FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is entered into as of the
15th day of June, 2000, by and between PAC-WEST TELECOMM, INC., a California
corporation ("Tenant"), and STOCKTON MARCH PARTNERS, a California general
partnership ("Landlord"), who agree as follows:
1. Background Recitals. The following recitals are true and correct:
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A. Landlord and Tenant entered into that certain "Office Building
Lease", dated March 8, 2000 (the "Lease"), by which Tenant leased from Landlord
the "Premises" located in Landlord's "Building", as such terms are defined in
the Lease.
B. Tenant wishes to increase the size of the Premises to include
additional space in the Building, and the parties are entering into this
Amendment for such purpose and to confirm certain key Lease dates.
2. Increase in Size of Premises. The Premises as defined in the Lease
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(sometimes hereafter called the "Initial Premises") is hereby modified to
include the additional 7,115 rentable square feet which is designated on the
floor plan attached hereto as Exhibit "A" (such additional 7,115 square feet
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hereafter sometimes called the "Additional Premises"). Unless otherwise stated,
all references hereafter in this Amendment and/or in the Lease to the "Premises"
or the "entire Premises" shall mean the Initial Premises plus the Additional
Premises. The parties agree the Premises as increased hereby contains 31,793
square feet of Rentable Area.
3. Tenant Leases Additional Premises "As-Is". Tenant has accepted
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possession of the Initial Premises and commenced improvements thereto. Landlord
shall deliver and Tenant shall accept possession of the Additional Premises
promptly upon full execution of this Amendment. Tenant has inspected the
Additional Premises and shall accept possession thereof in its "as-is, where-is"
condition, and Landlord has no obligation to construct any improvements therein
or otherwise alter or modify the Additional Premises.
4. Confirmation of Commencement Date, Free Rent Period, Tenant's First
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Adjustment Date and Lease Term. The Commencement Date of the Lease Term shall be
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July 8, 2000 for the entire Premises. Tenant's nine (9) month free rent period
shall extend from July 8, 2000, through April 7, 2001. Tenant shall commence
paying Monthly Installments of Base Rent on April 8, 2001. Tenant's First
Adjustment Date shall be January 1, 2002. The base year index for the CPI
referenced in Section 2(h) is hereby changed from 1967 = 100 to: 1982-1984 =
100. The Lease Term shall commence July 8, 2000, and the Expiration Date of the
Lease Term shall be April 7,
1
2006 (subject to extension pursuant to Section 51 of "Addendum I to Office
Building Lease").
5. Base Rent; Payment of Additional Prepaid Rent. Tenant's initial Base
---------------------------------------------
Rent for the entire Premises shall be Six Hundred Twenty Nine Thousand Five
Hundred One and 40/100 Dollars ($629,501.40) per year, with Monthly Installments
thereof commencing April 8, 2001 to be Fifty Two Thousand Four Hundred Fifty
Eight and 45/100 Dollars ($52,458.45), subject to annual adjustment as provided
in Section 5.2. Tenant has paid Landlord the sum of $40,718.70 as the first
monthly installment of Base Rent for the Initial Premises. No later than July 8,
2000, Tenant shall pay Landlord the sum of $11,739.75 (full monthly Base Rent of
$52,458.45 less prepaid of $40,718.70). The Base Rent due for April, 2001 is
$40,218.15 (full monthly Base Rent of $52,458.45 prorated on a per diem basis
for the 23-day period from April 8 through April 30, 2001). Tenant shall receive
a credit of $12,240.30 ($52,458.45 prepaid less $40,218.15 due for April, 2001),
which shall be applied to Tenant's Base Rent due for May, 2001, leaving a Base
Rent payment due May 1, 2001 of $40,218.15 for the month of May, 2001.
6. Tenant's Proportionate Share. Tenant's Proportionate Share shall be
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Thirty Three and 10/100 Percent (33.10%), calculated as 31,793/95,997.
7. Additional Parking Spaces. Section 2.k of the Lease is revised to
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provide that Tenant shall entitled to park on a nonexclusive basis 110 cars
(such parking allowance determined base on the agreed-upon ratio of 3.46 cars
per 1,000 square feet of Rentable Area leased by Tenant).
8. Release of Right of First Offer on Floors Three and Four. Tenant
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hereby releases the Right of First Offer provided for in Section 41 of Addendum
1 to the Lease as it applies to the third and fourth floors of the building. The
first sentence of said Section 41 is hereby deleted and replaced with the
following: "During the term of this Lease, Landlord shall grant Tenant a Right
of First Offer over vacant space in the first and second floors of the building,
whereby before Landlord markets space on the first and second floors of the
building, Landlord will provide written notice to Tenant of such space."
9. Miscellaneous. Title and captions used herein are for convenience only
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and in no way define, limit, extend or describe the scope of this Amendment or
any provision hereof. Neither this Amendment nor any provision hereof shall be
interpreted for or against any party because that party or its legal counsel
drafted this Amendment or that provision. This Amendment contains the entire,
final and integrated agreement between the parties concerning the matters and
amendments to the Lease provided for herein. All prior discussions, promises,
understandings and statements regarding such matters are superseded hereby. All
exhibits referenced herein are attached hereto and made a part of this
Amendment.
2
10. Effect; Amendment Controls if a Conflict. Unless otherwise defined
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herein, all capitalized terms used in this Amendment shall have the meaning
defined in the Lease and all references to sections shall mean the sections as
numbered in the Lease. Except as modified by the express terms of this Amendment
or as reasonably necessary to carry our the effect and intent of this Amendment,
all of the covenants, terms and conditions of the Lease shall remain unchanged
and in full force and effect. The terms of this Amendment shall control over
any conflicting terms of the Lease.
EXECUTED AND EFFECTIVE as of the date first written above.
LANDLORD: TENANT:
STOCKTON MARCH PARTNERS, a California PAC-WEST TELECOMM, a California
general partnership corporation
By:_ EVERGREEN XI, a California By: /s/ Xxxxxx Xxxxx
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general partnership Xxxxxx Xxxxx
Its: General Partner Its: Vice President - Finance
By: /s/ Xxx Xxxx
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Xxx Xxxx
Its: General Partner
3
CB Xxxxxxx Xxxxx, Inc.
Brokerage and Management
Licensed Real Estate Broker
This Lease between Stockton March Partners, a California general partnership
("Landlord"), and Pac-West Telecomm, Inc., a California corporation, ("Tenant"),
is dated March 8, 2000.
1. LEASE OF PREMISES
In consideration of the Rent (as defined at Section 5.4) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 21. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with Landlord,
other tenants, subtenants and invitees, to use of the Common Areas (as defined
at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent (initial): $ Four Hundred Eighty-Eight Thousand Two Hundred Eight
and 80/100 Dollars
b. Base Year: The calendar year of 2000
c. Broker(s)
Landlord's: CB Xxxxxxx Xxxxx, Inc.
Tenant's: CB Xxxxxxx Xxxxx, Inc.
In the event that CB Commercial Real Estate Group, Inc. represents both Landlord
and Tenant, Landlord and Tenant hereby confirm that they were timely advised of
the dual representation and that they consent to the same, and that they do not
expect said broker to disclose to either of them the confidential information of
the other party.
d. Commencement Date: See Paragraph 4, Delivery of Possession and Addendum I,
Paragraph 39, Lease Commencement and Expiration Dates.
e. Common Areas: the building lobbies, common corridors and hallways, restrooms,
garage and parking areas, stairways, elevators and other generally understood
public or common areas. Landlord shall have the right to regulate or restrict
the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ Not Applicable
g. Expiration Date: Initial term shall expire sixty-nine (69) months after,
unless otherwise sooner terminated in accordance with the provisions of this
Lease. Commencement Date,
h. Index (Section 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, San Francisco, San
Xxxx, Oakland Average, Subgroup "All Items" (1967=100). Not to exceed three
percent (3%) per year
i. Landlord's Mailing Address: c/o Evergreen Management Company L.L.C.
000 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000
Tenant's Mailing Address: Pac-West Telecomm, Inc.,
0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
j. Monthly Installments of Base Rent (initial): $40,718.70 per month.
k. Parking: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park 85 cars on a non-
exclusive basis in the area(s) designated by Landlord for parking. Tenant
shall abide by any and all parking regulations and rules established from
time to time by Landlord or Landlord's parking operator. Landlord reserves
the right to separately charge Tenant's guests and visitors for parking. See
Addendum I, Paragraph 44, Exclusive Parking
Premises: that portion of the Building containing approximately 24,678 square
feet of Rentable Area, shown by diagonal lines on Exhibit "A," located on the
first and second floors of the Building and known as Suite's 180, 210, 240,
260. Usable square footage confirmed per current BOMA measurement within
thirty (30) days of lease execution.
m. Project: the building of which the Premises are a part (the "Building") and
any other buildings or improvements on the real property (the "Property")
located at 0000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000 and further
described at Exhibit "B." The Project is known as 0000 Xxxx Xxxxx Xxxx.
n. Rentable Area: as to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
(1)
o. Security Deposit (Section 7): $ None
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p. State: the State of California
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q. Tenant's First Adjustment Date (Section 5.2): the first day of the calendar
month following the Commencement Date plus 17 months.
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r. Tenant's Proportionate Share: 25.71%. Such share is a fraction, the
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numerator of which is the Rentable Area of the Premises, and the
denominator of which is the Rentable Area of the Project, as determined by
Landlord from time to time. The Project consists of one (1) building(s)
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containing a total Rentable Area of 95,997 square feet.
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s. Tenant's Use Clause (Article 8): General Office Use
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------------------------------------------------------------------------.
t. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
Addendum I
Exhibit "A"--Floor Plan showing the Premises.
Exhibit "B"--Site Plan of the Project.
Exhibit "C"--Building Work Rules
Exhibit "D"--Rules and Regulations.
Exhibit "E"--Intentionally Deleted
Exhibit "F"--Notice of Disclosure and Agreement
Exhibit "G"--Landlord Waiver
Exhibit "H"--Signage Specifications - (To be attached)
Exhibit "I"--Exclusive Parking and Generator Location
Exhibit "J"--Commencement Date Acknowledgement Letter
Exhibit "K"--Subordination, Non-Disturbance and Attornment Agreement
4. DELIVERY OF POSSESSION.
If Landlord permits Tenants to enter into possession of the Premises, before the
Commencement Date, such possession shall be subject to the provisions of
this Lease, including without limitation, the payment of Rent. "Commencement
Date" shall be deemed to occur on the date one hundred twenty (120) days after
the date of last execution of this Lease or when Tenant occupies the space for
the purpose of conducting business, whichever occurs sooner.
5. RENT.
5.1 Payment of Base Rent. Tenant agrees to pay the Base Rent for the Premises.
Monthly installments of Base Rent shall be payable in advance on the first day
of each calendar month of the Term. If the Term begins (or ends) on other than
the first (or last) day of a calendar month, the Base Rent for the partial
month shall be prorated on a per diem basis. Tenant shall pay Landlord the
first Monthly Installment of Base Rent when Tenant executes the Lease.
5.2 Adjustment Base Rent. Not to exceed three percent (3%) annually.
a. The Base Rent (and the corresponding Monthly Installments of Base Rent)
set forth at Section 2a shall be adjusted annually (the "Adjustment Date"),
commencing on Tenant's First Adjustment Date. Adjustments, if any, shall be
based upon increases (if any) in the Index. The Index in publication three
(3) months before the Commencement Date shall be the "Base Index" The Index
in publication three (3) months before each Adjustment Date shall be the
"Comparison Index." As of each Adjustment Date, the Base Rent payable
during the ensuing twelve-month period shall be determined by increasing
the Initial Base Rent by a percentage equal to the percentage increase, if
any, in the Comparison Index over the Base Index. If the Comparison Index
for any Adjustment Date is equal to or less than the Comparison Index
for the preceding Adjustment Date (or the Base Index, in the case of First
Adjustment Date), the Base Rent for the ensuing twelve-month period shall
remain the amount of Base Rent payable during the preceding twelve-month
period. When the Base Rent payable as of each Adjustment Date is
determined, Landlord shall promptly give Tenant written notice of such
adjusted Base Rent and the manner in which it was computed. The Base Rent
as so adjusted from time to time shall be the "Base Rent" for all purposes
under this Lease.
b. If at any Adjustment Date the Index no longer exists in the form
described in this Lease, Landlord may substitute any substantially
equivalent official index published by the Bureau of Labor Statistics or
its successor. Landlord shall use any appropriate conversion factors to
accomplish such substitution. The substitution index shall then become
the "Index" hereunder.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase in
Project Operating Costs, Tenant agrees to pay to Landlord as Rent, Tenant's
Proportionate Share of all increases in costs, expenses and obligations
attributable to the Project and its operation, all as provided below, *
with the exception of the increase in costs attributable to janitorial
service, landscaping service, repair, and maintenance which shall not
exceed four percent (4%) annually.
b. If, during any calendar year during the Term, Projected Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments due under
this Lease, an amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this
Section 5.3b.
(2)
(1) The term "Project Operating Costs" shall include all those items described
in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or Project
or their operation, including without limitation, (i) real property taxes
or assessments levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the Building or Project
by any redevelopment agency, (iii) any tax measured by gross rentals
received from the leasing of the Premises, Building or Project, excluding
any net income, franchise, capital stock, estate or inheritance taxes
imposed by the State or federal government or their agencies, branches or
departments; provided that if at any time during the Term any governmental
entity levies, assesses or imposes on Landlord any (1) general or special,
ad valorem or specific, excise, capital levy or other tax, assessment, levy
or change directly on the Rent received under this Lease or on the rent
received under any other leases of space in the Building or Project, or (2)
any license fee, excise or franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rent, or (3) any
transfer, transaction, or similar tax, assessment, levy or charge based
directly or indirectly upon the transaction represented by this Lease or
such other leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the Building or Project,
then any such taxes, assessments, levies and charges shall be deemed to be
included in the term Project Operating Costs. If at any time during the
Term the assessed valuation of, or taxes on, the Project are not based on a
completed Project having at least ninety-five percent (95%) of the Rentable
Area occupied, then the "taxes" component of Project Operating Costs shall
be adjusted by Landlord to reasonably approximate the taxes which would
have been payable if the Project were completed and at least ninety-five
percent (95%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating the
Building and Project, including without limitation the following: costs of
(1) utilities; (2) supplies; (3) insurance (including public liability,
property damage, earthquake, and fire and extended coverage insurance for
the full replacement cost of the Building and Project as required by
Landlord or its lenders for the Project; (4) services of independent
contractors; (5) compensation (including employment taxes and fringe
benefits) of all persons who perform duties connected with the operation,
maintenance, repair or overhaul of the Building or Project, and equipment,
improvements and facilities located within the Project, including without
limitation engineers, janitors, painters, floor waxers, window washers,
security and parking personnel and gardeners (but excluding persons
performing services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation and
maintenance of a room for delivery and distribution of mail to tenants of
the Building or Project as required by the U.S. Postal Service (including,
without limitation, an amount equal to the fair market rental value of the
mail room premises); (7) management of the Building or Project, whether
managed by Landlord or an independent contractor (including, without
limitation, an amount equal to the fair market value of any on-site
manager's office); (8) rental expenses for (or a reasonable depreciation
allowance on) personal property used in the maintenance, operation or
repair of the Building or Project; (9) costs, expenditures or charges
(whether capitalized or not) required by any governmental or quasi-
governmental authority; (10) amortization of capital expenses (including
financing costs) (i) required by a governmental entity for energy
conservation or life safety purposes, or (ii) made by Landlord to reduce
Project Operating Costs; and (11) any other costs or expenses incurred by
Landlord under this Lease and not otherwise reimbursed by tenants of the
Project. If at any time during the Term, less than ninety-five percent
(95%) of the Rentable Area of the Project is occupied, the "operating
costs" component of Project Operating Costs shall be adjusted by Landlord
to reasonably approximate the operating costs which would have been
incurred if the Project had been at lease ninety-five percent (95%)
occupied.
(2) Tenant's Proportionate Share of Project Operating Costs shall be payable
by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for each
calendar year thereafter ("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's Proportionate Share of the Project Operating Costs
incurred by Landlord in the Comparison Year which exceeds the total amount
of Project Operating Costs payable by Landlord for the Base Year. This
excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall, at
Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the Excess Expenses payable
during such Comparison Year, as estimated by Landlord from time to time.
Such payments shall be made in monthly installments, commencing on the
first day of the month following the month in which Landlord gives Tenant a
new notice of estimated Excess Expenses. It is the intention hereunder
to estimate from time to time the amount of the Excess Expenses for each
Comparison Year and Tenant's Proportionate Share thereof, and then to make
an adjustment in the following year based on the actual Excess Expenses
incurred for the Comparison Year.
(c) On or before April 1 of each comparison Year after the first Comparison
Year (or as soon thereafter as is practical), Landlord shall deliver to
Tenant a statement setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If Tenant's Proportionate Share
of the actual Excess Expenses for the previous Comparison ear exceeds the
total of the estimated monthly payments made by Tenant for such year,
Tenant shall pay Landlord the amount of the deficiency within ten (10) days
of the receipt of the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses for such Comparison Year,
then Landlord shall credit against Tenant's next ensuing monthly
installment(s) of additional rent an amount equal to the difference until
the credit is exhausted. If a credit is due from Landlord on the Expiration
Date, Landlord shall pay Tenant the amount of the credit. The obligations
of Tenant and Landlord to make payments required under this Section 5.3
shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison Year
having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. Tenant agrees to pay the cost
of such certification unless it is determined that Landlord's original
statement overstated Project Operating Costs by more than five percent
(5%).
(3)
(f) If this Lease sets forth an Expense Stop as Section 2f, then during the
Term Tenant shall be liable for Tenant's Proportionate Share of any actual
Project Operating Costs which exceed the amount of the Expense Stop. Tenant
shall make current payments of such excess costs during the Term in the
same manner as is provided for payment of Excess Expenses under the
applicable provisions of Section 5.3b(2)(b) and (c) above.
5.4 Definition of Rent. All costs and expenses which Tenant assumes or agrees
to pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money of the United States
of America.
5.5 Rent Control. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and any other charges to
be paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for any
and all taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or within
the contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to the Premises by or for
Tenant, other than Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord; (b) the gross
or net Rent payable under this Lease, including, without limitation, any rental
or gross receipts tax levied by any taxing authority with respect to the receipt
of the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises; if it
becomes unlawful for Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as would have
been payable to Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
Tenant fails to pay when due any Rent or other amounts or charges which Tenant
is obligated to pay under the terms of this Lease, the unpaid amounts shall bear
interest as the maximum rate then allowed by law. Tenant acknowledges that the
late payment of any Monthly Installment of Base Rent will cause Landlord to lose
the use of that money and incur costs and expenses not contemplated under this
Lease, including without limitation, administrative and collection costs and
processing and accounting expenses, the exact amount of which is extremely
difficult to ascertain. Therefore, in addition to interest, if any such
installment is not received by Landlord within ten (10) days from the date it is
due, Tenant shall pay Landlord a late charge equal to five percent (5%) of such
installment. Landlord and Tenant agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair compensation to
Landlord for the loss suffered from such nonpayment by Tenant. Acceptance of any
interest or late charge shall not constitute a waiver of Tenant's default with
respect to such nonpayment by Tenant nor prevent Landlord from exercising any
other rights or remedies available to Landlord under this Lease. If Tenant is
late with the rent, but pays the rent within twenty (20) days of the due date,
then Landlord shall waive five percent (5%) charge the first time Tenant is
late.
7. SECURITY DEPOSIT. None.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in Tenant's Use
Claus. Tenant shall not use or occupy the Premises in violation of law or any
covenant, condition or restriction affecting the Building or Project or the
certificate of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation
of law or the certificate of occupancy. Tenant, at Tenant's own cost and
expense, shall comply with all laws, ordinances, regulations, rules and/or any
directions of any governmental agencies or authorities having jurisdiction
which shall, by reason of the nature of Tenant's use or occupancy of the
Premises, impose any duty upon Tenant or Landlord with respect to the Premises
or its use or occupation. A judgment of any court of competent jurisdiction or
the admission by Tenant in any action or proceeding against Tenant that Tenant
has violated any such laws, ordinances, regulations, rules and/or directions in
the use of the Premises shall be deemed to be a conclusive determination of that
fact as between Landlord and Tenant. Tenant shall not do or permit to be done
anything which invalidate or increase the cost of any fire, extended coverage or
other insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any other organization
performing a similar function. Tenant shall
(4)
promptly upon demand reimburse Landlord for any additional premium charged for
such policy by reason of Tenant's failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or Project, or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
9. SERVICES AND UTILITIES. See Addendum I, Paragraph 49, Service and Utilities
Provided that Tenant is not in default hereunder, Landlord agrees to furnish to
the Premises during generally recognized business days, and during hours
determined by Landlord in its sole discretion, and subject to the Rules and
Regulations of the Building or Project, electricity for normal desk top office
equipment and normal copying equipment, and heating, ventilation and air
conditioning ("HVAC") as required in Landlord's judgment for the comfortable use
and occupancy of the Premises. If Tenant desires HVAC at any other time,
Landlord shall use reasonable efforts to furnish such service upon reasonable
notice from Tenant and Tenant shall pay Landlord's charges therefor on demand.
Landlord shall also maintain and keep lighted the common stairs, common entries
and restrooms in the Building. Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from, nor shall the Rent
be abated by reason of (i) the installation, use or interruption of use of any
equipment in connection with the furnishing of any the foregoing services, (ii)
failure to furnish or delay in furnishing any such services where such failure
or delay is caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs of improvements to
the Premises, Building or Project, or (iii) the limitation, curtailment or
rationing of, or restrictions on, use of water, electricity, gas or any other
form of energy serving the Premises, Building or Project. Landlord shall not be
liable under any circumstances for a loss of or injury to property or business,
however occurring, through or in connection with or incidental to failure to
furnish any such services. If Tenant uses heat generating machines or equipment
in the Premises which affect the temperature otherwise maintained by the HVAC
system, Landlord reserves the right to install supplementary air conditioning
units in the Premises and the cost thereof, including the cost of installation,
operation and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord. If Tenant requires the use of after hours HVAC and
electricity, then Tenant shall reimburse Landlord the actual costs of said after
hours usage. Current estimated costs for HVAC and electricity are $37.00 per
hour for 25,000 square feet.
Tenant shall not, without the written consent of Landlord, use any apparatus or
device in the Premises, including without limitation, electronic data processing
machines, punch card machines or machines using in excess of 120 volts, which
consumes more electricity than is usually furnished or supplied for the use of
premises as general office space, as determined by Landlord. Tenant shall not
connect any apparatus with electric current except through existing electrical
outlets in the Premises. Tenant shall not consume water or electric current in
excess of that usually furnished or supplied for the use of premises as general
office space (as determined by Landlord), without first procuring the written
consent of Landlord, which Landlord may refuse, and in the event of consent,
Landlord may have installed a water meter or electrical current meter in the
Premises to measure the amount of water or electric current consumed. The cost
of any such meter and of its installation, maintenance and repair shall be paid
for by the Tenant and Tenant agrees to pay to Landlord promptly upon demand for
all such water and electric current consumed as shown by said meters, at the
rates charged for such services by the local public utility plus any additional
expense incurred in keeping account of the water and electric current so
consumed. If a separate meter is not installed, the excess cost for such water
and electric current shall be established by an estimate made by a utility
company or electrical engineer hired by Landlord at Tenant's expense. See
Addendum I, Paragraph 42 and 43, Roof Equipment, Generator and Generator Pad
Nothing contained in this Article shall restrict Landlord's right to require at
any time separate metering of utilities furnished to the Premises. In the event
utilities are separately metered, Tenant shall pay promptly upon demand for all
utilities consumed at utility rates charged by the local public utility plus any
additional expense incurred by Landlord in keeping account of the utilities so
consumed. Tenant shall be responsible for the maintenance and repair of any such
meters at its sole cost.
Landlord shall furnish elevator service, lighting replacement for building
standard lights, restroom supplies, window washing and janitor services in a
manner that such services are customarily furnished to comparable office
buildings in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed conclusive evidence
that as of the date of taking possession the Premises are in good order and
satisfactory condition, except for such matters as to which Tenant gave Landlord
notice on or before the Commencement Date. No promise of Landlord to alter,
remodel, repair or improve the Premises, the Building or the Project and no
representation, express or implied, respecting any matter or thing relating to
the Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made to
Tenant by Landlord or its Broker or Sales Agent, other than as may be contained
herein or in a separate exhibit or addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE. See Addendum I, Par. 40, Tenant
Improvements and Exhibit "C", Building Work Rules
a. Landlord's Obligations. Landlord shall maintain in good order,
condition and repair the Building and all other portions of the Premises
not the obligation of Tenant or of any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as described
in Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for services
furnished by Landlord pursuant to Article 9 hereof, maintain the
Premises in good order, condition and repair, including the interior
surfaces of the ceilings, walls and floors, all doors, all interior
windows, all plumbing, pipes and fixtures, electrical wiring, switches
and fixtures, Building Standard furnishings and special items and
equipment installed by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in
and to the Premises, Building and Project and the facilities and
systems thereof, the need for which arises out of (i) Tenant's use or
occupancy of the Premises, (ii) the installation, removal, use or
operation of Tenant's Property (as defined in Article 13) in the
Premises, (iii) the moving of Tenant's Property into or out of the
Building, or (iv) the act, omission, misuse or negligence of Tenant,
its agents, contractors, employees or invitees.
(5)
(4) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails to
promptly commence such work and diligently prosecute it to completion,
then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform
such work. Any amount so expended by Landlord shall be paid by Tenant
promptly after demand with interest at the prime commercial rate then
being charged by Bank of America NT & SA plus two percent (2%) per
annum, from the date of such work, but not to exceed the maximum rate
then allowed by law. Landlord shall have no liability to Tenant for
any damage, inconvenience, or interference with the use of the
Premises by Tenant as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances and rules of any
public authority relating to their respective maintenance obligations as
set forth herein.
d. Waiver by Tenant. Except as provided for in Paragraph 27.3, Tenant
expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford the Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of Landlord's failure
to keep the Premises in good order, condition and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon demand. Tenant shall
not install business machines or mechanical equipment which cause noise or
vibration to such a degree as to be objectionable to Landlord or other
Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant nor shall Tenant's obligations under this Lease
be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or required by law
to make in or to any portion of the Project, Building or the Premises.
Landlord shall nevertheless use reasonable efforts to minimize any
interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical,
electrical, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
h. Upon the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage to
the Premises, including any structural damage, resulting from Tenant's use
or from the removal of Tenant's fixtures, furnishings and equipment
pursuant to Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS. See Addendum I, Par. 40, Tenant Improvements;
See Exhibit "C", Building Work Rules
a. Tenant shall not make any additions, alterations or improvements to
the Premises without obtaining the prior written consent of Landlord.
Landlord's consent may be conditioned on Tenant's removing any such
additions, alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall
be diligently prosecuted to completion. Landlord may, at Landlord's option,
require that any such work be performed by Landlord's contractor, in which
case the cost of such work shall be paid for before commencement of the
work. Tenant shall pay to Landlord upon completion of any such work by
Landlord's contractor, an administrative fee of fifteen percent (15%) of
the cost of the work.
b. Tenant shall pay the costs of any work done on the Premises pursuant
to Section 12a, and shall keep the Premises, Building and Project free
and clear of liens of any kind. Tenant shall indemnify, defend against and
keep Landlord free and harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account of claims by any
person performing work or furnishing materials or supplies for Tenant or
any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may be filed, Tenant
shall give Landlord notice of the intended commencement date a
sufficient time before that date to enable Landlord to post notices of
non-responsibility or any other notices which Landlord deems necessary for
the proper protection of Landlord's interest in the Premises, Building or
the Project, and Landlord shall have the right to enter the Premises and
post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide to
Landlord, at Tenant's expense a lien and completion bond in an amount
equal to at least one and one-half (1 1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for mechanic's and
materialmen's lien and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its obligation under
Section 12b to keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section 12a,
all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject
to the provisions of Section 13b.
e. Nothing contained in Paragraph 12 prohibits Tenant's lender from making
a fixture filing with respect to any collateral located at the Premises.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section
13b.
(6)
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building,
and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively "Tenant's
Property") shall be and shall remain the property of Tenant and may be
removed by Tenant at any time during the Term; provided that if any of
Tenant's Property is removed, Tenant shall promptly repair any damage to the
Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"D" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Landlord shall not be responsible for any
violation of said rules and regulations by other tenants or occupants of the
Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to Tenant
for (a) damage or injury to property person or business, (b) causing an actual
or constructive eviction from the Premises, or (c) disturbing Tenant's use or
possession of the Premises:
a. To name the Building and Project and to change the name or street address
of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any mortgage on
the Project, or to others having an interest in the Project or Landlord, and
during the last six months of the Term, to show the Premises to prospective
tenants thereof; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use its
best efforts (except in an emergency) to minimize interference with Tenant's
business in the Premises in the course of any such entry.
f. Notwithstanding anything to the contrary to this Lease, Landlord shall
not enter the Premises without being accompanied by a designated
representative of Tenant, except in case of emergency. (Janitorial service
to be provided by Landlord is excluded from this provision, but all
janitorial personnel must be insured.)
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use of the Premises by any party other than
Tenant. Any of the foregoing acts without such consent shall be void and
shall, at the option of Landlord, terminate this Lease. This Lease shall
not, nor shall any interest of Tenant herein, be assignable by operation of
law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant shall
give notice to Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the proposed assignee
or subtenant. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall
have the option, exercisable by notice given to Tenant within twenty (20)
days after Tenant's notice is given, either to sublet such space from
Tenant at the rental and on the other terms set forth in the Lease for the
term set forth in Tenant's notice, or, in the case of an assignment, to
terminate this Lease. If Landlord does not exercise such option, Tenant may
assign the Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in
the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i) the total
sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the
Premises subleased), plus (ii) any real estate brokerage commissions or
fees payable in connection with such assignment or subletting, shall be
paid to Landlord as additional rent under this Lease without affecting
or reducing any other obligations of Tenant hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination
option to Landlord, to any corporation which controls, is controlled by or
is under common control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity which
acquires all the assets of Tenant's business as a going concern, provided
that (i) the assignee or sublessee assumes, in full, the obligations of
Tenant under this Lease, (ii) Tenant remain fully liable under this Lease,
and (iii) the use of the Premises under Article 8 remains unchanged. (See
Addendum I, Paragraph 52)
d. No subletting or assignment shall 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. The acceptance of Rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by an assignee
or subtenant 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 assignee, subtenant or
successor. Landlord may consent to subsequent assignments of the Lease or
sublettings or amendments or modifications to the Lease with assignees of
Tenant, without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and any such actions shall not
relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease of sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant requests
the consent of Landlord for any act that Tenant proposes to do, then Tenant
shall, upon demand, pay Landlord an administrative fee of One Hundred Fifty
and No/100ths Dollars ($150.00) plus any attorneys' fees reasonably
incurred by Landlord in connection with such act or request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied), Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
term and Base Rent), but the "Monthly Installments of Base Rent" payable by
Tenant shall be increased to one hundred fifty percent (150%) of the Monthly
Installments of Base Rent payable by Tenant at the expiration of the Term. Such
monthly rent shall be payable in advance on or before the first day of each
month. If either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance written notice
of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
Tenant took possession, except for (i) reasonable wear and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
Landlord's request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a xxxx of sale. If Landlord elects
to remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises. See Addendum I, Paragraph 53
19. DESTRUCTION OR DAMAGE
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of other
casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can
be completed within ninety (90) days, this Lease shall remain in full force
and effect, except that if such damage is not the result of the negligence
or willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the extent Tenant's
use of the Premises is impaired, commencing with the date of damage and
continuing until completion of the repairs required of Landlord under
Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety (90) days, Landlord may elect, upon notice to Tenant given within
thirty (30) days after the date of such fire or other casualty, to repair
such damage, in which event this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Section
19a. If Landlord does not so elect to make such repairs, this Lease shall
terminate as of the date of such fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed
or damaged to the extent that in Landlord's opinion repair thereof cannot
be completed with in ninety (90) days, Landlord may elect upon notice to
Tenant given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not elect to make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property. Landlord shall not be liable
for any loss of business, inconvenience or annoyance arising from any
repair or restoration of any portion of the Premises, Building or Project
as a result of any damage from fire of other casualty.
e. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by fire or
other casualty, and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the absence of
express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such taking, and Rent shall be
prorated to such date. If less than the whole of the Building or Premises
is so taken, this Lease shall be unaffected by such taking, provided that
(i) Tenant shall have the right to terminate this Lease by notice to
Landlord given within ninety (90) days after the date of such taking if
twenty percent (20%) or more of the Premises is taken and the remaining
area of the Premises is not reasonably sufficient for Tenant to continue
operation of its business, and (ii) Landlord shall have the right to
terminate this Lease by notice to Tenant given within ninety (90) days
after the date of such taking. If either Landlord or Tenant so elects to
terminate this Lease, the Lease shall terminate on the thirtieth (30th) day
after either such notice. The Rent shall be prorated to the date of
termination. If this Lease continues in force upon such partial taking, the
Base Rent and Tenant's Proportionate Share shall be equitably adjusted
according to the remaining Rentable Area of the Premises and Project.
(8)
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority shall
be the exclusive property of Landlord, and Tenant hereby assigns to
Landlord all of its right, title and interest in any award, judgement or
settlement from the condemning authority. Tenant, however, shall have the
right, to the extent that Landlord's award is not reduced or prejudiced, to
claim from the condemning authority (but not from Landlord) such
compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior to
the condemnation or taking, but only to the extent of Building Standard
Work. Tenant shall be responsible at its sole cost and expense for the
repair, restoration and replacement of any other Leasehold Improvements and
Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of Tenant
or any other person, or for any injury to or death of any person, arising
out of: (1) Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to be done in, on or
about the Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise tortious
act or omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense, and by counsel satisfactory to Landlord,
defend Landlord in any action or proceeding arising from any such claim and
shall indemnify Landlord against all costs, attorneys' fees, expert witness
fees and any other expenses incurred in such action or proceeding. See
Xxxxxxxx 0, Xxxxxxxxx 00.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees invitees or
customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may leak
or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, whether such
damage or injury results from conditions arising upon the Premises or upon
other portions of the Building or Project or from other sources, except to
the extent that a final judgement of a court of competent jurisdiction
establishes that the injury or damage was proximately caused by the fraud,
willful injury to person or property or willful violation of law of
Landlord, its employees, agency or/contributors. Landlord shall not be
liable for any damages caused by any act or omission of any other tenant of
the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name Landlord, and at Landlord's request any mortgagee of Landlord,
as an additional insured, as their respective interests may appear. Each
policy shall contain (i) a cross-liability endorsement, (ii) a provision
that such policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and that
any coverage carried by Landlord shall be excess insurance, and (iii) a
waiver by the insurer of any right of subrogation against Landlord, its
agents, employees and representatives, which arises or might arise by
reason of any payment under such policy or by reason of any act or omission
of Landlord, its agents, employees or representatives. A copy of each paid
up policy (authenticated by the insurer) or certificate of the insurer
evidencing the existence and amount of each insurance policy required
hereunder shall be delivered to Landlord before the date Tenant is first
given the right of possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord may, at any time
and from time to time, inspect and/or copy any insurance policies required
to be maintained by Tenant hereunder. No such policy shall be cancellable
except after twenty (20) days written notice to Landlord and Landlord's
lender. Tenant shall furnish Landlord with renewals or "binders" of any
such policy at least ten (10) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out and maintain such insurance,
Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together with a twenty-
five percent (25%) handling charge, payable upon demand. Tenant shall have
the right to provide such insurance coverage pursuant to blanket policies
obtained by the Tenant, provided such blanket policies expressly afford
coverage to the Premises, Landlord, Landlord's mortgagee and Tenant as
required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (i)
all Leasehold Improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions of Article
12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance described in clause (i) shall be used for the repair or
replacement of the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds under (i) shall be
paid to Landlord, and the proceeds under (ii) above shall be paid to
Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in, on
or about the Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($1,000,000.00)
combined single limit for bodily injury, death and property damage
liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and Tenant cannot mutually agree upon
the amounts of said increases, then Tenant agrees that all insurance policy
limits as set forth in this Article shall be adjusted for increases in the
cost of living in the same manner as is set forth in Section 5.2 hereof for
the adjustment of the Base Rent.
(9)
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the other
and against the officers, employees, agents and representatives of the other, on
account of loss by or damage to the waiving party of its property or the
property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage. Tenant shall, upon
obtaining the policies of insurance required under this Lease, give notice to
its insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or first deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in writing,
subordinate its rights under this Lease to the lien of any first mortgage or
first deed of trust, or to the interest of any lease in which Landlord is
lessee, and to all advances made or hereafter to be made thereunder. However,
before signing any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor or Landlord requesting such subordination, an
agreement in writing providing that, as long as Tenant is not in default
hereunder, this Lease shall remain in effect for the full Term. The holder of
any security interest may, upon written notice to Tenant, elect to have this
Lease prior to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to the
purchaser, transferee or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall execute
and deliver to Landlord or Landlord's designee, a written statement certifying
(a) that this Lease is unmodified and in full force and effect, or is in full
force and effect as modified and stating the modifications; (b) the amount of
Base Rent and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d) that
Landlord is not in default hereunder or, if Landlord is claimed to be in
default, stating the nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at Landlord's election be
a default under this Lease and shall also be conclusive upon Tenant that: (1)
this Lease is in full force and effect and has not been modified except as
represented by Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim or deduction
against Rent; and (3) not more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant, Landlord
may transfer the security deposit or prepaid Rent to Landlord's successor and
upon such transfer, Landlord shall be relieved of any and all further liability
with respect thereto.
27. DEFAULT.
27.1. Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be
paid by Tenant under this Lease and such failure continues for five (5)
days after receipt of notice of nonpayment.
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues
for thirty (30) days after written notice thereof from Landlord to Tenant;
or
d. If a writ of attachment or execution is levied on this Lease or on any
of Tenant's Property; or and such writ of attachment is not dismissed or
bonded within sixty (60) days
e. If Tenant makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with its
creditors; or
f. If Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the federal bankruptcy laws or other
insolvency laws is filed and not withdrawn or dismissed within forty-five
(45) days thereafter, of if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises or
Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1) person or
entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d through
g above.
27.2. Remedies. In the event of Tenant's default hereunder, then in addition to
any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall have
no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other charges which
have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate the Lease and Tenant's right to possession of
the Premises.
(10)
If Landlord reenters the Premises under the provisions of subparagraphs b or c
above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any reentry or retaking of possession by Landlord,
Landlord shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant. If Landlord elects to relet
the Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment of any Indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due, Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as determined, any costs and expenses
incurred by Landlord in connection with such reletting or in making alterations
and repairs to the Premises, which are not covered by the rent received from the
reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent which
had been earned at the time of termination; plus
2. Rent Prior to Award. 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
3. Rent After Award. The worth at the time of the award of the amount by
which the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of the rental loss that Tenant proves could be
reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all 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, any costs or expenses (including attorneys' fees), incurred
by Landlord in (a) retaking possession of the Premises, (b) maintaining
the Premises after Tenant's default, (c) preparing the Premises for
reletting to a new tenant, including any repairs or alterations, and (d)
reletting the Premises, including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above, is
to be computed by allowing interest at the rate of ten percent (10%) per annum.
"The worth at the time of the award" as used in subparagraph 3 above, is to be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank situated nearest to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach at
the time of such acceptance of Rent. Landlord shall not be deemed to have waived
any term, covenant or condition unless Landlord gives Tenant written notice of
such waiver.
27.3 Landlord's Default. If Landlord fails to perform any covenant, condition
or agreement contained in this Lease within thirty (30) days after receipt of
written notice from Tenant specifying such default, or if such default cannot
reasonably be cured within thirty (30) days, if Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be liable to Tenant
for any damages sustained by Tenant as a result of Landlord's breach; provided,
however, it is expressly understood and agreed that if Tenant obtains a money
judgment against Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out of the rents,
issues, profits, and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no other
real, personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgment. If, after notice to Landlord of default, Landlord (or any
first mortgagee or first deed of trust beneficiary of Landlord) fails to cure
the default as provided herein, then Tenant shall have the right to cure that
default at Landlord's expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against any payments of Rent
or any other charges due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except those noted in
Section 2.c. Tenant shall indemnify and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys' fees)
for any compensation, commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation by reason of any act
of Tenant.
29. NOTICES
All notices, approvals and demands permitted or required to be given under this
Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and to
the Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and Tenant may from time
to time by notice to the other designate another place for receipt of future
notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and Landlord shall have
the right to enforce compliance therewith, including the right of entry into the
Premises to effect compliance.
(11)
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms of
this Lease and to any mortgage, lease, or other agreement to which this Lease
may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about the
Premises which in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord is a party thereto or not, that Tenant has violated any law,
ordinance or governmental rule, regulation or requirement, shall be conclusive
of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Article 34 shall excuse
or delay Tenant's obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant shall
pay Landlord all costs of such performance promptly upon receipt of a xxxx
therefor.
36. SIGN CONTROL. See Addendum I, Paragraph 46, Signage
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord shall have the right to
remove any signs or other matter, installed without Landlord's permission,
without being liable to Tenant by reason of such removal, and to charge the cost
of removal to Tenant as additional rent hereunder, payable within ten (10) days
of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this Lease
shall be deemed to be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or 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 the Rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles and
Sections in this Lease.
e. Changes Requested by Lender Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
Lender on Landlord's interest, so long as these changes do not alter the basic
business terms of this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom consent to such
charge or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance with
the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have no claim, and hereby waives the right to any claim against
Landlord for money damages by reason of any refusal, withholding or delaying by
Landlord any consent, approval or statement of satisfaction, and in such event,
Tenant's only remedies therefor shall be an action for specific performance,
injunction or declaratory judgment to enforce any right to such consent, etc.
(12)
h. Corporate Authority. If Tenant is a corporation, each individual signing this
Lease on behalf of Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of the corporation, and that this Lease
is binding on Tenant in accordance with its terms. Tenant shall, at Landlord's
request, deliver a certified copy of a resolution of its board of directors
authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant shall
be for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
of Tenant in the Premises or any other premises within the Building or Project.
Execution of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until Landlord has in
fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations. In order to
induce Landlord to enter into this Lease Tenant agrees that it shall promptly
furnish Landlord, but no more than once a year, upon Landlord's written request,
with publically available financial statements reflecting Tenant's current
financial condition. Tenant represents and warrants that all financial
statements, records and information furnished by Tenant to Landlord in
connection with this Lease are true, correct and complete in all respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or registered mail
to any first mortgagee or first deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default served by
Tenant on Landlord. If Landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided that if such default
cannot reasonably be cured within that thirty (30) day period, then such
mortgagee or beneficiary shall have such additional time to cure the default as
is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements of
the parties with respect to any matter covered or mentioned in this Lease, and
no prior agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties or their respective
successors in interest.
o. Recording. The parties shall execute and acknowledge a "short form"
memorandum of this Lease for recording purposes simultaneous with the execution
of this Lease.
p. Severability. A final determination by a court of competent jurisdiction that
any provision of this Lease is invalid shall not affect the validity of any
other provision, and any provision so determined to be invalid shall, to the
extent possible, be construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
t. Compliance. The parties hereto agree to comply with all applicable federal,
state and local laws, regulations, codes, ordinances and administrative orders
having jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign Investment In Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent shall not constitute a
waiver of any other default; it shall constitute only a waiver of timely payment
for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only a written notice from
Landlord to Tenant shall constitute acceptance of the surrender of the Premises
and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Date: 3/9/00 Date: March 8, 2000
--------------------------------------- ----------------------------
Stockton March Partners
Landlord: A California general partnership Tenant: Pac-West Telecomm, Inc.,
----------------------------------- ---------------------------
a California corporation
By: /s/ [ILLEGIBLE]^^ By: /s/ Xxxxxx Xxxxx
----------------------------------- ---------------------------
Title: Partner Title: Vice President - Finance
----------------------------------- ----------------------------
By: ___________________________________ By: ____________________________
Title: ___________________________________ Title:____________________________
--------------------------------------------------------------------------------
CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by CB Xxxxxxx Xxxxx to
the legal sufficiency or tax consequences of this document or the transaction to
which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
--------------------------------------------------------------------------------
(13)
CB [LOGO] Xxxxxxx Xxxxx
Addendum I to Office Building Lease
-----------------------------------
Dated Xxxxx 0, 0000
Xx and Between
STOCKTON MARCH PARTNERS, A CALIFORNIA GENERAL PARTNERSHIP ("LANDLORD")
-and-
PAC-WEST TELECOMM, INC. A CALIFORNIA CORPORATION ("TENANT")
Should there be any discrepancies between the Addendum and the Lease, the
Addendum shall prevail.
38. BENEFICIAL OCCUPANCY: Subject to all of the provisions of this Lease,
-------------------- including but not limited to after hours operating
expenses as defined in Xxxxxxxxx 0, Xxxxxx shall
receive the first nine (9) months of beneficial
occupancy wherein Tenant pays no rent. The sixty
(60) month term shall commence following this
period of beneficial occupancy.
39. LEASE COMMENCEMENT
AND EXPIRATION DATES: This lease commencement date, per Section 2d of
-------------------- page 1, shall commence no later than one hundred
twenty (120) days following the execution of the
lease document. The lease shall be amended per the
attached Exhibit "J", Commencement Date
Acknowledgement, where it shall reflect the actual
Lease Commencement Date, per page 1, paragraph 2d
and the Lease Expiration Date, per page 1,
paragraph 2g.
40. TENANT IMPROVEMENTS: Landlord shall have the right to approve the space
------------------- plan. Said approval shall not be unreasonably
withheld.
Tenant shall be responsible for the costs of the
tenant improvements to the premises. Landlord
shall have the right to approve the licensed
contractor hired by Tenant. Such approval shall
not be unreasonably withheld.
Tenant and Tenant's contractor shall abide by
Exhibit "C" (Building Work Rules) for the
construction of the tenant improvements to the
project.
41. RIGHT OF FIRST OFFER: During the term of this Lease, Landlord shall
-------------------- grant Tenant a Right of First Offer whereby before
Landlord markets space in the building, Landlord
will provide written notice to Tenant of such
space. The notice will include the terms and
conditions upon which Landlord in good faith
expects to offer such space for lease. Tenant
shall have 72 hours to respond to Landlord in
writing of Tenant's acceptance of the terms and
conditions of Landlord's notice. If Tenant agrees
to the terms and conditions of the notice then a
lease amendment or addendum must be executed by
the parties within 15 days of Tenant's notice of
acceptance to Landlord or the rights under this
Page 1 of 5
paragraph shall go away. Nothing shall prevent
Landlord, in the course of discussions or
negotiations with a third party, from changing
such terms and conditions. No such change shall
entitle Tenant to any additional notice.
The rights granted in this paragraph shall be
subject and junior to space with respect to which
an offer to extend or renew is being or will be
made to a tenant then in occupancy of such space,
whether or not pursuant to the terms of such
tenant's lease.
42. EMERGENCY GENERATOR: (a) With Landlord's prior written approval, which
------------------- will not be unreasonably withheld, Tenant shall
have the right to install an emergency diesel
generator ("Emergency Generator") in an area (the
"Equipment Area") selected by Landlord identified
per Exhibit "I". The Emergency Generator shall be
screened and baffled in a manner approved by
Landlord.
(b) The Emergency Generator shall be installed,
maintained, operated and removed by Tenant at
Tenant's sole cost and expense and shall remain
the property of Tenant. The installation of any
Emergency Generator must be in compliance with
applicable Laws, including those of any federal,
state, county, city, and other public authorities
with jurisdiction, and with all of the terms and
conditions of this Lease. Tenant shall obtain and
maintain all licenses, permits and approvals
required for the operation of Emergency Generator,
and shall provide copies of all permits and
licenses to Landlord prior to installation. All
operations by Tenant shall be lawful and in full
compliance with all permits and licenses and any
governmental authority having jurisdiction over
such operation. Tenant acknowledges that Landlord
makes no representation or warranty that the
Emergency Generator or any of it, is or will be
permitted. Tenant shall operate the Emergency
Generator in a manner that will not interfere with
use of premises in the Building by any other
tenant, and, except for reasonable testing, only
when electricity is otherwise unavailable to
tenant at the Premises.
(c) Tenant shall reimburse Landlord for all
charges for diesel fuel, or other utilities used
in connection with Tenant's operation of the
Emergency Generator. There shall be no increase in
the rental rate due to installation of the
generator; however, Tenant shall be responsible
for any utilities or other costs that are a by-
product of Tenant's equipment.
(d) Tenant assumes full responsibility for the
installation, engineering, operation and
maintenance of all the equipment it installs.
Tenant shall be responsible for any damage to the
Building, the Site or the Project. Tenant shall
indemnify, protect, defend and hold harmless
Landlord from and against any and all claims,
losses, costs (including reasonable attorneys
fees), damages, expenses and
Page 2 of 5
liabilities (including statutory liability,
liability under Workers Compensation laws and
mechanics' or, materialmens' liens), in connection
with claims or damages as a result of injury or
death of any person or property damage due to any
acts, omissions, or negligence of Tenant, Tenant's
agents, employees, customers, invitees,
contractors, and subcontractors and other
representatives in connection with the Emergency
Generator.
(e) During the term of the Lease, at Tenant's
cost, Tenant shall keep the Emergency Generator in
good condition and repair and allow no waste
thereon. Upon termination and expiration of the
Lease, at Tenant's cost, Tenant will remove the
Emergency Generator and all of its related
equipment and repair any damage to the Building,
the Site or the Project resulting from such
removal. The foregoing obligations of the Tenant
will survive the expiration or termination of this
Lease.
43. ROOFTOP COMMUNICATIONS
EQUIPMENT: Tenant shall have the right to install
---------- communications equipment (including antennas and
radio transmission equipment) on the roof of the
Building with accompanying chase rights on the
roof of the Building subject to local ordinances
and approval of Landlord as to location and method
of installation, which will not be unreasonably
withheld. The equipment shall (a) not violate the
terms of the CC&R's; (b) not be visible from the
street or shall be appropriately screened; (c) be
removed by Tenant upon the Lease expiration with
Tenant being solely responsible for the costs of
any repairs resulting from damage suffered through
such removal. There will be no increase in the
rental rate due to installation of equipment on
the rooftop; however, Tenant shall be responsible
for any utilities or other costs that are a by-
product of Tenant's equipment, and (d) be
determined not to interfere with equipment already
installed or reserved for specific roof space.
Tenant shall be solely responsible for all costs
of the equipment and the installation including
any modification, damage or repair to the
roof.
44. DESIGNATED PARKING: Tenant shall have the exclusive right to four (4)
------------------- parking stalls as identified on Exhibit I (Parking
Plan). It shall be Tenant's responsibility for the
stenciling designation of the parking stalls.
Tenant shall inform Landlord prior to the
stenciling. It shall be the responsibility of
Tenant to "police" these stalls and not the
Landlord, property manager or building facilities
manager.
45. (a) NON-DISTURBANCE
AGREEMENT: Within ten (10) days of execution of this Lease,
---------- Landlord will obtain a Non-Disturbance Agreement
from its current Lender and any future Lender and
any current or future ground lessor.
Page 3 of 5
(b) LANDLORD WAIVER: Within ten (10) days of execution of this Lease,
--------------- Landlord will execute a Landlord's Waiver in the
form attached hereto as Exhibit "G" which will
also be executed by Joinders by any current or
future Lender and ground lessor.
46. SIGNAGE: Building fascia signage on the North side of the
------- building shall be available to Tenant. Placement
of such signage to be determined. Such cost of
signage shall be at Tenant's sole cost. Subject to
City code and approval and Landlord's approval,
which shall not be unreasonably withheld.
Directory signage and suite signage shall be
provided to Tenant by Landlord at Landlord's sole
cost.
47. SECURITY CARD SYSTEM: Tenant shall have the right to interface with
-------------------- Landlord's current security card system with its
current system's capability. Tenant shall be
responsible with the cost associated with the
interfacing above and beyond normal card access
and any repairs associated with Tenant's use of
the system.
48. UTILITY CLOSET KEYS: Keys to all utility closets shall be issued to
------------------- Tenant for Tenant's access at any time.
49. MASTER KEY LOCK: At Tenant's cost, all door locks on doors leading
--------------- to Pac-West's leased spaces shall be changed to
Pac-West's master key system. Landlord will be
provided a master key.
50. SERVICES AND UTILITIES: Subject to Landlord's right to charge for after
---------------------- hours utilities as provided in Xxxxxxxxx 0,
Xxxxxxxx shall provide services and utilities to
the building twenty-four (24) hours a day, seven
(7) days a week, three hundred sixty-five (365)
days per year.
BUILDING STANDARD OPERATING HOURS are:
6:00. a.m.-6:00 p.m. Mon - Fri, excluding
nationally recognized holidays
8:00 a.m.-12:00 p.m. Saturday
51. RENEWAL OPTION: Tenant shall have the right to renew its lease for
-------------- two (2) additional five (5) year terms at a rate
to be negotiated and agreed to by both parties,
but in no event shall the renewal period rate be
less than the starting rate of the initial term.
Tenant shall provide landlord with a 180 day prior
written notice of its intent to exercise its
option to renew.
52. SECTION 16.c (ii): The fact that Tenant is to remain liable under the
----------------- Lease in the event of any assignment as provided
in Section 16.c (ii) shall not be interpreted to
require Landlord's consent for any acquisition,
merger or other transaction contemplated by
Section 16.c (ii), even if Tenant ceases to exist
as a separate legal entity as a result of such
transaction.
Page 4 of 5
53. SECTION 18.b: If Tenant is dispossessed by process of law
------------ before Tenant has been able to remove all of
Tenant's personal property which Tenant has the
right under this Lease to remove from the
Premises, Tenant shall have five (5) days
following such dispossession to enter the
Premises and complete such removal, subject to
the requirement to repair any damage as provided
in Section 18.a. Landlord has the right to have
a representative present during such time Tenant
is in the Premises for the purposes of such
removal.
54. SECTION 21: As a material part of the consideration for
---------- Landlord's execution of this Lease, Tenant
hereby assumes all risk of damage or injury to
the person or property of Tenant, its employees,
agents, contractors, invitees or customers, in,
on or about the Premises from any cause, except
to the extent a court of competent jurisdiction
establishes that the injury or damage was
proximately caused by the fraud, willful injury
to person or property or willful violation of
law by Landlord or its employees or agents.
55. EXHIBIT D: Section 15 of Exhibit D to the Lease is amended
--------- to delete the words "1776 West March Lane or"
from the last sentence.
56. SUITE 210 DELIVERABILITY: As of the date of this lease Suite 210 is
------------------------ occupied by Northern Burlington Santa Fe (NBSF),
Landlord has executed a relocation amendment
with NBSF and will deliver Suite 210 to Tenant
upon NBSF vacating Suite 210, which is estimated
to be April 15, 2000. If Suite 210 is not
deliverable to Tenant by April 30, 2000, then
beginning May 1, 2000 Tenant shall receive
$200.00 per day until NBSF vacates Suite 210
which shall be applied towards the rent
obligation as discussed in the Lease.
ACKNOWLEDGED AND AGREED:
LANDLORD: TENANT:
Stockton March Partners, Pac-West Telecomm, Inc.,
a California general partnership a California corporation
By: /s/ [ILLEGIBLE]^^ BY: /s/ Xxxxxx Xxxxx
------------------- -----------------------
Title: Partner Title: Vice President-Finance
------------------- -----------------------
By: ___________________ By: _______________________
Title:___________________ Title: _______________________
Date: 3/9/00 Date: March 8, 2000
------------------- -----------------------
-----------------------------------------------------------------------------
CONSULT YOUR ADVISORS - This document (including its exhibits and addenda, if
any) has been prepared for review and approval by your attorney. Broker makes no
representation or recommendation as to the legal sufficiency or tax consequences
of this document or the transaction to which it relates. Consult your attorney
and tax accountant.
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