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EXHIBIT 10.29
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE - NET
[AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION LOGO]
1. BASIC PROVISIONS ("Basic Provisions")
1.1 PARTIES: This Lease ("Lease"), dated for reference purposes only, April 27,
2000, is made by and between XXXX COMMERCIAL REALTY CORP., A NEVADA CORPORATION
("LESSOR") and FUTURELINK MICRO VISIONS CORP., A DELAWARE CORPORATION,
("LESSEE"), (collectively the "Parties," or individually a "Party").
1.2 PREMISES: That certain real property, including all improvements therein or
to be provided by Lessor under the terms of this Lease, and commonly known by
the street address of 0 Xxxxx Xxxxxx Xxxxx, Xxxx Xxxxxx, 00000 located in the
County of Orange, State of California, and generally described as that certain
free-standing two-story building consisting of approximately 77,326 rentable
square feet ("Building") and including the exclusive use and possession of all
common areas shown on Exhibit "A" attached hereto (the "Exclusive Use Area") and
the exclusive use and possession of the parking areas (the "Lessee Parking
Area") which shall provide a minimum of three hundred (300) parking spaces free
of charge. On or before Substantial Completion (defined below) of the Tenant
Improvements in the Building and Commencement of the Lease, Lessee and Lessor
shall measure the Building to determine the "Rentable Area". The term "Rentable
Area" as used in this Lease shall be determined in accordance with the criteria
established by the Building Owners and Managers Association ("BOMA"), as
American National Standard Institute Z65.1-1980. The Exclusive Use Area, Lessee
Parking Area, and the Building are collectively referred to herein as the
"Premises". (See Paragraph 2 for further provisions.)
1.3 TERM: Ten (10) years and -0- months ("ORIGINAL TERM") commencing upon
Substantial Completion and final inspection of Tenant Improvements by the City
of Lake Forest* ("COMMENCEMENT DATE") and ending ten (10) years thereafter
("EXPIRATION DATE"). As used herein the word "Term" shall include the "Original
Term" and any Option to Extend period(s) exercised by Lessee herein. (See
Paragraph 3 for further provisions.) *(See Addendum A, Item F for Start Date
Amendment.)
Notwithstanding the provisions of Section 1.3 of the Lease, the Original Term of
the Lease and Lessee's obligation to pay Base Rent will commence (the
"Commencement Date") upon the date of final inspection of the substantially
completed Tenant Improvements as defined on Addendum E herein by the City of
Lake Forest (the "Substantial Completion Date") (see Addendum "E" for additional
terms). The Target Commencement Date is July 15, 2000 ("Target Commencement
Date"). Lessor shall give Lessee at least ten (10) days prior notice of the
anticipated final inspection/Substantial Completion Date. Lessor agrees to grant
Lessee rent-free access to the Premises for a period of at least the last thirty
(30) days of the construction period and prior to Substantial Completion for the
purpose of fixturization and utility installations. Said access shall be
coordinated with Lessor's job-site superintendent and shall be granted at times
and in such areas as said job-site superintendent deems reasonable so as not to
materially interfere with or delay the completion of the Tenant Improvements as
set forth on Addendum E herein and shall be subject to applicable requirements
of the City of Lake Forest, if any. Lease payments shall not commence until the
Commencement Date as set forth on the Start Date Amendment. Lessor shall have no
liability or
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responsibility for damages to the personal property of Lessee, or any loss
suffered by Lessee through vandalism, theft, or destruction of the property by
fire or any other causes.
1.4 EARLY POSSESSION: None ("EARLY POSSESSION DATE"). (See Paragraphs 3.2 and
3.3 for further provisions.)
1.5 BASE RENT: $92,791.20 (based on 77,326 rentable sq.ft.) per month ("BASE
RENT"), plus $5,111.34 monthly Tenant Improvement amortization for A TOTAL
MONTHLY REMITTANCE OF $97,902.54 payable on the first day of each month
commencing upon Substantial Completion and final inspection of Tenant
Improvements by the City of Lake Forest, (See Paragraph 4 for further
provisions.)
1.6 BASE RENT PAID UPON EXECUTION: $199,198.54, which includes $92,791.20 as
Base Rent for the first month, $5,111.34 monthly Tenant Improvement amortization
and $101,296.00 as Security Deposit equal to one month's rent pursuant to
Article 5 herein.
[X] If this is checked, there are provisions in this Lease for the Base Rent to
be adjusted per Addendum C, attached hereto.
RENT CHECKS ARE DUE ON THE FIRST OF EACH MONTH. Please remit to:
Olen Commercial Realty Corp., 0 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000.
LESSOR DOES NOT INVOICE ON A MONTHLY BASIS.
1.7 SECURITY DEPOSIT: $101,296.00 ("SECURITY DEPOSIT"). (See Paragraph 5 for
further provisions.)
1.8 PERMITTED USE: General office, ancillary uses and any other legal use as
approved by the City of Lake Forest (See Paragraph 6 for further provisions.)
1.9 INSURING PARTY: Lessee is the "INSURING PARTY" unless otherwise stated
herein. (See Paragraph 8 for further provisions.)
1.10 REAL ESTATE BROKERS: The following real estate brokers (collectively, the
"BROKERS") and brokerage relationships exist in this transaction and are
consented to by the Parties:
Xxx Xxxxxxxxxxxxx, CB Xxxxxxx Xxxxx, Inc. represents Lessor exclusively
("Lessor's Broker")
Xxxx Xxxx, CB Xxxxxxx Xxxxx, Inc. represents Lessee exclusively
("Lessee's Broker")
N/A both Lessor and Lessee
(See Paragraph 15 for further provisions.)
1.11 GUARANTOR. The obligations of the Lessee under this Lease are to be
guaranteed by N/A ("GUARANTOR"). (See Paragraph 37 for further provisions.)
1.12 ADDENDA. Attached hereto are Addenda A, B, C, D, E and Xxxxxxxx "X" xxx
"X", "X-0", "X-0", "B-3" and "B-4", all of which constitute a part of this
Lease.
2. PREMISES
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the Term, at the rental, and upon all of the terms,
covenants and conditions set forth in this Lease. Except as otherwise provided
herein, any statement of square footage set forth in this Lease, or that may
have been used in calculating rental, is an approximation which Lessor and
Lessee agree is reasonable and the rental based thereon is not subject to
revision whether or not the actual square footage is more or less. (See Article
1.2 herein.)
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2.2 CONDITION. Lessor shall deliver the Premises to Lessee clean and free of
debris on the Commencement Date and warrants to Lessee, that the existing
plumbing, roof, foundation and other structural components of the Building, fire
sprinkler system, lighting, air conditioning, heating, and loading doors, if
any, in the Building, other than those constructed by Lessee, shall be in good
operating condition on the Commencement Date. If a non-compliance with said
warranty exists as of the Commencement Date, Lessor shall, except as otherwise
provided in this Lease and except due to negligence or misuse or misconduct on
the part of Lessee, promptly after receipt of written notice from Lessee setting
forth with specificity the nature and extent of such noncompliance, rectify same
at Lessor's expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within one year after the commencement Date,
then, except as specifically set forth herein with regard to capital
improvements, correction of that non-compliance shall be the obligation of
Lessee at Lessee's sole cost and expense.
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE. Lessor warrants
to Lessee that the Improvements on the Premises comply with all applicable
covenants or restrictions of record and Applicable Law (defined in 6.3),
including Building codes, regulations and ordinances in effect on the
Commencement Date. Said warranty does not apply to the use to which Lessee will
put the Premises or to any Alterations or Utility Installations (as defined in
Paragraph 7.3(a)) made or to be made by Lessee. If the Premises do not comply
with said warranty, Lessor shall, except as otherwise provided in this Lease,
promptly after receipt of written notice from Lessee setting forth with
specificity the nature and extent of such noncompliance, rectify the same at
Lessor's expense.
2.4 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that it has been
advised by the Brokers to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical and fire sprinkler
systems, security, environmental aspects, compliance with Applicable Law, as
defined in Paragraph 6.3) and the present and future suitability of the Premises
for Lessee's intended use, (b) that Lessee has made such investigation as it
deems necessary with reference to such matters and assumes all responsibility
therefor as the same relate to Lessee's occupancy of the Premises and/or the
Term of this Lease, and (c) that neither Lessor, nor any of Lessors agents, has
made any oral or written representations or warranties with respect to the said
matters other than as set forth in this Lease.
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3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of this Lease
are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the Premises prior
to the Commencement Date, the obligation to pay Base Rent or Additional Rent and
operating costs shall be abated for the period of such early possession. All
other terms of this Lease, however, (including but not limited to the
obligations to pay Real Property Taxes and insurance premiums and to maintain
the Premises) shall be in effect during such period. Any such early possession
shall not affect nor advance the Expiration Date of the Original Term.
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver Possession of
the Premises to Lessee as agreed herein by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by the
Commencement Date, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease, or the obligations of
Lessee hereunder, or extend the Term hereof, but in such case, Lessee shall not,
except as otherwise provided herein, be obligated to pay rent or perform any
other obligation of Lessee under the terms of this Lease until Lessor delivers
Possession of the Premises to Lessee. Providing Lessor has received signed
Leases and move-in monies and all approved working drawings from Lessee on or
before May 12, 2000, then if Possession of the Premises is not delivered to
Lessee by September 15, 2000 and providing said non-delivery by the September
15, 2000 date was not due to acts, changes, omissions or construction activities
on the part of Lessee or by Lessee, Lessee may, at its option, by notice in
writing to Lessor within ten (10) days thereafter, cancel this Lease, in which
event the
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Parties shall be discharged from all obligations hereunder, provided, however,
that if such written notice by Lessee is not received by Lessor within said ten
(10) day period, Lessee's right to cancel this Lease shall terminate and be of
no further force or effect. Except as may be otherwise provided, and regardless
of when the Term actually commences, if Possession is not tendered to Lessee
when required by this Lease and Lessee does not terminate this Lease, as
aforesaid, the period free of the obligation to pay Base Rent, if any, that
Lessee would otherwise have enjoyed shall run from the date of delivery of
Possession and continue for a period equal to what Lessee would otherwise have
enjoyed under the terms hereof, but minus any days of delay caused by the acts,
changes or omissions of Lessee.
4. RENT
4.1 BASE RENT. Lessee shall cause payment of Base Rent and other rent or
charges, as the same may be adjusted from time to time, to be received by Lessor
in lawful money of the United States, without offset or deduction, on or before
the day on which it is due under the terms of this Lease. Base Rent and all
other rent and charges for any period during the Term hereof which is for less
than one (1) full calendar month shall be prorated based upon the actual number
of days of the calendar month involved. Payment of Base Rent and other charges
shall be made to Lessor at its address stated herein or to such other persons or
at such other addresses as Lessor may from time to time designate in writing to
Lessee.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof the
Security Deposit set forth in Paragraph 1.7 as Security for Lessee's faithful
performance of Lessee's obligations under this Lease. If Lessee fails to pay
Base Rent or other rent or charges due hereunder in Breach of this Lease, or
otherwise Breaches this Lease (as defined in Paragraph 13.1), Lessor may use,
apply or retain all or any portion of said Security Deposit for the payment of
any amount due Lessor or to reimburse or compensate Lessor for any liability,
cost, expense, loss or damage (including reasonable attorneys' fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or
any portion of said Security Deposit, Lessee shall within ten (10) days after
written request therefor deposit moneys with Lessor sufficient to restore said
Security Deposit to the full amount required by this Lease. In the event the
Security Deposit is still on hand pursuant to the terms set forth hereinbelow,
then, any time the Base Rent increases during the last five (5) years of the
Original Term of this Lease and any Option to Extend periods, Lessee shall, upon
written request from Lessor, deposit additional moneys with Lessor sufficient to
maintain the same ratio between the Security Deposit and the Base Rent as those
amounts are specified in the Basic Provisions. Lessor shall not be required to
keep all or any part of the Security Deposit separate from its general accounts.
Lessor shall, at the expiration or earlier termination of the Term hereof and
after Lessee has vacated the Premises, return to Lessee that portion of the
Security Deposit not used or applied by Lessor. Unless otherwise expressly
agreed in writing by Lessor, no part of the Security Deposit shall be considered
to be held in trust, to bear interest or other increment for its use, or to be
prepayment for any moneys to be paid by Lessee under this Lease. NOTE: Providing
Lessee has paid Base Rent and scheduled Additional Rent on or before the tenth
(10th) day of the month for the first sixty (60) months of the Term, then Lessor
shall promptly refund the entire Security Deposit on hand. Unless the Security
Deposit has already been refunded pursuant to the terms herein, the SECURITY
DEPOSIT SHALL NOT BE APPLIED TOWARD THE LAST MONTH'S RENT.
6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the purposes set
forth in Paragraph 1.8, or any other use which is comparable thereto, and for no
other purpose. Lessee shall not use or permit the use of the Premises in a
manner that creates waste or a nuisance, or that grossly disturbs owners and/or
occupants of, or causes damage to, neighboring premises or properties. Lessor
hereby agrees to not unreasonably withhold or delay its consent to any written
request by Lessee, Lessee's assignees or subtenants, and by prospective
assignees and subtenants of the Lessee, its assignees and subtenants, for a
modification of said permitted purpose for which the Premises may be used or
occupied, so long as the same will not impair the structural integrity of the
improvements on the Premises, the mechanical or electrical systems therein, is
not significantly more burdensome to the Premises and the improvements thereon,
and is otherwise permissible pursuant to this Paragraph 6. If Lessor elects to
withhold such consent, Lessor shall within five (5) business days give a written
notification of same, which notice shall include an explanation of Lessor's
reasonable objections to the change in use.
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6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS SUBSTANCES" as
used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for liability of Lessor to any governmental agency
or third party under any applicable statute or common law theory. Hazardous
Substance shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products, by-products or fractions thereof. Lessee
shall not engage in any activity in, on or about the Premises which constitutes
a Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Applicable Law (as defined in Paragraph
6.3). "Reportable Use" shall mean (i) the installation or use of any above or
below ground storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority. Reportable Use shall
also include Lessee's being responsible for giving notice of the presence of a
Hazardous Substance to persons entering or occupying the Premises or neighboring
properties to the extent Applicable Law requires. Notwithstanding the foregoing,
Lessee may, without Lessor's prior consent, but in compliance with all
Applicable Law, use any ordinary and customary materials reasonably required to
be used by Lessee in the normal course of Lessee's business permitted on the
Premises, so long as such use is not a Reportable Use and does not expose the
Premises or neighboring properties to any meaningful risk of contamination or
damage or expose Lessor to any liability therefor. In addition, Lessor may (but
without any obligation to do so) condition its consent to the use or presence of
any Hazardous Substance, activity or storage tank by Lessee upon Lessee's giving
Lessor such additional assurances as Lessor, in its reasonable discretion, deems
necessary to protect itself, the public, the Premises and the environment
against damage, contamination or injury and/or liability therefrom or therefor,
including, but not limited to, the installation (and removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the deposit
of an additional Security Deposit under Paragraph 5 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition involving or resulting from
same, has come to be located in, on, under or about the Premises, other than as
previously consented to by Lessor, Lessee shall with reasonable promptness give
written notice of such fact to Lessor. Lessee shall also with reasonable
promptness give Lessor a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action or proceeding given
to, or received from, any governmental authority or private party, or persons
entering or occupying the Premises, concerning the presence, spill, release,
discharge of, or exposure to, any Hazardous Substance or contamination in, on,
or about the Premises, including but not limited to all such documents as may be
involved in any Reportable Uses involving the Premises. As used herein knowledge
shall have been deemed to occur when any one of Lessee's corporate officers
knows, or has reasonable cause to believe, that a Hazardous Substance, or a
condition involving or resulting from same, has come to be located in, on, under
or about the Premises.
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any damages, liabilities,
judgments, costs, claims, liens, expenses, penalties, permits and attorney's and
consultants fees arising out of or involving any Hazardous Substance or storage
tank brought onto the Premises by or for Lessee or under Lessee's control.
Lessee's obligations under this Paragraph 6 shall include, but not be limited
to, the effects of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of investigation
(including consultant's and attorney's fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Lessor and Lessee
shall release Lessee from its obligations under this Lease with respect to
Hazardous Substances or storage tanks, unless specifically so agreed by Lessor
in writing at the time of such agreement.
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6.3 LESSEE'S COMPLIANCE WITH LAW. Except as otherwise provided in this Lease,
Lessee, shall, at Lessee's sole cost and expense, fully, diligently and in a
timely manner, comply with all "Applicable Law," which term is used in this
Lease to include all laws, rules, regulations, ordinances, directives, permits,
and, except those recorded by Lessor after the Commencement Date unless by
mutual consent, all covenants, easements and restrictions of record relating in
any manner to the Premises as of the Commencement Date (including but not
limited to matters pertaining to (i) industrial hygiene, (ii) environmental
conditions on, in, under or about the Premises, including soil and groundwater
conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill or release of
any Hazardous Substance or storage tank), now in effect or which may hereafter
come into effect, and whether or not reflecting a change in policy from any
previously existing policy.
(a) Lessor will be responsible for all costs of all necessary capital
improvements as may be required by Applicable Law first promulgated after the
Commencement Date, unless same is required due to damage caused by Lessee or
Lessee's specific use of the Premises, and Lessee shall be responsible for a
proportionate share of the capital cost attributable to the remaining Lease Term
which will be amortized over the term provided for that asset in the Revenue and
Taxation Codes on a straight-line basis and paid for by Lessee on a monthly
basis over the remaining Term.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's Lender(s) (as defined in
Paragraph 8.3(a)) shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times and with reasonable
notice, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease and all Applicable Law (as
defined in Paragraph 6.3), and to employ experts and/or consultants in
connection therewith and/or to advise Lessor with respect to Lessee's
activities, including but not limited to the installation, operation, use,
monitoring, maintenance, or removal of any Hazardous Substance or storage tank
on or from the Premises. The costs and expenses of any such inspections shall be
paid by Lessor, unless a material Breach of this Lease, or a contamination,
caused or materially contributed to by Lessee is found to exist or be imminent,
or unless the inspection is requested or ordered by a governmental authority as
the result of any such existing contamination. In any such case, Lessee shall
upon request promptly reimburse Lessor or Lessor's Lender, as the case may be,
for the reasonable actual out-of-pocket costs and expenses of such inspections.
6.5. LESSOR WARRANTY. Lessor hereby represents, warrants and agrees that to the
best of its knowledge, there is no existence of any known or suspected release,
discharge, emission, installation or disposal of any Hazardous Material which
has occurred in, on, at, under, above or about the Premises, which includes the
Building, the Exclusive Use Area, and Lessee's Parking Area (or on or under
adjacent land) to date, (i) the soil, ground water and improvements on or under
the Premises are free of any Hazardous Material, (ii) no asbestos containing
materials ("ACM") have been used in the construction of the Premises. Lessor
shall promptly commence and diligently prosecute to completion an appropriate
remediation program or programs with respect to any condition pre-existing the
Commencement Date herein as required and approved by all applicable governmental
and regulatory agencies and which is in compliance with all Laws.
6.6. LESSOR INDEMNITY. In addition to all other remedies of Lessee under this
Lease, to the extent that any representation set forth in Paragraph 6.5 was
false when made or any warranty or agreement set forth in Paragraph 6.5 is
materially breached by Lessor, Lessor shall indemnify, defend (with counsel
reasonably satisfactory to Lessee), protect and hold Lessee harmless from and
against any and all
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claims, judgments, damages, penalties, fines, costs, liabilities and losses
(including, without limitation, diminution in value of Lessee's leasehold
interest, damages for the loss or restriction on use of rentable or usable space
or of any amenity of the Premises and reasonable attorneys' and other
professional fees which (a) arise out of or relate to the falsity of any such
representation or material breach of any such warranty or agreement or (b) arise
directly or indirectly from or in connection with the actual or alleged presence
or release of any Hazardous Material in or into the air, soil, surface or
groundwater in, on, at, under, above or about the Premises, which was present
prior to the Commencement Date of this Lease.
6.7 LESSEE'S RIGHT OF ABATEMENT AND TERMINATION. If by reason of a Hazardous
Substance release not by Lessee there is any material interference with Lessee's
use and enjoyment of the Premises, to the extent that Lessee is unable to safely
occupy or use all or any portion of the Premises, then (a) Base Rent and all
other payments thereafter due and to become due to Lessor under this Lease shall
be abated for the period during which such material interference commences and
continues, and in proportion to the degree such material interference impairs
Lessee's use and enjoyment of the Premises until the date such interference has
ceased and Lessee is able to safely reoccupy the entire Premises for business
purposes, and (b) in addition to Lessee's abatement rights under clause (a) of
this Paragraph 6.7, in the event the nature of the material interference cannot
be remedied within a period of six (6) months from the commencement of such
interference and such interference materially affects Lessee's use and enjoyment
of the Premises, then Lessee shall have the right to terminate this Lease at any
time prior to the cessation of such interference by delivery of thirty (30)
days' prior written notice to Lessor.
7. MAINTENANCE; REPAIRS; UTILITY INSTALLATIONS; TRADE FIXTURES AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2 (Lessor's warranty as to
condition), 2.3 (Lessor's warranty as to compliance with covenants, etc.),
6.3(a) (Lessee's Compliance with Law), 7.2 (Lessor's obligations to repair), 9
(damage and destruction), and 14 (condemnation), Lessee shall, at Lessee's sole
cost and expense and at all times, keep the Premises and every part thereof in
good order, condition and repair, structural and non-structural (whether or not
such portion of the Premises requiring repairs, or the means of repairing the
same, are reasonably or readily accessible to Lessee, and whether or not the
need for such repairs occurs as a result of Lessee's use, any prior use, the
elements or the age of such portion of the Premises), including, without
limiting the generality of the foregoing, all equipment or facilities serving
the Premises, such as plumbing, heating, air conditioning, ventilating,
electrical, lighting facilities, boilers, fired or unfired pressure vessels,
fire sprinkler and/or standpipe and hose or other automatic fire extinguishing
system, including fire alarm and/or smoke detection systems and equipment, fire
hydrants, fixtures, walls (interior and exterior), foundations, ceilings, roofs,
floors, windows, doors, plate glass, skylights, landscaping, driveways, parking
lots, fences, retaining walls, signs, sidewalks and parkways located in, on,
about, or adjacent to the Building. Lessee shall not cause any Hazardous
Substance to be spilled or released in, on, under or about the Premises
(including through the plumbing or sanitary sewer system) and shall promptly, at
Lessee's expense, take all investigatory and/or remedial action required by the
governmental authorities, for the cleanup of any contamination of, and for the
maintenance, security and/or monitoring of the Premises, the elements
surrounding same, or neighboring properties, that was caused or materially
contributed to by Lessee, or pertaining to or involving any Hazardous Substance
and/or storage tank brought onto the Premises by or for Lessee or under its
control. Except as specifically set forth in this Lease, Lessee, in keeping the
Premises in good order, condition and repair, shall exercise and perform good
maintenance practices. Except as specifically set forth in this Lease, Lessee's
obligations shall include restorations, replacements or renewals when necessary
to keep the Premises and all improvements thereon or a part thereof in good
order, condition and state of repair.
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(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain contracts, with copies to Lessor, in customary form and substance for,
and with contractors specializing and experienced in, the inspection,
maintenance and service of the following equipment and improvements, if any,
located on the Premises: (i) heating, air conditioning and ventilation
equipment, (ii) boiler, fired or unfired pressure vessels, (iii) fire sprinkler
and/or standpipe and hose or other automatic fire extinguishing systems,
including fire alarm and/or smoke detection, (iv) landscaping and irrigation
systems, (v) roof covering and drain maintenance and (vi) asphalt and parking
lot maintenance.
7.2 LESSOR'S OBLIGATIONS. Except for the warranties and agreements of Lessor
contained in Paragraphs 2.2 (relating to condition of the Premises), 2.3
(relating to compliance with covenants, restrictions and building code), 6.3,
6.5, 6.6, 9 (relating to destruction of the Premises) and 14 (relating to
condemnation of the Premises), it is intended by the Parties hereto that Lessor
have no obligation, in any manner whatsoever, to repair and maintain the
Premises, the improvements located thereon, or the equipment therein, whether
structural or non structural, all of which obligations are intended to be that
of the Lessee under Paragraph 7.1 hereof. It is the intention of the Parties
that the terms of this Lease govern the respective obligations of the Parties as
to maintenance and repair of the Premises. Lessee and Lessor expressly waive the
benefit of any statute now or hereafter in effect to the extent it is
inconsistent with the terms of this Lease with respect to, or which affords
Lessee the right to make repairs at the expense of Lessor or to terminate this
Lease by reason of any needed repairs.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES, ALTERNATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY INSTALLATIONS" is
used in this Lease to refer to all carpeting, window coverings, air lines, power
panels, electrical distribution, security, fire protection systems,
communication systems, lighting fixtures, heating, ventilating, and air
conditioning equipment, plumbing, and fencing in, on or about the Premises. The
term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be
removed without doing material damage to the Premises. The term "Alterations"
shall mean any modification of the improvements on the Premises from that which
are provided by Lessor under the terms of this Lease, other than Utility
Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned
Alterations and/or Utility Installations" are defined as Alterations and/or
Utility Installations made by lessee that are not yet owned by Lessor as defined
in Paragraph 7.4(a). Lessee shall not make any Alterations or Utility
Installations in, on, under or about the Premises without Lessor's prior written
consent. Lessee may, however, make non-structural Utility Installations to the
interior of the Premises (excluding the roof), as long as they are not visible
from the outside, do not involve puncturing, relocating or removing the roof or
any existing walls, and the cost thereof does not exceed $50,000 per occurrence.
Lessee will notify Lessor of all utility installations costing $25,000 and over.
(b) CONSENT. Any Alterations or Utility Installations that Lessee shall
desire to make and which require the consent of the Lessor shall be presented to
Lessor in written form with proposed detailed plans. All consents given by
Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent specific consent,
shall be deemed conditioned upon: (i) Lessee's acquiring all applicable permits
required by governmental authorities, (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for the Alteration
or Utility Installation to Lessor prior to commencement of the work thereon, and
(iii) the compliance by Lessee with all conditions of said permits in a prompt
and expeditious manner. Any Alterations or Utility Installations by Lessee
during the Term of this Lease shall be done in a good and workmanlike manner,
with good and sufficient materials, and in compliance with all Applicable Law.
Lessee shall, if applicable, promptly upon completion thereof furnish Lessor
with as-built plans and specifications therefor. Lessor may (but without
obligation to do so) condition its consent to any requested Alteration or
Utility Installation that costs $500,000 or more upon Lessee's providing Lessor
with a lien and completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility installation, and/or upon Lessee's
posting an additional Security Deposit with Lessor under Paragraph 36 hereof.
All Alterations performed by Lessee and personal property and fixtures including
utility installations installed by Lessee whether or not affixed to the Premises
or for which Lessee has obtained Lessor's prior approval to retain shall be and
remain the property of Lessee (see Paragraph 8.4 herein for terms in case of
damage thereto). All Alterations conducted by Lessee shall be conducted in
accordance with all Applicable Law. Lessor agrees that it shall not unreasonably
withhold or delay consent for the proposed Alteration.
(c) INDEMNIFICATION. Lessee shall pay, when due, all claims for labor or
materials furnished to or for Lessee at or for use on the Premises, which claims
are or may be secured by any mechanics' or materialmen's lien against the
Premises or any interest therein. Lessee shall give Lessor not less than ten
(10) days'
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notice prior to the commencement of any work in excess of $15,000 in, on or
about the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall, in
good faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at its sole expense defend and protect itself, Lessor and the Premises
against the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof against the Lessor or the
Premises. Lessee shall furnish a surety bond satisfactory to Lessor in an amount
equal to one and one-half times the amount of such contested lien claim or
demand, as required by law for the holding of the Premises free from the effect
of such lien or claim. In addition, Lessor may require Lessee to pay Lessor's
attorney's fees and costs in participating in such action if Lessor shall decide
it is to its best interest to do so. Notwithstanding anything to the contrary in
this Paragraph 7.3(c), all mechanics' liens filed by a contractor,
subcontractor, materialman or laborer hired by Lessor shall be discharged by
Lessor, and Lessee shall have no responsibility for discharge of the same. Also
notwithstanding anything to the contrary in this Paragraph 7.3(c), all
mechanics' liens filed by a contractor, subcontractor, materialman or laborer
hired by Lessee shall be discharged by Lessee, and the Lessor shall have no
responsibility of the same.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their removal or
become the owner thereof as hereinafter provided in this Paragraph 7.4, all
Alterations and Utility Additions made to the Premises by Lessee shall be the
property of and owned by Lessee, but considered a part of the Premises. Except
as specifically set forth in this Lease, Lessor may, at any time and at its
option, elect in writing to Lessee to be the owner of all or any specified part
of the Lessee Owned Alterations and Utility Installations. Unless otherwise
instructed per subparagraph 7.4(b) hereof, all Lessee Owned Alterations and
Utility Installations shall, at the expiration or earlier termination of this
Lease, become the property of Lessor and remain upon and be surrendered by
Lessee with the Premises.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may require that
any or all Lessee Owned Alterations or Utility Installations be removed by the
expiration or earlier termination of this lease, notwithstanding their
installation may have been consented to by Lessor. Lessee may at any time after
the Commencement Date through the Expiration Date or sooner termination of this
Lease, remove all or any portion of Lessee's Property from the Premises.
"Lessee's Property" means all furniture, furnishings, trade fixtures, computer
systems, telephone systems, and office equipment installed in, or affixed to, or
used in connection with the Premises by or on behalf of Lessee. Further, Lessee
shall promptly repair or cause to be repaired or reimburse Lessor for the cost
of repair of any damage to the Building caused by such removal. Lessor expressly
waives any and all statutory or common law Lessor's lien and any and all
rights under present or future laws to levy or distrain for rent against
Lessee's Property and further agrees to execute and deliver promptly any and all
instruments evidencing such waiver reasonably requested by Lessee. As to any
structural Alterations, Lessee may make such Alterations only if it has first
obtained the consent thereto of Lessor in writing; provided, however, that
Lessor agrees that (a) it shall not unreasonably withhold, condition, or delay
such consent, and (b) in no event shall Lessor require Lessee to remove any
structural Alterations it has previously approved which are customarily found in
comparable commercial projects in the community of the Premises or are deemed
desirable in Lessor's reasonable opinion by prospective tenants of comparable
commercial projects in the community of the Premises.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises by the
end of the last day of the Lease Term or any earlier termination date, with all
of the improvements, parts and surfaces thereof clean and free of debris and in
good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice or by Lessee
performing all of its obligations under this Lease. Except as otherwise agreed
or specified in writing by Lessor, the Premises, as surrendered, shall include
the Utility Installations. The obligation of Lessee shall include the repair of
any damage occasioned by the installation, maintenance or removal of Lessee's
Trade Fixtures, furnishings, equipment, and
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Alterations and/or Utility Installations, as well as the removal of any storage
tank installed by or for Lessee, and the removal, replacement, or remediation of
any soil, material or ground water contaminated by Lessee, all as may then be
required by Applicable Law and/or good service practice. Lessee's Trade Fixtures
shall remain the property of Lessee and shall be removed by Lessee subject to
its obligation to repair and restore the Premises per this Lease. At the
expiration of the Term, Lessee will remove its trade fixtures, machinery and
equipment, furniture, movable partitions and other personal property and will
vacate the Premises in its then existing condition and configuration, subject to
the provisions of Paragraph 6, broom clean, subject to (a) ordinary wear and
tear, (b) damage caused by any negligent act or omission of Lessor or its
agents, employees, officers, contractors, or representatives or resulting from
any breach of Lessor's obligations or warranties herein. Lessor shall not
require Lessee to remove from the Premises at any time, including upon
expiration or earlier termination of the Lease (i) any of Lessee's Tenant
Improvements or Utility Installations in the Premises made and approved by
Lessor prior to the Commencement Date of this Lease; (ii) any Alterations or
Utility Installations to the Premises which are, in Lessor's reasonable opinion,
reasonably compatible with the commercial office use of the Premises and which
would not materially interfere with the marketability of the Premises for sale
or lease; or (iii) any other Alteration or Utility Installation where Lessor has
consented in writing or consents in writing to Lessee's non-removal of the same.
Notwithstanding anything to the contrary contained in this Section 7.4, Lessee
will at all times during the course of the Lease Term (and any Extension Terms)
be and remain the owner of all Alterations and Utility Installations with the
right at any time without Lessor's consent to remove any such Improvements
and/or Utility Installations (subject to Lessee's obligations to repair any
damage caused by such removal).
8. INSURANCE; INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Lessee shall be the Insuring Party. Regardless of
whether the Lessor or Lessee is the Insuring Party, Lessee shall pay for all
insurance required under this Paragraph 8 except to the extent of the cost
attributable to liability insurance carried by Lessor in excess of $1,000,000
per occurrence. Premiums for policy periods commencing prior to or extending
beyond the Lease Term shall be prorated to correspond to the Lease Term. In the
event Lessee does not maintain coverage(s) as required herein and Lessor must
obtain same on behalf of Lessee, then payment shall be made by Lessee to Lessor
within ten (10) days following receipt of an invoice for any amount due.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force during the
Term of this Lease a Commercial General Liability policy of insurance protecting
Lessee and Lessor (as an additional insured) against claims for bodily injury,
personal injury and property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $1,000,000 per occurrence with
an "Additional Insured-Managers or Lessors of Premises" Endorsement and contain
the "Amendment of the Pollution Exclusion" for damage caused by heat, smoke or
fumes from a hostile fire. The policy shall not contain any intra-insured
exclusions as between insured persons or organizations, but shall include
coverage for liability assumed under this Lease as an "insured contract" for the
performance of Lessee's indemnity obligations under this Lease. The limits of
said insurance required by this Lease or as carried by Lessee shall not,
however, limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose insurance shall
be considered excess insurance only.
(b) CARRIED BY LESSOR. In the event Lessor is the Insuring Party, Lessor
shall also maintain liability insurance described in Paragraph 8.2(a), above, in
addition to, and not in lieu of, the insurance required to be maintained by
Lessee. Lessee shall not be named as an additional insured therein.
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8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall obtain and keep
in force during the Term of this Lease a policy or policies, with loss payable
to Lessor and to the holders of any mortgages, deeds of trust or ground leases
on the Premises ("Lender(s)"), insuring loss or damage to the Premises. The
amount of such insurance shall be equal to the full replacement cost of the
Premises ($6,150,000 on the Commencement Date of the Lease), as the same shall
exist from time to time, or the amount required by Lenders, but in no event more
than the commercially reasonable and available insurable value thereof if, by
reason of the unique nature or age of the improvements involved, such latter
amount is less than full replacement cost. If Lessor is the Insuring Party,
however, Lessee Owned Alterations and Utility Installations shall be insured by
Lessee under Paragraph 8.4 rather than by Lessor. If the coverage is available
and commercially appropriate, such policy or policies shall insure against all
risks of direct physical loss or damage (except the perils of flood and/or
earthquake unless required by a Lender and commercially appropriate), including
coverage for any additional costs resulting from debris removal and reasonable
amounts of coverage for the enforcement of any ordinance or law regulating the
reconstruction or replacement of any undamaged sections of the Premises required
to be demolished or removed by reason of the enforcement of any building,
zoning, safety or land use laws as the result of a covered cause of loss. Said
policy or policies shall also contain an agreed valuation provision in lieu of
any coinsurance clause, waiver of subrogation, and inflation guard protection
causing an increase in the annual property insurance coverage amount by a factor
of not less than the adjusted U.S. Department of Labor Consumer Price Index for
All Urban Consumers for the city nearest to where the Premises are located. If
such insurance coverage has a deductible clause, the deductible amount shall not
exceed $10,000 per occurrence, and Lessee shall be liable for such deductible
amount in the event of an Insured Loss, as defined in Paragraph 9.1(c).
(b) RENTAL VALUE. The Insuring Party shall, in addition, obtain and keep
in force during the Term of this Lease a policy or policies in the name of
Lessor, with loss payable to Lessor and Lender(s), insuring the loss of the full
rental and other charges payable by Lessee to Lessor under this Lease for one
(1) year (including all real estate taxes, insurance costs, and any scheduled
rental increases). Said insurance shall provide that in the event the Lease is
terminated by reason of an insured loss, the period of indemnity for such
coverage shall be extended beyond the date of the completion of repairs or
replacement of the Premises, to provide for one full year's loss of rental
revenues from the date of any such loss. Said insurance shall contain an agreed
valuation provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected rental income,
property taxes, insurance premium costs and other expenses, if any, otherwise
payable by Lessee, for the next twelve (12) month period. Lessee shall be liable
for any deductible amount in the event of such loss.
(d) TENANT'S IMPROVEMENTS. If the Lessor is the Insuring Party, the
Lessor shall not be required to insure Lessee Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease. If Lessee is the Insuring Party, the policy
carried by Lessee under this Paragraph 8.3 shall insure Lessee Owned Alterations
and Utility Installations.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of Paragraph 8.5,
Lessee at its cost shall either by separate policy or, at Lessor's option, by
endorsement to a policy already carried, maintain insurance coverage on all of
Lessee's personal property, Lessee Owned Alterations and Utility Installations
in, on, or about the Premises similar in coverage to that carried by the
Insuring Party under Paragraph 8.3. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $10,000 per occurrence. The
proceeds from any such insurance shall be used by Lessee for the replacement of
personal property or the restoration of Lessee Owned Alterations and Utility
Installations. Lessee shall be the Insuring Party with respect to the insurance
required by this Paragraph 8.4 and shall provide Lessor with written evidence
that such insurance is in force.
8.5 INSURANCE POLICY. Insurance required hereunder shall be in companies duly
licensed to transact business in the state where the Premises are located, and
maintaining during the policy term a "General Policyholders Rating" of at least
B +, V. or such other rating as may be required by a Lender having a lien on the
Premises, as set forth in the most current issue of "Best's Insurance Guide."
Lessee shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in this Paragraph 8. If Lessee is the Insuring
Party, Lessee shall cause to be delivered to Lessor
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copies of policies of such insurance or certificates evidencing the existence
and amounts of such insurance with the insureds and loss payable clauses as
required by this Lease. No such policy shall be cancelable or subject to
material modification except after thirty (30) days prior written notice to
Lessor. Lessee shall at least thirty (30) days prior to the expiration of such
policies, furnish Lessor with evidence of renewals or "insurance binders"
evidencing renewal thereby, or Lessor may order such insurance and charge the
cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon
demand. If the Insuring Party shall fail to procure and maintain the insurance
required to be carried by the Insuring Party under this Paragraph 8, the other
Party may, but shall not be required to, procure and maintain the same, but at
Lessee's expense.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or remedies,
Lessee and Lessor ("Waiving Party) each hereby release and relieve the other,
and waive their entire right to recover damages (whether in contract or in tort)
against the other, for loss of or damage to the Waiving Party's property arising
out of or incident to the perils required to be insured against under Paragraph
8. The effect of such releases and waivers of the right to recover damages shall
not be limited by the amount of insurance carried or required, or by any
deductibles applicable thereto.
8.7 INDEMNITY. Except to the extent of Lessor's negligence or willful misconduct
and/or breach of express warranties, Lessee shall indemnify, protect, defend and
hold harmless the Premises, Lessor and its agents, Lessor's master or ground
lessor, partners and Lenders, from and against any and all claims, loss of rents
and/or damage, costs, liens, judgments, penalties, permits, reasonable
attorney's and consultant's fees, expenses and/or liabilities arising out of,
involving, or in dealing with, the occupancy of the Premises by Lessee, the
conduct of Lessee's business, any negligent act, omission or neglect of Lessee,
its agents, contractors, employees or invitees, and out of any Breach by Lessee
in the performance in a timely manner of any obligation on Lessee's part to be
performed under this Lease. The foregoing shall include, but not be limited to,
the defense or pursuit of any claims or any action or proceeding involved
therein. In case any action or proceeding be brought against Lessor by reason of
any of the foregoing matters, Lessee upon notice from Lessor shall defend the
same except to the extent of Lessor's negligence or willful misconduct and/or
breach of express warranties at Lessee's expense by counsel reasonably
satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense.
Lessor need not have first paid any such claims in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for injury or
damage to the person or goods, wares, merchandise or other property of Lessee,
Lessee's employees, contractors, invitees, customers, or any other person in or
about the Premises, whether such damage or injury is caused by or results from
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether the said injury or damage results from conditions arising upon the
Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places, and regardless of whether the cause of
such damage or injury or the means of repairing the same is accessible or not.
Lessor shall not be liable for any damages arising from any act or neglect of
any other tenant of Lessor. Notwithstanding Lessor's negligence or breach of
this Lease, Lessor shall under no circumstances be liable for injury to Lessee's
business or for any loss of income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to the
improvements on the Premises, other than Lessee Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is less than 50%
of the then Replacement Cost of the Premises immediately prior to such damage or
destruction, excluding from such calculation the value of the land and Lessee
Owned Alterations and Utility Installations.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction to the
Premises, other than Lessee Owned Alterations and Utility Installations the
repair cost of which damage or destruction is 50% or more of the then
Replacement Cost of the Premises immediately prior to such damage or
destruction, excluding from such calculation the value of the land and Lessee
Owned Alterations and Utility Installations.
(c) "INSURED LOSS" shall mean damage or destruction to improvements on
the Premises, other than Lessee Owned Alterations and Utility Installations,
which was caused by an event required to be covered by the insurance described
in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits
involved.
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(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or
discovery of a Condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial Damage that is an
Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage
(but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to repair
of which is $10,000 or less, and, in such event, Lessor shall make the insurance
proceeds available to Lessee on a reasonable basis for that purpose.
Notwithstanding the foregoing, if the required insurance was not in force or the
insurance proceeds are not sufficient to effect such repair due to Lessee not
carrying the required coverage, the Insuring Party shall promptly contribute the
shortage in proceeds as and when required to complete said repairs. In the
event, however, the shortage in proceeds was due to the fact that, by reason of
the unique nature of the improvements, full replacement cost insurance coverage
was not commercially reasonable and available, Lessor shall have no obligation
to pay for the shortage in insurance proceeds or to fully restore the unique
aspects of the Premises unless Lessee provides Lessor with the funds to cover
same, or adequate assurance thereof, within ten (10) days following receipt of
written notice of such shortage and request therefor. If Lessor receives said
funds or adequate assurance thereof within said ten (10) day period, the party
responsible for making the repairs shall complete them as soon as reasonably
possible and this Lease shall remain in full force and effect. If Lessor does
not receive such funds or assurance within said period, Lessor may nevertheless
elect by written notice to Lessee within ten (10) days thereafter to make such
restoration and repair as is commercially reasonable with Lessor paying any
shortage in proceeds, in which case this Lease shall remain in full force and
effect. If in such case Lessor does not so elect, then this Lease shall
terminate sixty (60) days following the occurrence of the damage or destruction.
Unless otherwise agreed, Lessee shall in no event have any right to
reimbursement from Lessor for any funds contributed by Lessee to repair any such
damage or destruction. Premises Partial Damage due to flood or earthquake shall
be subject to Paragraph 9.3 rather than Paragraph 9.2, notwithstanding that
there may be some insurance coverage, but the net proceeds of any such insurance
shall be made available for the repairs if made by either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If a Premises Partial Damage that is not an
Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in
which event Lessee shall make the repairs at Lessee's expense and this Lease
shall continue in full force and effect, but subject to Lessor's rights under
Paragraph 13), Lessor may at Lessor's option, either: (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of such
damage of Lessor's desire to terminate this Lease as of the date sixty (60) days
following the giving of such notice. In the event Lessor elects to give such
notice of Lessor's intention to terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Lessor of Lessee's commitment to pay for the repair of such damage
totally at Lessee's expense and without reimbursement from Lessor. Lessee shall
provide Lessor with the required funds or satisfactory assurance thereof within
thirty (30) days following Lessee's said commitment. In such event this Lease
shall continue in full force and effect, and Lessor shall proceed to make such
repairs as soon as reasonably possible and the required funds are available. If
Lessee does not give such notice and provide the funds or assurance thereof
within the times specified above, this Lease shall terminate as of the date
specified in Lessor's notice of termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a Premises
Total Destruction occurs (including any destruction required by any authorized
public authority), this Lease shall terminate sixty (60) days following the date
of such Premises Total Destruction, whether or not the damage or destruction is
an Insured Loss or was caused by a negligent or willful act of Lessee. In the
event, however, that the damage or destruction was caused by Lessee, Lessor
shall have the right to recover Lessor's damages from Lessee except as released
and waived in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6) months of
the Term of this Lease there is damage for which the cost to repair exceeds
three (3) month's Base Rent, whether or not an Insured Loss, Lessor may, at
Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
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damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by, within twenty (20) days following the occurrence of the damage, or
before the expiration of the time provided in such option for its exercise,
whichever is earlier ("Exercise Period"), (i) exercising such option and (ii)
providing Lessor with any shortage in insurance proceeds (or adequate assurance
thereof) needed to make the repairs. If Lessee duly exercises such option during
said Exercise Period and provides Lessor with funds (or adequate assurance
thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's
expense repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option and
provide such funds or assurance during said Exercise Period, then Lessor may at
Lessor's option terminate this Lease as of the expiration of said sixty (60) day
period following the occurrence of such damage by giving written notice to
Lessee of Lessor's election to do so within ten (10) days after the expiration
of the Exercise Period, notwithstanding any term or provision in the grant of
option to the contrary.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES
(a) In the event of damage described in Paragraph 9.2 (Partial
Damage-Insured), whether or not Lessor or Lessee repairs or restores the
Premises, the Base Rent, Real Property Taxes, insurance premiums, and other
charges, if any, payable by Lessee hereunder for the period during which such
damage, its repair or the restoration continues (not to exceed the period for
which rental value insurance is required under Paragraph 8.3(b)), shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of Base Rent, Real Property Taxes, insurance
premiums, and other charges, if any, as aforesaid, all other obligations of
Lessee hereunder shall be performed by Lessee, and Lessee shall have no claim
against Lessor for any damage suffered by reason of any such repair or
restoration.
(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this Paragraph 9 and shall not commence, in a substantial and
meaningful way, the repair or restoration of the Premises within ninety (90)
days after such obligation shall accrue, Lessee may, at any time prior to the
commencement of such repair or restoration, give written notice to Lessor and to
any Lenders of which Lessee has actual notice of Lessee's election to terminate
this Lease on a date not less than thirty (30) days following the giving of such
notice. Upon termination of this Lease pursuant to this Paragraph 9, any advance
rent and/or any advance payments not yet incurred but already made by Lessee to
Lessor shall be refunded to Lessee prorated pursuant to Paragraph 4.1 herein. If
Lessee gives such notice to Lessor and such Lenders and such repair or
restoration is not commenced within thirty (30) days after receipt of such
notice, this Lease shall terminate as of the date specified in said notice. If
Lessor or a Lender commences the repair or restoration of the Premises within
thirty (30) days after receipt of such notice, this Lease shall continue in full
force and effect. "Commence" as used in this Paragraph shall mean either the
unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever first occurs. In the
alternative, if Lessor is obligated to repair or restore the Premises under the
provisions of this Paragraph 9 and does not so commence the same within the time
period required in this Section 9.6(b), then Lessee may elect to repair or
restore such damage by giving Lessor written notice of Lessee's election to do
so at any time after the ninety (90) day period described above, but prior to
the commencement of such repair or restoration by Lessor. If Lessee so elects to
repair due to Lessor's failure to do so, all insurance proceeds, if any, paid to
directly cover said damages shall be made available to Lessee for such repairs
and restoration.
9.7 (Deleted in its entirety.)
9.8 TERMINATION-ADVANCE PAYMENTS. Upon Termination of this Lease pursuant to
this Paragraph 9, an equitable adjustment shall be made concerning advance Base
Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's Security Deposit as has not been,
or is not then required to be, used by Lessor under the terms of this Lease.
9.9 WAIVE STATUTES. Lessor and Lessee agree that the terms of this Lease shall
govern the effect of any damage to or destruction of the Premises with respect
to the termination of this Lease and hereby waive the provisions of any present
or future statute to the extent inconsistent herewith.
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9.10 WAIVER OF STATUTORY PROVISIONS. Lessor and Lessee agree that the provisions
of this Paragraph 9 and the remaining provisions of this Lease, shall
exclusively govern the rights and obligations of the Parties with respect to any
damage or destruction to any portion of the Building or Premises and hereby
waive any statutory or common law rights or future statutes or provisions
inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 (a) PAYMENT OF TAXES. Lessee shall pay the Real Property Taxes, as defined
in Paragraph 10.2, applicable to the Premises during the Term of this Lease.
Subject to Paragraph 10.1(b), all such payments shall be made at least ten (10)
days prior to the delinquency date of the applicable installment. Lessee shall
promptly furnish Lessor with satisfactory evidence that such taxes have been
paid. If any such taxes to be paid by Lessee shall cover any period of time
prior to or after the expiration or earlier termination of the Term hereof,
Lessee's share of such taxes shall be equitably prorated to cover only the
period of time within the tax fiscal year this Lease is in effect, and Lessor
shall reimburse Lessee for any overpayment after such proration. If Lessee shall
fail to pay any Real Property Taxes required by this Lease to be paid by Lessee,
Lessor shall have the right to pay the same, and Lessee shall reimburse Lessor
therefor upon demand.
(b) ADVANCE PAYMENT. In the event Lessee is ever late in paying Real
Property Taxes, then, in order to insure payment when due and before delinquency
of any or all Real Property Taxes, Lessor reserves the right, at Lessor's
option, to estimate the current Real Property Taxes applicable to the Premises,
and to require such current year's Real Property Taxes to be paid in advance to
Lessor by Lessee, either: (i) in a lump sum amount equal to the installment due,
at least twenty (20) days prior to the applicable delinquency date, or (ii)
monthly in advance with the payment of the Base Rent. If Lessor elects to
require payment monthly in advance, the monthly payment shall be that equal
monthly amount which, over the number of months remaining before the month in
which the applicable tax installment would become delinquent (and without
interest thereon), would provide a fund large enough to fully discharge before
delinquency the estimated installment of taxes to be paid. When the actual
amount of the applicable tax xxxx is known, the amount of such equal monthly
advance payment shall be adjusted as required to provide the fund needed to pay
the applicable taxes before delinquency. If the amounts paid to Lessor by Lessee
under the provisions of this Paragraph are insufficient to discharge the
obligations of Lessee to pay such Real Property Taxes as the same become due,
Lessee shall pay to Lessor, upon Lessor's demand, such additional sums as are
necessary to pay such obligations. All moneys paid to Lessor under this
Paragraph may be intermingled with other moneys of Lessor and shall not bear
interest. In the event of a material Breach by Lessee in the performance of the
obligations of Lessee under this Lease, then any balance of funds paid to Lessor
under the provisions of this Paragraph may, subject to proration as provided in
Paragraph 10.1(a), at the option of Lessor, be added to the Security Deposit for
the sole purpose of being allocated toward the payment of any Real Property
Taxes.
10.2 DEFINITION OF "REAL PROPERTY TAX." As used herein, the term "REAL PROPERTY
TAXES" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed upon the Premises by any authority having the direct or
indirect power to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage or other improvement
district thereof, levied against any legal or equitable interest of Lessor in
the Premises or in the real property of which the Premises are a part, Lessor's
right to rent or other income therefrom, and/or Lessor's business of leasing the
Premises. The term "REAL PROPERTY TAXES" shall also include any tax, fee, levy,
assessment or charge, or any increase therein, imposed by reason of events
occurring, or changes in applicable law taking effect after the Commencement
Date but, during the Term of this Lease, including but not limited to a change
in the improvements thereon, or any modification, amendment or transfer thereof
initiated by Lessee, and whether or not contemplated by the Parties. The phrase
"Real Property Taxes" shall not include (a) any federal or state income taxes,
(b) Exempted Reassessments (defined below) (c) any assessment or tax,
participation in which is voluntary, and (d) any tax related to or in
substitution of any development exaction or otherwise imposed on account of
development of the Premises or the Project. As used herein, the term "Exempted
Reassessment" shall mean and include: (i) any change in ownership (as defined in
Division 1, Part 0.5, Chapter 2 of the California Revenue Taxation Code) of the
Land, Premises, or
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any part thereof, (ii) any similar or comparable sale, encumbrance or transfer
of any portion of the Land or Premises or any interest therein; (iii) any major
alteration of the Premises or Project by Lessor, unless required under the terms
of this Lease, or made at the request of or by Lessee; or (iv) penalties levied
against Lessor resulting from Lessor's failure to timely pay taxes, unless such
penalty is levied due to Lessee's failure to timely pay same as is required
under this Lease.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed, Lessee's
liability shall be an equitable proportion of the Real Property Taxes for all of
the land and improvements included within the tax parcel assessed, such
proportion to be determined by Lessor from the respective valuations assigned in
the assessor's work sheets or such other information as may be reasonably
available. Lessor's reasonable determination thereof, in good faith, shall be
conclusive.
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency all taxes
assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises. When possible, Lessee shall cause its Trade
Fixtures, furnishings, equipment and all other personal property to be assessed
and billed separately from the real property of Lessor. If any of Lessee's said
personal property shall be assessed with Lessor's real property, Lessee shall
pay Lessor the taxes attributable to Lessee within ten (10) days after receipt
of a written statement setting forth the taxes applicable to Lessee's property
or, at Lessor's option, as provided in Paragraph 10.1(b).
10.5 TAX CONTEST. Provided Lessee first pays the amounts of Real Estate Taxes
required to be paid hereunder, Lessee shall have the right, by appropriate
proceedings, to seek a reduction in the assessed valuation of the Premises or to
contest any Real Estate Taxes to be paid by Lessee. Upon written request by
Lessee, Lessor shall notify Lessee in writing of all Real Estate Taxes and the
related tax rates and any proposed changes to them. In the tax proceedings,
Lessee shall act in its own name and Lessor shall reasonably cooperate with
Lessee, at no expense to Lessor. Lessor shall keep Lessee apprised of all tax
protest filings and proceedings undertaken by Lessor.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to be
determined by Lessor, of all charges jointly metered with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Except as otherwise described herein, Lessee shall not voluntarily
or by operation of law assign, transfer, mortgage or otherwise transfer or
encumber (collectively, "assignment") or sublet all or any part of Lessee's
interest in this Lease or in the Premises without Lessor's prior written consent
given under and subject to the terms of Paragraph 36. Notwithstanding any
provisions of this Lease to the contrary, the provisions of this Paragraph 12
shall not apply to, and no approval of Lessor shall be required in the case of
the occupancy of any space within the Premises by any licensee or invitee of
Lessee on a temporary basis or for any purpose incidental or related to Lessee's
business, providing Lessee notifies Lessor in writing as to the legal name of
such entity or party temporarily occupying.
(b) Lessee shall have the right to sublease its leasehold interest
hereunder of all or any portion of the Premises to an Affiliate of Lessee and
Lessee shall have the right to assign its leasehold interest hereunder to any
corporate successor (by merger, operation of law or acquisition of substantially
all the operating assets of Lessee) without the consent or approval of Lessor;
provided, that (i) each such assignee shall assume all obligations of this Lease
and (ii) with respect to subleases only, each such sublessee shall agree that,
subject to the provisions of
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Paragraph 12(f), its sublease shall be subject to and subordinate to this Lease.
As used herein, the term "Affiliate" shall mean any corporation or other entity
or persons which controls, is controlled by or is under common control with
Lessee, with the term "control" being deemed to mean beneficial ownership or
more than twenty percent (20%) of the voting power of such entity.
(d) An assignment or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's option, be a
Default curable after notice per Paragraph 13.1(c),
(e) Lessee's remedy for any breach of this Paragraph 12.1 by Lessor
shall be limited to compensatory damages and injunctive relief.
(f) Release of Lessee. Upon any assignment of this Lease, as consented
to by Lessor, Lessee shall be released from any obligations under this Lease
thereafter to be performed by Lessee hereunder and which have not accrued as of
the effective date of assignment, if the assignee has a verifiable net worth of
at least One Hundred Million Dollars ($100,000,000.00).
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or subletting shall
not: (i) be effective without the express written assumption by such assignee or
sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of
any obligations hereunder, or (iii) alter the primary liability of Lessee for
the payment of Base Rent and other sums due Lessor hereunder or for the
performance of any other obligations to be performed by Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's obligations
from any person other than Lessee pending approval or disapproval of an
assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent or performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Breach by Lessee of
any of the terms, covenants or conditions of this Lease.
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(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the sublessee. However,
in the event Lessor is unable to locate Lessee or sublessee, Lessor may consent
to subsequent sublettings and assignments of the sublease or any amendments or
modifications thereto without notifying Lessee or anyone else liable on the
Lease or sublease and without obtaining their consent, and such action shall not
relieve such persons from liability under this Lease or sublease.
(d) In the event of any Breach of Lessee's obligations under this Lease,
Lessor may proceed directly against Lessee, any Guarantors or any one else
responsible for the performance of the Lessee's obligations under this Lease,
including the sublessee, without first exhausting Lessor's remedies against any
other person or entity responsible therefor to Lessor, or any security held by
Lessor or Lessee.
(e) Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Lessor's determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any together with a non-refundable
deposit of $250.00 as reasonable consideration for Lessor's considering and
processing the request for consent. Lessee agrees to provide Lessor with such
other or additional information and/or documentation as may be reasonably
requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason of
accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented in writing.
(g)
(h) If Lessee assigns or sublets this Lease for consideration in excess
of the Base Rent and Additional Rent (or prorata portion thereof) directly
applicable to the space subject to such assignment or sublet, Lessee shall pay
to Lessor fifty percent (50%) of such excess (after deducting Lessee's direct
out-of-pocket costs which have been paid by Lessee to provide occupancy related
services to such assignee or subtenant including, without limitation: (i) any
changes, alterations, and improvements to the Premises, (ii) any space planning
or architectural design fees or expenses in connection with marketing the
Premises, (iii) any improvement allowance or monetary concessions, (iv) any
brokerage commissions incurred, (v) attorney's fees, (vi) any lease take over
costs, (vii) advertising costs, (viii) Rent and Additional Rent paid by Lessee
to Lessor with regard to the sublet space for only that period said space is
being readied for occupancy by the sublessee or assignee beginning on the date
Lessee vacates the space and continuing to the commencement of the assignment or
sublease term, less any rent-free possession period or rent concession as set
forth hereinabove.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The following
terms and Conditions shall apply to any subletting by Lessee of all or any part
of the Premises and shall be deemed included in all subleases under this Lease
whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a portion
of the Premises heretofore or hereafter made by Lessee, and Lessor may collect
such rent and income and apply same toward Lessee's obligations due under this
Lease; provided, however, that until a material Breach (as defined in Paragraph
13.1) shall occur in the performance of Lessee's obligations under this Lease,
Lessee
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may, until cured, except as otherwise provided in this Lease, receive, collect
and enjoy the rents accruing under such sublease. Lessor shall not, by reason of
this or any other assignment of such sublease to Lessor, nor by reason of the
collection of the rents from a sublessee, be deemed liable to the sublessee for
any failure of Lessee to perform and comply with any of Lessee's obligations to
such sublessee under such sublease. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor stating
that a material Breach exists in the performance of Lessee's obligations under
this Lease and for so long as such Breach continues, to pay to Lessor the rents
and other charges due and to become due under the sublease. Sublessee shall rely
upon any such statement and request from Lessor and shall pay such rents and
other charges to Lessor equal to Lessee's obligations without any obligation or
right to inquire as to whether such material Breach exists and notwithstanding
any notice from or claim from Lessee to the contrary. Lessee shall have no right
or claim against said sublessee, or, until the material Breach has been cured,
against Lessor, for any such rents and other charges so paid by said sublessee
to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior Defaults
or Breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor herein.
(d) No sublessee shall further assign or sublet all or any part of the
Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by
Lessee to the sublessee, who shall have the right to cure the Default of Lessee
within the grace period, if any, specified in such notice. The sublessee shall
have a right of reimbursement and offset from and against Lessee for any such
Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney is consulted
by Lessor in connection with a Lessee Breach (as hereinafter defined), $350.00
is a reasonable minimum sum per such occurrence for legal services and costs in
the preparation and service of a three-day notice to pay or quit, and that
Lessor may include the cost of such services and costs in said notice as rent
due and payable to cure said Default. A "Default" is defined as a failure by the
Lessee to observe, comply with or perform any of the terms, covenants,
conditions or rules applicable to Lessee under this Lease. A "Breach" is defined
as the occurrence of any one or more of the following Defaults, and, where a
grace period for cure after notice is specked herein, the failure by Lessee to
cure such Default prior to the expiration of the applicable grace period, shall
entitle Lessor to pursue the remedies set forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy same,
or the abandonment of the Premises accompanied by non-payment of rent.
(b) Except as expressly otherwise provided in this Lease, the failure by
Lessee to make any payment of Base Rent where such failure continues for a
period of three (3) days following written notice thereof by or on behalf of
Lessor to Lessee, or any other monetary payment required to be made by Lessee
hereunder, whether to Lessor or to a third party, as and when due, the failure
by Lessee to provide Lessor with reasonable evidence of insurance or surety bond
required under this Lease where such failure continues for a period of five (5)
business days following written notice thereof, or the failure of Lessee to
fulfill any obligation under this Lease which endangers or threatens life or
property, where such failure continues for a period of three (3) days following
written notice thereof by or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the failure by
Lessee to provide Lessor with reasonable written evidence (in duly executed
original form, if applicable) of (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1(b), (iv) a Tenancy Statement per
Paragraphs 16 or 37, (v)
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the subordination or non-subordination of this Lease per Paragraph 30, where any
such failure continues for a period of ten (10) days following written notice by
or on behalf of Lessor to Lessee. Except as expressly otherwise provided in this
Lease, the failure by Lessee to provide Lessor with reasonable written evidence
(in duly executed original form, if applicable) of (i) the recision of an
unauthorized assignment or subletting per Paragraph 12.1(b), (ii) the execution
of any document requested under Paragraph 42 (easements), or (iii) any other
documentation or information which Lessor may reasonably require of Lessee under
the terms of this Lease where any such failure continues for a period of thirty
(30) days following written notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease including Applicable Law per Paragraph 6.3, or of the
rules adopted under Paragraph 40 hereof, that are to be observed, complied with
or performed by Lessee, other than those described in subparagraphs (a), (b) or
(c), above, where such Default continues for a period of thirty (30) days after
written notice thereof by or on behalf of Lessor to Lessee; provided, however,
that if the nature of Lessee's Default is such that more than thirty (30) days
are reasonably required for its cure, then it shall not be deemed to be a Breach
of this Lease by Lessee if Lessee commences such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) The making by
Lessee of any general arrangement or assignment for the benefit of creditors;
(ii) Lessee's becoming a "debtor" as defined in 11 U.S.C. Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this subparagraph (e) is contrary to any applicable
law, such provision shall be of no force or effect, and not affect the validity
of the remaining provisions.
(f) The discovery by Lessor that any financial statement given to Lessor
by Lessee was materially false.
(g)
13.2 REMEDIES. In the case of emergency, if Lessee fails to perform any
affirmative duty or obligation of Lessee under this Lease, within ten (10) days,
Lessor may at its option (but without obligation to do so), perform such duty or
obligation on Lessee's behalf. The costs and expenses of any such performance by
Lessor shall be due and payable by Lessee to Lessor upon invoice therefor. In
the event of a Breach of this Lease by Lessee, as defined in Paragraph 13.1,
with or without further notice or demand, and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such Breach,
Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease and the Term hereof shall terminate and Lessee
shall immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee: (i) the worth at the time of
the award of the unpaid rent which
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had been earned at the time of termination; (ii) the worth at the time of award
of the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss that
the Lessee proves could have been reasonably avoided; (iii) the worth at the
time of award of the amount by which the unpaid rent for the balance of the Term
after the time of award exceeds the amount of such rental loss that the Lessee
proves could be reasonably avoided; and (iv) any other amount necessary to
compensate Lessor for all the detriment proximately caused by the Lessee'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 the cost of recovering possession of the Premises, expenses of reletting,
including necessary renovation and alteration of the Premises, reasonable
attorneys' fees, and that portion of the leasing commission paid by Lessor
applicable to the unexpired Term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the prior sentence shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%). Efforts by
Lessor to mitigate damages caused by Lessee's Default or Breach of this Lease
shall not waive Lessor's right to recover damages under this Paragraph. If
termination of this Lease is obtained through the provisional remedy of unlawful
detainer, Lessor shall have the right to recover in such proceeding the unpaid
rent and damages as are recoverable therein, or Lessor may reserve therein the
right to recover all or any part thereof in a separate suit for such rent and/or
damages. If a notice and grace period required under subparagraphs 13.1(b), (c)
or (d) was not previously given, a notice to pay rent or quit, or to perform or
quit, as the case may be, given to Lessee under any statute authorizing the
forfeiture of leases for unlawful detainer shall also constitute the applicable
notice for grace period purposes required by subparagraphs 13.1(b), (c) or (d).
In such case, the applicable grace period under subparagraphs 13.1(b), (c) or
(d) and under the unlawful detainer statute shall run concurrently after the one
such statutory notice, and the failure of Lessee to cure the Default within the
greater of the two such grace periods shall constitute both an unlawful detainer
and a Breach of this Lease entitling Lessor to the remedies provided for in this
Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect (in
California under California Civil Code Section 1951.4) after Lessee's Breach and
abandonment and recover the rent as it becomes due, provided Lessee has the
right to sublet or assign, subject only to reasonable limitations. See
Paragraphs 12 and 36 for the limitations on assignment and subletting which
limitations Lessee and Lessor agree are reasonable. Acts of maintenance or
preservation, efforts to relet the Premises, or the appointment of a receiver to
protect the Lessor's interest under the Lease, shall not constitute a
termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the state wherein the Premises are located.
(d) The expiration or termination of this Lease and/or the termination
of Lessee's right to possession shall not relieve Lessee from liability under
any indemnity provisions of this Lease as to matters occurring or accruing
during the Term hereof or by reason of Lessee's occupancy of the Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by Lessor for free
or abated rent or other charges applicable to the Premises, or for the giving or
paying by Lessor to or for Lessee of any cash or other bonus, inducement or
consideration for Lessee's entering into this Lease, all of which concessions
are hereinafter referred to as "INDUCEMENT PROVISIONS," shall be deemed
conditioned upon Lessee's full and faithful performance of all of the terms,
covenants and conditions of this Lease to be performed or observed by Lessee
during the Term hereof as the same may be extended. Upon the occurrence of a
Breach of this Lease by Lessee, as defined in Paragraph 13.1, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to Lessor,
and recoverable by Lessor as additional rent due under this Lease,
notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by
Lessor of rent or the cure of the Breach which initiated the operation of this
Paragraph shall not be deemed a waiver by Lessor of the provisions of this
Paragraph unless specifically so stated in writing by Lessor at the time of such
acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Lessor by the
terms of any ground lease, mortgage or trust deed covering the Premises.
Accordingly, if any installment of Base Rent or any other scheduled sum
considered "Additional Rent" due from Lessee shall not be received by Lessor or
Lessor's designee within ten (10) days after such amount shall be due, or
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any unscheduled sum considered "Additional Rent", providing Lessor has at one
time given Lessee a prior written notice that such unscheduled sum is due and
said written notice has been given at least ten (10) days prior to when said sum
is due, then, without any requirement for notice to Lessee, except in the case
of unscheduled Additional Rent as set forth hereinabove, Lessee shall pay to
Lessor a late charge equal to four percent (4%) of such overdue amount, except
in the event said payment did not timely reach Lessor due to circumstances
verifiably beyond the control of Lessee in which case Lessor shall waive the
late fee, but in no event shall Lessor waive said late fee more than one time in
any given year or five (5) times total during the lease Term due to such
verifiable circumstances. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Lessor will incur by
reason of late payment by Lessee. Acceptance of such late charge by Lessor shall
in no event constitute a waiver of Lessee's Default or Breach with respect to
such overdue amount, nor prevent Lessor from exercising any of the other rights
and remedies granted hereunder. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) consecutive installments of
Base Rent, then notwithstanding Paragraph 4.1 or any other provision of this
Lease to the contrary, Base Rent shall, at Lessor's option, become due and
payable quarterly in advance.
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this Lease unless
Lessor fails within a reasonable time to perform an obligation required to be
performed by Lessor. For purposes of this Paragraph 13.5, a reasonable time
shall in no event be less than thirty (30) days after receipt by Lessor, and by
the holders of any ground lease, mortgage or deed of trust covering the Premises
whose name and address shall have been furnished Lessee in writing for such
purpose, of written notice specifying wherein such obligation of Lessor has not
been performed; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days after such notice are reasonably required
for its performance, then Lessor shall not be in breach of this Lease if
performance is commenced within such thirty (30) day period and thereafter
diligently pursued to completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the land
area not occupied by any building, is taken by condemnation, Lessee may, at
Lessee's option, to be exercised in writing within ten (10) days after Lessor
shall have given Lessee written notice of such taking (or in the absence of such
notice, within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in the same
proportion as the rentable floor area of the Premises taken bears to the total
rentable floor area of the building located on the Premises. No reduction of
Base Rent shall occur if the only portion of the Premises taken is land on which
there is no building. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided, however, that Lessee
shall be entitled to any compensation separately awarded to Lessee for Lessee's
relocation expenses and/or loss of Lessee's Trade Fixtures. In the event that
this Lease is not terminated by reason of such condemnation, Lessor shall to the
extent of its net severance damages received, over and above the legal and other
expenses incurred by Lessor in the condemnation matter, repair any damage to the
Premises caused by such condemnation, except to the extent that Lessee has been
reimbursed therefor by the condemning authority. Lessee shall be responsible for
the payment of any amount in excess of such net severance damages required to
complete such repair. In the event that this Lease is not terminated, Lessor
shall, with reasonable diligence, proceed to restore (to the extent permitted by
Laws and covenants, conditions and restrictions then applicable to the Premises)
the Premises and the Building (other than Lessee's personal property) to a
complete functioning unit of substantially the same proportionate usefulness,
design and construction existing immediately prior to the date of the taking. In
such case, Base Rent, Additional Rent and all other rent and other charges
payable by Lessee hereunder shall be reduced based upon the nature of the space
taken (office space, storage, parking area) and upon the proportion which the
portion taken bears to the area of the Premises immediately prior to such
taking.
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15. BROKER'S FEE.
15.1 The Brokers named in Paragraph 1.10 are the procuring causes of this Lease.
15.2 Upon execution of this Lease by both Parties, Lessor shall pay to said
Brokers jointly, or in such separate shares as they may mutually designate in
writing, a fee as set forth in a separate written agreement between Lessor and
said Brokers (or in the event there is no separate written agreement between
Lessor and said Brokers, the sum per agreement) for brokerage services rendered
by said Brokers to Lessor in this transaction.
15.3 Unless Lessor and Brokers have otherwise agreed in writing, Lessor further
agrees that: (a) if Lessee exercises any Option (as defined in Paragraph 39.1)
or any Option subsequently granted which is substantially similar to an Option
granted to Lessee in this Lease, or (b) if Lessee acquires any rights to the
Premises or other premises described in this Lease which are substantially
similar to what Lessee would have acquired had an Option herein granted to
Lessee been exercised, or (c) if Lessee remains in possession of the Premises,
with the consent of Lessor, after the expiration of the Term of this Lease after
having failed to exercise an Option, or (d) if said Brokers are the procuring
cause of any other lease or sale entered into between the Parties pertaining to
the Premises and/or any adjacent property in which Lessor has an interest, or
(e) if Base Rent is increased, whether by agreement or operation of an
escalation clause herein, then as to any of said transactions, Lessor shall pay
said Brokers a fee in accordance with the schedule of said Brokers in effect at
the time of the execution of this Lease.
15.4 Any buyer or transferee of Lessor's interest in this Lease, whether such
transfer is by agreement or by operation of law, shall be deemed to have assumed
Lessor's obligation under this Paragraph 15. Each Broker shall be a third party
beneficiary of the provisions of this Paragraph 15 to the extent of its interest
in any commission arising from this Lease and may enforce that right directly
against Lessor and its successors.
15.5 Lessee and Lessor each represent and warrant to the other that it has had
no dealings with any person, firm, broker or finder (other than the Brokers, if
any named in Paragraph 1.10) in connection with the negotiation of this Lease
and/or the consummation of the transaction contemplated hereby, and that no
broker or other person, firm or entity other than said named Brokers is entitled
to any commission or finder's fee in connection with said transaction. Lessee
and Lessor do each hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges which may be
claimed by any such unnamed broker, finder or other similar party by reason of
any dealings or actions of the indemnifying Party, including any costs,
expenses, attorneys' fees reasonably incurred with respect thereto.
15.6 Lessor and Lessee hereby consent to and approve all agency relationships,
including any dual agencies, indicated in Paragraph 1.10.
16. TENANCY STATEMENT
16.1 Each Party (as "RESPONDING PARTY") shall within ten (10) business days
after written notice from the other Party (the "REQUESTING PARTY") execute,
acknowledge and deliver to the Requesting Party a statement in writing. Said
Tenancy Statement shall (a) certify that this Lease is unmodified and in full
force and effect (or if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect), (b)
specify the date to which the Base Rent, Additional Rent, and other charges are
paid in advance, if at all, and (c) acknowledge that there are not, to the
declaring Party's best knowledge (after due inquiry) any uncured defaults or
unfulfilled obligations on the part of the other party hereunder, or specifying
such defaults or unfulfilled obligations if any are claimed.
16.2 If Lessor desires to finance, refinance, or sell the Premises, any part
thereof, or the Building of which the Premises are a part, Lessee and all
Guarantors of Lessee's performance hereunder shall deliver to any potential
lender or purchaser designated by Lessor such financial statements of Lessee and
such Guarantors as may be reasonably required by such lender or purchaser,
including but not limited to Lessee's financial statements for the past three
(3) years. Ail such financial statements shall be received by Lessor and such
lender or purchaser in confidence and shall be used only for the purposes herein
set forth.
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17. LESSOR'S LIABILITY. The term "LESSOR" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises, or, if this is
a sublease, of the Lessee's interest in the prior lease. In the event of a
transfer of Lessor's title or interest in the Premises or in this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor at the time of such transfer or assignment.
Except as provided in Paragraph 15, upon such transfer or assignment and
delivery of the Security Deposit, as aforesaid, the prior Lessor shall be
relieved of all liability with respect to the obligations and/or covenants under
this Lease thereafter to be performed by the Lessor. Subject to the foregoing,
the obligations and/or covenants in this Lease to be performed by the Lessor
shall be binding only upon the Lessor as hereinabove defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within thirty (30) days
following the date on which it was due, shall bear interest from the
thirty-first (31st) day after it was due at the rate of 10% per annum, but not
exceeding the maximum rate allowed by law, in addition to the late charge
provided for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENT; BROKER DISCLAIMERS. This Lease contains all
agreements between the parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as
to the nature, quality and character of the Premises. Brokers have no
responsibility with respect thereto or with respect to any default or breach
hereof by either Party.
23. NOTICES.
23.1 All notices required or permitted by this Lease shall be in writing and may
be delivered in person (by hand or by messenger or courier service) or may be
sent by regular, certified or registered mail or U.S. Postal Service Express
Mail, with postage prepaid, or by facsimile transmission, and shall be deemed
sufficiently given if served in a manner specified in this Paragraph 23. The
addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may by
written notice to the other specify a different address for notice purposes,
except that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for the purpose of mailing or delivering notices to
Lessee. A copy of all notices required or permitted to be given to Lessor
hereunder shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time to time hereafter designate by written notice
to Lessee.
23.2 Any notice sent by registered or certified mail, return receipt requested,
shall be deemed given on the date of delivery shown on the receipt card, or if
no delivery date is shown, the postmark thereon. If sent by regular mail the
notice shall be deemed given forty-eight (48) hours after the same is addressed
as required herein and mailed with postage prepaid. Notices delivered by United
States Express Mail or overnight courier that guarantees next day delivery shall
be deemed given twenty-four (24) hours after delivery of the same to the United
States Postal Service or courier. If any notice is transmitted by facsimile
transmission or similar means, the same shall be deemed served or delivered upon
telephone confirmation of receipt of the transmission thereof, provided a copy
is also delivered via delivery or mail. If notice is received on a Sunday or
legal holiday, it shall be deemed received on the next business day.
23.3 Notices shall be sent to the following address:
Pre-Commencement Notice to Lessee: 0 Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Post-Commencement Notice to Lessee: 0 Xxxxx Xxxxxx Xxxxx, Xxxx Xxxxxx, XX 00000
Notice to Lessor: 0 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000
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24. WAIVERS. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or of any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or be construed as the basis of an estoppel to enforce the provision
or provisions of this Lease requiring such consent. Regardless of Lessor's
knowledge of a Default or Breach at the time of accepting rent, the acceptance
of rent by Lessor shall not be a waiver of any preceding Default or Breach by
Lessee of any provision hereof, other than the failure of Lessee to pay the
particular rent so accepted. Any payment given Lessor by Lessee may be accepted
by Lessor on account of moneys or damages due Lessor, notwithstanding any
qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease without written consent of Lessor, which shall, if given, be
accompanied by payment of rent 150% of the Monthly Installment of Base Rent due
at the time of expiration or earlier termination of this Lease.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the Parties,
their personal representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be subject
and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to ail renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default and
allow such Lender thirty (30) days following receipt of such notice for the cure
of said default before invoking any remedies Lessee may have by reason thereof.
If any Lender shall elect to have this Lease and/or any Option granted hereby
superior to the lien of its Security Device and shall give written notice
thereof to Lessee, this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the documentation or
recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of Paragraph 30.3,
Lessee agrees to attorn to a Lender or any other party who acquires ownership of
the Premises by reason of a foreclosure of a Security Device, and that in the
event of such foreclosure, such new owner shall not: (i) be liable for any act
or omission of any prior lessor or with respect to events occurring prior to
acquisition of ownership, (ii) be subject to any offsets or defenses which
Lessee might have against any prior lessor, or (iii) be bound by prepayment of
more than one (1) month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by Lessor
after the execution of this Lease, Lessee's subordination of this Lease shall be
subject to receiving assurance (a "Non-Disturbance Agreement") from the Lender
that Lessee's possession and this Lease, including any options to extend the
term hereof, will not be disturbed so long as Lessee is not in Breach hereof and
attorns to the record owner of the Premises. With respect to each Security
Device existing as of the date hereof, Lessor shall, upon receipt of written
request for same from Lessee, use its best efforts to obtain and deliver to
Lessee within ninety (90) days of the
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execution and delivery hereof, a Non-Disturbance Agreement from any ground
lessor (including specifically Ground Lessor), lender, mortgagee and/or
beneficiary thereunder (the "Holder") in commercially reasonable form reasonably
approved by Lessee. With respect to each future Security Device and any
modification, renewal, extension or replacement of any existing or future
Security Device, Lessor shall upon receipt of written request for same from
Lessee, use its best efforts to obtain and deliver to Lessee as soon as
reasonably possible a Non-Disturbance Agreement from the appropriate Holder in a
commercially reasonable form.
30.4 LENDER REQUIREMENTS. Upon written request from Lessor or a Lender in
connection with a sale, financing or refinancing of the Premises, Lessee and
Lessor shall execute such further writings as may be reasonably required to
separately document any such subordination or non-subordination, attomment
and/or non-disturbance agreement as is provided for herein, and Lessor agrees to
have a Non-Disturbance Agreement in a commercially reasonable form executed by
Lender concurrently with recordation of a mortgage lien and cause same to be
delivered to Lessee as soon as reasonably possible thereafter.
31. ATTORNEY'S FEES. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) or Broker in any such proceeding, action, or appeal thereon,
shall be entitled to reasonable attorney's fees. Such fees may be awarded in the
same suit or recovered in a separate suit, whether or not such action or
proceeding is pursued to decision or judgment. The term, "Prevailing Party"
shall include, without limitation, a Party or Broker who substantially obtains
or defeats the relief sought, as the case may be, whether by compromise,
settlement, judgment, or the abandonment by the other Party or Broker of its
claim or defense. The attorney's fees award shall not be computed in accordance
with any court fee schedule, but shall be such as to fully reimburse all
attorney's fees reasonably incurred. Lessor shall be entitled to reasonable
attorney's fees, costs and expenses incurred in the preparation and service of
notices of Default and consultations in connection therewith.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times with reasonable advance notice for the purpose
of showing the same to prospective purchasers, lenders, or lessees, and making
such alterations, repairs, improvements or additions to the Premises or to the
Building of which they are a part, as Lessor may reasonably deem necessary.
Lessor may at any time place on or about the Premises or building any ordinary
"For Sale" signs and Lessor may at any time during the last one hundred twenty
(120) days of the Term hereof place on or about the Premises any ordinary "For
Lease" signs. All such activities of Lessor shall be without abatement of rent
or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises, except that Lessee
may, with Lessor's prior written consent, install (but not on the roof) such
signs as are reasonably required to advertise Lessee's own business. The
installation of any sign on the Premises by or for Lessee shall be subject to
the provisions of Paragraph 7 (Maintenance, Repairs, Utility Installations,
Trade Fixtures and Alterations).
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
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36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required to an act by
or for the other Party, such consent shall not be unreasonably withheld or
delayed. Lessor's actual reasonable costs and expenses (including but not
limited to architects', attorneys', engineers' or other consultants' fees)
incurred in the consideration of, or response to, a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, including but not
limited to consents to an assignment, a subletting or the presence or use of a
Hazardous Substance, practice or storage tank, shall be paid by Lessee to Lessor
upon receipt of an invoice and supporting documentation therefor. Subject to
Paragraph 12.2(e) (applicable to assignment or subletting), Lessor may, as a
condition to considering any such request by Lessee, require that Lessee deposit
with Lessor an amount of money (in addition to the Security Deposit held under
Paragraph 5) reasonably calculated by Lessor to represent the cost Lessor will
incur in considering and responding to Lessee's request. Except as otherwise
provided, any unused portion of said deposit shall be refunded to Lessee without
interest. Lessor's consent to any act, assignment of this Lease or subletting of
the Premises by Lessee shall not constitute an acknowledgment that no Default or
Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver
of any then existing Default or Breach, except as may be otherwise specifically
stated in writing by Lessor at the time of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the imposition by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given. Whenever this Lease grants a Party hereto the right to take action,
exercise discretion, make a judgment or other determination, or request or
require documents or other items of information, such Parties shall act
reasonably and in good faith. Neither Party hereto shall take any action solely
for the purpose of frustrating the other party's reasonable expectations
concerning the benefits to be enjoyed hereunder, and this Lease shall at all
times be construed to effectuate the reasonable expectations of sophisticated
parties concerning the benefits to be enjoyed.
37. GUARANTOR.
37.1 If there are to be any Guarantors of this Lease per Paragraph 1.11, the
form of the guaranty to be executed by each such Guarantor shall be the form as
attached hereto and made a part hereof, and each said Guarantor shall have the
same obligations as Lessee under this Lease, including but not limited to the
obligation to provide the Tenancy Statement and information called for by
Paragraph 16.
37.2 It shall constitute a Default of the Lessee under this Lease if any such
Guarantor fails or refuses, upon reasonable request by Lessor to give:
(a) evidence of the due execution of the guaranty called for by this
Lease, including the authority of the Guarantor (and of the party signing on
Guarantor's behalf) to obligate such Guarantor on said guaranty, and including
in the case of a corporate Guarantor, a certified copy of a resolution of its
board of directors authorizing the making of such guaranty, together with a
certificate of incumbency showing the signature of the persons authorized to
sign on its behalf, (b) current financial statements of Guarantor as may from
time to time be requested by Lessor, (c) a Tenancy Statement, or (d) written
confirmation that the guaranty is still in effect.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the Premises and
the observance and performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease,
Lessee shall have quiet possession of the Premises for the entire Term hereof
subject to all of the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITION. As used in this Paragraph 39 the word "OPTION" has the
following meaning: (a) the right to extend the Term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor; (b) the right of first refusal to lease the Premises or the right of
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor; (c) the right to purchase the Premises, or the right of first refusal to
purchase the Premises, or the right of first offer to purchase the Premises, or
the right to purchase other property of Lessor, or the right of first refusal to
purchase other property of Lessor, or the right of first offer to purchase other
property of Lessor.
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39.2 OPTIONS PERSONAL TO ORIGINAL LEASE. No Option may be separated from this
Lease in any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any Multiple Options to
extend or renew this Lease, a later Option cannot be exercised unless the prior
Options to extend or renew this Lease have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option, notwithstanding
any provision in the grant of Option to the contrary: (i) during the period
commencing with the giving of any notice of Default under Paragraph 13.1 and
continuing until the noticed Default is cured, or (ii) during the period of time
any monetary obligation due Lessor from Lessee is unpaid, or (iii) during the
time Lessee is in Breach of this Lease, or (iv) in the event that Lessor has
given to Lessee three (3) or more notices of Default under Paragraph 13.1,
during the twelve (12) month period immediately preceding the exercise of the
Option and said Defaults have not been cured within the time period allowed by
this Lease.
(b) The period of time within which an Option may be exercised shall not
be extended or enlarged by reason of Lessee's inability to exercise an Option
because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, not withstanding Lessee's due
and timely exercise of the Option, if, after such exercise and during the Term
of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due, providing
said monetary obligation is either scheduled or Lessor has at one time given
Lessee a minimum of ten (10) days written notice that such monetary obligation
was due, (without necessity of Lessor to give any subsequent notice thereof to
Lessee),or (ii) Lessor gives to Lessee three (3) or more notices of monetary
Default under Paragraph 13.1 during any twelve (12) month period, where same are
not cured promptly within the notice period(s) set forth in Paragraph 13.1, or
(iii) if Lessee commits a Breach of this Lease.
40. MULTIPLE BUILDINGS. If the Premises are part of a group of buildings
controlled by Lessor, Lessee agrees that it will abide by, keep and observe all
reasonable rules and regulations which Lessor may make from time to time for the
management, safety, care, and cleanliness of the grounds, the parking and
unloading of vehicles and the preservation of good order, as well as for the
convenience of other occupants or tenants of such other buildings and their
invitees. Any and all rules and regulations adopted and/or modified by Lessor
from time to time with respect to the Premises shall (a) be in writing, (b) be
reasonable in all respects and consistent with the rules and regulations adopted
by other comparable office buildings generally, (c) not materially interfere
with Lessee's intended use of the Premises, as permitted by Paragraph 1.8, (d)
not impose discriminatory burdens or restrictions on Lessee and (e) not be
enforced in a discriminatory manner against Lessee.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights and
dedications that Lessor deems necessary, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Lessee or otherwise grossly burden Lessee. Lessee agrees to sign any documents
reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
28
29
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that there was no legal obligation on the part of said Party to pay such sum or
any part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay under the provisions of this
Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
46. OFFER. Preparation of this Lease by Lessor or Lessor's agent and submission
of same to Lessee shall not be deemed an offer to lease to Lessee. This Lease is
not intended to be binding until executed by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. The parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional, insurance company, or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if more
then one person or entity is named herein as either Lessor or Lessee, the
obligations of such Multiple Parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
49. MISCELLANEOUS.
(a) Successors and Assigns. Except as otherwise provided in this Lease,
all of the covenants, conditions and provisions of this Lease shall be binding
upon and shall inure to the benefit of the Parties hereto and their respective
heirs, personal representatives, successors and assigns.
(b) Conflict of Laws; Prior Agreements; Separability. This Lease shall
be governed by and construed pursuant to the Laws of the state in which the
Premises is situated. This Lease contains all of the agreements of the Parties
hereto with respect to any matter covered or mentioned in this Lease. No prior
agreement, understanding or representation pertaining to any such maker 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 hereto or their
respective successors in interest. The illegality, invalidity or
unenforceability of any provision of this Lease shall in no way impair or
invalidate any other provision of this Lease, and such remaining provisions
shall remain in full force and effect.
(c) Exterior Generator. Lessee shall have the right to install an
exterior diesel-fuel powered generator outside the Building in an approved
location with mutually approved construction and screening in place, said
approval not to be unreasonably withheld and same shall comply with all
appropriate governmental requirements and codes.
29
30
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR HIS APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY AS TO THE POSSIBLE PRESENCE OF ASBESTOS, STORAGE TANKS
OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION IS MADE BY (THE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKERS) OR
THEIR AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER
THAN CALIFORNIA, AN ATTORNEY FOR THE STATE WHERE THE PROPERTY IS LOCATED SHOULD
BE CONSULTED.
The parties hereto have executed this Lease at the place on the dates specified
above to their respective signatures.
Executed at Newport Beach, California Executed at Irvine
--------------------------
on May 12, 2000 on 5/5/2000
------------------------------- -----------------------------------
By LESSOR: XXXX COMMERCIAL REALTY CORP. By LESSEE: FUTURELINK MICRO VISIONS
CORP., A DELAWARE CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX By /s/ XXXX XXXXXX
--------------------------------- -----------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxx Name Printed: Xxxx Xxxxxx
Title: Vice President Title: President
By /s/ XXXXXXX X. XXXXX
-----------------------------------
Name Printed: Xxxxxxx X. Xxxxx
Title: Vice President, Administration
30
31
ADDENDUM "A"
TO LEASE DATED: APRIL 27, 2000
BY AND BETWEEN: XXXX COMMERCIAL REALTY CORP., A NEVADA CORPORATION
AS LESSOR; AND: FUTURELINK MICRO VISIONS CORP., A DELAWARE CORPORATION
AS LESSEE
----------------------------------------------------------------------------
A. SIGN CRITERIA
These regulations are established in order to maintain a continuity in
appearance throughout Spectrum Pointe and to comply with the City of Lake
Forest sign ordinances. All signage must meet City of Lake Forest sign
ordinances and be approved by Lessor in advance of construction and
installation.
1. GENERAL REQUIREMENTS:
(a) Lessee shall be allowed three (3) identity signs.
(b) The signs shall be installed at Lessee's expense.
(c) Except as provided herein, no advertising placards, banners,
pennants, names, insignias, trademarks, or other descriptive
material shall be affixed or maintained upon the glass panes or
exterior walls of the building.
2. SPECIFICATIONS-Single-tenant Buildings:
(a) Building Sign:
(i) Lessee shall use three-dimensional, plant-on, individual
letters. These letters shall be made of 3" thick,
poly-styrened back with a high impact styrene letter face
not to exceed 14" in height, or an alternate sign may be
proposed by Lessee and shall be approved in advance by
Lessor, said approval not to be unreasonably withheld.
(ii) Type face shall be Helvetica medium and the color shall
be black or white, or such type face and color as is
approved by Lessor, said approval not to be unreasonably
withheld.
(iii) The maximum area within which the sign, including logo,
can be installed shall be 40 square feet per building,
except in the event that more than one tenant occupies a
single building, in which case the sign size allotment
shall be determined on a prorata basis, but in no event
shall each sign exceed thirty square feet. The square
footage dimensions shall be calculated by taking the
distance from the first to the last letter, including
all spaces between the letters ("length") and multiplying
that dimension by the distance from the top to the
bottom of the largest letter or logo ("width").
(iv) Placement of the sign on the building shall be in the
location and by the method approved by Lessor. Lessee
shall submit a scaled drawing of the proposed sign to
Lessor for approval prior to construction and
installation.
(v) Lessee shall be responsible for obtaining all approvals
and permits that may be required by the City of Lake
Forest or the Association.
B. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
Lessee acknowledges that its leasehold estate is part of the Planned
Development and subject to a Declaration of Covenants, Conditions, and
Restrictions. Lessee agrees to accept its leasehold estate subject to the
aforementioned Declaration and agrees to perform and comply with any and
all restrictions set forth in said declaration or to make adequate
provisions to permit entry and other actions by Lessor for the purpose of
performing and complying with these restrictions.
32
ADDENDUM "A"
PAGE 2
C. OVERFLIGHT DISCLOSURE
Lessee acknowledges that Lessor has disclosed that subject Premises is
subject to overflight, sight and sound aircraft operating from El Toro
Marine Corps Air Station.
D. EXTERIOR STORAGE
Lessee shall neither store, nor permit to be stored any goods,
machinery, merchandise, equipment, or any other items whatsoever in the
parking lot or any other common area adjacent to the Building(s) or the
Premises. Lessee may only place or store items wholly within its
Building.
E. NO TELEMARKETING
Lessee warrants to Lessor that its "use" of the subject Premises shall
NOT be for the operation of a telemarketing business, although some
business-to-business targeted marketing involving the use of telephone
research, surveying and prospecting techniques may be employed. Lessee
acknowledges that Lessor does not allow "boiler-room" telemarketing
businesses as an acceptable "Use" for this or any other location in
Lessor's properties and Lessee therefore understands and agrees its
total number of employees shall not adversely impact the Project
parking, or usage of the common areas, or exceed that which would be
reasonably expected for normal general office use in a facility of this
size, and that non-compliance of these issues shall constitute a
material breach of this Lease.
F. START DATE AMENDMENT
Upon establishing a fixed Commencement and Expiration Date for this
Lease, an amendment shall be created defining said dates, which will be
attached hereto and will become hereof a part of the terms and
conditions of this Lease.
G. (DELETED IN ITS ENTIRETY)
H. PROPOSITION 13 PROTECTION
If during the Term, a sale or refinancing of the Premises is
consummated, or a change in ownership of the Premises occurs and as a
result thereof, the real property taxes for the Premises increase
pursuant to a reassessment, then Lessee shall not be obligated to pay
any portion of such increase during the Term.
I. NON-DISTURBANCE AGREEMENT
Lessor, concurrent with the execution of the Lease or as soon thereafter
as reasonably possible, will provide a non-disturbance agreement from
any ground lessor, mortgage holders or other lien holders of Lessor now
in existence. Lessor also agrees to provide a non-disturbance agreement
from any such lien holder who later comes into existence during the
Term. Lessee reserves the right to review such agreement.
33
ADDENDUM "A"
PAGE 3
J. ROOF RIGHTS
Lessee shall have the right to install, including, but not limited to,
its antennas, satellite dishes and HVAC equipment on the roof of the
Building, at no charge, subject to Lessor's consent, which shall not be
unreasonably withheld. Any equipment put on the roof will be at the sole
cost of the Lessee and shall be approved by Lessor so that it does not
show from the street.
K. FIRST RIGHT OF REFUSAL FOR EXPANSION SPACE
Lessor agrees to give Lessee herein First Right of Refusal to lease all
or a portion of the proposed 3-story office building consisting of
approximately 73,000 sq.ft. to be located at 0 Xxxxxxxx Xxxxxx Xxxxx,
Xxxx Xxxxxx, XX (the "Expansion Building") under the following terms and
conditions:
Any time prior to completion of the building shell as evidenced by a
Notice of Substantial Completion from the City of Lake Forest, Lessor
shall not enter into any lease for all or any portion of the "Expansion
Building" with a third party without first offering Lessee an
opportunity to lease such space on the same general terms and conditions
as Lessor is willing to lease space in the Expansion Building to a bona
fide third party. Lessor shall extend such opportunity to lease to
Lessee by notifying Lessee in writing of the proposed terms and
conditions or, at Lessor's option, submitting to Lessee a copy of the
Letter of Intent to lease. If within five (5) business days of the date
of such notice, Lessor has received written notice from Lessee of its
election to lease on the same terms and conditions as those proposed in
the third party Letter of Intent, Lessor and Lessee shall enter into a
lease on those same economic terms and conditions as were proposed in
the third party Letter of Intent. In the event Lessee exercises this
First Right, said written acceptance shall be non-revocable, subject to
Lessee and Lessor negotiating a Lease in good faith and both working
diligently toward execution of said leases. If Lessee leases the entire
Expansion Building, then Lessor shall use this Lease changing only those
items (Premises address, size, rent amount, etc.) specific to the
Expansion Building deal. In the event the Expansion Building is
multi-tenanted, Lessor shall incorporate as much of this Lease as is
appropriate to a Full Service lease form. If Lessor has not received
Lessee's written election to lease space within said five (5) business
day period, Lessor shall be free to execute the proposed lease with a
third-party lessee, or Lessor may be free to lease space in subject
Expansion Building without further notice to Lessee. However, Lessor
agrees to make every reasonable effort to give Lessee a courtesy notice
when entering into negotiations for space in this "Expansion Building"
until said Building is fully leased or Lessee no longer is in need of
Additional Space.
Upon completion of the building shell as evidenced by a Notice of
Substantial Completion from the City of Lake Forest, Lessor shall offer
Lessee a First Right to Lease all or any portion of the Expansion
Building by giving Lessee a one-time offer in writing to lease space in
the Expansion Building at the Fair Market Rental Rate for comparable
space in the City of Lake Forest area, or, if Lessor has a bona fide
offer from a third party at that time, the same terms and conditions as
the Letter of Intent to lease for that third party offer and Lessee
shall have five (5) days to respond in writing. In the event Lessee
exercises its First Right, said written acceptance shall be
non-revocable subject to Lessee and Lessor negotiating a Lease in good
faith and bath working diligently toward execution of said leases. If
Lessee leases the entire Expansion Building, then Lessor shall use this
Lease changing only those items (Premises address, size, rent amount,
etc.) specific to the Expansion Building deal. In the event the
Expansion Building is multi-tenanted, Lessor shall incorporate as much
of this Lease as is appropriate to a Full Service lease form. If Lessor
has not received Lessee's written election to lease space within said
five (5) day period, Lessor shall be free to execute the proposed lease
with a third-party lessee, or Lessor may be free to lease space in
subject Expansion Building without further notice to Lessee. However,
Lessor agrees to make every reasonable effort to give Lessee a courtesy
notice when entering into negotiations for space in this "Expansion
Building" until said Building is fully leased or Lessee no longer is in
need of Additional Space.
L. Lessee shall not have any responsibility to restore or pay for
restoration of the existing granite which is being replaced in the lobby
and main entry stairwell upon Lease Expiration.
X. Xxxxxx acknowledges Lessee desires to install some sort of security
barrier to protect the N.O.C. area from a vehicle coming through the
glass along Bake Parkway. Lessee shall submit a plan to Lessor for
Lessor's approval, not to be unreasonably withheld, prior to
construction of same. All said work will be at Lessee's sole cost and
shall be removed upon Lessee's vacation of the Premises.
34
ADDENDUM "B"
BY AND BETWEEN: XXXX COMMERCIAL REALTY CORP., A NEVADA CORPORATION
AS LESSOR; AND: FUTURELINK MICRO VISIONS CORP., A DELAWARE CORPORATION
AS LESSEE
TO LEASE DATED: APRIL 27, 2000
--------------------------------------------------------------------------------
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the Building without the written consent of Lessor
first had and obtained and Lessor shall have the right to remove and
destroy any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Lessee.
All approved signs or lettering on doors shall be printed,
painted, affixed or inscribed at the expense of Lessee by a
person approved by the Lessor.
Lessee shall not place anything or allow anything to be placed
near the glass of any window, door, partition or wall which may
appear unsightly from outside the Premises; provided, however,
that the Lessor may furnish and install a Building standard
window covering at all exterior windows. Lessee shall not
without prior written consent of Lessor cause or otherwise
install sunscreen on any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways, driveways, and parking areas shall not be obstructed by
Lessees or used by them for any purpose other than for ingress and
egress from their respective Premises.
3. Lessee shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises, without prior written
consent of Lessor and subsequent delivery of a duplicate key to Lessor.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage, a damage resulting from the
violation of this rule shall be borne by the Lessee who, or whose
employees or invitees shall have caused it.
5. Lessee shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substances in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable
to the Lessor or other occupants of the Building by reason of noise,
odors and/or vibrations, or interfere in any way with other Lessees or
those having business therein, nor shall any animals or birds be brought
in or kept in or about the Premises or the Building
7. No cooking except for normal employee meal preparation shall be done or
permitted by any Lessee on the Premises, nor shall the Premises be used
for washing clothes, for lodging, or for any improper, objectionable or
immoral purpose.
8. Lessee shall not keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied or
approved in writing by the Lessor.
9. Lessor will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires
will be allowed without the consent of the Lessor. The locations of
telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Lessor.
10. Lessor reserves the right to exclude or expel from the Building any
person who, in the judgment of Lessor, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
11. Lessee shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
12. Without the written consent of Lessor, Lessee shall not use the name of
the building in connection with or in promoting or advertising the
business of Lessee except as Lessee's address.
13. Lessor shall have the right to control and operate the public portions
of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the
Lessees, in such manner as it deems best for the benefit of the Lessees
generally.
14. All garbage and refuse shall be placed by Lessee in the containers at
the location prepared by Lessor for refuse collection, in the manner and
at the times and places specified by Lessor. Lessee shall not burn any
trash a garbage of any kind in or about the Leased Premises or the
Business Park. All cardboard boxes must be "broken down" prior to being
placed in the trash container. AA Styrofoam chips must be bagged or
otherwise contained prior to placement in the trash container, so as not
to constitute a nuisance. Pallets may not be disposed of in the trash
bins or enclosures. It is the Lessee's responsibility to dispose of
pallets by alternative means.
35
ADDENDUM "B"
PAGE 2
Should any garbage or refuse not be deposited in the manner specified by
Lessor, Lessor may after three (3) hours verbal notice to Lessee, take
whatever action necessary to correct the infraction at Lessee's expense.
15. Except as specified herein, No aerial antenna shall be erected on the
roof a exterior walls of the Leased Premises, or on the grounds, without
in each instance, the written consent of Lessor first being obtained.
Any aerial or antennae so installed without such written consent shall
be subject to removal by Lessor at any time without notice.
16. No loud speakers, televisions, phonographs, radios or other devices
shall be used in a manner so as to be heard or seen outside of the
Building or in neighboring space without the prior written consent of
Lessor.
17. The outside areas immediately adjoining the Building shall be kept clean
and free from dirt and rubbish by the Lessee, to the satisfaction of the
Lessor, and Lessee shall not place or permit any obstruction or
materials in such areas. No exterior storage shall be allowed.
18. Lessee may use such pest extermination as it seems fit.
19. Except as otherwise described in the Lease or with prior consent by
Lessor, these common types of damages will be charged back to the Lessee
if they are not corrected prior to vacating the Premises:
- Keys not returned to Lessor for ALL locks, requiring the service
of a locksmith and rekeying.
- Removal of all decorator painting, wallpapering and paneling, or
Lessor's prior consent to remain.
- Electrical conduit and receptacles on the surface of walls.
- Penetration of roof membrane in any manner.
- Holes in walls, doors, and ceiling surfaces which do not
constitute normal wear and tear.
- Addition or change of standard door hardware.
- Glass damage.
- Damaged, inoperative, or missing electrical, plumbing, or HVAC
equipment.
- Debris and furniture requiring disposal.
- Installation of additional improvements without Lessor's prior
written approval or obtainment of required City building permits
Lessee agrees to comply with all such rules and regulations upon notice
from Lessor. Should Lessee not abide by these Rules and Regulations,
Lessor may serve a three (3) day notice to correct deficiencies. If
Lessee has not corrected deficiencies by the end of the notice period,
Lessee will be in default of lease.
Lessor reserves the right to amend or supplement the foregoing rules and
regulations and to adopt and promulgate additional rules and regulations
applicable to the leased premises. Notice of such rules and regulations
and amendments and supplements thereto, if any, shall be given to the
Lessee.
36
ADDENDUM "C"
TO LEASE DATED: APRIL 27, 2000
BY AND BETWEEN: XXXX COMMERCIAL REALTY CORP., A NEVADA CORPORATION
AS LESSOR; AND: FUTURELINK MICRO VISIONS CORP., A DELAWARE CORPORATION
AS LESSEE
--------------------------------------------------------------------------------
ANNUAL RENT ADJUSTMENT
The minimum Base Monthly Rent set forth in Paragraph 1.5 of this Lease shall be
adjusted as follows:
Beginning on the 1st day of the 25th month through the last day of the 48th
month, the minimum Base Monthly Rent shall be $98,442.18.
Beginning on the 1st day of the 49th month through the last day of the 72nd
month, the minimum Base Monthly Rent shall be $104,437.31*.
Beginning on the 1st day of the 73rd month through the last day of the 96th
month, the minimum Base Monthly Rent shall be $110,797.55*.
Beginning on the 1st day of the 97th month through the last day of the 120th
month, the minimum Base Monthly Rent shall be $117,545.12*.
* Note: The Base Monthly Rent set forth above does not include any triple net
charges or the monthly Tenant Improvement amortization of $5,111.34.
37
ADDENDUM "D"
TO LEASE DATED: APRIL 27, 2000
BY AND BETWEEN: XXXX COMMERCIAL REALTY CORP., A NEVADA CORPORATION
AS LESSOR; AND: FUTURELINK MICRO VISIONS CORP., A DELAWARE CORPORATION
AS LESSEE
--------------------------------------------------------------------------------
OPTION TO EXTEND/LEASE EXTENSION
Providing Lessee is not in Breach under any of the material terms of this Lease,
Lessee shall have the Option to Extend the Term of this Lease for TWO (2)
FIVE-YEAR periods (the "Option Terms" on all the same terms and conditions as
contained in this Lease, except that the minimum Base Monthly Rent commencing
with the first month of each Lease Extension shall be at ninety-five percent
(95%) of the THEN MARKET RATE for equivalent space in the City of Lake Forest.
To exercise this Option to Extend, Lessee must give notice IN WRITING to Lessor
by Certified mail, return receipt requested at least ONE HUNDRED AND EIGHTY DAYS
prior to the expiration of the previous term.
All terms and conditions of Article 39 of the Lease shall remain in full force
and effect.
Should Lessee elect to exercise its Option to Extend the Term, as discussed in
Paragraph 11 above, then at Lessee's discretion, Lessor, at Lessor's sole cost
and expense, shall agree to repaint the entire exterior of the Building during
the first quarter of the eleventh (11th) year and repaint the interior of the
Building during the first quarter of the eleventh (11th) year and the first
quarter of the sixteenth (16th) year.
The "Then Market Rate" of the Premises shall be determined as follows: Lessee
and Lessor shall agree upon a then Market Rate and if unable to agree, then
Lessor and Lessee will each appoint one independent real estate broker who has
been active over the five (5) year period ending on the date of such appointment
in the leasing of comparable commercial properties located in the City of Lake
Forest area of Orange County, California (the "Comparison Area"). The
determination of said brokers will be limited solely to the issue of whether
Lessor's or Lessee's submitted fair market rental rate for the leased area at
issue is the closest to the actual Fair Market Rental Rate for such area as
determined by the brokers, taking into account the requirements below. The two
(2) brokers so appointed will within fifteen (15) days of the date of the
appointment of the last appointed broker agree upon and appoint a third broker.
The three (3) brokers will within thirty (30) days of the appointment of the
third broker reach a decision as to whether the parties will use Lessor's or
Lessee's submitted Fair Market Rental Rate for purposes of establishing the Base
Rent for the Option Term in question which shall be based upon the Fair Market
Rental Rate, and will notify Lessor and Lessee thereof. The decision of the
majority of the three (3) brokers will be binding upon Lessor and Lessee. If
either Lessor or Lessee fails to appoint a broker within the time period
specified above, the broker appointed by one of them will, within thirty (30)
days following the date on which the party failing to appoint a broker could
have last appointed such broker, reach a decision based upon the procedures set
forth above (i.e. by selecting either Lessor's or Lessee's submitted Fair Market
Rental Rate) and notify Lessor and Lessee thereof, and such broker's decision
will be binding upon Lessor and Lessee. If the process described hereinabove has
not resulted in the determination of a Fair Market Rental Rate by the
commencement of the Option Term in question, then the Fair Market Rental Rate
estimated by Lessor will be used until the brokers reach a decision, with an
appropriate rental adjustment for any overpayments of Base Rent or other
amounts.
The term "Fair Market Rental Rate" for purposes of this Lease shall mean the
monthly amounts of Base Rent per Square foot of Floor Area for the Option Term,
that a willing, non-renewal new lessee (excluding sublease and assignment
transactions) would pay, and a willing lessor of a comparable premises located
in the area of the City of Lake Forest (the "Market") would accept, at arm's
length for space of comparable size and quality as the Premises, taking into
account the age, quality and layout of the then existing office improvements in
the Premises (but specifically excluding the value of any Improvements,
Alterations or Utility Installations directly paid for by Lessee subsequent to
the Commencement Date of the Lease) and taking into account all factors, that a
sophisticated Lessor or Lessee would consider relevant, including rental rates,
Lessee size and/or credit standing, or parking charges then being charged or
granted by Lessor or the lessors of comparable buildings in the Market.
38
ADDENDUM "E"
TO LEASE DATED: APRIL 27, 2000
BY AND BETWEEN: XXXX COMMERCIAL REALTY CORP., A NEVADA CORPORATION
AS LESSOR; AND: FUTURELINK MICRO VISIONS CORP., A DELAWARE CORPORATION
AS LESSEE
--------------------------------------------------------------------------------
CONSTRUCTION OF TENANT IMPROVEMENTS
In consideration of Lessee's agreement to enter into this Lease, Lessor agrees
to cause the Building to be constructed and improved substantially in accordance
with all Applicable Law and with such Tenant Improvements as are more
particularly described and detailed on the plans attached hereto as Exhibit "B"
(X. Xxxxx Space Plan 1-2 dated 2/21/00); Exhibit "B-1" (X. Xxxxx Plan A3.1A);
Exhibit "B-2" (X. Xxxxx Plan A3.1B); Exhibit "B-3" (X. Xxxxx Plan A3.2A) and
Exhibit "B-4" (X. Xxxxx Plan A3.2B).
Lessee's architect, X. Xxxxx Associates, shall provide and deliver to Lessor as
soon as reasonably possible after Lease execution, but in no event later than
May 12, 2000, a full set of Final Working Drawings (hereinafter "F.W.D.")
substantially in accordance with the plans set forth on Exhibits "B" through
"B-4" attached including all Mechanical, Electrical and Plumbing engineering
suitable to obtain Building Permits. Said Final Working Drawings (F.W.D.) shall
be deemed to be approved in their entirety by Lessee prior to their delivery to
Lessor by Lessee's architect, X. Xxxxx Associates. Any significant cost
differences due to changes which may appear on the F.W.D'S when compared to
Exhibits "B" through "B-4" herein will be itemized by Lessor within five (5)
business days of receipt of the FWD's and approved by Lessee (such cost and
expenses to be limited to actual cost of differences with a maximum fee xxxx-up
by Lessor's general contractor limited to the general contract base fee
percentage (six percent) and shall not include any xxxx-up for Lessor's
management services), and to the extent they, or any N.I.C. items or Additional
Tenant Improvements requested by Lessee and approved by Lessor, total less than
$73,952.00, may be amortized into the Lease via an Amendment at ten percent
(10%) per annum over the Original Term (10 years) of the Lease. Any costs in
excess of said amount will be treated as Additional Tenant Improvements and paid
for under the terms set forth herein below for same. Lessor shall cooperate
fully in assisting Lessee's architect, X. Xxxxx Associates, to obtain Building
Permits from the City of Lake Forest.
Lessor agrees to construct "turn-key" Tenant Improvements as set forth herein at
its sole cost and expense substantially in accordance with Xxxxxxxx "X", "X-0",
"X-0", "B-3" and "B-4" attached hereto and made a part hereof at no additional
cost to Lessee except for: (1) those costs set forth hereinbelow listed as Above
Standard Costs; (2) any costs which may arise due to changes initiated by Lessee
that differ from the Tenant Improvements set forth in this Addendum "E" and
Exhibits "B" through "B-4" herein; or (3) any costs attributable to those items
listed as "Not Included" (N.I.C.) herein, said Improvements to be completed in a
workmanlike manner using the finishes and specifications noted on said Exhibits
"B" through "B-4", together with the specifications, finishes and exclusions
noted below:
ABOVE STANDARD COSTS
Lessee shall pay Lessor for the following above-standard Tenant Improvements as
set forth in Exhibits "B" through "B-4" attached, said total cost to be
$390,004.00 amortized at ten percent (10%) per annum in one hundred-twenty (120)
equal monthly installments of $5,111.34 due on the first day of each consecutive
month of the Original Term of the Lease, together with the Rent.
1. Ceiling Soffit Detail in "bullpen" areas $30,000.00
Credit for T-Bar $(9,696.00)
$20,304.00
2. Flooring (Credit given for a Building Standard floor covering $74,654.00
allowance of $16.00/sq.yd.)
3. Light Fixture Package $191,705.00
Cost includes: Cost for specified fixtures with credit given for
Building standard 2' x 4' fixtures and the fixtures not used
including the labor to install ($68,000). No under cabinet or cove
lighting included. T-8 lamps used in lieu of T-5 lamps
4. Clear solid-core maple doors throughout (cost includes credit for $11,100.00
building standard rotary birch doors)
39
ADDENDUM "E"
PAGE 2
5. Sidelite door frame and door combo. (Cost includes credit for $18,014.00
Lessor's standard frame)
6. Floor boxes. Includes concrete remove and replace, and xxxxxx $17,957.00
Duct
7. New glass door and concrete sidewalk at Room 114 $3,950.00
8. Two showers with water heater $9,185.00
9. HVAC - additional 32 zones. (Rezone plan not revised
or included.) (Total of 87 zones being installed at this price) $43,065.00
10. Lobby demo - including drywall, electrical and granite $5,800.00
11. Wallpaper $19,112.00
12. Paint open areas where shown $5,500.00
13. Column shrouds. 2' wide with a 6" return using standard $15,246.00
plastic laminate. (Total of 36)
14. Above standard cabinets in Rooms 142, 160, 117, 267, $38,600.00
257, 248, 246, 241, 206 and 201
------------
TOTAL ABOVE STANDARD $474,192.00
Credit for $2/sq.ft. additional allowance for $(147,798.00)
73,899 sq. ft.
------------
$326,394.00
Allowances (Actual numbers may vary when specifics are known.)
1. Terrazzo floor allowance (colors not selected; can $17,500.00
Establish exact cost when material selected)
2. Custom paint allowance for 1,850 sq.ft. $12,210.00
3. Allowance for reception desk and wood wall at $18,000.00
reception area
4. Allowance for breakroom island and metal screen $13,500.00
5. Allowance for glass wall at Xxxx 000. $ 2,400.00
----------
Total Allowances $63,610.00
TOTAL OF TENANT'S COST (TO BE AMORTIZED): $390,004.00
THE FOLLOWING ARE NOT INCLUDED (N.I.C.) IN ABOVE PRICING AND ARE NOT INCLUDED IN
TENANT IMPROVEMENTS LESSOR IS COMPLETING: (However, the below listed N.I.C.
items shall not be performed by Lessor unless requested to do so in writing by
Lessee and paid for by Lessee pursuant to the terms set forth in this Addendum
E.)
- N.O.C. area (9,114 sq.ft.)
- Fire dampers for HVAC in reception area only
- One (1) hour construction in reception area
- Concrete saw cutting for electrical
- TV or "monitors"
- Write on white boards or "magrite" boards
- Projection screens
- Alternative power supplies or power conditioners
- Conduits or ducts through T.I. space to N.O.C. area
- Any "furniture" type cabinets
- Accordion folding doors
- Energy Management System
40
ADDENDUM "E"
PAGE 3
- SCUFFMASTER Paint or special paint products
- Chemical or preaction fire suppression system
- Lobby light fixture allowance
- Additional power above that amperage that is existing
- Any work associated with the proposed power generator including
any "site" work
- Building life safety system (there is none)
- Cable for T.V. xxxx locations
- Any business machines (IB) copiers, fax, etc.
- Any vending machines
- Cable for phone or computers
- All furniture, fixtures or equipment shown on plans
The base building includes the following:
1. Men's and Women's toilet rooms on each floor.
2. Drinking fountain at core.
3. Electrical/telephone closets.
4. Building stairway(s).
5. Mechanical equipment room.
6. An elevator-served lobby.
7. All sheetrock core walls, perimeter columns and interior columns taped
and spackled, ready for painting.
8. HVAC: Primary HVAC duct loop from the mechanical equipment room around
the Building core.
9. Sprinklers: Temporary protection consisting of mains, laterals and
uprights, installed according to Building code.
10. Fire protection alarm and communication systems installed according to
Building code.
11. Floors level to within one-quarter inch (1/4") of any ten foot (10')
radius.
12. Electrical: 2000 AMPS 480V/3 phase power.
Lessor shall construct Lessee's Tenant Improvements as set forth in this
Addendum "E" (this does not include the N.O.C. area). Lessee acknowledges
that the Tenant Improvements to be completed by Lessor are subject to the review
and approval of final working drawings by Lessee, Lessor and the City of Lake
Forest. All Improvements shall be constructed in accordance with all applicable
building codes and ordinances, including but not limited to all applicable ADA
codes and requirements as designed by Lessee's architect, X.Xxxxx Associates.
Lessor shall make every reasonable effort to complete the above Tenant
Improvements as soon as reasonably possible after receipt of signed Leases and
move-in monies, and estimates said work to take approximately sixty (60) days to
complete from date of Lessor's receipt of building permits, but Lessor can make
no guaranty of an exact date of completion. However, Lessor shall diligently
prosecute the construction of the Tenant Improvements to completion, using its
best efforts to substantially complete same by July 26, 2000. Lessee shall be
responsible for obtaining any permits or licenses required for Lessee's
particular use and operation in the Premises including, without limitation,
business licenses, permits for any Hazardous Materials utilized in Lessee's
operations, and any certificate of occupancy which may be required for Lessee's
particular use and operation in the Premises.
Upon mutual execution of Lease documents and Lessor's receipt of move-in monies,
Lessor shall provide access to Lessee and its contractors and employees as
required during normal working hours Monday through Friday, or such extended
hours, including Saturday and Sunday, as are approved by Lessor, said approval
not to be unreasonably withheld, for the purpose of construction of
approximately 9,114 sq.ft. area on the first floor designated as the "N.O.C.",
and marked with diagonal lines on Exhibit "B" attached hereto. (It would not be
considered unreasonable for Lessor to withhold approval for extended
construction hours if Lessee does not provide additional security acceptable to
Lessor to protect Lessor's job site.) Lessee is solely responsible for the
completion of this area and will complete all Tenant Improvements in accordance
with all applicable codes and ordinances. Lessee agrees said access shall be
coordinated with Lessor's job site superintendent and shall not in any way
interfere with or delay the construction of the Tenant Improvements Lessor is
completing as set forth on Addendum "E" herein and whether or not this N.O.C.
area is complete shall not affect the Commencement Date of the Lease as set
forth in this Lease.
41
ADDENDUM "E"
PAGE 4
ADDITIONAL TENANT IMPROVEMENTS: Lessor and Lessee acknowledge that the Tenant
Improvements identified and detailed on Exhibits "B" through "B-4" are the
result of agreements arrived at during previous meeting(s) between Lessor and
Lessee. Any Additional Tenant Improvements are subject to Lessor's approval
thereof not to be unreasonably withheld or delayed, with the understanding that
the total cost of the Additional Tenant Improvements shall be the sole
responsibility of Lessee, and said cost should be limited to Lessor's actual
cost with a maximum fee xxxx-up of the original general contract base fee
percentage (six percent (6%).) If Lessor and Lessee are unable to agree upon the
plans for, or the cost of, any such proposed Additional Tenant Improvements,
Lessor shall not be obliged to construct such Additional Tenant Improvements and
may proceed with the construction of the Tenant Improvements in accordance with
the approved Final Working Drawings. In the event Additional Tenant Improvements
are approved by Lessor, then Lessor shall prepare an Additional Work
Authorization ("AWA") outlining the specific additional work to be completed and
shall deliver same to Lessee. Lessee shall execute said AWA and return it to
Lessor, together with a check for the total cost of such Additional Tenant
Improvements. Lessor shall not be obligated to commence construction of any
approved Additional Tenant Improvements until Lessor has received such signed
AWA and the check. Lessee shall be notified at the time of Lessor's receipt of
the requested Additional Tenant Improvements if same will result in any time
delay in the Completion Date. Any construction delay arising out of Lessee's
request for any Additional Tenant Improvements may result in the acceleration of
the Commencement Date.
COMPLETION OF TENANT IMPROVEMENTS: The Tenant Improvements shall be deemed
"Substantially Completed" for purposes of this Lease upon final inspection
sign-off for the Tenant Improvements set forth herein by the City of Lake Forest
Building Department. However, Lessee agrees the N.O.C. area (approximately 9,114
square foot area located on the first floor as noted by diagonal xxxxx-xxxxx on
Exhibit "B" attached) may or may not be completed by that date, and Lessor is
not doing any tenant improvements whatsoever in said N.O.C.area, and whether or
not that area is complete, rent shall commence as set forth in this Lease.
00
XXXXXXXX-XXXXXX
XXXX XXXXXX, XXXXXXXXXX
[EXHIBIT "A" FLOOR PLAN]
43
[XXXX LOGO]
May 15, 2000
Xx. Xxxx Xxxxxx, President
Xx. Xxxxxxx X. Xxxxx, Vice President, Administration
FUTURELINK MICRO VISIONS CORP.
0 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
RE: Your lease at:
SPECTRUM POINTE
0 Xxxxx Xxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Gentlemen:
Welcome to Spectrum Pointe! Enclosed please find a fully executed copy of your
Lease.
By way of introduction, Xxxx is a commercial real estate development firm with a
current inventory of office, industrial, research and development facilities in
excess of four million square feet. Should you require additional space at any
time, we will be happy to show you other Xxxx suites whenever it is convenient.
I would also like to take this opportunity to introduce our Property Manager,
Xxxxx Xxxxxx. The Property Management Department may be contacted regarding any
property management needs or questions that may arise during the course of your
lease term. Your Property Manager can be reached directly at (000)000-0000.
We at Xxxx Commercial Realty Corp. look forward to your tenancy. If I may be of
further assistance in the coming months, please do not hesitate to call.
Sincerely,
XXXX COMMERCIAL REALTY CORP.
/s/ XXXXXXX X. XXXXXXXXX
Xxxxxxx X. Xxxxxxxxx
Vice President, Marketing
CCA/js
Enclosure: Lease
