunder, relating to (a) the environment, human health or safety, including,
without limitation, emissions, discharges, releases or threatened releases of
Hazardous Materials (as defined below) into the environment (including, without
limitation, air, surface water, groundwater or land), or (b) the manufacture,
generation, refining, processing, distribution, use, sale, treatment, receipt,
storage, disposal, transport, arranging for transport, or handling of Hazardous
Materials. "Environmental Permits" means, collectively, any and all permits,
consents, licenses, approvals and registrations of any nature at any time
required pursuant to, or in order to comply with, any Environmental Law. Except
for ordinary and general office supplies, such as copier toner, liquid paper,
glue, ink and common household cleaning materials used and stored in compliance
with all Environmental Laws (some or all of which may constitute Hazardous
Materials as defined below), Tenant agrees not to cause or permit any Hazardous
Materials to be brought upon, stored, used, handled, generated, released or
disposed of on, in, under or about the Premises, the Building, the Common Areas
or any other portion of the Project by Tenant, its agents, employees,
subtenants, assignees, licensees, contractors or invitees (collectively,
"Tenant's Parties"), without the prior written consent of Landlord, which
consent Landlord may withhold in its sole and absolute discretion. Concurrently
with the execution of this Lease, Tenant agrees to complete and deliver to
Landlord an Environmental Questionnaire in the form of Exhibit "H" attached
hereto. Upon the expiration or earlier termination of this Lease, Tenant agrees
to promptly remove from the Premises, the Building and the Project, at its sole
cost and expense, any and all Hazardous Materials, including any equipment or
systems containing Hazardous Materials which are installed, brought upon,
stored, used, generated or released upon, in, under or about the Premises, the
Building and/or the Project or any portion thereof by Tenant or any of Tenant's
Parties. To the fullest extent permitted by law, Tenant agrees to promptly
indemnify, protect, defend and hold harmless Landlord and Landlord's members,
shareholders, partners, officers, directors, employees, agents, successors and
assigns (collectively, "Landlord Indemnified Parties") from and against any and
all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs) which arise or
result from the presence of Hazardous Materials on, in, under or about the
Premises, the Building or any other portion of the Project and which are caused
or permitted by Tenant or any of Tenant's Parties. Tenant agrees to promptly
notify Landlord of any release of Hazardous Materials in the Premises, the
Building or any other portion of the Project which Tenant becomes aware of
during the Term of this Lease, whether caused by Tenant, Tenant's Parties or any
other persons or entities. In the event of any release of Hazardous Materials
caused or permitted by Tenant or any of Tenant's Parties, Landlord shall have
the right, but not the obligation, to cause Tenant to immediately take all steps
Landlord deems necessary or appropriate to remediate such release and prevent
any similar future release to the satisfaction of Landlord and Landlord's
mortgagee(s). At all times during the Term of this Lease, Landlord will have the
right, but not the obligation, to enter upon the Premises to inspect,
investigate, sample and/or monitor the Premises to determine if Tenant is in
compliance with the terms of this Lease regarding Hazardous Materials. Tenant
will, upon the request of Landlord at any time during which Landlord has reason
to believe that Tenant is not in compliance with this Section 6.4.1, cause to be
performed an environmental audit of the Premises at Tenant's expense by an
established environmental consulting firm reasonably acceptable to Landlord. As
used in this Lease, the term "Hazardous Materials" shall mean and include any
hazardous or toxic materials, substances or wastes as now or hereafter
designated or regulated under any law, statute, ordinance, rule, regulation,
order or ruling of any agency of the State, the United States Government or any
local governmental authority, including, without limitation, asbestos,
petroleum, petroleum hydrocarbons and petroleum based products, urea
formaldehyde foam insulation, polychlorinated biphenyls ("PCBs"), and freon and
other chlorofluorocarbons. The provisions of this Section 6.4.1 will survive the
expiration or earlier termination of this Lease.
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6.4.2 Landlord's Termination Option for Certain Environmental Problems. If
Hazardous Materials are present at the Premises that are required by
Environmental Law to be remediated and Tenant is not responsible therefor
pursuant to Section 6.4.1, Landlord may, at its option, either (i) remediate
such Hazardous Materials as an Operating Expense, in which event this Lease
shall continue in full force and effect or (ii) if the estimated cost to
remediate such Hazardous Materials exceeds twelve (12) times the then Basic Rent
or One Hundred Thousand Dollars ($100,000.00), whichever is greater, give
written notice to Tenant, within thirty (30) days after receipt by Landlord of
knowledge of the existence of such Hazardous Materials, of Landlord's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Landlord elects to give such a termination notice, Tenant
may, within ten (10) days thereafter, give written notice to Landlord of
Tenant's commitment to pay the amount by which the cost of the remediation of
such Hazardous Materials exceeds an amount equal to twelve (12) times the then
Basic Rent or One Hundred Thousand Dollars ($100,000.00), whichever is greater.
Tenant shall provide Landlord with such funds or satisfactory assurance thereof
within thirty (30) days following such commitment. In such event, this Lease
shall continue in full force and effect, and Landlord shall proceed to make such
remediation as soon as reasonably possible after the required funds are
available. If Tenant does not give such notice and provide the required funds or
assurance thereof within the time provided, this Lease shall terminate as the
date specified in Landlord's termination notice.
6.5 Refuse and Sewage. Tenant agrees not to keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers and agrees to
regularly and frequently remove same from the Premises. Tenant shall keep all
containers or other equipment used for storage of such materials in a clean and
sanitary condition. Tenant shall properly dispose of all sanitary sewage and
shall not use the sewage disposal system for the disposal of anything except
sanitary sewage. Tenant shall keep the sewage disposal system free of all
obstructions and in good operating condition. If the volume of Tenant's trash
becomes excessive in Landlord's judgment, Landlord shall have the right to
charge Tenant for additional trash disposal services and/or to require that
Tenant contract directly for additional trash disposal services at Tenant's sole
cost and expense.
6.6 Pest Control. Tenant shall, at its own cost, retain a licensed, bonded
professional pest and sanitation control service to perform inspections of the
Premises on an "as needed" basis for the purpose of eliminating infestation by
and controlling the presence of insects, rodents and vermin and shall promptly
cause any corrective or extermination work recommended by such service to be
performed. Such work shall be performed pursuant to a written contract, a copy
of which shall be delivered to Landlord by Tenant upon request.
6.7 Extraordinary Services. If Landlord incurs Operating Expenses or other costs
for any increase in services provided to or for the benefit of Tenant above
those services normally provided by Landlord to the other tenants in the Project
and such increased services or costs result from any act, conduct, extraordinary
use and/or special request by Tenant or its employees or customers, Tenant
agrees to reimburse Landlord for the costs of such extraordinary services,
within thirty (30) days of delivery to Tenant of written invoice for such
extraordinary services. By way of example only, if Tenant should request or if
Tenant's business operation should require extraordinary security services,
lighting, cleaning and/or repair, such extraordinary services may be billed
directly to Tenant as provided in this Section 6.7 and shall be reimbursed by
Tenant to Landlord as provided herein.
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7. Payments and Notices. All rent and other sums payable by Tenant to Landlord
hereunder shall be paid to Landlord at the address designated in Section 1.1 of
the Summary, or to such other persons and/or at such other places as Landlord
may hereafter designate in writing. Any notice required or permitted to be given
hereunder must be in writing and may be given by personal delivery (including
delivery by nationally recognized overnight courier or express mailing service),
facsimile transmission sent by a machine capable of confirming transmission
receipt, with a hard copy of such notice delivered no later than one (1)
business day after facsimile transmission by another method specified in this
Section 7, or by registered or certified mail, postage prepaid, return receipt
requested, addressed to Tenant at the address(es) designated in Section 1.2 of
the Summary, or to Landlord at the address(es) designated in Section 1.1 of the
Summary. Either party may, by written notice to the other, specify a different
address for notice purposes. Notice given in the foregoing manner shall be
deemed given (i) upon confirmed transmission if sent by facsimile transmission,
provided such transmission is prior to 5:00 p.m. on a business day (if such
transmission is after 5:00 p.m. on a business day or is on a non-business day,
such notice will be deemed given on the following business day), (ii) when
actually received or refused by the party to whom sent if delivered by a carrier
or personally served or (iii) if mailed, on the day of actual delivery or
refusal as shown by the certified mail return receipt or the expiration of three
(3) business days after the day of mailing, whichever first occurs. For purposes
of this Section 7, a "business day" is Monday through Friday, excluding holidays
observed by the United States Postal Service and reference to 5:00 p.m. is to
the time zone of the recipient.
8. Brokers. Landlord has entered into an agreement with the real estate broker
specified in Section 1.13 of the Summary as representing Landlord ("Landlord's
Broker"), and Landlord shall pay any commissions or fees that are payable to
Landlord's Broker with respect to this Lease in accordance with the provisions
of a separate commission contract. Landlord shall have no further or separate
obligation for payment of commissions or fees to any other real estate broker,
finder or intermediary. Tenant represents that it has not had any dealings with
any real estate broker, finder or intermediary with respect to this Lease, other
than Landlord's Broker and the broker specified in Section 1.13 of the Summary
as representing Tenant ("Tenant's Broker"). Any commissions or fees payable to
Tenant's Broker with respect to this Lease shall be paid exclusively by
Landlord's Broker. Each party represents and warrants to the other, that, to its
knowledge, no other broker, agent or finder (a) negotiated or was instrumental
in negotiating or consummating this Lease on its behalf, or (b) is or might be
entitled to a commission or compensation in connection with this Lease. Tenant
shall indemnify, protect, defend (by counsel reasonably approved in writing by
Landlord) and hold Landlord harmless from and against any and all claims,
judgments, suits, causes of action, damages, losses, liabilities and expenses
(including attorneys' fees and court costs) resulting from any breach by Tenant
of the foregoing representation, including, without limitation, any claims that
may be asserted against Landlord by any broker, agent or finder undisclosed by
Tenant herein. Landlord shall indemnify, protect, defend (by counsel reasonably
approved in writing by Tenant) and hold Tenant harmless from and against any and
all claims, judgments, suits, causes of action, damages, losses, liabilities and
expenses (including attorneys' fees and court costs) resulting from any breach
by Landlord of the foregoing representation, including, without limitation, any
claims that may be asserted against Tenant by any broker, agent or finder
undisclosed by Landlord herein. The foregoing indemnities shall survive the
expiration or earlier termination of this Lease.
9. Surrender; Holding Over.
9.1 Surrender of Premises. Upon the expiration or sooner termination of this
Lease, Tenant shall surrender all keys for the Premises to Landlord, and Tenant
shall deliver exclusive possession of the Premises to Landlord broom clean and
in first-class condition and repair, reasonable wear and tear excepted (and
casualty damage excepted if this Lease is terminated as a result thereof
pursuant to Section 18), with all of Tenant's personal property (and those
items, if any, of Tenant Improvements and Tenant Changes identified by Landlord
pursuant to Section 12.2 below) removed therefrom and all damage caused by such
removal repaired, as required pursuant to Sections 12.2 and 12.3 below. If, for
any reason, Tenant fails to surrender the Premises on the expiration or earlier
termination of this Lease (including upon the expiration of any subsequent
month-to-month tenancy consented to by Landlord pursuant to Section 9.2 below),
with such removal and repair obligations completed, then, in addition to the
provisions of Section 9.3 below and Landlord's rights and remedies under Section
12.4 and the other provisions of this Lease, Tenant shall indemnify, protect,
defend (by counsel reasonably approved in writing by Landlord) and hold Landlord
harmless from and against any and all claims, judgments, suits, causes of
action, damages, losses, liabilities and expenses (including attorneys' fees and
court costs) resulting from such failure to surrender, including, without
limitation, any claim made by any succeeding tenant based thereon. The foregoing
indemnity shall survive the expiration or earlier termination of this Lease.
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9.2 Holding Over. If Tenant holds over after the expiration or earlier
termination of the Lease Term, Tenant shall become a tenant at sufferance only,
upon the terms and conditions set forth in this Lease so far as applicable
(including Tenant's obligation to pay all Operating Expenses and any other
additional rent under this Lease), but at a Basic Rent equal to: (a) one hundred
fifty percent (150%) of the Basic Rent applicable to the Premises immediately
prior to the date of such expiration or earlier termination; or (b) one hundred
fifty percent (150%) of the prevailing market rate excluding any rental or other
concessions (as reasonably determined by Landlord) for the Premises in effect on
the date of such expiration or earlier termination. Acceptance by Landlord of
rent after such expiration or earlier termination shall not constitute a consent
to a hold over hereunder or result in an extension of this Lease. Tenant shall
pay a pro-rated portion of one (1) month's Basic Rent calculated in accordance
with this Section 9.2 for any portion of a month it holds over and remains in
possession of the Premises pursuant to this Section 9.2 (based on the proportion
that the number of days of such holdover bears to the number of days in such
month).
9.3 No Effect on Landlord's Rights. The foregoing provisions of this Section 9
are in addition to, and do not affect, Landlord's right of re-entry or any other
rights of Landlord hereunder or otherwise provided at law or in equity.
10. Taxes.
10.1 Real Property Taxes. Tenant shall pay Tenant's Share of Real Property Taxes
in accordance with the provisions of Section 4. "Real Property Taxes" mean,
collectively, all general and special real property taxes, assessments
(including, without limitation, change in ownership taxes or assessments),
liens, bond obligations, license fees or taxes, commercial rent or gross
receipts taxes, and any similar impositions in-lieu of other impositions now or
previously within the definition of real property taxes or assessments which may
be levied or assessed by any lawful authority against the Project applicable to
the period from the Commencement Date until the expiration or sooner termination
of this Lease. Real Property Taxes are included within Operating Expenses, as
set forth in Section 4.4.
10.2 Personal Property Taxes. Tenant shall be liable for, and shall pay before
delinquency, all taxes and assessments (real and personal) levied against (a)
any personal property or trade fixtures placed by Tenant in or about the
Premises (including any increase in the assessed value of the Premises based
upon the value of any such personal property or trade fixtures), (b) any Tenant
Improvements or alterations in the Premises (whether installed and/or paid for
by Landlord or Tenant) and (c) this transaction or any document to which Tenant
is a party creating or transferring an interest in the Premises. If any such
taxes or assessments are levied against Landlord or Landlord's property,
Landlord may, after written notice to Tenant (and under proper protest if
requested by Tenant) pay such taxes and assessments, and Tenant shall reimburse
Landlord therefor within ten (10) business days after demand by Landlord;
provided, however, Tenant, at its sole cost and expense, shall have the right,
with Landlord's cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes and assessments so paid
under protest.
11. Possession; Condition of Premises; Repairs.
11.1 Delivery of Possession. Landlord will deliver possession of the Premises to
Tenant on the date set forth in Section 1.7 of the Summary; however, if Landlord
cannot deliver possession of the Premises to Tenant by such date, this Lease
will not be void or voidable, nor will Landlord be liable to Tenant for any loss
or damage resulting from such delay. If the delay in possession is caused by
Tenant (including delays caused by Tenant's failure to supply any item referred
to in the following sentence), then the Term and Tenant's obligation to pay rent
will commence as of the date the Commencement Date would have occurred but for
Tenant's delay, even though Tenant does not yet have possession. Notwithstanding
the foregoing, Landlord will not be obligated to deliver possession of the
Premises to Tenant until Landlord has received from Tenant all of the following:
(i) a copy of this Lease fully executed by Tenant and the guaranty of Tenant's
obligations under this Lease, if any, executed by the Guarantor(s); (ii) the
Security Deposit and the first installment of Basic Rent; and (iii) copies of
policies of insurance or certificates thereof as required under Section 20 of
this Lease.
11.2 Condition of Premises. Tenant acknowledges that, except as otherwise
expressly set forth in this Lease, neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the Premises, the
Building or the Project or their condition, or with respect to the suitability
thereof for the conduct of Tenant's business and Tenant shall accept the
Premises in their as-is condition. The taking of possession of the Premises by
Tenant shall conclusively establish that the Project, the Premises, the Tenant
Improvements therein, the Building and the Common Areas were at such time
complete and in good, sanitary and satisfactory condition and repair with all
work required to be performed by Landlord, if any, pursuant to Exhibit "C"
completed and without any obligation on Landlord's part to make any alterations,
upgrades or improvements thereto.
11.3 Landlord's Repair Obligations. Landlord shall, as part of the Operating
Expenses, repair, maintain and replace, as necessary, (a) the Building shell and
other structural portions of the Building (including the roof, exterior walls
and foundations), (b) the basic plumbing, heating, ventilating, air
conditioning, sprinkler and electrical systems within the Building core (but not
any conduits or connections thereto or distribution systems thereof within the
Premises or any other tenant's premises or those systems exclusively serving the
Premises or any other tenant's premises), and (c) the Common Areas of the
Project; provided, however, to the extent such maintenance, repairs or
replacements are required as a result of any act, neglect, fault or omission of
Tenant or any of Tenant's agents, employees, contractors, licensees or invitees,
Tenant shall pay to Landlord, as additional rent, the costs of such maintenance,
repairs or replacements. Landlord shall not be liable to Tenant for failure to
perform any such repairs, maintenance or replacements, unless Landlord shall
fail to make such repairs, maintenance or replacements and such failure shall
continue for an unreasonable time following written notice from Tenant to
Landlord of the need therefor. Without limiting the foregoing, Tenant waives the
right to make repairs at Landlord's expense and/or terminate this Lease or
vacate the Premises under any law, statute or ordinance now or hereafter in
effect (including the provisions of California Civil Code Section 1932(1) and
1942 and any successive sections or statutes of a similar nature).
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11.4 Tenant's Repair Obligations. Except for Landlord's obligations specifically
set forth in Sections 11.3, 18.1 and 19.2 hereof, Tenant shall at all times and
at Tenant's sole cost and expense, keep, maintain, clean, repair and preserve
and replace, as necessary, the Premises and all parts thereof including, without
limitation, all Tenant Improvements, Tenant Changes, utility meters, pipes and
conduits, all heating, ventilating and air conditioning systems located within
the Premises or exclusively serving the Premises, all fixtures, furniture and
equipment, Tenant's storefront and signs, if any, locks, closing devices,
security devices, windows, window sashes, casements and frames, floors and floor
coverings, shelving, restrooms, if any, and any alterations, additions and other
property located within the Premises in good condition and repair, reasonable
wear and tear excepted. Tenant shall replace, at its expense, any and all plate
and other glass in and about the Premises which is damaged or broken from any
cause whatsoever except due to the gross negligence or willful misconduct of
Landlord, its agents or employees. Such maintenance and repairs shall be
performed with due diligence, lien-free and in a good and workmanlike manner, by
licensed contractor(s) which are selected by Tenant and approved by Landlord,
which approval Landlord shall not unreasonably withhold or delay. Except as
otherwise expressly provided in this Lease, Landlord shall have no obligation to
alter, remodel, improve, repair, renovate, redecorate or paint all or any part
of the Premises.
12. Alterations.
12.1 Tenant Changes; Conditions.
(a) Tenant shall not make any alterations, additions, improvements or
decorations to the Premises (collectively, "Tenant Changes," and
individually, a "Tenant Change") unless Tenant first obtains Landlord's
prior written approval thereof, which approval Landlord shall not
unreasonably withhold. Notwithstanding the foregoing, Landlord's prior
approval shall not be required for any Tenant Change which satisfies all
of the following conditions (hereinafter a "Pre-Approved Change"): (i) the
costs of such Tenant Change does not exceed Five Hundred Dollars ($500.00)
individually; (ii) the costs of such Tenant Change when aggregated with
the costs of all other Tenant Changes made by Tenant during the Term of
this Lease do not exceed Fifteen Hundred Dollars ($1,500.00); (iii) Tenant
delivers to Landlord final plans, specifications and working drawings for
such Tenant Change at least ten (10) days prior to commencement of the
work thereof; (iv) the Tenant Change does not affect the mechanical,
electrical, plumbing or life safety systems of the Premises, the Building
and/or the Project (collectively, the "Systems"), the roof or structural
components of the Premises or the exterior of the Premises; (v) the Tenant
Change does not trigger any legal requirement which would require Landlord
to make any alteration or improvement to the Premises, Building or
Project; and (vi) Tenant and such Tenant Change otherwise satisfy all
other conditions set forth in this Section 12.1.
(b) After Landlord has approved the Tenant Changes and the plans,
specifications and working drawings therefor (or is deemed to have
approved the Pre-Approved Changes as set forth in Section 12.1(a) above),
Tenant shall: (i) enter into an agreement for the performance of such
Tenant Changes with licensed and bondable contractors and subcontractors
selected by Tenant and approved by Landlord, which approval shall not be
unreasonably withheld; (ii) before proceeding with any Tenant Change,
provide Landlord with ten (10) days' prior written notice thereof; and
(iii) pay to Landlord, within ten (10) days after written demand, the
costs of any increased insurance premiums incurred by Landlord to include
such Tenant Changes in the fire and extended coverage insurance obtained
by Landlord pursuant to Section 21 below, if Landlord elects in writing to
insure such Tenant Changes; provided, however, that Landlord shall not be
required to include the Tenant Changes under such insurance. If such
Tenant Changes are not included in Landlord's insurance, Tenant shall
insure the Tenant Changes under its casualty insurance pursuant to Section
20.1(a) below. In addition, before proceeding with any Tenant Change,
Tenant's contractors shall obtain, on behalf of Tenant and at Tenant's
sole cost and expense: (A) all necessary governmental permits and
approvals for the commencement and completion of such Tenant Change; and
(B) at Landlord's request, a completion and lien indemnity bond, or other
surety, satisfactory to Landlord for such Tenant Change. Landlord's
approval of any contractor(s) and subcontractor(s) of Tenant shall not
release Tenant or any such contractor(s) and/or subcontractor(s) from any
liability for any conduct or acts of such contractor(s) and/or
subcontractor(s). Further, Landlord's approval of Tenant Changes and the
plans therefor will create no liability or responsibility on Landlord's
part concerning the completeness of same or their design sufficiency or
compliance with laws.
(d) All Tenant Changes shall be performed: (i) in accordance with the approved
plans, specifications and working drawings; (ii) lien-free and in a good
and workmanlike manner; (iii) in compliance with all laws, rules and
regulations of all governmental agencies and authorities including,
without limitation, applicable building permit requirements and the
provisions of Title III of the Americans with Disabilities Act of 1990;
(iv) in such a manner so as not to unreasonably interfere with the
occupancy of any other tenant in the Building or any other building
located within the Project, nor impose any additional expense upon nor
delay Landlord in the maintenance and operation of the Building or any
other building located within the Project; and (v) at such times, in such
manner and subject to such rules and regulations as Landlord may from time
to time reasonably designate.
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(e) Throughout the performance of the Tenant Changes, Tenant shall obtain, or
cause its contractors to obtain, workers compensation insurance and
commercial general liability insurance in compliance with the provisions
of Section 20 of this Lease.
12.2 Removal of Tenant Changes and Tenant Improvements. All Tenant Changes and
the initial Tenant Improvements in the Premises (whether installed or paid for
by Landlord or Tenant), shall become the property of Landlord and shall remain
upon and be surrendered with the Premises at the end of the Term of this Lease;
provided, however, Landlord may, by written notice delivered to on or before the
expiration of the Lease Term (or upon any sooner termination of this Lease)
identify those items of the Tenant Changes only which Landlord shall require
Tenant to remove at the end of the Term of this Lease, and in no event shall
Tenant be required to remove the initial Tenant Improvements. If Landlord
requires Tenant to remove any such items as described above, Tenant shall, at
its sole cost, remove the identified items on or before the expiration or sooner
termination of this Lease and repair any damage to the Premises caused by such
removal (or, at Landlord's option, shall pay to Landlord all of Landlord's costs
of such removal and repair).
12.3 Removal of Personal Property. All articles of personal property owned by
Tenant or installed by Tenant at its expense in the Premises (including business
and trade fixtures, furniture and movable partitions) shall be, and remain, the
property of Tenant, and shall be removed by Tenant from the Premises, at
Tenant's sole cost and expense, on or before the expiration or sooner
termination of this Lease. Tenant shall repair any damage caused by such
removal.
12.4 Tenant's Failure to Remove. If Tenant fails to remove by the expiration or
sooner termination of this Lease all of its personal property, or any items of
Tenant Improvements or Tenant Changes identified by Landlord for removal
pursuant to Section 12.2 above, Landlord may, (without liability to Tenant for
loss thereof), at Tenant's sole cost and in addition to Landlord's other rights
and remedies under this Lease, at law or in equity: (a) remove and store such
items in accordance with applicable law; and/or (b) upon ten (10) days' prior
notice to Tenant, sell all or any such items at private or public sale for such
price as Landlord may obtain as permitted under applicable law. Landlord shall
apply the proceeds of any such sale to any amounts due to Landlord under this
Lease from Tenant (including Landlord's attorneys' fees and other costs incurred
in the removal, storage and/or sale of such items), with any remainder to be
paid to Tenant.
13. Liens. Tenant shall not permit any mechanic's, materialmen's or other liens
to be filed against all or any part of the Project, the Building or the
Premises, nor against Tenant's leasehold interest in the Premises, by reason of
or in connection with any repairs, alterations, improvements or other work
contracted for or undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees. Tenant shall, at
Landlord's request, provide Landlord with enforceable, conditional and final
lien releases (and other reasonable evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials with respect to the Premises. Landlord shall have the right at all
reasonable times to post on the Premises and record any notices of
non-responsibility which it deems necessary for protection from such liens. If
any such liens are filed, Tenant shall, at its sole cost, immediately cause such
lien to be released of record or bonded so that it no longer affects title to
the Project, the Building or the Premises. If Tenant fails to cause such lien to
be so released or bonded within twenty (20) days after filing thereof, Landlord
may, without waiving its rights and remedies based on such breach, and without
releasing Tenant from any of its obligations, cause such lien to be released by
any means it shall deem proper, including payment in satisfaction of the claim
giving rise to such lien. Tenant shall pay to Landlord within five (5) days
after receipt of invoice from Landlord, any sum paid by Landlord to remove such
liens, together with interest at the Interest Rate from the date of such payment
by Landlord. Notice is hereby given that Landlord shall not be liable for any
labor, services or materials furnished or to be furnished to Tenant, or to
anyone holding the Premises through or under Tenant, and that no mechanics' or
other liens for any such labor, services or materials shall attach to or affect
the interest of Landlord in the Premises.
14. Assignment and Subletting.
14.1 Restriction on Transfer. Tenant will not assign this Lease in whole or in
part, nor sublet all or any part of the Premises (collectively and individually,
a "Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold. In no event may Tenant encumber or
hypothecate this Lease. The consent by Landlord to any Transfer shall not
constitute a waiver of the necessity for such consent to any subsequent
Transfer. This prohibition against Transfers shall be construed to include a
prohibition against any assignment or subletting by operation of law. If this
Lease is transferred by Tenant, or if the Premises or any part thereof are
transferred or occupied by any person or entity other than Tenant, Landlord may
collect rent from the assignee, subtenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such Transfer, occupancy or
collection shall be deemed a waiver on the part of Landlord, or the acceptance
of the assignee, subtenant or occupant as Tenant, or a release of Tenant from
the further performance by Tenant of covenants on the part of Tenant herein
contained unless expressly made in writing by Landlord. Irrespective of any
Transfer, Tenant shall remain fully liable under this Lease and shall not be
released from performing any of the terms, covenants and conditions of this
Lease. Without limiting in any way Landlord's right to withhold its consent on
any reasonable grounds, it is agreed that Landlord will not be acting
unreasonably in refusing to consent to a Transfer if, in Landlord's opinion, (i)
the net worth or financial capabilities of such assignee or subtenant is less
than that of Tenant and Guarantor(s) at the date hereof, (ii) the proposed
assignee or subtenant does not have the financial capability to fulfill the
obligations imposed by the Transfer, (iii) the proposed Transfer involves a
change of use of the Premises from that specified herein or would violate any
exclusive use covenant to which Landlord is bound, or (iv) the proposed assignee
or subtenant is not, in Landlord's reasonable opinion, of reputable or good
character or consistent with Landlord's desired tenant mix for the Project. If
Tenant is a corporation, or is an unincorporated association or partnership, the
transfer, assignment or hypothecation of any stock or interest in such
corporation, association or partnership in the aggregate in excess of forty-nine
percent (49%) shall be deemed an assignment within the meaning and provisions of
this Section 14.1.
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14.2 Transfer Notice. If Tenant desires to effect a Transfer, then at least
thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name, address and business of the proposed
assignee, sublessee or other transferee (sometimes referred to hereinafter as
"Transferee"), reasonable information (including references) concerning the
character, ownership, and financial condition of the proposed Transferee, the
Transfer Date, any ownership or commercial relationship between Tenant and the
proposed Transferee, and the consideration and all other material terms and
conditions of the proposed Transfer, all in such detail as Landlord may
reasonably require.
14.3 Landlord's Options. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will notify Tenant
of its election to do one of the following: (i) consent to the proposed Transfer
subject to such reasonable conditions as Landlord may impose in providing such
consent; (ii) refuse such consent, which refusal shall be on reasonable grounds;
or (iii) terminate this Lease as to all or such portion of the Premises which is
proposed to be sublet or assigned and recapture all or such portion of the
Premises for reletting by Landlord.
14.4 Additional Conditions. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, in form and
substance reasonably satisfactory to Landlord. Tenant agrees to pay to Landlord,
as additional rent, all sums and other consideration payable to and for the
benefit of Tenant by the Transferee in excess of the rent payable under this
Lease for the same period and portion of the Premises. In calculating excess
rent or other consideration which may be payable to Landlord under this Section
14.4, Tenant will be entitled to deduct commercially reasonable third party
brokerage commissions and attorneys' fees and other amounts reasonably and
actually expended by Tenant in connection with such assignment or subletting if
acceptable written evidence of such expenditures is provided to Landlord. No
Transfer will release Tenant of Tenant's obligations under this Lease or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. Landlord may require that any
Transferee remit directly to Landlord on a monthly basis, all monies due Tenant
by said Transferee, and each sublease shall provide that if Landlord gives the
sublessee written notice that Tenant is in default under this Lease, the
sublessee will thereafter make all payments due under the sublease directly to
or as directed by Landlord, which payments will be credited against any payments
due under this Lease. Tenant hereby irrevocably and unconditionally assigns to
Landlord all rents and other sums payable under any sublease of the Premises;
provided, however, that Landlord hereby grants Tenant a license to collect all
such rents and other sums so long as Tenant is not in default under this Lease.
Tenant shall, within ten (10) days after the execution and delivery of any
assignment or sublease, deliver a duplicate original copy thereof to Landlord.
Consent by Landlord to one Transfer will not be deemed consent to any subsequent
Transfer. In the event of default by any Transferee of Tenant or any successor
of Tenant in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such Transferee or successor. If Tenant effects a Transfer or requests the
consent of Landlord to any Transfer (whether or not such Transfer is
consummated), then, upon demand, and as a condition precedent to Landlord's
consideration of the proposed assignment or sublease, Tenant agrees to pay
Landlord a non-refundable administrative fee of Five Hundred Dollars ($500.00),
plus Landlord's reasonable attorneys' fees and other costs incurred by Landlord
in reviewing such proposed assignment or sublease (whether attributable to
Landlord's in-house attorneys or paralegals or otherwise). Acceptance of the
Five Hundred Dollar ($500.00) administrative fee and/or reimbursement of
Landlord's attorneys' and/or paralegal fees shall in no event obligate Landlord
to consent to any proposed Transfer. Notwithstanding any contrary provision of
this Lease, if Tenant or any proposed Transferee claims that Landlord has
unreasonably withheld or delayed its consent to a proposed Transfer or otherwise
has breached its obligations under this Section 14, Tenant's and such
Transferee's only remedy shall be to seek a declaratory judgment and/or
injunctive relief, and Tenant, on behalf of itself and, to the extent permitted
by law, such proposed Transferee waives all other remedies against Landlord,
including without limitation, the right to seek monetary damages or to terminate
this Lease.
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14.5 Permitted Transfers. Notwithstanding the provisions of this Section 14 to
the contrary, Tenant may assign this Lease or sublet the Premises or any portion
thereof (herein, a "Permitted Transfer"), without Landlord's consent to any
entity that controls, is controlled by or is under common control with Tenant,
or to any entity resulting from a merger or consolidation with Tenant, or to any
person or entity which acquires all the assets of Tenant's business as a going
concern (each, a "Permitted Transferee"), provided that: (a) at least twenty
(20) days prior to such assignment or sublease, Tenant delivers to Landlord the
financial statements and other financial and background information of the
assignee or sublessee as described in Section 14.2 above; (b) in the case of an
assignment, the assignee assumes, in full, the obligations of Tenant under this
Lease (or if a sublease, the sublessee of a portion of the Premises or Term
assumes, in full, the obligations of Tenant with respect to such portion)
pursuant to a commercially reasonable assumption agreement, a fully executed
copy of which is delivered to Landlord within twenty (20) days following the
effective date of such assignment or subletting; (c) the financial net worth of
the assignee or sublessee equals or exceeds that of Tenant and any guarantor
hereof as of the date of execution of this Lease; (d) Tenant remains fully
liable under this Lease; (e) the use of the Premises remains unchanged; (f) such
transaction is not entered into as a subterfuge to avoid the restrictions and
provisions of this Section 14; (g) such transaction will not violate any
exclusive use covenant or other agreement to which Landlord is bound; and (h)
with respect to a subletting only, Tenant and such Permitted Transferee execute
Landlord's standard consent to sublease form.
15. Entry by Landlord. Landlord and its employees and agents shall at all
reasonable times have the right to enter the Premises to inspect the same, to
supply any service required to be provided by Landlord to Tenant under this
Lease, to exhibit the Premises to prospective lenders or purchasers (or during
the last year of the Term, to prospective tenants), to post notices of
non-responsibility, and/or to alter, improve or repair the Premises or any other
portion of the Building, all without being deemed guilty of or liable for any
breach of Landlord's covenant of quiet enjoyment or any eviction of Tenant, and
without abatement of rent. In exercising such entry rights, Landlord shall
endeavor to minimize, to the extent reasonably practicable, the interference
with Tenant's business, and shall provide Tenant with reasonable advance written
notice of such entry (except in emergency situations and for providing scheduled
services, if any). Landlord shall have the means which Landlord may deem proper
to open Tenant's doors in an emergency in order to obtain entry to the Premises.
Any entry to the Premises obtained by Landlord by any of said means or otherwise
shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant
from the Premises or any portion thereof, or grounds for any abatement or
reduction of rent and Landlord shall not have any liability to Tenant for any
damages or losses on account of any such entry by Landlord except, subject to
the provisions of Section 22.1, to the extent of Landlord's gross negligence or
willful misconduct.
16. Utilities and Services. Tenant shall be solely responsible for and shall
promptly pay all charges for heat, air conditioning, water, gas, electricity or
any other utility used, consumed or provided in, furnished to or attributable to
the Premises at the rates charged by the supplying utility companies and/or
Landlord. Should Landlord elect to supply any or all of such utilities, Tenant
agrees to purchase and pay for the same as additional rent as apportioned by
Landlord. The rate to be charged by Landlord to Tenant shall not exceed the rate
charged to Landlord by any supplying utility. Tenant shall reimburse Landlord
within ten (10) days of billing for fixture charges and/or water tariffs, if
applicable, which are charged to Landlord by local utility companies. Landlord
will notify Tenant of this charge as soon as it becomes known. This charge will
increase or decrease with current charges being levied against Landlord, the
Premises or the Building by the local utility company, and will be due as
additional rent. In no event shall Landlord be liable for any interruption or
failure in the supply of any such utility services to Tenant.
17. Indemnification and Exculpation.
17.1 Tenant's Assumption of Risk and Waiver. Except to the extent such matter is
not covered by the insurance required to be maintained by Tenant under this
Lease and such matter is attributable to the gross negligence or willful
misconduct of Landlord, Landlord shall not be liable to Tenant, Tenant's
employees, agents or invitees for: (i) any damage to property of Tenant, or of
others, located in, on or about the Premises, (ii) the loss of or damage to any
property of Tenant or of others by theft or otherwise, (iii) any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or leaks from any part of the Premises or
from the pipes, appliance of plumbing works or from the roof, street or
subsurface or from any other places or by dampness or by any other cause of
whatsoever nature, or (iv) any such damage caused by other tenants or persons in
the Premises, occupants of adjacent property of the Project, or the public, or
caused by operations in construction of any private, public or quasi-public
work. Landlord shall in no event be liable for any consequential damages or loss
of business or profits and Tenant hereby waives any and all claims for any such
damages. All property of Tenant kept or stored on the Premises shall be so kept
or stored at the sole risk of Tenant and Tenant shall hold Landlord harmless
from any claims arising out of damage to the same, including subrogation claims
by Tenant's insurance carriers, unless such damage shall be caused by the gross
negligence or willful misconduct of Landlord. Landlord or its agents shall not
be liable for interference with the light or other intangible rights.
17.2 Tenant's Indemnification of Landlord. Tenant shall be liable for, and shall
indemnify, defend, protect and hold the Landlord Indemnified Parties harmless
from and against, any and all claims, damages, judgments, suits, causes of
action, losses, liabilities and expenses, including attorneys' fees and court
costs (collectively, "Indemnified Claims"), arising or resulting from (a) any
occurrence at the Premises following the date Landlord delivers possession of
the Premises to Tenant, unless caused by the gross negligence or willful
misconduct of Landlord or its agents, employees or contractors, (b) any act or
omission of Tenant or any of Tenant's Parties; (c) the use of the Premises and
Common Areas and conduct of Tenant's business by Tenant or any Tenant's Parties,
or any other activity, work or thing done, permitted or suffered by Tenant or
any Tenant's Parties, in or about the Premises, the Building or elsewhere on the
Project; and/or (d) any default by Tenant of any obligations on Tenant's part to
be performed under the terms of this Lease or the terms of any contract or
agreement to which Tenant is a party or by which it is bound, affecting this
Lease or the Premises. In case any action or proceeding is brought against
Landlord or any Landlord Indemnified Parties by reason of any such Indemnified
Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's
expense by counsel approved in writing by Landlord, which approval shall not be
unreasonably withheld.
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17.3 Survival; No Release of Insurers. Tenant's indemnification obligation under
Section 17.2, shall survive the expiration or earlier termination of this Lease.
Tenant's covenants, agreements and indemnification in Sections 17.1 and 17.2
above, are not intended to and shall not relieve any insurance carrier of its
obligations under policies required to be carried by Tenant, pursuant to the
provisions of this Lease.
18. Damage or Destruction.
18.1 Landlord's Rights and Obligations. In the event the Premises are damaged by
fire or other casualty to an extent not exceeding twenty-five percent (25%) of
the full replacement cost thereof, and Landlord's contractor estimates in a
writing delivered to the parties that the damage thereto is such that the
Premises may be repaired, reconstructed or restored to substantially its
condition immediately prior to such damage within one hundred twenty (120) days
from the date of such casualty, and Landlord will receive insurance proceeds
sufficient to cover the costs of such repairs, reconstruction and restoration
(including proceeds from Tenant and/or Tenant's insurance which Tenant is
required to deliver to Landlord pursuant to Section 18.2 below), then Landlord
shall commence and proceed diligently with the work of repair, reconstruction
and restoration and this Lease shall continue in full force and effect. If,
however, the Premises are damaged to an extent exceeding twenty-five percent
(25%) of the full replacement cost thereof, or Landlord's contractor estimates
that such work of repair, reconstruction and restoration will require longer
than one hundred twenty (120) days to complete, or Landlord will not receive
insurance proceeds (and/or proceeds from Tenant, as applicable) sufficient to
cover the costs of such repairs, reconstruction and restoration, then Landlord
may elect to either:
(a) repair, reconstruct and restore the portion of the Premises damaged by
such casualty (including the Tenant Improvements, the Tenant Changes that
Landlord elects to insure pursuant to Section 12.1(b) and, to the extent
of insurance proceeds received from Tenant, the Tenant Changes that Tenant
insures pursuant to Section 12.1(b) and/or 20.1(a)), in which case this
Lease shall continue in full force and effect; or
(b) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate.
Under any of the conditions of this Section 18.1, Landlord shall give written
notice to Tenant of its intention to repair or terminate within the later of
sixty (60) days after the occurrence of such casualty, or fifteen (15) days
after Landlord's receipt of the estimate from Landlord's contractor.
18.2 Tenant's Costs and Insurance Proceeds. In the event of any damage or
destruction of all or any part of the Premises, Tenant shall immediately: (a)
notify Landlord thereof; and (b) deliver to Landlord all insurance proceeds
received by Tenant with respect to the Tenant Improvements and Tenant Changes in
the Premises to the extent such items are not covered by Landlord's casualty
insurance obtained by Landlord pursuant to Section 21 below (excluding proceeds
for Tenant's furniture and other personal property), whether or not this Lease
is terminated as permitted in this Section 18, and Tenant hereby assigns to
Landlord all rights to receive such insurance proceeds. If, for any reason
(including Tenant's failure to obtain insurance for the full replacement cost of
any Tenant Changes which Tenant is required to insure pursuant to Sections
12.1(b) and/or 20.1(a) hereof), Tenant fails to receive insurance proceeds
covering the full replacement cost of such Tenant Changes which are damaged,
Tenant shall be deemed to have self-insured the replacement cost of such Tenant
Changes, and upon any damage or destruction thereto, Tenant shall immediately
pay to Landlord the full replacement cost of such items, less any insurance
proceeds actually received by Landlord from Landlord's or Tenant's insurance
with respect to such items.
18.3 Abatement of Rent. In the event that as a result of any such damage,
repair, reconstruction and/or restoration of the Premises, Tenant is prevented
from using, and does not use, the Premises or any portion thereof, then the rent
shall be abated or reduced, as the case may be, during the period that Tenant
continues to be so prevented from using and does not use the Premises or portion
thereof, in the proportion that the rentable square feet of the portion of the
Premises that Tenant is prevented from using, and does not use, bears to the
total rentable square feet of the Premises. Notwithstanding the foregoing to the
contrary, if the damage is due to the negligence or willful misconduct of Tenant
or any Tenant's Parties, there shall be no abatement of rent. Except for
abatement of rent as provided hereinabove, Tenant shall not be entitled to any
compensation or damages for loss of, or interference with, Tenant's business or
use or access of all or any part of the Premises resulting from any such damage,
repair, reconstruction or restoration.
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18.4 Inability to Complete. Notwithstanding anything to the contrary contained
in this Section 18, if Landlord is obligated or elects to repair, reconstruct
and/or restore the damaged portion of the Premises pursuant to Section 18.1
above, but is delayed from completing such repair, reconstruction and/or
restoration beyond the date which is six (6) months after the date estimated by
Landlord's contractor for completion thereof pursuant to Section 18.1, by reason
of any causes beyond the reasonable control of Landlord (including, without
limitation, any delay due to Force Majeure as defined in Section 32.16, and
delays caused by Tenant or any Tenant's Parties), then Landlord may elect to
terminate this Lease upon thirty (30) days' prior written notice to Tenant.
18.5 Damage to the Project. If there is a total destruction of the Project or a
partial destruction of the Project, the cost of restoration of which would
exceed one-third (1/3) of the then replacement value of the Project, by any
cause whatsoever, whether or not insured against and whether or not the Premises
are partially or totally destroyed, Landlord may within a period of one hundred
eighty (180) days after the occurrence of such destruction, notify Tenant in
writing that it elects not to so reconstruct or restore the Project, in which
event this Lease shall cease and terminate as of the date of such destruction.
18.6 Damage Near End of Term. In addition to its termination rights in Sections
18.1 and 18.4 above, Landlord shall have the right to terminate this Lease if
any damage to the Building or Premises occurs during the last twelve (12) months
of the Term of this Lease and Landlord's contractor estimates in a writing
delivered to the parties that the repair, reconstruction or restoration of such
damage cannot be completed within the earlier of (a) the scheduled expiration
date of the Lease Term, or (b) sixty (60) days after the date of such casualty.
18.7 Tenant Termination Right. Within thirty (30) days after the date Landlord
learns of the necessity for repairs as a result of damage to the Premises,
Landlord shall notify Tenant ("Damage Repair Estimate") of Landlord's estimated
assessment of the period of time in which the repairs will be completed, which
assessment shall be based upon the opinion of a contractor reasonably selected
by Landlord and experienced in comparable repairs of high-rise office buildings.
If Landlord does not elect to terminate this Lease pursuant to Landlord's
termination right as provided above, and the Damage Repair Estimate indicates
that repairs cannot be completed within one hundred twenty (120) days after the
date Landlord learns of the necessity for repairs, Tenant may elect, not later
than thirty (30) days after Tenant's receipt of the Damage Repair Estimate, to
terminate this Lease by written notice to Landlord effective as of the date
specified in Tenant's notice.
18.8 Waiver of Termination Right. This Lease sets forth the terms and conditions
upon which this Lease may terminate in the event of any damage or destruction.
Accordingly, the parties hereby waive the provisions of California Civil Code
Section 1932, Subsection 2, and Section 1933, Subsection 4 (and any successor
statutes thereof permitting the parties to terminate this Lease as a result of
any damage or destruction).
19. Eminent Domain.
19.1 Substantial Taking. Subject to the provisions of Section 19.4 below, in
case the whole of the Premises, or such part thereof as shall substantially
interfere with Tenant's use and occupancy of the Premises as reasonably
determined by Landlord, shall be taken for any public or quasi-public purpose by
any lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party
shall have the right to terminate this Lease effective as of the date possession
is required to be surrendered to said authority.
19.2 Partial Taking; Abatement of Rent. In the event of a taking of a portion of
the Premises which does not substantially interfere with the conduct of Tenant's
business, then, except as otherwise provided in the immediately following
sentence, neither party shall have the right to terminate this Lease and
Landlord shall thereafter proceed to make a functional unit of the remaining
portion of the Premises (but only to the extent Landlord receives proceeds
therefor from the condemning authority), and rent shall be abated with respect
to the part of the Premises which Tenant shall be so deprived on account of such
taking. Notwithstanding the immediately preceding sentence to the contrary, if
any part of the Building or the Project shall be taken (whether or not such
taking substantially interferes with Tenant's use of the Premises), Landlord may
terminate this Lease upon thirty (30) days' prior written notice to Tenant as
long as Landlord also terminates leases of all other tenants leasing comparably
sized space within the Building for comparable lease terms.
19.3 Condemnation Award. Subject to the provisions of Section 19.4 below, in
connection with any taking of the Premises or the Building, Landlord shall be
entitled to receive the entire amount of any award which may be made or given in
such taking or condemnation, without deduction or apportionment for any estate
or interest of Tenant, it being expressly understood and agreed by Tenant that
no portion of any such award shall be allowed or paid to Tenant for any
so-called bonus or excess value of this Lease, and such bonus or excess value
shall be the sole property of Landlord. Tenant shall not assert any claim
against Landlord or the taking authority for any compensation because of such
taking (including any claim for bonus or excess value of this Lease); provided,
however, if any portion of the Premises is taken, Tenant shall be granted the
right to recover from the condemning authority (but not from Landlord) any
compensation as may be separately awarded or recoverable by Tenant for the
taking of Tenant's furniture, fixtures, equipment and other personal property
within the Premises, for Tenant's relocation expenses, and for any loss of
goodwill or other damage to Tenant's business by reason of such taking.
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19.4 Temporary Taking. In the event of a taking of the Premises or any part
thereof for temporary use, (a) this Lease shall be and remain unaffected thereby
and rent shall not ▇▇▇▇▇, and (b) Tenant shall be entitled to receive for itself
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if such taking
shall remain in force at the expiration or earlier termination of this Lease,
Tenant shall perform its obligations under Section 9 with respect to surrender
of the Premises and shall pay to Landlord the portion of any award which is
attributable to any period of time beyond the Term expiration date. For purpose
of this Section 19.4, a temporary taking shall be defined as a taking for a
period of two hundred seventy (270) days or less.
19.5 Waiver of Termination Right. This Lease sets forth the terms and conditions
upon which this Lease may terminate in the event of a taking. Accordingly, the
parties waive the provisions of the California Code of Civil Procedure Section
1265.130 and any successor or similar statutes permitting the parties to
terminate this Lease as a result of a taking.
20. Tenant's Insurance.
20.1 Types of Insurance. On or before the earlier of the Commencement Date or
the date Landlord delivers possession of the Premises to Tenant, and continuing
thereafter until the expiration of the Term, Tenant shall obtain and keep in
full force and effect, the following insurance:
(a) Special Form (fka All Risk) insurance, including fire and extended
coverage, sprinkler leakage (including earthquake sprinkler leakage),
vandalism, malicious mischief and earthquake coverage upon property of
every description and kind owned by Tenant and located in the Premises or
the Building, or for which Tenant is legally liable or installed by or on
behalf of Tenant including, without limitation, furniture, equipment and
any other personal property, and any Tenant Changes (but excluding the
Tenant Improvements and any Tenant Changes that Landlord elects to insure
pursuant to Section 12.1(b) above), in an amount not less then the full
replacement cost thereof. In the event that there shall be a dispute as to
the amount which comprises full replacement cost, the decision of Landlord
or the mortgagees of Landlord shall be presumptive.
(b) Commercial general liability insurance coverage, on an occurrence basis,
including personal injury, bodily injury (including wrongful death), broad
form property damage, operations hazard, owner's protective coverage,
contractual liability (including Tenant's indemnification obligations
under this Lease, including Section 17 hereof), liquor liability (if
Tenant serves alcohol on the Premises), products and completed operations
liability, and owned/non-owned auto liability, with a general aggregate of
not less than Two Million Dollars ($2,000,000) and with "umbrella" or
"excess liability" coverage of not less than Two Million Dollars
($2,000,000). The limits of such commercial general liability insurance
shall be increased every three (3) years during the Term of this Lease to
an amount reasonably required by Landlord.
(c) Worker's compensation and employer's liability insurance, in statutory
amounts and limits, covering all persons employed in connection with any
work done in, on or about the Premises for which claims for death or
bodily injury could be asserted against Landlord, Tenant or the Premises.
(d) Loss of income, extra expense and business interruption insurance in such
amounts as will reimburse Tenant for direct or indirect loss of earnings
attributable to all perils commonly insured against by prudent tenants or
attributable to prevention of access to the Premises, Tenant's parking
areas or to the Building as a result of such perils.
(e) Any other form or forms of insurance as Tenant or Landlord or the
mortgagees of Landlord may reasonably require from time to time, in form,
amounts and for insurance risks against which a prudent tenant would
protect itself, but only to the extent such risks and amounts are
available in the insurance market at commercially reasonable costs.
20.2 Requirements. Each policy required to be obtained by Tenant hereunder
shall: (a) be issued by insurers which are approved by Landlord and/or
Landlord's mortgagees and are authorized to do business in the state in which
the Building is located and rated not less than financial class X, and not less
than policyholder rating A in the most recent version of Best's Key Rating Guide
(provided that, in any event, the same insurance company shall provide the
coverages described in Sections 20.1(a) and 20.1(d) above); (b) be in form
reasonably satisfactory from time to time to Landlord; (c) name Tenant as named
insured thereunder and shall name Landlord and, at Landlord's request, such
other persons or entities of which Tenant has been informed in writing, as
additional insureds thereunder, all as their respective interests may appear;
(d) not have a deductible amount exceeding Five Thousand Dollars ($5,000.00),
which deductible amount shall be deemed self-insured with full waiver of
subrogation; (e) specifically provide that the insurance afforded by such policy
for the benefit of additional insureds shall be primary, and any insurance
carried by the additional insureds shall be excess and non-contributing; (f)
contain an endorsement that the insurer waives its right to subrogation as
described in Section 22 below; (g) require the insurer to notify Landlord and
the other additional insureds in writing not less than thirty (30) days prior to
any material change, reduction in coverage, cancellation or other termination
thereof; (h) contain a cross liability or severability of interest endorsement;
(i) be in amounts sufficient at all times to satisfy any coinsurance
requirements thereof and (j) provide that any loss otherwise payable thereunder
shall be payable notwithstanding any act or omission of Landlord or Tenant which
might, absent such provision, result in a forfeiture of all or a part of such
insurance payment. Tenant agrees to deliver to Landlord, as soon as practicable
after the placing of the required insurance, but in no event later than the date
Tenant is required to obtain such insurance as set forth in Section 20.1 above,
certificates from the insurance company evidencing the existence of such
insurance and Tenant's compliance with the foregoing provisions of this Section
20. Tenant shall cause replacement certificates to be delivered to Landlord not
less than thirty (30) days prior to the expiration of any such policy or
policies. If any such initial or replacement certificates are not furnished
within the time(s) specified herein, Tenant shall be deemed to be in material
default under this Lease without the benefit of any additional notice or cure
period provided in Section 23.1 below, and Landlord shall have the right, but
not the obligation, to procure such policies and certificates at Tenant's
expense.
(15)
20.3 Effect on Insurance. Tenant shall not do or permit to be done anything
which will (a) violate or invalidate any insurance policy maintained by Landlord
or Tenant hereunder, or (b) increase the costs of any insurance policy
maintained by Landlord pursuant to Section 21 or otherwise with respect to the
Building or the Project. If Tenant's occupancy or conduct of its business in or
on the Premises results in any increase in premiums for any insurance carried by
Landlord with respect to the Building or the Project, Tenant shall pay such
increase as additional rent within ten (10) days after being billed therefor by
Landlord. If any insurance coverage carried by Landlord pursuant to Section 21
or otherwise with respect to the Building or the Project shall be cancelled or
reduced (or cancellation or reduction thereof shall be threatened) by reason of
the use or occupancy of the Premises by Tenant or by anyone permitted by Tenant
to be upon the Premises, and if Tenant fails to remedy such condition within
five (5) days after notice thereof, Tenant shall be deemed to be in default
under this Lease, without the benefit of any additional notice or cure period
specified in Section 23.1 below, and Landlord shall have all remedies provided
in this Lease, at law or in equity, including, without limitation, the right
(but not the obligation) to enter upon the Premises and attempt to remedy such
condition at Tenant's cost.
21. Landlord's Insurance. During the Term, Landlord shall insure the Common Area
improvements, the Building, the Premises and the Tenant Improvements (excluding,
however, Tenant's furniture, equipment and other personal property and Tenant
Changes, unless Landlord otherwise elects to insure the Tenant Changes pursuant
to Section 12.1(b) above) against damage by fire and standard extended coverage
perils and with vandalism and malicious mischief endorsements, rental loss
coverage, at Landlord's option, earthquake damage coverage, and such additional
coverage as Landlord deems appropriate. Landlord shall also carry commercial
general liability insurance, in such reasonable amounts and with such reasonable
deductibles as would be carried by a prudent owner of a similar building in the
state in which the Building is located. At Landlord's option, all such insurance
may be carried under any blanket or umbrella policies which Landlord has in
force for other buildings and projects. In addition, at Landlord's option,
Landlord may elect to self-insure all or any part of such required insurance
coverage. Landlord may, but shall not be obligated to, carry any other form or
forms of insurance as Landlord or the mortgagees or ground lessors of Landlord
may reasonably determine is advisable. The cost of insurance obtained by
Landlord pursuant to this Section 21 (including self-insured amounts and
deductibles) shall be included in Operating Expenses.
22. Waivers of Subrogation.
22.1 Mutual Waiver of Parties. Notwithstanding anything herein to the contrary,
Landlord and Tenant hereby waive their rights against each other with respect to
any claims or damages or losses which are caused by or result from (a)
occurrences insured against under any insurance policy (other than commercial
general liability insurance) carried by Landlord or Tenant (as the case may be)
pursuant to the provisions of this Lease and enforceable at the time of such
damage or loss, or (b) occurrences which would have been covered under any
insurance (other than commercial general liability insurance) required to be
obtained and maintained by Landlord or Tenant (as the case may be) under
Sections 20 and 21 of this Lease (as applicable) had such insurance been
obtained and maintained as required therein. The foregoing waivers shall be in
addition to, and not a limitation of, any other waivers or releases contained in
this Lease, and shall include deductibles and self-insured retentions.
22.2 Waiver of Insurers. Each party shall cause each insurance policy (other
than commercial general liability insurance) required to be obtained by it
pursuant to Sections 20 and 21 to provide that the insurer waives all rights of
recovery by way of subrogation against either Landlord or Tenant, as the case
may be, in connection with any claims, losses and damages covered by such
policy. If either party fails to maintain any such insurance required hereunder,
such insurance shall be deemed to be self-insured with a deemed full waiver of
subrogation as set forth in the immediately preceding sentence.
23. Tenant's Default and Landlord's Remedies.
23.1 Tenant's Default. The occurrence of any one or more of the following events
shall constitute a default under this Lease by Tenant:
(a) the vacation or abandonment of the Premises by Tenant. "Abandonment" is
herein defined to include, but is not limited to, any absence by Tenant
from the Premises for five (5) business days or longer;
(b) the failure by Tenant to make any payment of rent or additional rent or
any other payment required to be made by Tenant hereunder, where such
failure continues for three (3) days after written notice thereof from
Landlord that such payment was not received;
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(c) the failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Sections 23.1(a) or (b) above, where
such failure shall continue for a period of ten (10) days after written
notice thereof from Landlord to Tenant; provided, however, that if the
nature of Tenant's default is such that it may be cured but more than ten
(10) days are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant shall commence such cure within said ten
(10) day period and thereafter diligently prosecute such cure to
completion, which completion shall occur not later than sixty (60) days
from the date of such notice from Landlord;
(d) (i) the making by Tenant or any guarantor hereof of any general assignment
for the benefit of creditors, (ii) the filing by or against Tenant or any
guarantor hereof of a petition to have Tenant or any guarantor hereof
adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant or any guarantor hereof, the same is dismissed within sixty
(60) days), (iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease or of substantially all of
guarantor's assets, where possession is not restored to Tenant or
guarantor within sixty (60) days, or (iv) the attachment, execution or
other judicial seizure of substantially all of Tenant's assets located at
the Premises or of substantially all of guarantor's assets or of Tenant's
interest in this Lease where such seizure is not discharged within sixty
(60) days;
(e) any material representation or warranty made by Tenant or guarantor in
this Lease or any other document delivered in connection with the
execution and delivery of this Lease or pursuant to this Lease proves to
be incorrect in any material respect; or
(f) Tenant or any guarantor hereof shall be liquidated or dissolved or shall
begin proceedings towards its liquidation or dissolution.
Any notice sent by Landlord to Tenant pursuant to this Section 23.1 shall be in
lieu of, and not in addition to, any notice required under California Code of
Civil Procedure Section 1161.
23.2 Landlord's Remedies; Termination. In the event of any such default by
Tenant, in addition to any other remedies available to Landlord under this
Lease, at law or in equity, Landlord shall have the immediate option to
terminate this Lease and all rights of Tenant hereunder. In the event that
Landlord shall elect to so terminate this Lease, then Landlord may recover from
Tenant:
(a) the worth at the time of award of any unpaid rent which had been earned at
the time of such termination; plus
(b) the worth at the time of the award of the amount by which the unpaid rent
which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(c) the worth at the time of award of the amount by which the unpaid rent for
the balance of the term after the time of award exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided; plus
(d) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under
this Lease or which, in the ordinary course of things, would be likely to
result therefrom including, but not limited to: unamortized Tenant
Improvement costs; attorneys' fees; unamortized brokers' commissions; the
costs of refurbishment, alterations, renovation and repair of the
Premises; and removal (including the repair of any damage caused by such
removal) and storage (or disposal) of Tenant's personal property,
equipment, fixtures, Tenant Changes, Tenant Improvements and any other
items which Tenant is required under this Lease to remove but does not
remove.
As used in Sections 23.2(a) and 23.2(b) above, the "worth at the time of award"
is computed by allowing interest at the Interest Rate set forth in Section 1.14
of the Summary. As used in Section 23.2(c) above, the "worth at the time of
award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
23.3 Landlord's Remedies; Re-Entry Rights. In the event of any such default by
Tenant, in addition to any other remedies available to Landlord under this
Lease, at law or in equity, Landlord shall also have the right, with or without
terminating this Lease, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed, stored and/or disposed
of pursuant to Section 12.4 of this Lease or any other procedures permitted by
applicable law. No re-entry or taking possession of the Premises by Landlord
pursuant to this Section 23.3, and no acceptance of surrender of the Premises or
other action on Landlord's part, shall be construed as an election to terminate
this Lease unless a written notice of such intention be given to Tenant or
unless the termination thereof be decreed by a court of competent jurisdiction.
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23.4 Landlord's Remedies; Continuation of Lease. In the event of any such
default by Tenant, in addition to any other remedies available to Landlord under
this Lease, at law or in equity, Landlord shall have the right to continue this
Lease in full force and effect, whether or not Tenant shall have abandoned the
Premises. The foregoing remedy shall also be available to Landlord pursuant to
California Civil Code Section 1951.4 and any successor statute thereof in the
event Tenant has abandoned the Premises. In the event Landlord elects to
continue this Lease in full force and effect pursuant to this Section 23.4, then
Landlord shall be entitled to enforce all of its rights and remedies under this
Lease, including the right to recover rent as it becomes due. Landlord's
election not to terminate this Lease pursuant to this Section 23.4 or pursuant
to any other provision of this Lease, at law or in equity, shall not preclude
Landlord from subsequently electing to terminate this Lease or pursuing any of
its other remedies.
23.5 Landlord's Right to Perform. Except as specifically provided otherwise in
this Lease, all covenants and agreements by Tenant under this Lease shall be
performed by Tenant at Tenant's sole cost and expense and without any abatement
or offset of rent. If Tenant shall fail to pay any sum of money (other than
Basic Rent) or perform any other act on its part to be paid or performed
hereunder and such failure shall continue for three (3) days with respect to
monetary obligations (or ten (10) days with respect to non-monetary obligations
(except in case of emergencies, in which such case, such shorter period of time
as is reasonable under the circumstances)) after Tenant's receipt of written
notice thereof from Landlord, Landlord may, without waiving or releasing Tenant
from any of Tenant's obligations, make such payment or perform such other act on
behalf of Tenant. All sums so paid by Landlord and all necessary incidental
costs incurred by Landlord in performing such other acts shall be payable by
Tenant to Landlord within five (5) days after demand therefor as additional
rent.
23.6 Interest. If any monthly installment of Basic Rent or Operating Expenses,
or any other amount payable by Tenant hereunder is not received by Landlord by
the date when due, it shall bear interest at the Interest Rate set forth in
Section 1.14 of the Summary from the date due until paid. All interest, and any
late charges imposed pursuant to Section 23.7 below, shall be considered
additional rent due from Tenant to Landlord under the terms of this Lease.
23.7 Late Charges. Tenant acknowledges that, in addition to interest costs, the
late payments by Tenant to Landlord of any rent or other sums due under this
Lease will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of such costs being extremely difficult and impractical to fix.
Such other costs include, without limitation, processing, administrative and
accounting charges and late charges that may be imposed on Landlord by the terms
of any mortgage, deed of trust or related loan documents encumbering the
Premises, the Building or the Project. Accordingly, if any rent or any other
amount payable by Tenant hereunder is not received by Landlord by the due date
thereof, Tenant shall pay to Landlord an additional sum of ten percent (10%) of
the overdue amount as a late charge, but in no event more than the maximum late
charge allowed by law. The parties agree that such late charge represents a fair
and reasonable estimate of the costs that Landlord will incur by reason of any
late payment as hereinabove referred to by Tenant, and the payment of late
charges and interest are distinct and separate in that the payment of interest
is to compensate Landlord for the use of Landlord's money by Tenant, while the
payment of late charges is to compensate Landlord for Landlord's processing,
administrative and other costs incurred by Landlord as a result of Tenant's
delinquent payments. Acceptance of a late charge or interest shall not
constitute a waiver of Tenant's default with respect to the overdue amount or
prevent Landlord from exercising any of the other rights and remedies available
to Landlord under this Lease or at law or in equity now or hereafter in effect.
23.8 Security Interest. Tenant hereby grants to Landlord a lien and security
interest on all property of Tenant now or hereafter placed in or upon the
Premises including, but not limited to, all fixtures, machinery, equipment,
furnishings and other articles of personal property, and all proceeds of the
sale or other disposition of such property (collectively, the "Collateral") to
secure the payment of all rent to be paid by Tenant pursuant to this Lease. Such
lien and security interest shall be in addition to any landlord's lien provided
by law. This Lease shall constitute a security agreement under the Commercial
Code of the State so that Landlord shall have and may enforce a security
interest in the Collateral. Tenant agrees to execute as debtor and deliver such
financing statement or statements and any further documents as Landlord may now
or hereafter reasonably request to perfect or otherwise protect such security
interest pursuant to such code. Landlord may also at any time file a copy of
this Lease as a financing statement. Landlord, as secured party, shall be
entitled to all rights and remedies afforded as secured party under such code,
which rights and remedies shall be in addition to Landlord's liens and rights
provided by law or by the other terms and provisions of this Lease.
23.9 Rights and Remedies Cumulative. All rights, options and remedies of
Landlord contained in this Section 23 and elsewhere in this Lease shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in
equity, whether or not stated in this Lease. Nothing in this Section 23 shall be
deemed to limit or otherwise affect Tenant's indemnification of Landlord
pursuant to any provision of this Lease.
23.10 Tenant's Waiver of Redemption. Tenant hereby waives and surrenders for
itself and all those claiming under it, including creditors of all kinds, (i)
any right and privilege which it or any of them may have under any present or
future law to redeem any of the Premises or to have a continuance of this Lease
after termination of this Lease or of Tenant's right of occupancy or possession
pursuant to any court order or any provision hereof, and (ii) the benefits of
any present or future law which exempts property from liability for debt or for
distress for rent.
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23.11 Costs Upon Default and Litigation. Tenant shall pay to Landlord and its
mortgagees as additional rent all the expenses incurred by Landlord or its
mortgagees in connection with any default by Tenant hereunder or the exercise of
any remedy by reason of any default by Tenant hereunder, including reasonable
attorneys' fees and expenses. If Landlord or its mortgagees shall be made a
party to any litigation commenced against Tenant or any litigation pertaining to
this Lease or the Premises, at the option of Landlord and/or its mortgagees,
Tenant, at its expense, shall provide Landlord and/or its mortgagees with
counsel approved by Landlord and/or its mortgagees and shall pay all costs
incurred or paid by Landlord and/or its mortgagees in connection with such
litigation.
24. Landlord's Default. Landlord shall not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord has failed to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for its performance, then Landlord
shall not be deemed in default if it commences such performance within such
thirty (30) day period and thereafter diligently pursues the same to completion.
Upon any such uncured default by Landlord, Tenant may exercise any of its rights
provided in law or at equity; provided, however: (a) Tenant shall have no right
to offset or ▇▇▇▇▇ rent in the event of any default by Landlord under this
Lease, except to the extent offset rights are specifically provided to Tenant in
this Lease; (b) Tenant shall have no right to terminate this Lease; (c) Tenant's
rights and remedies hereunder shall be limited to the extent (i) Tenant has
expressly waived in this Lease any of such rights or remedies and/or (ii) this
Lease otherwise expressly limits Tenant's rights or remedies, including the
limitation on Landlord's liability contained in Section 31 hereof and (d) in no
event shall Landlord be liable for consequential damages or loss of business
profits.
25. Subordination. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee of a mortgage or a beneficiary of a deed
of trust now or hereafter encumbering all or any portion of the Building or the
Project, or any lessor of any ground or master lease now or hereafter affecting
all or any portion of the Building or the Project, this Lease shall be subject
and subordinate at all times to such ground or master leases (and such
extensions and modifications thereof), and to the lien of such mortgages and
deeds of trust (as well as to any advances made thereunder and to all renewals,
replacements, modifications and extensions thereof). Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any or all ground or master leases or the lien of any or all
mortgages or deeds of trust to this Lease. In the event that any ground or
master lease terminates for any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made for any reason, at the
election of Landlord's successor in interest, Tenant shall attorn to and become
the tenant of such successor. Tenant hereby waives its rights under any current
or future law which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure proceeding or sale. Tenant covenants and
agrees to execute and deliver to Landlord within ten (10) days after receipt of
written demand by Landlord and in the form reasonably required by Landlord, any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground or master lease or the lien of any such mortgage or
deed of trust or Tenant's agreement to attorn. Should Tenant fail to sign and
return any such documents within said ten (10) day period, Tenant shall be in
default hereunder without the benefit of any additional notice or cure periods
specified in Section 23.1 above.
26. Estoppel Certificate.
26.1 Tenant's Obligations. Within ten (10) days following Landlord's written
request, Tenant shall execute and deliver to Landlord an estoppel certificate,
in a form substantially similar to the form of Exhibit "F" attached hereto,
certifying: (a) the Commencement Date of this Lease; (b) that this Lease is
unmodified and in full force and effect (or, if modified, that this Lease is in
full force and effect as modified, and stating the date and nature of such
modifications); (c) the date to which the rent and other sums payable under this
Lease have been paid; (d) that there are not, to the best of Tenant's knowledge,
any defaults under this Lease by either Landlord or Tenant, except as specified
in such certificate; and (e) such other matters as are reasonably requested by
Landlord. Any such estoppel certificate delivered pursuant to this Section 26.1
may be relied upon by any mortgagee, beneficiary, purchaser or prospective
purchaser of any portion of the Project, as well as their assignees.
26.2 Tenant's Failure to Deliver. Tenant's failure to deliver such estoppel
certificate within such time shall constitute a default hereunder without the
applicability of the notice and cure periods specified in Section 23.1 above and
shall be conclusive upon Tenant that: (a) this Lease is in full force and effect
without modification, except as may be represented by Landlord; (b) there are no
uncured defaults in Landlord's or Tenant's performance (other than Tenant's
failure to deliver the estoppel certificate); and (c) not more than one (1)
month's rental has been paid in advance. Tenant shall indemnify, protect, defend
(with counsel reasonably approved by Landlord in writing) and hold Landlord
harmless from and against any and all claims, judgments, suits, causes of
action, damages, losses, liabilities and expenses (including attorneys' fees and
court costs) attributable to any failure by Tenant to timely deliver any such
estoppel certificate to Landlord pursuant to Section 26.1 above.
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27. Project Planning. If Landlord requires the Premises for use by another
tenant or for other reasons connected with the Project planning program or the
redevelopment and/or remodeling of the Building and/or Project (including
demolishing and rebuilding the Building), then Landlord shall have the right,
upon ninety (90) days' prior written notice to Tenant ("Relocation Notice"), to
relocate the Premises to other space in the Building or the Project, or to other
space in any of the buildings or projects of similar quality owned by Lessor or
Lessor's affiliates in the I-15 corridor/Rancho ▇▇▇▇▇▇▇▇ area of San Diego, of
substantially similar size as the Premises, and with tenant improvements of
substantially similar age, quality and layout as then existing in the Premises.
In the event of any such relocation, (i) Tenant shall receive ninety (90) days
of Basic Rent abatement commencing on the date of the Relocation Notice, and
(ii) Landlord shall pay for the cost of providing such substantially similar
tenant improvements (but not any furniture or personal property), and Landlord
shall reimburse Tenant, within thirty (30) days after Landlord's receipt of
invoices and paid receipts, for the reasonable moving, telephone installation,
stationery reprinting and other directly related costs actually paid for by
Tenant in connection with such relocation. If Landlord so relocates Tenant, the
terms and conditions of this Lease shall remain in full force and effect and
apply to the new space, except that (a) a revised Exhibit "B" shall become part
of this Lease and shall reflect the location of the new space, (b) the Summary
to this Lease shall be amended to include and state all correct data as to the
new space, and (c) such new space shall thereafter be deemed to be the
"Premises". Notwithstanding the foregoing provisions of this Section 27 to the
contrary, if the new space contains more rentable square feet than the original
Premises, Tenant shall not be obligated to pay any more Basic Rent or Operating
Expenses than otherwise applicable to the original Premises. Landlord and Tenant
agree to cooperate fully in order to minimize the inconvenience of Tenant
resulting from such relocation. Notwithstanding the foregoing, in the event
Landlord provides Tenant with a Relocation Notice, Tenant shall have the option,
upon written notice ("Termination Notice") to Landlord (which Termination Notice
must be given, if at all, within ten (10) days after Tenant's receipt of a
Relocation Notice from Landlord that specifies the building or projects to which
Landlord proposes to relocate the Premises), to terminate this Lease effective
as of the termination date specified in the Relocation Notice; provided,
however, that if Tenant delivers a Termination Notice, Landlord shall have the
right to rescind the Relocation Notice by written notice to Tenant within five
(5) days after Landlord's receipt of a Termination Notice, in which case the
Termination Notice shall be null and void, the Premises shall not be relocated,
and this Lease shall remain in full force and effect.
28. Modification and Cure Rights of Landlord's Mortgagees and Lessors.
28.1 Modifications. If, in connection with Landlord's obtaining or entering into
any financing or ground lease for any portion of the Building or the Project,
the lender or ground lessor shall request modifications to this Lease, Tenant
shall, within ten (10) days after request therefor, execute an amendment to this
Lease including such modifications, provided such modifications are reasonable,
do not increase the obligations of Tenant hereunder, or adversely affect the
leasehold estate created hereby or Tenant's rights hereunder.
28.2 Cure Rights. In the event of any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgagee covering the Premises or ground lessor of Landlord whose
address shall have been furnished to Tenant, and shall offer such beneficiary,
mortgagee or ground lessor a reasonable opportunity to cure the default
(including with respect to any such beneficiary or mortgagee, time to obtain
possession of the Premises, subject to this Lease and Tenant's rights hereunder,
by power of sale or judicial foreclosure, if such should prove necessary to
effect a cure).
29. Quiet Enjoyment. Landlord covenants and agrees with Tenant that, upon Tenant
performing all of the covenants and provisions on Tenant's part to be observed
and performed under this Lease (including payment of rent hereunder), Tenant
shall and may peaceably and quietly have, hold and enjoy the Premises in
accordance with and subject to the terms and conditions of this Lease as against
all persons claiming by, through or under Landlord.
30. Transfer of Landlord's Interest. The term "Landlord" as used in this Lease,
so far as covenants or obligations on the part of the Landlord are concerned,
shall be limited to mean and include only the owner or owners, at the time in
question, of the fee title to, or a lessee's interest in a ground lease of, the
Project. In the event of any transfer or conveyance of any such title or
interest (other than a transfer for security purposes only), the transferor
shall be automatically relieved of all covenants and obligations on the part of
Landlord contained in this Lease. Landlord and Landlord's transferees and
assignees shall have the absolute right to transfer all or any portion of their
respective title and interest in the Project, the Building, the Premises and/or
this Lease without the consent of Tenant, and such transfer or subsequent
transfer shall not be deemed a violation on Landlord's part of any of the terms
and conditions of this Lease.
31. Limitation on Landlord's Liability. Notwithstanding anything contained in
this Lease to the contrary, the obligations of Landlord under this Lease
(including any actual or alleged breach or default by Landlord) do not
constitute personal obligations of the individual partners, directors, officers
or shareholders of Landlord or Landlord's partners, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders of
Landlord or Landlord's partners, or any of their personal assets for
satisfaction of any liability with respect to this Lease. In addition, in
consideration of the benefits accruing hereunder to Tenant and notwithstanding
anything contained in this Lease to the contrary, Tenant hereby covenants and
agrees for itself and all of its successors and assigns that the liability of
Landlord for its obligations under this Lease (including any liability as a
result of any actual or alleged failure, breach or default hereunder by
Landlord), shall be limited solely to, and Tenant's and its successors' and
assigns' sole and exclusive remedy shall be against, Landlord's interest in the
Project, and no other assets of Landlord.
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32. Miscellaneous.
32.1 Governing Law. This Lease shall be governed by, and construed pursuant to,
the laws of the state in which the Premises are located.
32.2 Successors and Assigns. Subject to the provisions of Section 30 above, and
except as otherwise provided in this Lease, all of the covenants, conditions and
provisions of this Lease shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs, personal representatives and
permitted successors and assigns; provided, however, no rights shall inure to
the benefit of any Transferee of Tenant unless the Transfer to such Transferee
is made in compliance with the provisions of Section 14, and no options or other
rights which are expressly made personal to the original Tenant hereunder or in
any rider attached hereto shall be assignable to or exercisable by anyone other
than the original Tenant under this Lease.
32.3 No Merger. The voluntary or other surrender of this Lease by Tenant or a
mutual termination thereof shall not work as a merger and shall, at the option
of Landlord, either (a) terminate all or any existing subleases, or (b) operate
as an assignment to Landlord of Tenant's interest under any or all such
subleases.
32.4 Professional Fees. If either Landlord or Tenant should bring suit or
arbitration against the other with respect to this Lease, including for unlawful
detainer or any other relief against the other hereunder, then all costs and
expenses incurred by the prevailing party therein (including, without
limitation, its actual appraisers', accountants', attorneys' and other
professional fees, expenses and court costs), shall be paid by the other party.
32.5 Waiver. The waiver by either party of any breach by the other party of any
term, covenant or condition herein contained shall not be deemed to be a waiver
of any subsequent breach of the same or any other term, covenant and condition
herein contained, nor shall any custom or practice which may become established
between the parties in the administration of the terms hereof be deemed a waiver
of, or in any way affect, the right of any party to insist upon the performance
by the other in strict accordance with said terms. No waiver of any default of
either party hereunder shall be implied from any acceptance by Landlord or
delivery by Tenant (as the case may be) of any rent or other payments due
hereunder or any omission by the non-defaulting party to take any action on
account of such default if such default persists or is repeated, and no express
waiver shall affect defaults other than as specified in said waiver. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
32.6 Terms and Headings. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The Section headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof. Any deletion of language from this Lease prior to its execution by
Landlord and Tenant shall not be construed to raise any presumption, canon of
construction or implication, including, without limitation, any implication that
the parties intended thereby to state the converse of the deleted language. The
parties hereto acknowledge and agree that each has participated in the
negotiation and drafting of this Lease; therefore, in the event of an ambiguity
in, or dispute regarding the interpretation of, this Lease, the interpretation
of this Lease shall not be resolved by any rule of interpretation providing for
interpretation against the party who caused the uncertainty to exist or against
the draftsman.
32.7 Time. Time is of the essence with respect to performance of every provision
of this Lease in which time or performance is a factor. All references in this
Lease to "days" shall mean calendar days unless specifically modified herein to
be "business" days.
32.8 Prior Agreements; Amendments. This Lease, including the Summary and all
Exhibits and Riders attached hereto contains all of the covenants, provisions,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and any other matter covered or mentioned in this Lease, and no
prior agreement or understanding, oral or written, express or implied,
pertaining to the Premises or any such other matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest. The parties acknowledge that all prior agreements, representations
and negotiations are deemed superseded by the execution of this Lease to the
extent they are not expressly incorporated herein.
32.9 Separability. The invalidity or unenforceability of any provision of this
Lease (except for Tenant's obligation to pay Basic Rent and Operating Expenses
under Sections 3 and 4 hereof) shall in no way affect, impair or invalidate any
other provision hereof, and such other provisions shall remain valid and in full
force and effect to the fullest extent permitted by law.
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32.10 Recording. Neither Landlord nor Tenant shall record this Lease. In
addition, neither party shall record a short form memorandum of this Lease.
32.11 Exhibits and Riders. All Exhibits and Riders attached to this Lease are
hereby incorporated in this Lease for all purposes as though set forth at length
herein.
32.12 Auctions. Tenant shall have no right to conduct any auction in, on or
about the Premises, the Building or the Project.
32.13 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a
lesser amount than the rent payment herein stipulated shall be deemed to be
other than on account of the rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy provided in this Lease. Tenant agrees that each of the foregoing
covenants and agreements shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by any statute or at common law.
32.14 Financial Statements. Upon ten (10) days prior written request from
Landlord (which Landlord may make at any time during the Term but no more often
than once in any calendar year), Tenant shall deliver to Landlord a current
financial statement of Tenant and any guarantor of this Lease. Such statements
shall be prepared in accordance with generally acceptable accounting principles
and certified as true in all material respects by Tenant (if Tenant is an
individual) or by an authorized officer of Tenant (if Tenant is a corporation or
limited liability company) or a general partner of Tenant (if Tenant is a
partnership).
32.15 No Partnership. Landlord does not, in any way or for any purpose, become a
partner of Tenant in the conduct of its business, or otherwise, or joint
venturer or a member of a joint enterprise with Tenant by reason of this Lease.
32.16 Force Majeure. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, governmental moratorium or other governmental action or
inaction (including failure, refusal or delay in issuing permits, approvals
and/or authorizations), injunction or court order, riots, insurrection, war,
fire, earthquake, flood or other natural disaster or other reason of a like
nature not the fault of the party delaying in performing work or doing acts
required under the terms of this Lease (but excluding delays due to financial
inability) (herein collectively, "Force Majeure Delays"), then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay. The provisions of this Section 32.16 shall not apply to
nor operate to excuse Tenant from the payment of Basic Rent, Operating Expenses,
percentage rent, if any, additional rent or any other payments strictly in
accordance with the terms of this Lease.
32.17 Counterparts. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the same
agreement.
32.18 Nondisclosure of Lease Terms. Tenant acknowledges and agrees that the
terms of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Project, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
32.19 Non-Discrimination. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
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33. Lease Execution.
33.1 Tenant's Authority. If Tenant executes this Lease as a limited liability
company, partnership or corporation, then Tenant and the persons and/or entities
executing this Lease on behalf of Tenant represent and warrant that: (a) Tenant
is a duly organized and validly existing limited liability company, partnership
or corporation, as the case may be, and is qualified to do business in the state
in which the Premises are located; (b) such persons and/or entities executing
this Lease are duly authorized to execute and deliver this Lease on Tenant's
behalf in accordance with the Tenant's operating agreement (if Tenant is a
limited liability company), Tenant's partnership agreement (if Tenant is a
partnership), or a duly adopted resolution of Tenant's board of directors and
Tenant's by-laws (if Tenant is a corporation); and (c) this Lease is binding
upon Tenant in accordance with its terms. Concurrently with Tenant's execution
and delivery of this Lease to Landlord and/or at any time during the Lease Term
within ten (10) days of Landlord's request, Tenant shall provide to Landlord a
copy of any documents reasonably requested by Landlord evidencing such
qualification, organization, existence and authorization.
33.2 Joint and Several Liability. If more than one person or entity executes
this Lease as Tenant: (a) each of them is and shall be jointly and severally
liable for the covenants, conditions, provisions and agreements of this Lease to
be kept, observed and performed by Tenant; and (b) the act or signature of, or
notice from or to, any one or more of them with respect to this Lease shall be
binding upon each and all of the persons and entities executing this Lease as
Tenant with the same force and effect as if each and all of them had so acted or
signed, or given or received such notice.
33.3 Intentionally Omitted.
33.4 No Option. The submission of this Lease for examination or execution by
Tenant does not constitute a reservation of or option for the Premises and this
Lease shall not become effective as a Lease until it has been executed by
Landlord and delivered to Tenant.
34. Waiver of Jury Trial. To the extent permitted by applicable law, each Party
hereby waives any right to a trial by jury in any action seeking specific
performance of any provision of this Lease, for damages for any breach under
this Lease, or otherwise for enforcement of any right or remedy hereunder.
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IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written.
"TENANT" ▇.▇▇▇▇▇▇▇ CORPORATION,
a California corporation
*By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. V.P.
"LANDLORD" LBA INDUSTRIAL FUND - HOLDING CO. II, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
INNSBRUCK HOLDINGS, L.P.,
a California limited partnership
By: Innsbruck L.P.,
a California limited partnership
By: LBAIF Sub I, LLC,
a Delaware limited liability company
By: LBA Industrial Properties, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
------------------------
*NOTE:
If Tenant is a California corporation, then one of the following alternative
requirements must be satisfied:
(A) This Lease must be signed by two (2) officers of such corporation: one
being the chairman of the board, the president or a vice president, and
the other being the secretary, an assistant secretary, the chief financial
officer or an assistant treasurer. If one (1) individual is signing in two
(2) of the foregoing capacities, that individual must so indicate.
(B) If the requirements of (A) above are not satisfied, then Tenant shall
deliver to Landlord evidence reasonably acceptable to Landlord that the
signatory(ies) is (are) authorized to execute this Lease.
If Tenant is a corporation incorporated in a state other than California, then
Tenant shall deliver to Landlord evidence reasonably acceptable to Landlord that
the signatory(ies) is (are) authorized to execute this Lease.
(24)
