EXHIBIT 10.52
LEASE AGREEMENT
(NNN)
Basic Lease Information
Lease Date: March 26, 1999
Landlord: LINCOLN-RECP CM-ES OPCO, LLC, a Delaware limited
liability company
Landlord's Address: c/o Legacy Partners Commercial, Inc.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Tenant: Exodus Communications, Inc., a Delaware corporation
Tenant's Address: 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, XX
00000-0000
Attention: General Counsel
Building: A one-story concrete tilt-up structure consisting
of approximately 90,818 rentable square feet as
shown on Exhibit A-1
Premises: The Building together with vehicular parking
spaces, pedestrian walkways and landscaping within
the area outlined and depicted on Exhibit A-1
hereto.
Park: The Lot, the two buildings containing approximately 198,100
rentable square feet and a parking structure as
shown on Exhibit A
Premises Address: 000 Xxxxx Xxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx
00000
Delivery Date: The date both parties execute and actually deliver
this Lease
Term: July 1, 1999 ("Commencement Date"), through June 30, 2009
("Expiration Date")
Base Rent (3): Sixty-one Thousand Seven Hundred Fifty-six and
24/100 Dollars ($61,756.24) per month
Adjustments to Base Rent: In accordance with the provisions of
Section 41 hereof.
Security Deposit (4): Seventy-one Thousand Six Hundred Fifty-five and
40/100 Dollars ($71,655.40)
*Tenant's Share of Operating Expenses (6.1): 45.8% of the Park and 100% of
the Premises
*Tenant's Share of Tax Expenses (6.2): 45.8% of the Park
*The amount of Tenant's Share of the expenses as referenced above shall
be subject to modification as set forth in this Lease.
Permitted Uses (9): Office and data center, general warehousing, light
industrial and other related uses, but only to the
extent permitted by the City of El Segundo and all
agencies and governmental authorities having
jurisdiction thereof
Unreserved
Parking Spaces: Two Hundred Thirty-five (235) exclusive spaces
within the Premises as depicted on Exhibit A-1
hereto.
Brokers (38): XxXxxxxx Xxxxxxx for Tenant
Klabin Company for Landlord
Exhibits: Exhibit A - Lot and Park
Exhibit A-1 - Building, Premises and Parking
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Hazardous Materials Disclosure Certificate -
Example
Exhibit E - Tenant's Initial Hazardous Materials Disclosure
Certificate
Exhibit F - Memorandum of Lease and Option to Purchase
Exhibit G - Subordination, Non-Disturbance and Attornment
Agreement
Exhibit H - Tenant's Confidential Nondisclosure Agreement
Exhibit I- Tenant's Property
TABLE OF CONTENTS
SECTION PAGE
1. PREMISES 4
2. COMMENCEMENT DATE; CONDITION OF PREMISES 4
3. RENT 5
4. SECURITY DEPOSIT 5
5. TENANT IMPROVEMENTS 6
6. ADDITIONAL RENT 6
7. UTILITIES 9
8. LATE CHARGES 9
9. USE OF PREMISES 9
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES 10
11. REPAIRS AND MAINTENANCE 11
12. INSURANCE 12
13. WAIVER OF SUBROGATION 14
14. LIMITATION OF LIABILITY AND INDEMNITY 14
15. ASSIGNMENT AND SUBLEASING 15
16. AD VALOREM TAXES 17
17. XXXXXXXXXXXXX 00
00. RIGHT OF ENTRY 18
19. ESTOPPEL CERTIFICATE 19
20. TENANT'S DEFAULT 19
21. REMEDIES FOR TENANT'S XXXXXXX 00
00. HOLDING OVER 21
23. LANDLORD'S DEFAULT 21
24. PARKING 22
25. SALE OF PREMISES 22
26. WAIVER 22
27. CASUALTY DAMAGE 22
28. CONDEMNATION 24
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS 24
30. FINANCIAL STATEMENTS 27
31. GENERAL PROVISIONS 27
32. SIGNS 28
33. MORTGAGEE PROTECTION 29
34. QUITCLAIM 29
35. MODIFICATIONS FOR LENDER 29
36. WARRANTIES OF TENANT 29
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT 30
38. BROKERAGE COMMISSION 30
39. QUIET ENJOYMENT 31
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS 31
41. ADJUSTMENTS TO BASE RENT 31
42. OPTIONS TO EXTEND THE LEASE XXXX 00
00. OPTION TO EXPAND 34
44. OPTION TO XXXXXXXX 00
00. LETTER OF CREDIT 38
46. TENANT'S ABILITY TO PERFORM LANDLORD'S UNPERFORMED OBLIGATIONS 39
47. SATELLITE DISH 40
LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date set forth
on Page 1. The Basic Lease Information set forth on Page 1 and
this Lease are and shall be construed as a single instrument.
1. PREMISES
Landlord hereby leases the Premises to Tenant upon the terms and
conditions contained herein. The Premises consist of the entirety of the
Building together with vehicular parking spaces, pedestrian walkways and
landscaping within the area outlined and depicted on Exhibit A-1 hereto.
Tenant may not use any other portion of the Park other than the
Premises. The location, fencing and configuration of the area
surrounding the Building shall be subject to the approval of the
governmental agencies having jurisdiction thereof, and Tenant
acknowledges and agrees that the location and configuration of the area
surrounding the Building may be changed in accordance with the
governmental agencies' requirements. At Tenant's sole cost and expense,
Tenant hereby covenants to construct and install around the perimeter of
the area surrounding the Building a fence reasonably acceptable to
Landlord and all governmental entities having jurisdiction thereof.
Tenant's and Tenant's Representatives' (hereafter defined) use and
occupancy of the fenced area surrounding the Building shall be exclusive
only as to (i) the other tenants of the Park and (ii) the public in
general but not including Landlord and its authorized representatives,
employees, invitees, contractors and similarly affiliated parties for the
purposes of fulfilling Landlord's obligations hereunder as well as for
purposes of Landlord's exercise of its rights and remedies hereunder.
Tenant shall use, maintain and repair the fenced area surrounding the
Building subject to, and in accordance with, the terms and provisions of
this Lease, including but not limited to, the provisions of Section 11
hereinbelow. In addition to the foregoing, Tenant shall be solely
responsible and liable for any and all security measures related to the
fenced area surrounding the Building and the Premises and, subject to the
provisions of Section 14 hereof, Landlord shall not in any manner or
circumstance be liable nor responsible for any goods, personal property
or similar items stored, kept and/or situated in, on or about the
Premises at any time during the Term of this Lease. Nothing contained
herein shall limit, impair or otherwise diminish Landlord's and its
authorized representatives' rights and ability to enter the area
surrounding the Building for purposes of performing Landlord's
obligations under this Lease (if any) but such entry shall be subject to
the provisions of Section 18 hereinbelow. Landlord and its
representatives will use commercially reasonable efforts to minimize
interference with the conduct of Tenant's business in the Premises.
Landlord and Tenant hereby agree that for purposes of this Lease, as of
the Lease Date, the rentable square footage area of the Premises and the
Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information. Tenant further agrees that the
number of rentable square feet of the Park may subsequently change after
the Lease Date commensurate with any modifications to any of the
foregoing by Landlord, and Tenant's Share shall accordingly change.
Tenant's Share shall not change by reason of the Tenant Improvements
performed by Tenant so long as there is no increase in the rentable
square footage of the perimeter of the Building; provided, for purposes
hereof, the addition by Tenant of any interior mezzanine area and outdoor
storage areas shall not be construed as an increase in the rentable
square footage of the Building.
2. COMMENCEMENT DATE; CONDITION OF PREMISES
2.1 The Term of this Lease shall commence on the Commencement
Date subject to extension due to Landlord Delays. For purposes hereof,
the term "Landlord Delays" shall mean and refer to unreasonable delays
solely on the part of Landlord in timely responding and giving its
approval or disapproval of any of the Construction Documents within the
time frames expressly set forth in Exhibit B hereto. Landlord shall
deliver the Premises to Tenant on the Delivery Date broom clean in its
presently existing condition (without any additional improvements made
thereto) in order for Tenant to begin construction of its Tenant
Improvements in accordance with the provisions of Exhibit B hereto.
Tenant's contractor shall have access to the Premises for the purpose of
constructing Tenant Improvements therein. From and after the Delivery
Date, Tenant shall perform all obligations of Tenant hereunder, other
than those requiring the payment of Rent. Tenant's obligation to pay
Rent shall commence on the Commencement Date regardless of whether or not
the Tenant Improvements are completed. Notwithstanding anything to the
contrary contained herein, it is the parties' intention that (i) the
Commencement Date of this Lease shall be the date specified in the Basic
Lease information, July 1, 1999, (ii) except to the extent attributable
solely to Landlord Delays, any delays in Tenant completing the Tenant
Improvements shall not affect or otherwise extend the Commencement Date
of July 1, 1999, and (iii) Tenant shall be wholly responsible for the
design, construction and substantial completion of the Tenant
Improvements. If there are any undisputed Landlord Delays, the
Commencement Date shall be adjusted commensurately on a daily basis for
each day of a Landlord Delay. The word "Term" whenever used herein
refers to the initial term of this Lease and any extension thereof.
2.2 Landlord shall permit Tenant to occupy the Premises on the
Delivery Date for the limited purpose described below. Such early
occupancy shall be at Tenant's sole risk and subject to all the
provisions of this Lease other than those requiring the payment of Rent,
including, but not limited to, paying the Security Deposit, obtaining the
insurance required pursuant to this Lease and delivering insurance
certificates as required herein. Such early occupancy (i) shall also be
subject to the provisions of Exhibit B, (ii) shall only be permitted to
the extent such occupancy is approved by the City of El Segundo, and
(iii) shall only be for the limited purpose of construction by Tenant of
the Tenant Improvements. In addition to the foregoing, Landlord shall
have the right, from time to time, to impose such additional conditions
on Tenant's early occupancy as shall be reasonably necessary or
appropriate for the protection of the rights of other tenants of the Park
to the quiet use and enjoyment of their premises. By taking possession
of the Premises, Tenant shall be deemed to have accepted the Premises in
good condition and state of repair. Tenant hereby acknowledges and
agrees that neither Landlord nor any of Landlord's agents or
representatives has made any representations or warranties as to the
suitability, safety or fitness of the Premises for the conduct of
Tenant's business, Tenant's intended use of the Premises or for any other
purpose.
3. RENT
On the date that Tenant executes this Lease, Tenant shall deliver to
Landlord the original executed Lease, the Base Rent payable for one (1)
calendar month (which shall be applied against the Rent payable for the
first month Tenant is required to pay Base Rent), the Security Deposit,
and all insurance certificates evidencing the insurance required to be
obtained by Tenant under Section 12 and Exhibit B of this Lease. Tenant
agrees to pay Landlord, without prior notice or demand, or abatement,
offset, deduction or claim, the Base Rent described in the Basic Lease
Information, payable in advance at Landlord's address specified in the
Basic Lease Information on the Commencement Date and thereafter on the
first (1st) day of each month throughout the balance of the Term of the
Lease. In addition to the Base Rent set forth in the Basic Lease
Information, Tenant shall pay Landlord in advance on the Commencement
Date and thereafter on the first (1st) day of each month throughout the
balance of the Term of this Lease, as Additional Rent, Tenant's Share of
Operating Expenses and Tax Expenses. The term "Rent" whenever used
herein refers to the aggregate of all these amounts. The Rent for any
fractional part of a calendar month at the commencement or termination of
the Lease term shall be a prorated amount of the Rent for a full calendar
month based upon a thirty (30) day month.
4. SECURITY DEPOSIT
Simultaneously with Tenant's execution of this Lease, Tenant shall
deliver to Landlord, as a Security Deposit for the performance by Tenant
of its obligations under this Lease, the amount specified in the Basic
Lease Information. If Tenant is in default, Landlord may, but without
obligation to do so, use the Security Deposit, or any portion thereof, to
cure the default or to compensate Landlord for all damages sustained by
Landlord resulting from Tenant's default. Tenant shall, immediately on
demand, pay to Landlord a sum equal to the portion of the Security
Deposit so applied or used so as to replenish the amount of the Security
Deposit held to increase such deposit to the amount initially deposited
with Landlord. At any time after Tenant has defaulted hereunder more
than three (3) times in any twelve (12) month period (a "Chronic
Default"), Landlord may require an increase in the amount of the
Security Deposit required hereunder, up to a maximum of two hundred
percent (200%) of the amount of the original Security Deposit, for the
then balance of the Lease Term and Tenant shall, immediately on demand,
pay to Landlord additional sums in the amount of such increase. Within
thirty (30) days after the termination of this Lease, Landlord shall
return the Security Deposit to Tenant, less such amounts as are
reasonably necessary, if any, to remedy Tenant's default(s) hereunder or
to otherwise restore the Premises to a clean and safe condition,
reasonable wear and tear excepted. If the cost to restore the Premises
exceeds the amount of the Security Deposit, Tenant shall promptly deliver
to Landlord any and all of such excess sums as reasonably determined by
Landlord. The foregoing treatment of the Security Deposit shall be in
the manner prescribed by the provisions of California Civil Code Section
1950.7 and any amendments, replacement or successor statutes thereof.
Landlord shall not be required to keep the Security Deposit separate from
other funds, and, unless otherwise required by law, Tenant shall not be
entitled to interest on the Security Deposit. In no event or
circumstance shall Tenant have the right to any use of the Security
Deposit and, specifically, Tenant may not use the Security Deposit as a
credit or to otherwise offset any payments required hereunder, including,
but not limited to, Rent or any portion thereof.
5. TENANT IMPROVEMENTS
Tenant hereby agrees to accept the Premises on the Delivery Date as
suitable for Tenant's intended use and as being in good operating order,
condition and repair, "AS IS", except as specified in Exhibit B attached
hereto. Tenant shall design, install and construct the Tenant
Improvements (as such term is defined in Exhibit B hereto) in accordance
with the terms, conditions, criteria and provisions set forth in Exhibit
B. Landlord and Tenant hereby agree to and shall be bound by the terms,
conditions and provisions of Exhibit B. Tenant acknowledges and agrees
that neither Landlord nor any of Landlord's agents, representatives or
employees has made any representations as to the suitability, fitness or
condition of the Premises for the conduct of Tenant's business or for any
other purpose, including without limitation, any storage incidental
thereto. Any exception to the foregoing provisions must be made by
express written agreement by both parties.
6. ADDITIONAL RENT
It is intended by Landlord and Tenant that this Lease be a "triple net
lease." The costs and expenses described in this Section 6 and all other
sums, charges, costs and expenses specified in this Lease other than Base
Rent are to be paid by Tenant to Landlord as additional rent
(collectively, "Additional Rent").
6.1 Operating Expenses: In addition to the Base Rent set forth
in Section 3, Tenant shall pay Tenant's Share, which is specified in the
Basic Lease Information, of all Operating Expenses as Additional Rent.
The term "Operating Expenses" as used herein shall mean the total amounts
paid or payable by Landlord in connection with the ownership,
maintenance, repair and operation of the Premises and the Lot. These
Operating Expenses may include, but are not limited to:
6.1.1 Landlord's annual cost of insurance insuring against
fire and extended coverage (including, if Landlord elects, "all
risk" or "special purpose" coverage) and all other insurance,
including, but not limited to, earthquake coverage for the Building,
the Lot and, to the extent applicable, the Park, rental value
insurance against loss of Rent in an amount equal to the amount of
Rent for a period of at least six (6) months commencing on the date
of loss, and any deductible, all of the foregoing in accordance with
the provisions of Section 12.5 below;
6.1.2 Landlord's cost of: (i) modifications and/or new
improvements to the Premises required by any rules, laws or
regulations effective subsequent to the Delivery Date; (ii)
reasonably necessary replacement improvements to the Premises after
the Delivery Date, other than and excluding the replacement of the
items set forth in Section 11.3 hereof that are the sole
responsibility of Landlord; and (iii) new improvements to the
Premises, that reduce operating costs or improve life/safety
conditions, all as reasonably determined by Landlord, in its sole
discretion; provided, however, if any of the foregoing are in the
nature of capital improvements, then the cost of such capital
improvements shall be amortized on a straight-line basis over a
reasonable period, which shall be the estimated useful life of such
modifications, new improvements or replacement improvements in
question (at an interest rate as reasonably determined by
Landlord), and Tenant shall pay Tenant's Share of the monthly
amortized portion of such costs (including interest charges) as
part of the Operating Expenses herein;
6.1.3 Landlord's cost for the repairs and maintenance items
set forth in Section 11.2 below; and
6.1.4 Landlord's cost for the management and administration
of the Premises, including without limitation, a property
management fee, accounting, auditing, billing, salaries for
clerical and supervisory employees (whether located within the Park
or off-site) and all fees, licenses and permits related to the
ownership, operation and management of any portion of the Park in
an amount not to exceed one and one-half percent ( 1/2%) of the Base
Rent.
Notwithstanding anything in this Section 6.1 to the contrary, the
term "Operating Expense" shall not include any of the following and none
of the following items shall be payable in whole or in part by or in any
way charged to Tenant:
(i) Interest or penalties resulting from late payment
of any Operating Expense by Landlord due to Landlord's
negligence or willful misconduct (unless Landlord in good
faith disputes a charge and subsequently loses or settles that
dispute); provided, that Tenant timely pays Tenant's Share of
Operating Expenses and Tax Expenses to Landlord when due as
set forth herein;
(ii) Costs, fees, and compensation paid to Landlord, or
to Landlord's subsidiaries or affiliates, for services in or
to the Building to the extent that they exceed the charges for
comparable services rendered by an unaffiliated third party of
comparable skill, competence, stature, and reputation;
(iii) Costs associated with the investigation and/or
remediation of Hazardous Materials (hereinafter defined)
present in, on or about the Premises or the Park, unless such
costs and expenses are the responsibility of Tenant as
provided in Section 29 of this Lease, in which event such
costs and expenses shall be paid solely by Tenant in
accordance with the provisions of Section 29 of this Lease;
(iv) Any cost or expense which is actually reimbursed
to Landlord through insurance or otherwise;
(v) Costs attributable to seeking and obtaining new
tenants in the Park as well as retaining existing tenants in
the Park (other than Tenant), such as advertising, brokerage
commissions, architectural, engineering and attorneys' fees
and costs for renovations and improvements to buildings in the
Park other than the Premises;
(vi) Any items for which Landlord is actually
reimbursed by any other tenant of the Park;
(vii) Real estate brokers' leasing commissions;
(viii) Other than any interest charges for capital
improvements referred to in Section 6.1.2 hereinabove, any
interest or payments on any financing for the Building or the
Park, and any bad debt loss, rent loss or reserves for same;
(ix) Any costs, fines or penalties incurred solely and
directly resulting from actual violations by Landlord of any
governmental rule or authority for which Landlord is
responsible hereunder;
(x) Costs associated with the operation of the
business of the entity which constitutes Landlord or
Landlord's property manager, as the same are distinguished
from the cost of operation of the Building or the Park,
including partnership or corporate accounting and legal
matters, costs of defending any lawsuits with any mortgagee or
lender, costs of selling, syndicating, financing, mortgaging
or hypothecating any of Landlord's interest in the Park or the
Building, disputes of Landlord with the property management
company managing the Park, to the extent any of the
aforementioned costs are not, in any way, attributable to the
use being made of the Premises by Tenant and Tenant's
Representatives or otherwise attributable to the acts or
omissions of Tenant and/or any of Tenant's Representatives;
(xi) Overhead and profit paid to subsidiaries or
affiliates of Landlord for management services to the extent
that the cost of those items would not have been paid had the
services been provided by unaffiliated parties on a
competitive basis; and
(xii) Except for costs paid or payable by Landlord
with respect to insurance and taxes (including without
limitation, Tax Expenses), any amount paid or payable by
Landlord in connection with the ownership, maintenance, repair
and operation of the building (presently occupied by Duty Free
Shoppers), parking areas parking structure, pedestrian
walkways, and landscaping wholly situated on the portion of
the Lot which is not included within the Premises.
6.2 Tax Expenses: In addition to the Base Rent set forth in
Section 3, Tenant shall pay Tenant's Share of all real property taxes
applicable to the land and improvements included within the Lot on which
the Premises are situated and one hundred percent (100%) of all personal
property taxes now or hereafter assessed or levied against the Premises
or Tenant's personal property. Tenant shall also pay one hundred percent
(100%) of any increase in real property taxes attributable to any and all
alterations, Tenant Improvements or other improvements of any kind,
whatsoever placed in, on or about the Premises for the benefit of, at the
request of, or by Tenant. The term "Tax Expenses" shall mean and
include, without limitation, any form of tax and assessment (general,
special, supplemental, ordinary or extraordinary), commercial rental tax,
payments under any improvement bond or bonds, license fees, license tax,
business license fee, rental tax, transaction tax, levy, or penalty
imposed by authority having the direct or indirect power of tax
(including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement district thereof)
as against any legal or equitable interest of Landlord in the Premises,
the Lot or the Park, as against Landlord's right to rent or as against
Landlord's business of leasing the Premises or the occupancy of Tenant or
any other tax, fee, or excise, however described, including, but not
limited to, any value added tax, or any tax imposed in substitution
(partially or totally) of any tax previously included within the
definition of real property taxes, or any additional tax the nature of
which was previously included within the definition of real property
taxes. The term "Tax Expenses" shall not include any franchise, estate,
gift, inheritance, net income, capital stock, or excess profits tax
imposed upon Landlord or any other tax which is applied or measured by
Landlord's general or net income (as opposed to rents or income
attributable to operations at the Park). Tax Expenses shall not include
any interest or late payment expense or penalty resulting from Landlord's
failure to pay the Tax Expenses in a timely manner unless such failure is
the direct result of Tenant's failure to pay its proportionate share
thereof within the times prescribed by this Lease.
6.3 Payment of Expenses: Landlord shall estimate Tenant's Share
of the Operating Expenses and Tax Expenses for the calendar year in which
the Lease commences. Commencing on the Commencement Date, one-twelfth
(1/12th) of this estimated amount shall be paid by Tenant to Landlord, as
Additional Rent, and thereafter on the first (1st) day of each month
throughout the remaining months of such calendar year. Thereafter,
Landlord may estimate such expenses as of the beginning of each calendar
year during the Term of this Lease and Tenant shall pay one-twelfth
(1/12th) of such estimated amount as Additional Rent hereunder on the
first (1st) day of each month during such calendar year and for each
ensuing calendar year throughout the Term of this Lease. Operating
Expenses for partial calendar years occurring at the beginning and the
end of the Lease Term shall be prorated on the basis of the number of
months in such partial calendar year. Tenant's obligation to pay
Tenant's Share of Operating Expenses and Tax Expenses shall survive the
expiration or earlier termination of this Lease.
6.4 Annual Reconciliation: By June 30th of each calendar year
Landlord shall furnish Tenant with an accounting of actual Operating
Expenses and Tax Expenses. Within thirty (30) days of Landlord's
delivery of such accounting, Tenant shall pay to Landlord the amount of
any underpayment. Notwithstanding the foregoing, failure by Landlord to
give such accounting by such date shall not constitute a waiver by
Landlord of its right to collect any of Tenant's underpayment at any
time. Landlord shall credit the amount of any overpayment by Tenant
toward the next estimated monthly installment(s) falling due, or where
the Term of the Lease has expired, refund the amount of overpayment to
Tenant. If the Term of the Lease expires prior to the annual
reconciliation of expenses Landlord shall have the right to reasonably
estimate Tenant's Share of such expenses, and if Landlord determines that
an underpayment is due, Tenant hereby agrees that Landlord shall be
entitled to deduct such underpayment from Tenant's Security Deposit. If
Landlord reasonably determines that an overpayment has been made by
Tenant, Landlord shall refund said overpayment to Tenant as soon as
practicable thereafter. Notwithstanding the foregoing, failure of
Landlord to accurately estimate Tenant's Share of such expenses or to
otherwise perform such reconciliation of expenses, including without
limitation, Landlord's failure to deduct any portion of any underpayment
from Tenant's Security Deposit, shall not constitute a waiver of
Landlord's right to collect any of Tenant's underpayment at any time
during the Term of the Lease or at any time after the expiration or
earlier termination of this Lease.
6.5 Audit: After delivery to Landlord of at least thirty (30)
days prior written notice, Tenant, at its sole cost and expense through
any accountant designated by it, shall have the right to examine and/or
audit the books and records evidencing such costs and expenses for the
previous one (1) calendar year, during Landlord's reasonable business
hours but not more frequently than once during any calendar year. Any
such accounting firm designated by Tenant may not be compensated on a
contingency fee basis. The results of any such audit (and any
negotiations between the parties related thereto) shall be maintained
strictly confidential by Tenant and its accounting firm and shall not be
disclosed, published or otherwise disseminated to any other party other
than to Landlord and its authorized agents or as required by law or in
connection with any actual or contemplated legal proceeding regarding
Operating Expenses or Tax Expenses. If it is determined (by agreement of
the parties, by an arbitrator, or by a final adjudicated judgment) that
the Operating Expenses and/or Tax Expenses charged Tenant for any
calendar year exceeded the actual amount hereof by more than six percent
(6%) Landlord shall, in addition to the refund or credit to Tenant of
such excess, reimburse Tenant for all third-party verified accounting
costs (but no other fees or costs) reasonably incurred by Tenant in
connection with the audit and recovery of amounts overpaid. Landlord and
Tenant shall use their best efforts to cooperate in such negotiations and
to promptly resolve any discrepancies between Landlord and Tenant in the
accounting of such costs and expenses.
7. UTILITIES
Prior to the Delivery Date, Tenant shall cause all of the Utility
Expenses (hereinafter defined) to be placed in Tenant's name with the
invoices sent directly to Tenant at the Premises. Tenant shall pay
directly to the appropriate utility company or similar entity the cost of
all water, sewer use, sewer discharge fees and sewer connection fees,
gas, heat, electricity, refuse pickup, janitorial service, telephone,
telecommunications and other utilities (collectively, the "Utility
Expenses") billed or metered separately to the Premises and/or Tenant
during the Term of the Lease and during the period of Tenant's occupancy
of the Premises prior to the Commencement Date. Tenant shall also pay
any and all assessments or charges for utility or similar purposes
included within any tax xxxx for the Lot on which the Building is
situated, including without limitation, entitlement fees, allocation unit
fees and/or any similar fees or charges. Upon Landlord's request, Tenant
shall promptly deliver to Landlord written evidence of Tenant's payment
of the Utility Expenses. Tenant acknowledges that the Premises may
become subject to the rationing of water or restrictions on water use as
required by a public utility company, governmental agency or other
similar entity having jurisdiction thereof. Notwithstanding any such
rationing or restrictions on use of any such water, Tenant acknowledges
and agrees that its tenancy and occupancy hereunder shall be subject to
such rationing restrictions as may be imposed upon Landlord, Tenant, the
Premises or the Park, and Tenant shall in no event be excused or relieved
from any covenant or obligation to be kept or performed by Tenant by
reason of any such rationing or restrictions. Tenant further agrees to
timely and faithfully pay, prior to delinquency, any amount, tax, charge,
surcharge, assessment or imposition levied, assessed or imposed upon the
Premises, or Tenant's use and occupancy thereof by a public utility
company, governmental agency, taxing authority or similar entity having
jurisdiction thereof.
8. LATE CHARGES
Any and all sums or charges set forth in this Section 8 are considered
part of Additional Rent. Tenant acknowledges that late payment (the
fifth day of each month or any time thereafter) by Tenant to Landlord of
Base Rent, Tenant's Share of Operating Expenses, Tax Expenses, or other
sums due hereunder, will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of such costs being extremely difficult
and impracticable to fix. Such costs include, without limitation,
processing and accounting charges, and late charges that may be imposed
on Landlord by the terms of any note secured by any encumbrance against
the Premises, and late charges and penalties due to the late payment of
real property taxes on the Premises. Therefore, if any installment of
Rent or any other sum due from Tenant is not received by Landlord when
due, Tenant shall promptly pay to Landlord an additional sum equal to
five percent (5%) of such delinquent amount. If Tenant delivers to
Landlord a check for which there are not sufficient funds, Landlord may,
at its sole option, require Tenant to replace such check with a cashier's
check for the amount of such check and all other charges payable
hereunder. The parties agree that this late charge and the other charges
referenced above represent a fair and reasonable estimate of the costs
that Landlord will incur by reason of late payment by Tenant. Acceptance
of any late charge or other charges shall not constitute a waiver by
Landlord of Tenant's default with respect to the delinquent amount, nor
prevent Landlord from exercising any of the other rights and remedies
available to Landlord for any other breach of Tenant under this Lease.
9. USE OF PREMISES
9.1 Compliance with Laws, Recorded Matters, and Rules and
Regulations: The Premises are to be used solely for the purposes and
uses specified in the Basic Lease Information and for no other uses or
purposes without Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed so long as the proposed use (i)
does not involve the use of Hazardous Materials other than as expressly
permitted under the provisions of Xxxxxxx 00 xxxxx, (xx) does not require
any additional parking in excess of the parking spaces already provided
to Tenant pursuant to the provisions of Section 24 of this Lease, and
(iii) is compatible and consistent with the other uses then being made in
the Park and in other similar types of buildings in the vicinity of the
Park, as reasonably determined by Landlord. The use of the Premises by
Tenant and its employees, representatives, agents, invitees, licensees,
subtenants, customers or contractors (collectively, "Tenant's
Representatives") shall be subject to, and at all times in compliance
with, (a) any and all applicable laws, ordinances, statutes, orders and
regulations as same exist from time to time (collectively, the "Laws"),
(b) any and all documents, matters or instruments, including without
limitation, any declarations of covenants, conditions and restrictions,
and any supplements thereto, each of which has been or hereafter is
recorded in any official or public records with respect to the Premises,
the Lot and/or the Park, or any portion thereof (collectively, the
"Recorded Matters"), and (c) any and all rules and regulations set forth
in Exhibit C, attached to and made a part of this Lease, and any other
reasonable rules and regulations promulgated by Landlord now or hereafter
enacted relating to parking and the operation of the Premises and the
Park (collectively, the "Rules and Regulations"). Tenant agrees to, and
does hereby, assume full and complete responsibility to ensure that the
Premises are adequate to fully meet the needs and requirements of
Tenant's intended operations of its business within the Premises, and
Tenant's use of the Premises and that same are in compliance with all
applicable Laws throughout the Term of this Lease. Additionally, Tenant
shall be solely responsible for the payment of all costs, fees and
expenses associated with any modifications, improvements or alterations
to the Premises, the Common Areas and/or the Park occasioned by the
enactment of, or changes to, any Laws arising from Tenant's particular
use of the Premises or alterations, improvements or additions made to the
Premises by or on behalf of Tenant regardless of when such Laws became
effective.
9.2 Prohibition on Use: Tenant shall not use the Premises or
permit anything to be done in or about the Premises nor keep or bring
anything therein which will in any way conflict with any of the
requirements of the Board of Fire Underwriters or similar body now or
hereafter constituted or in any way increase the existing rate of or
affect any policy of fire or other insurance upon the Building or any of
its contents, or cause a cancellation of any insurance policy. No
auctions may be held or otherwise conducted in, on or about the Premises,
the Lot or the Park without Landlord's written consent thereto, which
consent may be given or withheld in Landlord's sole discretion. Tenant
shall not do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of Landlord, other
tenants or occupants of other buildings in the Park, or other persons or
businesses in the area, or injure or annoy other tenants or use or allow
the Premises to be used for any unlawful or purpose, nor shall Tenant
cause, maintain or permit any private or public nuisance in, on or about
the Premises, Park and/or the Common Areas, including, but not limited
to, any offensive odors, noises, fumes or vibrations. Tenant shall not
damage or deface or otherwise commit or suffer to be committed any waste
in, upon or about the Premises. Tenant shall not place or store, nor
permit any other person or entity to place or store, any property,
equipment, materials, supplies, personal property or any other items or
goods outside of the Premises for any period of time. Tenant shall not
permit any animals, including, but not limited to, any household pets, to
be brought or kept in or about the Premises. Tenant shall place no loads
upon the floors, walls, or ceilings in excess of the maximum designed
load permitted by the applicable Uniform Building Code or which may
damage the Building or outside areas; nor place any harmful liquids in
the drainage systems; nor dump or store waste materials, refuse or other
such materials, or allow such to remain outside the Building area, except
for any non-hazardous or non-harmful materials which may be stored in
refuse dumpsters or in any enclosed trash areas provided
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES
10.1 Alterations and Additions: Tenant shall be permitted to
install and construct in and about the Premises the Tenant Improvements
subject to, and in accordance with, the provisions of Exhibit B hereto.
Except for the Tenant Improvements as aforesaid, Tenant shall not install
any signs, fixtures, improvements, nor make or permit any other
alterations or additions to the Premises without the prior written
consent of Landlord which consent shall not be unreasonably withheld or
delayed; provided, however, in no event may Tenant expand the Premises or
make any penetrations to the roof which will affect the structural
integrity of the Building without first obtaining Landlord's prior
written consent, which consent may be given or withheld in Landlord's
sole discretion. Notwithstanding the foregoing, Tenant shall be
permitted to make, at its sole cost and expense, non-structural
alterations and additions to the Premises and roof penetrations which do
not affect the structural integrity of the Building without obtaining
Landlord's prior written consent, provided the cost of same does not
exceed $150,000 (exclusive of the cost of any equipment, personal
property or trade fixtures) in the aggregate during a calendar year (the
"Permitted Improvements"). Tenant, however, shall first notify Landlord
of such alterations or additions so that Landlord may post a Notice of
Non-Responsibility on the Premises. Within fifteen (15) business days of
Landlord's receipt of Tenant's written notice of any item comprising the
Permitted Improvements, Landlord shall notify Tenant, in writing, whether
or not Landlord will require Tenant to remove such item from the Premises
upon the expiration or earlier termination of this Lease. If any such
alteration or addition is expressly permitted by Landlord or otherwise
under the provisions of this Lease, Tenant shall deliver at least fifteen
(15) days prior notice to Landlord, from the date Tenant intends to
commence construction, sufficient to enable Landlord to post a Notice of
Non-Responsibility. At the time Landlord notifies Tenant of its approval
or disapproval of any such request, Landlord shall advise Tenant in
writing of those fixtures (other than trade fixtures and the Tenant's
Property which property shall be, and remain, owned by Tenant and which
Tenant will remove from the Premises), improvements, alterations and
additions which Landlord will require Tenant to remove (including without
limitation, any items comprising the Tenant Improvements) upon the
expiration or earlier termination of the Lease. In the event Landlord
does not advise Tenant whether or not such fixture, improvement,
alteration or addition should be removed, Tenant shall deem such silence
to mean that such fixture, improvement, alteration and addition will be
required to be removed at the expiration or earlier termination of this
Lease. In all events, Tenant shall obtain all permits or other
governmental approvals prior to commencing any of such work and deliver a
copy of same to Landlord. All alterations and additions shall be
installed by a licensed contractor reasonably approved by Landlord, at
Tenant's sole expense, in compliance with all applicable Laws (including,
but not limited to, the ADA as defined herein), Recorded Matters, and
Rules and Regulations. Tenant shall keep the Premises and the property
on which the Building is situated free from any liens arising out of any
work performed, materials furnished or obligations incurred by or on
behalf of Tenant. For purposes hereof, alterations shall include, but
not be limited to, electric lines, feeders, risers, wiring and cables.
10.2 Surrender of Premises: Upon the termination of this Lease,
whether by forfeiture, lapse of time or otherwise, or upon the
termination of Tenant's right to possession of the Premises, Tenant will
at once surrender and deliver up the Premises to Landlord, together with
any attached fixtures [other than the Tenant's Property (defined below),
trade fixtures, and any furniture bolted for earthquake purposes which
shall be deemed to be not attached to the Premises], additions and
improvements which Tenant is not to remove pursuant to the provisions of
Section 10.1 hereof, in good condition and repair (including, but not
limited to, replacing all light bulbs and ballasts not in good working
condition) and, notwithstanding anything to the contrary contained
herein, unless otherwise notified by Landlord in writing in accordance
with the provisions hereof, in the condition in which the Premises
existed as of the Lease Date, except for reasonable wear and tear.
Reasonable wear and tear shall not include any damage or deterioration to
the floors of the Premises arising from the use of forklifts in, on or
about the Premises (including, without limitation, any marks or stains of
any portion of the floors), and any damage or deterioration that would
have been prevented by proper maintenance by Tenant or Tenant otherwise
timely performing all of its obligations under this Lease. Upon such
termination of this Lease, Tenant shall remove the Permitted Improvements
(to the extent Landlord has notified Tenant in writing, at the time set
forth in Section 10.1, that it will require such removal, or it is deemed
to be required to be removed), the Tenant's Property, all tenant signage,
trade fixtures, non-attached fixtures, furniture, furnishings, personal
property and, if Landlord has notified Tenant, in writing, that it will
require such removal (or it is deemed to be required to be removed) such
attached fixtures (other than trade fixtures), additions or improvements
installed by, or on behalf of Tenant (including without limitation, any
items comprising the Tenant Improvements) or situated in or about the
Premises. Tenant shall repair any and all damage caused by the
installation or removal of such signs, trade fixtures, furniture,
furnishings, fixtures, additions and improvements which are to be removed
from the Premises by Tenant hereunder. In addition to the foregoing,
certain equipment of Tenant used in, on or about the Premises is listed
in Exhibit I, attached hereto and made a part hereof (collectively, the
"Tenant's Property"). Notwithstanding anything to the contrary contained
herein, at the expiration or earlier termination of this Lease Tenant
shall remove from the Premises the Tenant's Property. Tenant shall
ensure that the removal of such items and the repair and restoration of
the Premises will be completed prior to such expiration or earlier
termination of this Lease.
11. REPAIRS AND MAINTENANCE
11.1 Tenant's Repairs and Maintenance Obligations: Except for
those portions of the Building to be maintained by Landlord, as provided
in Sections 11.2 and 11.3 below, Tenant shall, at Tenant's sole cost and
expense, keep and maintain the entirety of the Premises in good, clean
and safe condition and repair to the reasonable satisfaction of Landlord
including, but not limited to, repairing any damage caused by Tenant or
any of Tenant's Representatives and replacing any property so damaged by
Tenant or any of Tenant's Representatives, sweeping and otherwise
maintaining the parking lot, and maintaining and replacing the
landscaping. Without limiting the generality of the foregoing, Tenant
shall be solely responsible for maintaining, repairing and replacing (a)
all mechanical systems, heating, ventilation and air conditioning systems
exclusively serving the Premises, including without limitation,
Landlord's existing HVAC unit, (b) all plumbing, electrical wiring and
equipment serving the Premises, (c) all interior lighting (including,
without limitation, light bulbs and/or ballasts) and exterior lighting
serving the Premises or adjacent to the Premises, (d) all glass, windows,
window frames, window casements, skylights, interior and exterior doors,
door frames and door closers, (e) all roll-up doors, ramps and dock
equipment, including without limitation, dock bumpers, dock plates, dock
seals, dock levelers and dock lights, (f) all tenant signage, (g) lifts
for disabled persons serving the Premises, (h) sprinkler systems, fire
protection systems and security systems, (i) all partitions, fixtures,
equipment, interior painting, and interior walls and floors of the
Premises and every part thereof (including, without limitation, any
demising walls contiguous to any portion of the Premises), (j) the roof
and the roof membrane, including without limitation, the structural
portions of the roof, (k) all fencing and gates for any fencing, (l) the
parking lot within the Premises, including without limitation, slurry
sealing and/or striping of said parking lot (but not more often than once
every five (5) years); and (m) the exterior walls of the Building.
Notwithstanding the foregoing, if Landlord's HVAC unit needs to be
replaced due to normal wear and tear during the Term, or if the roof
needs to be replaced during either of the Extended Terms due to normal
wear and tear (and such replacements are not in any manner required due
to Tenant's failure to properly use, repair and maintain said items or
damage to such items caused by Tenant or any of Tenant's
Representatives), then Landlord shall be responsible for making such
replacements. The replacement costs for such items shall be amortized at
the interest rate which is the lesser of twelve percent (12%) per annum
or the maximum rate of interest permitted by law. Such amortization
shall be based upon the useful life of such replacement items as
reasonably determined by Landlord. If any such replacements are made,
Tenant shall pay all such amortized amounts (including all interest
charges) to Landlord monthly, as Additional Rent for each month during
the balance of the applicable term of this Lease after such replacement
is made until the earlier of (A) the expiration or earlier termination of
the Lease, or (B) the end of the applicable amortization period.
11.2 Reimbursable Repairs and Maintenance Obligations: Subject to
the provisions of Sections 6 and 9 of this Lease and except for (i) the
obligations of Tenant set forth in Section 11.1 above, (ii) the
obligations of Landlord set forth in Section 11.3 below, and (iii) the
repairs rendered necessary by the intentional or negligent acts or
omissions of Tenant or any of Tenant's Representatives, Landlord agrees,
at Landlord's expense, subject to reimbursement pursuant to Section 6
above, to keep in good repair the plumbing and mechanical systems
exterior to the Building, signage (exclusive of tenant signage), and
exterior electrical wiring and equipment, exterior lighting, exterior
glass, exterior doors/entrances and door closers, exterior window
casements, exterior painting of the Building, and underground utility and
sewer pipes outside the exterior walls of the Building. Tenant shall
procure and maintain the heating, ventilation and air conditioning
systems preventative maintenance and repair contract(s); such contracts
as same are made with respect to Landlord's heating, ventilating and air
conditioning equipment shall be on a minimum of a quarterly basis and
shall name Landlord as a third-party beneficiary thereof. Tenant will
promptly deliver to Landlord a true and complete copy of each such
contract and any and all renewals or extensions thereof, and each service
report or other summary received by Tenant pursuant to or in connection
with such contract(s).
11.3 Landlord's Repairs and Maintenance Obligations: Except for
repairs rendered necessary by the intentional or negligent acts or
omissions of Tenant or any of Tenant's Representatives, Landlord agrees,
at Landlord's sole cost and expense, to keep in good repair the
structural portions of the floors (to the extent not altered by any
improvements made thereto by Tenant) and foundations.
11.4 Tenant's Failure to Perform Repairs and Maintenance
Obligations: Notwithstanding the foregoing, if Tenant refuses or
neglects to timely repair, maintain and replace the Premises as required
herein and to the reasonable satisfaction of Landlord, Landlord may, but
without obligation to do so, at any time make such repairs, maintenance
and replacements without (i) Landlord having any liability to Tenant for
any loss or damage that may accrue to Tenant's merchandise, fixtures or
other property, or to Tenant's business by reason thereof, except to the
extent any damage is caused by the willful misconduct or negligent acts
of Landlord or its authorized agents and representatives; and (ii) being
required to provide any additional cure period to Tenant except as
expressly set forth in Section 20.3 hereof. In the event Landlord makes
such repairs, maintenance and replacements, upon completion thereof
Tenant shall pay to Landlord, as additional rent, the Landlord's costs
for making such repairs, maintenance and replacements. The obligations
of Tenant hereunder shall survive the expiration of the Term of this
Lease or the earlier termination thereof. Tenant hereby waives any right
to repair at the expense of Landlord under any applicable Laws now or
hereafter in effect respecting the Premises.
12. INSURANCE
12.1 Types of Insurance: Tenant shall maintain in full force and
effect at all times during the Term of this Lease, at Tenant's sole cost
and expense, for the protection of Tenant and Landlord, as their
interests may appear, policies of insurance issued by a carrier or
carriers reasonably acceptable to Landlord and its lender(s) which afford
the following coverages: (i) worker's compensation: statutory limits;
(ii) employer's liability, as required by law, with a minimum limit of
$100,000 per employee and $500,000 per occurrence; (iii) commercial
general liability insurance (occurrence form) providing coverage against
any and all claims for bodily injury and property damage occurring in, on
or about the Premises arising out of Tenant's and Tenant's
Representatives' use and/or occupancy of the Premises. Such insurance
shall include coverage for blanket contractual liability, legal
liability, fire damage, premises, personal injury, completed operations,
products liability and personal and advertising. Such insurance shall
have a combined single limit of not less than One Million Dollars
($1,000,000) per occurrence with a Two Million Dollar ($2,000,000)
aggregate limit and excess/umbrella insurance in the amount of Two
Million Dollars ($2,000,000). If Tenant has other locations which it
owns or leases, the policy shall include an aggregate limit per location
endorsement. If necessary, as reasonably determined by Landlord, Tenant
shall provide for restoration of the aggregate limit; (iv) comprehensive
automobile liability insurance: a combined single limit of not less than
$2,000,000 per occurrence and insuring Tenant against liability for
claims arising out of the ownership, maintenance, or use of any owned,
hired or non-owned automobiles; (v) "all risk" or "special purpose"
property insurance, including without limitation, sprinkler leakage,
boiler and machinery comprehensive form, if applicable, covering damage
to or loss of any of Tenant's personal property, trade fixtures,
inventory, fixtures and equipment located in, on or about the Premises,
and in addition, coverage for business interruption of Tenant. Such "all
risk" or "special purpose" property insurance shall be written on a
replacement cost basis (without deduction for depreciation) in an amount
equal to at least one hundred percent (100%) of the full replacement
value of the items; and (vi) such other insurance or higher limits of
liability as is then customarily required to be carried for similar types
of buildings within the general vicinity of the Park or as may be
reasonably required by any of Landlord's lenders.
12.2 Insurance Policies: Insurance required to be maintained by
Tenant shall be written by companies (i) licensed to do business in the
State of California, (ii) domiciled in the United States of America, and
(iii) having a "General Policyholders Rating" of at least A:X (or such
higher rating as may be required by a lender having a lien on the
Premises) as set forth in the most current issue of "A.M. Best's Rating
Guides." Any deductible amounts under any of the insurance policies
required hereunder shall not exceed Ten Thousand Dollars ($10,000).
Tenant shall deliver to Landlord certificates of insurance and true and
complete copies of any and all endorsements required herein for all
insurance required to be maintained by Tenant hereunder at the time of
execution of this Lease by Tenant. Tenant shall, at least thirty (30)
days prior to expiration of each policy, furnish Landlord with
certificates of renewal or "binders" thereof. Each certificate shall
expressly provide that such policies shall not be cancelable or otherwise
subject to modification except after thirty (30) days prior written
notice to the parties named as additional insureds as required in this
Lease (except for cancellation for nonpayment of premium, in which event
cancellation shall not take effect until at least ten (10) days' notice
has been given to Landlord). Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms
of this Lease under a blanket insurance policy, provided such blanket
policy expressly affords coverage for the Premises and for Landlord as
required by this Lease.
12.3 Additional Insureds and Coverage: Landlord, any property
management company and/or agent of Landlord for the Premises, the Lot or
the Park, and any lender(s) of Landlord having a lien against the
Premises, the Lot or the Park shall be named as additional insureds under
all of the policies required in Section 12.1(iii) above. Additionally,
such policies shall provide for severability of interest. All insurance
to be maintained by Tenant shall, except for workers' compensation and
employer's liability insurance, be primary, without right of contribution
from insurance maintained by Landlord. Any umbrella/excess liability
policy (which shall be in "following form") shall provide that if the
underlying aggregate is exhausted, the excess coverage will drop down as
primary insurance. The limits of insurance maintained by Tenant shall
not limit Tenant's liability under this Lease. It is the parties'
intention that the insurance to be procured and maintained by Tenant as
required herein shall provide coverage for any and all damage or injury
arising from or related to Tenant's operations of its business and/or
Tenant's or Tenant's Representatives' use of the Premises and/or any of
the areas within the Park, whether such events occur within the Premises
(as described in Exhibit A-1 hereto) or in any other areas of the Park.
It is not contemplated or anticipated by the parties that the
aforementioned risks of loss be borne by Landlord's insurance carriers,
rather it is contemplated and anticipated by Landlord and Tenant that
such risks of loss be borne by Tenant's insurance carriers pursuant to
the insurance policies procured and maintained by Tenant as required
herein.
12.4 Failure of Tenant to Purchase and Maintain Insurance: In the
event Tenant does not purchase the insurance required in this Lease or
keep the same in full force and effect throughout the Term of this Lease
(including any renewals or extensions), Landlord may, but without
obligation to do so, purchase the necessary insurance and pay the
premiums therefor. If Landlord so elects to purchase such insurance,
Tenant shall promptly pay to Landlord as Additional Rent, the amount so
paid by Landlord, upon Landlord's demand therefor. In addition, Landlord
may recover from Tenant and Tenant agrees to pay, as Additional Rent and
damages which Landlord may sustain by reason of Tenant's failure to
obtain and maintain such insurance. If Tenant fails to maintain any
insurance required in this Lease, Tenant shall be liable for all losses,
damages and costs resulting from such failure.
12.5 Landlord's Insurance: Landlord shall maintain in full force
and effect during the Term of this Lease, subject to reimbursement as
provided in Section 6, policies of insurance which afford such coverages
as are commercially reasonable and as is consistent with other properties
in Landlord's portfolio. Landlord shall also procure such additional
insurance coverage as Tenant shall reasonably request Landlord to obtain;
provided, however, notwithstanding anything to the contrary contained
herein, Tenant shall pay, and shall be solely responsible for, any and
all costs, premiums and expenses of any such additional insurance, as
Additional Rent, and Tenant shall pay same to Landlord within ten (10)
days of Landlord's demand therefor. Landlord shall obtain and keep in
force during the Term of this Lease, as an item of Operating Expenses, a
policy or policies in the name of Landlord, with loss payable to Landlord
and to the holders of any mortgages, deeds of trust or ground leases on
the Premises ("Lender(s)"), insuring loss or damage to the Building,
including all improvements, fixtures (other than trade fixtures) and
permanent additions. However, all alterations, additions and
improvements made to the Premises by Tenant (other than the Tenant
Improvements) shall be insured by Tenant rather than by Landlord. The
amount of such insurance procured by Landlord shall be equal to one
hundred percent (100%) of the full replacement cost of the Building
(excluding the cost of excavation and installation of footings),
including all improvements and permanent additions as the same shall
exist from time to time, or the amount required by Lenders. At
Landlord's option, such policy or policies shall insure against all risks
of direct physical loss or damage (including, without limitation, the
perils of earthquake), 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 Building 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.
If any such insurance coverage procured by Landlord has a deductible
clause, the deductible shall not exceed commercially reasonable amounts,
and in the event of any casualty, the amount of such deductible shall be
an item of Operating Expenses as so limited. Notwithstanding anything to
the contrary contained herein, to the extent the cost of maintaining
insurance with respect to the Building and/or any other buildings within
the Park is increased as a result of Tenant's acts, omissions,
alterations, improvements (including without limitation, the Tenant
Improvements), use or occupancy of the Premises, Tenant shall pay one
hundred percent (100%) of, and for, such increase(s) as Additional Rent.
13. WAIVER OF SUBROGATION
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss of, or damage to, either
parties' property to the extent that such loss or damage is insured by an
insurance policy required to be in effect at the time of such loss or
damage. Each party shall obtain any special endorsements, if required by
its insurer whereby the insurer waives its rights of subrogation against
the other party. This provision is intended to waive fully, and for the
benefit of the parties hereto, any rights and/or claims which might give
rise to a right of subrogation in favor of any insurance carrier. The
coverage obtained by Tenant pursuant to Section 12 of this Lease shall
include, without limitation, a waiver of subrogation endorsement attached
to the certificate of insurance. The provisions of this Section 13 shall
not apply in those instances in which such waiver of subrogation would
invalidate such insurance coverage or would cause either party's
insurance coverage to be voided or otherwise uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY
Except to the extent of damage resulting from the active negligence or
willful misconduct of Landlord or its agents, employees, representatives
or contractors (collectively, the "Landlord's Representatives"), Tenant
agrees to protect, defend (with counsel reasonably acceptable to
Landlord) and hold Landlord and Landlord's lenders, partners, members,
property management company (if other than Landlord), agents, directors,
officers, employees, representatives, contractors, successors and assigns
(collectively, the "Indemnitees") harmless and indemnify the Indemnitees
from and against all liabilities, damages, claims, losses, judgments,
charges and expenses (including reasonable attorneys' fees, costs of
court and expenses necessary in the prosecution or defense of any
litigation including the enforcement of this provision) arising from or
in any way related to, directly or indirectly, (i) Tenant's or Tenant's
Representatives' use of the Premises and/or the Park, (ii) the conduct of
Tenant's business, (iii) from any activity, work or thing done, permitted
or suffered by Tenant in or about the Premises, (iv) any liability for
injury to person or property of Tenant, Tenant's Representatives, or
third party persons, and/or (v) Tenant's failure to perform any covenant
or obligation of Tenant under this Lease. Tenant agrees that the
obligations of Tenant herein shall survive the expiration or earlier
termination of this Lease.
Except to the extent of damage resulting from the active negligence
or willful misconduct of Landlord or Landlord's Representatives, to the
fullest extent permitted by law, Tenant agrees that neither Landlord nor
any of Landlord's lender(s), partners, members, or any of Landlord's
Representatives shall at any time or to any extent whatsoever be liable,
responsible or in any way accountable for any loss, liability, injury,
death or damage to persons or property which at any time may be suffered
or sustained by Tenant, including, but not limited to, any acts, errors or
omissions by or on behalf of any other tenants or occupants of the Park.
Tenant shall not, in any event or circumstance, be permitted to offset or
otherwise credit against any payments of Rent required herein for matters
for which Landlord may be liable hereunder. Landlord and its authorized
representatives shall not be liable for any interference with light or
air, or for any latent defect in the Premises.
15. ASSIGNMENT AND SUBLEASING
15.1 Prohibition: Tenant shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer
this Lease (collectively, "assignment"), in whole or in part, whether
voluntarily or involuntarily or by operation of law, nor sublet or permit
occupancy by any person other than Tenant of all or any portion of the
Premises without in each instance first obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed, but which shall be subject to the provisions of this Section 15.
Tenant hereby agrees that Landlord may withhold its consent to any
proposed sublease or assignment if at the time of Tenant's request for
Landlord's consent to any proposed assignee or subtenant (i) Tenant is in
default of its obligations under this Lease beyond applicable notice and
cure periods, or (ii) the use to be made of the Premises by the proposed
assignee or subtenant differs from the uses permitted under this Lease.
Tenant further agrees that Landlord may withhold its consent to any
proposed sublease or assignment if the proposed subtenant or assignee or
its business is subject to compliance with additional requirements of the
ADA (defined below) for which Landlord would be responsible hereunder
and/or Environmental Laws (defined below) beyond those requirements which
are applicable to Tenant, unless the proposed subtenant or assignee shall
(a) first deliver plans and specifications for complying with such
additional ADA requirements and/or Environmental Laws and obtain
Landlord's written consent thereto, and (b) comply with all Landlord's
reasonable conditions for or contained in such consent, including without
limitation, requirements for security to assure the lien-free completion
of such improvements. No consent to any assignment or sublease shall
constitute a waiver of the provisions of this Section 15, and all
subsequent assignments or subleases may be made only with the prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed, but which shall be subject to the provisions of this
Section 15.
15.2 Request for Consent: Except as otherwise provided below and
in Section 15.6, if Tenant seeks to sublet or assign all or any portion
of the Premises, Tenant shall deliver to Landlord at least twenty (20)
days prior to the proposed commencement of the sublease or assignment
(the "Proposed Effective Date") the following information and documents
(the "Tenant's Notice"): (i) the name, address and nature of the business
of the proposed assignee or subtenant; (ii) such information as to such
assignee's or subtenant's financial responsibility and condition as
Landlord may reasonably require (including without limitation, audited
financial statements for no more than the three (3) most recent
consecutive fiscal years) to enable Landlord to determine its financial
condition; (iii) the aforementioned plans and specifications, if any;
(iv) the Proposed Effective Date of such proposed assignment or sublease;
and (v) the proposed form of sublease or assignment agreement (as
applicable), and such instrument shall include a provision whereby the
assignee or sublessee assumes all of Tenant's obligations hereunder and
agrees to be bound by the terms hereof. Tenant shall give Landlord the
Tenant's Notice by registered or certified mail addressed to Landlord at
Landlord's Address. Within ten (10) business days after Landlord's
receipt of the Tenant's Notice (the "Landlord Response Period") Landlord
shall notify Tenant, in writing, of its determination with respect to
such requested proposed assignment or sublease and the election to
recapture as set forth in Section 15.3 below. If Landlord does not elect
to recapture pursuant to the provisions of Section 15.3 hereof and
Landlord does consent to the requested proposed assignment or sublease,
Tenant may thereafter assign its interests in and to this Lease or
sublease all or a portion of the Premises to the same party and on the
same terms as set forth in the Tenant's Notice. Within said Landlord
Response Period, in addition to the other provisions hereof, Landlord
shall have the right to withhold consent to the proposed assignment or
sublease (a) if the proposed use is prohibited by the provisions of this
Lease, and in particular, the provisions of Section 9 hereof, (b) the
proposed assignee's financial condition, in the reasonable judgment of
Landlord, is not reasonably adequate and sufficient in relation to the
then remaining obligations of Tenant under this Lease, or (c) if Tenant
publicly offers or advertises to assign or sublet at a rate that is below
the then current market rate being charged for space of similar nature
and size by landlords of comparable buildings in the Los Angeles market.
Each permitted assignee or sublessee shall assume and be deemed to
assume this Lease and shall be and remain liable jointly and severally
with Tenant for payment of Rent and for the performance of, and
compliance with, all the terms, covenants, conditions and agreements
herein contained on Tenant's part to be performed or complied with, for
the Term of this Lease. No assignment or subletting shall affect the
continuing primary liability of Tenant (which, following assignment,
shall be joint and several with the assignee), and Tenant shall not be
released from performing any of the terms, covenants and conditions of
this Lease. An assignee of Tenant shall become directly liable to
Landlord for all obligations of Tenant hereunder, but no sublease or
assignment by Tenant shall relieve Tenant of any liability under this
Lease. Except as otherwise expressly set forth in Section 15.6 below,
for purposes hereof, in the event Tenant is a corporation, partnership,
joint venture, trust or other entity other than a natural person, any
change in the direct or indirect ownership of Tenant (other than pursuant
to one or more publicly traded transfers of common stock) which results
in a change of more than fifty percent (50%) in the direct or indirect
ownership of Tenant shall be deemed to be an assignment within the
meaning of this Section 15 and shall be subject to all the provisions
hereof. Any and all options, first rights of refusal, tenant improvement
allowances and other similar rights granted to Tenant in this Lease, if
any, shall not be assignable by Tenant (except for a permissible
assignment to a Related Entity) unless expressly authorized in writing by
Landlord. As Additional Rent hereunder, Tenant shall pay to Landlord,
within thirty (30) days of Landlord's written demand therefor, a fee in
the amount of five hundred dollars ($500) plus Tenant shall reimburse
Landlord for actual legal and other expenses incurred by Landlord in
connection with any actual or proposed assignment or subletting.
Notwithstanding anything to the contrary contained herein, if Tenant
properly exercises the Expansion Option and leases the Expansion
Premises, then during the first two (2) years of the initial term of the
Lease for said Expansion Premises (the "EP Tolling Period") if Tenant
permissibly subleases portions of the Expansion Premises (an "EP
Sublease"), (A) Tenant shall not be required to pay to Landlord any
portion of the Bonus Rent paid during the EP Tolling Period, and (B)
Landlord shall not have the right to recapture the space subject to the
EP Sublease during the EP Tolling Period.
15.3 Recapture: Except for an assignment to a Related Entity in
accordance with the provisions of Section 15.6 of this Lease and except
for an EP Sublease during the EP Tolling Period pursuant to the
provisions of Section 15.2 hereof, in the event the sublease or
assignment (i) by itself or taken together with prior sublease(s) or
partial assignment(s) covers or totals, as the case may be, more than
thirty-five percent (35%) of the rentable square feet of the Building or
(ii) is for a term which by itself or taken together with then existing
or pending subleases or partial assignments is greater than fifty percent
(50%) of the period remaining in the Term of this Lease as of the time of
the Proposed Effective Date, then Landlord shall have the right, to be
exercised by giving written notice to Tenant within Landlord's Response
Period, to recapture the space described in the sublease or assignment.
If such recapture notice is given, it shall serve to terminate this Lease
with respect to the proposed sublease or assignment space, or, if the
proposed sublease or assignment space covers all the Premises, it shall
serve to terminate the entire Term of this Lease in either case, as of
the Proposed Effective Date. However, no termination of this Lease with
respect to part or all of the Premises shall become effective without the
prior written consent, where necessary, of the holder of each deed of
trust encumbering the Premises or any part thereof. If this Lease is
terminated pursuant to the foregoing with respect to less than the entire
Premises, the Rent shall be adjusted on the basis of the proportion of
square feet retained by Tenant to the square feet originally demised and
this Lease as so amended shall continue thereafter in full force and
effect. Notwithstanding the foregoing or anything to the contrary
contained in Section 15.4 hereof, Landlord shall not have the right to
recapture the proposed sublease or assignment space if the proposed
sublease or assignment is to an entity or party not considered to be a
Related Entity under this Lease so long as Landlord is paid one hundred
percent (100%) of the Bonus Rent (hereinafter defined) by Tenant, as
Additional Rent, at the same time as the monthly installments of Rent are
payable hereunder.
15.4 Excess Sublease Rental or Assignment Consideration: Subject
to the provisions of Sections 15.2 and 15.3 hereof, in the event of any
sublease or assignment of more than thirty-five percent (35%) of the
Premises (in the aggregate) to an entity which is not a Related Entity
where the rent or other consideration provided for or with respect to the
sublease(s) or assignment(s) either initially or over the term of the
sublease(s) or assignment(s) exceeds the Rent or pro rata portion of the
Rent, as the case may be, for such space(s) reserved in the Lease, Tenant
shall pay the Landlord monthly, as Additional Rent, at the same time as
the monthly installments of Rent are payable hereunder, fifty percent
(50%) of the excess of each such payment of rent or other consideration
in excess of the Rent called for hereunder after deducting Tenant's
actual but reasonable costs of subletting, including, but not limited to,
advertising and then customary brokerage commissions and tenant
improvement costs incurred with respect to such sublease(s) or
assignment(s) (the "Bonus Rent").
15.5 Waiver: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any
assignee or sublessee, or failure by Landlord to take action against any
assignee or sublessee, Tenant agrees that Landlord may, at its option,
proceed against Tenant without having taken action against or joined such
assignee or sublessee, except that Tenant shall have the benefit of any
indulgences, waivers and extensions of time granted to any such assignee
or sublessee.
15.6 Related Entity Exception: Notwithstanding anything to the
contrary contained in this Section 15 and so long as Tenant (a) is not in
default of any of its obligations under this Lease beyond any applicable
notice and cure periods, and (b) complies with all of the requirements of
this Section 15.6, Tenant shall not be required to obtain Landlord's
prior written consent in any of the following instances:
(i) to any assignment or sublease to any franchisee, customer in
the ordinary course of business, joint venture partner or any entity
controlled or under common control with Tenant or to a parent or
wholly-owned subsidiary of Tenant (as such terms may be defined in
Rule 12b-2 of the Securities Exchange Act of 1934, as amended or
supplemented from time to time), and in the case of a sublease, each
subtenant's use of said subleased space conforms to the provisions
of this Lease, and in particular, Section 9 hereof; and
(ii) to any assignment to Tenant's successor in interest by
merger, consolidation, or acquisition of substantially all of
Tenant's assets.
Tenant shall deliver to Landlord a photocopy of the assignment or
sublease on or about the effective date thereof. The assignee or
subtenant shall use the Premises in accordance with the uses permitted
herein, and in particular, under Section 9 hereof, and shall be subject
to all other terms, covenants and provisions of this Lease. As a
condition precedent to any assignment or sublease made under this Section
15.6, Tenant shall give Landlord at least ten (10) business days' written
notice of its intention to assign this Lease or to sublet all or any
portion of the Premises, which notice shall include: (A) notice that
Tenant intends to assign or sublease under Section 15.6 of the Lease; (B)
the terms and conditions of the assignment or sublease, including without
limitation, the identity of said assignee or subtenant; and (C)
sufficient financial information to enable Landlord to determine whether
or not the assignee or Tenant's successor in interest has satisfied the
financial criterion set forth in subsection (ii) above. No assignment or
subletting under or pursuant to the provisions of this Section 15.6 shall
affect the continuing primary liability of Tenant (which, following
assignment, shall be joint and several with the assignee) throughout the
Term of this Lease, and Tenant shall not be released from performing any
of the terms, covenants and conditions of this Lease throughout the Term
of this Lease. An assignee of Tenant under or pursuant to the provisions
of this Section 15.6 shall become directly liable to Landlord for all
obligations of Tenant hereunder, but no sublease or assignment by Tenant
under or pursuant to the provisions of this Section 15.6 shall relieve
Tenant of any liability under this Lease. For purposes of this Lease the
term "Related Entity" shall mean and refer to an entity which conforms
with the requirements of this Section 15.6.
16. AD VALOREM TAXES
Prior to delinquency, Tenant shall pay all taxes and assessments levied
upon trade fixtures, alterations, additions, improvements, inventories
and personal property located and/or installed on or in the Premises by,
or on behalf of, Tenant; and if requested by Landlord, Tenant shall
promptly deliver to Landlord copies of receipts for payment of all such
taxes and assessments. To the extent any such taxes are not separately
assessed or billed to Tenant, Tenant shall pay the amount thereof as
invoiced by Landlord, subject to Tenant's ability to audit as provided in
Section 6.5 hereof.
17. SUBORDINATION
Subject to the provisions of this Section 17 with respect to obtaining a
reasonably acceptable subordination, non-disturbance and attornment
agreement, at the election of Landlord or any bona fide mortgagee or deed
of trust beneficiary with a lien on all or any portion of the Premises or
any ground lessor with respect to the land of which the Premises are a
part, the rights of Tenant under this Lease and this Lease shall be
subject and subordinate at all times to: (i) all ground leases or
underlying leases which may hereafter be executed affecting the Building
or the land upon which the Building is situated or both, and (ii) the
lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Building, the Lot, ground leases or
underlying leases, or Landlord's interest or estate in any of said items
is specified as security. Notwithstanding the foregoing but subject to
the provisions of this Section 17, Landlord or any such ground lessor,
mortgagee, or any beneficiary shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or
any such liens to this Lease. If any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed
or a conveyance in lieu of foreclosure is made for any reason, Tenant
shall, notwithstanding any subordination, attorn to and become the Tenant
of the successor in interest to Landlord, and such successor in interest
will not disturb Tenant's use, occupancy or quiet enjoyment of the
Premises so long as Tenant is not in default (beyond applicable notice
and cure periods, if any) of the terms and provisions of this Lease. The
successor in interest to Landlord following foreclosure, sale or deed in
lieu thereof shall not be (a) liable for any act or omission of any prior
lessor or with respect to events occurring prior to acquisition of
ownership; (b) subject to any offsets or defenses which Tenant might have
against any prior lessor; or (c) bound by prepayment of more than one (1)
month's Rent; or (d) liable to Tenant for any Security Deposit not
actually received by such successor in interest to the extent any portion
or all of such Security Deposit has not already been forfeited by, or
refunded to, Tenant. Landlord shall be liable to Tenant for all or any
portion of the Security Deposit not forfeited by, or refunded to Tenant,
until and unless Landlord transfers such Security Deposit to the
successor in interest. Tenant covenants and agrees to execute (and
acknowledge if required by Landlord, any lender or ground lessor) and
deliver, within ten (10) days of a demand or request by Landlord and in a
commercially reasonable form requested by Landlord, ground lessor,
mortgagee or beneficiary (provided such document(s) does not materially
and adversely affect Tenant's rights hereunder), any additional documents
evidencing the priority or subordination of this Lease with respect to
any such ground leases or underlying leases or the lien of any such
mortgage or deed of trust. Tenant's failure to timely execute and
deliver such additional documents shall, at Landlord's option, constitute
a material default hereunder. It is further agreed that Tenant shall be
liable to Landlord, and shall indemnify Landlord from and against any
loss, cost, damage or expense, incidental, consequential, or otherwise,
arising or accruing directly or indirectly, from any wrongful failure of
Tenant to execute or deliver to Landlord any such additional documents.
Tenant hereby acknowledges that as of the date on which Landlord and
Tenant execute this Lease there is a deed of trust encumbering, and in
force against, the Premises and the Lot in favor of Credit Suisse First
Boston Mortgage Capital LLC (the "Current Lender"). Simultaneously with
Tenant's execution and delivery of this Lease, Tenant shall sign,
notarize and deliver a subordination, non-disturbance and attornment
agreement substantially in the form of Exhibit G attached hereto,
entitled "Subordination, Non-Disturbance and Attornment Agreement."
Within twenty (20) business days after both parties have executed this
Lease, Landlord shall deliver to Tenant a copy of the fully executed
Subordination, Non-Disturbance and Attornment Agreement, or if the
Current Lender records said agreement, an endorsed copy of said
agreement. If Landlord at any time during the Term of the Lease causes
the Premises and the Lot to be encumbered by a new deed of trust or
mortgage pursuant to which the beneficiary of such deed of trust or
mortgage is a party or entity other than the Current Lender, the parties
acknowledge and agree that the form of any non-disturbance and attornment
agreement that may be requested to be executed and delivered by Tenant in
connection therewith will not be the "Non-Disturbance and Attornment
Agreement" attached to the Lease as Exhibit G, but will be in
substantially the same form as Exhibit G hereto. If the foregoing occurs
and/or if any party which acquires, or otherwise succeeds to, Landlord's
interest in the Premises or the Lot (including without limitation, any
ground lessee) encumbers or places a lien against the Premises, the
Building or the Lot with a mortgage, deed of trust or similar security
instrument and the beneficiary thereof requires this Lease to be
subordinated to such encumbrance or lien, Landlord or the successor of
Landlord will use commercially reasonable efforts to provide to Tenant a
subordination, non-disturbance and attornment agreement in form
reasonably acceptable to Landlord or such successor of Landlord, the
subject beneficiary and Tenant and substantially the same as Exhibit G
hereto. If said subordination, non-disturbance and attornment agreement
is required and agreed upon by the aforesaid parties, Landlord or the
successor of Landlord, the subject beneficiary and Tenant shall cause any
such subordination, non-disturbance and attornment agreement to be
executed, acknowledged and recorded concurrently with, or as soon as
practicable after, the execution and recordation of any such lien, deed
of trust or mortgage. In addition to the foregoing, if Landlord enters
into a ground lease with regard to the Building and/or the Lot and such
ground lessee requires this Lease to be subordinated to such ground
lease, the ground lessee and ground lessor will use commercially
reasonable efforts to provide to Tenant a subordination, non-disturbance
and attornment agreement in form reasonably acceptable to such ground
lessee, ground lessor, any beneficiary of ground lessee, and to Tenant.
18. RIGHT OF ENTRY
Except in the event of an emergency which if not responded to immediately
poses an imminent risk of injury to persons or damage to property (in
which instances only prior notice shall not be required, however,
Landlord or its agents shall be accompanied by a representative of Tenant
if required herein) Landlord or its representatives, contractors, agents,
lenders, employees and prospective buyers (collectively, the "Landlord
Representatives") may enter the Premises upon twenty-four (24) hours
prior notice and, provided that the Premises are wholly fenced or gated
and there is a security guard on-site, accompanied by Tenant's personnel
or representative for purposes of inspection, exhibition, posting of
notices, repair or alteration, including without limitation, for purposes
of responding to any release or discharge of Hazardous Materials in, on
or about the Premises. Tenant covenants that a representative of Tenant
will be available to accompany Landlord and the Landlord Representatives
at all times. Additionally, Tenant covenants and agrees that it shall
hire and maintain a security guard and other security personnel seven (7)
days a week, 24 hours a day throughout the Lease Term so long as the
Premises are wholly fenced or there is a gate. During the last ten (10)
months of the Lease Term, Landlord shall have the right to place "for
rent" or "for lease" signs on the outside of the Building and in the
parking lot of the Premises. Landlord shall also have the right to place
"for sale" signs on the outside of the Building and in the parking lot of
the Premises. Except in the event of an emergency, Landlord and
Landlord's Representatives shall, as a condition of entry, execute
Tenant's standard confidentiality and non-disclosure agreement which
Tenant requires of all visitors to its Premises in the form of Exhibit H
attached hereto. Tenant shall deliver to Landlord and the Landlord
Representatives a full and complete copy of any security manuals with
respect to Tenant's operations in the Premises.
19. ESTOPPEL CERTIFICATE
Tenant shall execute (and acknowledge if required by any Lender or ground
lessor) and deliver to Landlord, within ten (10) days after Landlord
provides such to Tenant, a statement in writing certifying that this
Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification), the date to which the Rent and
other charges are paid in advance, if any, acknowledging that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder or specifying such defaults as are claimed, and such other
matters as Landlord may reasonably require. Any such statement may be
conclusively relied upon by Landlord and any prospective purchaser or
encumbrancer of the Premises. Tenant's failure to deliver such statement
within such time shall be conclusive upon the Tenant that the information
contained in said estoppel certificate is true, correct and complete in
all respects, including without limitation, that (a) this Lease is in
full force and effect, without modification except as may be represented
by Landlord, (b) there are no uncured defaults in Landlord's performance,
and (c) not more than one month's Rent has been paid in advance. Failure
by Tenant to so deliver such certified estoppel certificate shall be a
material default of the provisions of this Lease. Tenant shall be liable
to Landlord, and shall indemnify Landlord from and against any loss,
cost, damage or expense, incidental, consequential, or otherwise, arising
or accruing directly or indirectly, from any failure of Tenant to execute
or deliver to Landlord any such certified estoppel certificate.
Landlord shall execute (and acknowledge if required by any lender)
and deliver to Tenant, within ten (10) business days after Tenant provides
such to Landlord, a statement in writing certifying that, to the best of
Landlord's actual knowledge) this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification), the
date to which the Base Rent and other charges are paid in advance, if any
and acknowledging that there are not, to Landlord's actual knowledge, any
uncured defaults on the part of Tenant hereunder or specifying such
defaults as are claimed. Any such statement may be conclusively relied
upon by Tenant and any prospective lender, joint venturer or purchaser of
Tenant. Landlord's failure to deliver such statement within such time
shall be conclusive upon the Landlord that (a) this Lease is in full force
and effect, without modification except as may be represented by Tenant;
(b) there are no uncured defaults in Tenant's performance; and (c) not
more than one month's Rent has been paid in advance.
20. TENANT'S DEFAULT
The occurrence of any one or more of the following events shall, at
Landlord's option, constitute a material default by Tenant of the
provisions of this Lease:
20.1 The abandonment of the Premises by Tenant or the vacation of
the Premises by Tenant which would cause any insurance policy to be
invalidated or otherwise lapse.
20.2 The failure by Tenant to make any payment of Rent, Additional
Rent or any other payment required hereunder on the date said payment is
due;
20.3 The failure by Tenant to observe, perform or comply with any
of the conditions, covenants or provisions of this Lease (except failure
to make any payment of Rent and/or Additional Rent) and such failure is
not cured within (i) thirty (30) days of the date on which Landlord
delivers written notice of such failure to Tenant for all failures other
than with respect to (a) Hazardous Materials (defined in Section 29
hereof), (b) Tenant making the repairs, maintenance and replacements
required under the provisions of Section 11.1 hereof, or (c) the timely
delivery by Tenant of a subordination, non-disturbance and attornment
agreement, an assignment or sublease agreement, an estoppel certificate
and insurance certificates, (ii) ten (10) business days of the date on
which Landlord delivers written notice of such failure to Tenant for all
failures in any way related to Hazardous Materials or Tenant failing to
timely make the repairs, maintenance or replacements required by Section
11.1, and (iii) the time period specified in the applicable sections of
this Lease with respect to subordination, assignment and sublease,
estoppel certificates and insurance. However, Tenant shall not be in
default of its obligations hereunder if such failure (other than any
failure of Tenant to timely and properly make the repairs, maintenance,
or replacements required by Section 11.1, or timely deliver a
subordination, non-disturbance and attornment agreement, an assignment or
sublease agreement, an estoppel certificate or insurance certificates,
for which no additional cure period shall be given to Tenant) cannot
reasonably be cured within such thirty (30) or ten (10) business day
period, as applicable, and Tenant promptly commences, and thereafter
diligently proceeds with same to completion, all actions necessary to
cure such failure as soon as is reasonably possible, but in no event
shall the completion of such cure be later than sixty (60) days after the
date on which Landlord delivers to Tenant written notice of such failure,
unless Landlord, acting reasonably and in good faith, otherwise expressly
agrees in writing to a longer period of time based upon the circumstances
relating to such failure as well as the nature of the failure and the
nature of the actions necessary to cure such failure;
20.4 The making of a general assignment by Tenant for the benefit
of creditors, the filing of a voluntary petition by Tenant or the filing
of an involuntary petition by any of Tenant's creditors seeking the
rehabilitation, liquidation, or reorganization of Tenant under any law
relating to bankruptcy, insolvency or other relief of debtors and, in the
case of an involuntary action, the failure to remove or discharge the
same within sixty (60) days of such filing, the appointment of a receiver
or other custodian to take possession of substantially all of Tenant's
assets or this leasehold, Tenant's insolvency or inability to pay
Tenant's debts or failure generally to pay Tenant's debts when due, any
court entering a decree or order directing the winding up or liquidation
of Tenant or of substantially all of Tenant's assets, Tenant taking any
action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the
attachment, execution or other judicial seizure of substantially all of
Tenant's assets or this leasehold;
20.5 Tenant's use or storage of Hazardous Materials in, on or
about any portion of the Premises or the Park other than as expressly
permitted by the provisions of Section 29 below; or
20.6 The intentional making of any material misrepresentation or
omission by Tenant in any materials delivered by or on behalf of Tenant
to Landlord pursuant to this Lease.
21. REMEDIES FOR TENANT'S DEFAULT
21.1 Landlord's Rights: In the event of Tenant's material default
under this Lease, Landlord may terminate Tenant's right to possession of
the Premises by any lawful means in which case upon delivery of written
notice by Landlord this Lease shall terminate on the date specified by
Landlord in such notice and Tenant shall immediately surrender possession
of the Premises to Landlord. In addition, the Landlord shall have the
immediate right of re-entry whether or not this Lease is terminated, and
if this right of re-entry is exercised following abandonment of the
Premises by Tenant, Landlord may consider any personal property belonging
to Tenant and left on the Premises to also have been abandoned. No re-
entry or taking possession of the Premises by Landlord pursuant to this
Section 21 shall be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant. If
Landlord relets the Premises or any portion thereof, (i) Tenant shall be
liable immediately to Landlord for all costs Landlord incurs in reletting
the Premises or any part thereof, including, without limitation, broker's
commissions, expenses of cleaning, redecorating, and further improving
the Premises and other similar costs (collectively, the "Reletting
Costs"), and (ii) the rent received by Landlord from such reletting shall
be applied to the payment of, first, any indebtedness from Tenant to
Landlord other than Base Rent, Operating Expenses, and Tax Expenses;
second, all costs including maintenance, incurred by Landlord in
reletting; and, third, Base Rent, Operating Expenses and Tax Expenses and
all other sums due under this Lease. Any and all of the Reletting Costs
shall be fully chargeable to Tenant and shall not be prorated or
otherwise amortized in relation to any new lease for the Premises or any
portion thereof. After deducting the payments referred to above, any sum
remaining from the rental Landlord receives from reletting shall be held
by Landlord and applied in payment of future Rent as Rent becomes due
under this Lease. In no event shall Tenant be entitled to any excess
rent received by Landlord. Reletting may be for a period shorter or
longer than the remaining term of this Lease. No act by Landlord other
than giving written notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises or the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under
this Lease shall not constitute a termination of Tenant's right to
possession. So long as this Lease is not terminated, Landlord shall have
the right to remedy any default of Tenant, to maintain or improve the
Premises, to cause a receiver to be appointed to administer the Premises
and new or existing subleases and to add to the Rent payable hereunder
all of Landlord's reasonable costs in so doing, with interest at the
maximum rate permitted by law from the date of such expenditure.
21.2 Damages Recoverable: If Tenant breaches this Lease and
abandons the Premises before the end of the Term, or if Tenant's right to
possession is terminated by Landlord because of a breach or default under
this Lease, then in either such case, Landlord may recover from Tenant
all damages suffered by Landlord as a result of Tenant's failure to
perform its obligations hereunder, including, but not limited to, the
unamortized cost of any Tenant Improvements constructed by or on behalf
of Tenant pursuant to Exhibit B hereto, the unamortized portion of any
broker's or leasing agent's commission incurred with respect to the
leasing of the Premises to Tenant for the balance of the Term of the
Lease remaining after the date on which Tenant is in default of its
obligations hereunder, and all reasonable Reletting Costs, and the worth
at the time of the award (computed in accordance with paragraph (3) of
Subdivision (a) of Section 1951.2 of the California Civil Code) of the
amount by which the Rent then unpaid hereunder for the balance of the
Lease Term exceeds the amount of such loss of Rent for the same period
which Tenant proves could be reasonably avoided by Landlord and in such
case, Landlord prior to the award, may relet the Premises for the purpose
of mitigating damages suffered by Landlord because of Tenant's failure to
perform its obligations hereunder; provided, however, that even though
Tenant has abandoned the Premises following such breach, this Lease shall
nevertheless continue in full force and effect for as long as Landlord
does not terminate Tenant's right of possession, and until such
termination, Landlord shall have the remedy described in Section 1951.4
of the California Civil Code (Landlord may continue this Lease in effect
after Tenant's breach and abandonment and recover Rent as it becomes due,
if Tenant has the right to sublet or assign, subject only to reasonable
limitations) and may enforce all its rights and remedies under this
Lease, including the right to recover the Rent from Tenant as it becomes
due hereunder. The "worth at the time of the award" within the meaning
of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California
Civil Code shall be computed by allowing interest at the rate of ten
percent (10%) per annum. Tenant waives redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 and
1179, or under any other present or future law, in the event Tenant is
evicted or Landlord takes possession of the Premises by reason of any
default of Tenant hereunder.
21.3 Rights and Remedies Cumulative: The foregoing rights and
remedies of Landlord are not exclusive; they are cumulative in addition
to any rights and remedies now or hereafter existing at law, in equity by
statute or otherwise, or to any equitable remedies Landlord may have, and
to any remedies Landlord may have under bankruptcy laws or laws affecting
creditor's rights generally. In addition to all remedies set forth
above, if Tenant has at any time been in Chronic Default of its
obligations hereunder during the Term of this Lease, all options granted
to Tenant hereunder shall automatically terminate, unless otherwise
expressly agreed to in writing by Landlord.
21.4 Waiver of a Default: The waiver by Landlord of any default
of any provision of this Lease shall not be deemed or construed a waiver
of any other default by Tenant hereunder or of any subsequent default of
this Lease, except for the default specified in the waiver.
22. HOLDING OVER
If Tenant holds possession of the Premises after the expiration of the
Term of this Lease with Landlord's consent, Tenant shall become a tenant
from month-to-month upon the terms and provisions of this Lease, provided
the monthly Base Rent during such hold over period shall be 125% of the
Base Rent due on the last month of the Lease Term, payable in advance on
or before the first day of each month. Acceptance by Landlord of the
monthly Base Rent without the additional twenty-five percent (25%)
increase of Base Rent shall not be deemed or construed as a waiver by
Landlord of any of its rights to collect the increased amount of the Base
Rent as provided herein at any time. Such month-to-month tenancy shall
not constitute a renewal or extension for any further term. All options,
if any, granted under the terms of this Lease shall be deemed
automatically terminated and be of no force or effect during said month-
to-month tenancy. Tenant shall continue in possession until such tenancy
shall be terminated by either Landlord or Tenant giving written notice of
termination to the other party at least thirty (30) days prior to the
effective date of termination. This paragraph shall not be construed as
Landlord's permission for Tenant to hold over. Acceptance of Base Rent
by Landlord following expiration or termination of this Lease shall not
constitute a renewal of this Lease.
23. LANDLORD'S DEFAULT
Landlord shall not be deemed in breach or default of this Lease unless
Landlord fails within a reasonable time to perform an obligation required
to be performed by Landlord hereunder. For purposes of this provision,
except for Emergency Repairs (defined below), a reasonable time shall not
be less than thirty (30) days after receipt by Landlord of written notice
specifying the nature of the obligation Landlord has not performed;
provided, however, that if the nature of Landlord's obligation is such
that more than thirty (30) days, after receipt of written notice, is
reasonably necessary for its performance, then Landlord shall not be in
breach or default of this Lease if performance of such obligation is
commenced within such thirty (30) day period and thereafter diligently
pursued to completion. For purposes of this provision, "Emergency
Repairs" shall mean those repairs which are the express obligation of
Landlord and which if not made immediately are very likely to pose a
material and imminent risk of injury to persons or substantial damage to
property. Emergency Repair shall be commenced by Landlord within two (2)
business days after notice and diligently pursued to completion; however,
Tenant shall promptly provide to Landlord follow-up written notice
thereof.
24. PARKING
Subject to reduction due to a casualty or condemnation, Tenant shall have
throughout the Term of this Lease, without a fee or charge, the number of
parking spaces specified in the Basic Lease Information. Such parking
shall be provided in the Premises and Landlord shall not grant other or
additional rights to use the parking areas within the Premises. Landlord
shall exercise reasonable efforts to insure that such spaces are
available to Tenant for its use, but Landlord shall not be required to
enforce Tenant's right to use the same.
25. SALE OF PREMISES
In the event of any sale of the Premises by Landlord or the cessation
otherwise of Landlord's interest therein, Landlord shall be entirely
released from any and all of its obligations to further perform under
this Lease and from all liability hereunder to the extent such
obligations or liability arises or accrues from or after the date of such
sale. Notwithstanding the foregoing, such successor in interest shall
assume, in writing, Landlord's obligations hereunder to the extent first
arising and accruing from and after the date of such transfer and
Landlord shall notify Tenant of such in writing on or after the date of
such conveyance. For purposes of this Section 25, the term "Landlord"
means only the owner and/or agent of the owner as such parties exist as
of the date on which Tenant executes this Lease. A ground lease or
similar long term lease by Landlord of the entire Building or the Park,
of which the Premises are a part, shall be deemed a sale within the
meaning of this Section 25. Tenant agrees to attorn to such new owner
provided such new owner does not disturb Tenant's use, occupancy or quiet
enjoyment of the Premises so long as Tenant is not in default of any of
the provisions of this Lease.
26. WAIVER
No delay or omission in the exercise of any right or remedy of Landlord
on any default by Tenant shall impair such a right or remedy or be
construed as a waiver. The subsequent acceptance of Rent by Landlord
after default by Tenant of any covenant or term of this Lease shall not
be deemed a waiver of such default, other than a waiver of timely payment
for the particular Rent payment involved, and shall not prevent Landlord
from maintaining an unlawful detainer or other action based on such
breach. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly Rent and other sums due hereunder shall be deemed to be
other than on account of the earliest Rent or other sums due, nor shall
any endorsement or statement on any check or accompanying any check or
payment be deemed an accord and satisfaction; and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or other sum or pursue any other remedy provided
in this Lease. No failure, partial exercise or delay on the part of the
Landlord in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
27. CASUALTY DAMAGE
27.1 Casualty. If the Premises or any part thereof (excluding the
Tenant Improvements and any other alterations, additions or improvements
installed by or for the benefit of Tenant) shall be damaged or destroyed
by fire or other casualty, Tenant shall give immediate written notice
thereof to Landlord. Within sixty (60) days after receipt by Landlord of
such notice, Landlord shall notify Tenant, in writing, whether the
necessary repairs can reasonably be made: (a) within one hundred twenty
(120) days; or (b) in more than one hundred twenty (120) days, from the
date of such notice.
27.1.1 Minor Insured Damage. If the Premises are damaged only
to such extent that repairs, rebuilding and/or restoration can be
reasonably completed within one hundred twenty (120) days, subject
to the provisions hereof, this Lease shall not terminate and,
provided that insurance proceeds are available to fully repair the
damage or, at Tenant's election to be made within ten (10) business
days of being notified of said shortfall, Tenant contributes any
shortfall in insurance proceeds, Landlord shall repair the Premises
to substantially the same condition that existed prior to the
occurrence of such casualty, except Landlord shall not be required
to rebuild, repair, or replace the Tenant Improvements or any
alterations, additions or improvements installed by or for the
benefit of Tenant or any part of Tenant's Property. The Rent
payable hereunder shall be abated proportionately from the date and
to the extent such damage or destruction materially interferes with
Tenant's use or occupancy of the Premises but only to the extent
rental loss insurance proceeds are received by Landlord.
Notwithstanding the foregoing, if insurance proceeds are not
available to fully repair the damage and Tenant elects not to
contribute said shortfall or fails to timely notify Landlord of
said election, then Landlord may terminate this Lease by delivering
written notice thereof to Tenant. If Landlord elects to terminate
this Lease, Rent shall be abated from the date Tenant actually
vacates the Premises.
27.1.2 Major Insured Damage. If the Premises are damaged to
such extent that repairs, rebuilding and/or restoration cannot be
reasonably completed within one hundred twenty (120) days, then
either Landlord or Tenant may terminate this Lease by giving
written notice within twenty (20) days after notice from Landlord
regarding the time period of repair. If either party notifies the
other of its intention to so terminate the Lease, then this Lease
shall terminate and the Rent shall be abated from the date Tenant
actually vacates the Premises; provided, however, if Landlord
elects to terminate this Lease due to a shortfall of insurance
proceeds to fully repair said damage, then within ten (10) days
after Landlord notifies Tenant of same, Tenant may elect to require
Landlord to rescind said termination if, and only if, Tenant
unconditionally and conclusively agrees to fully, promptly and
completely pay to Landlord the entirety of any actual shortfall of
insurance proceeds. If neither party elects to terminate this
Lease or if Tenant timely elects to so contribute any shortfall in
funds to allow Landlord to fully repair the damage and Landlord
rescinds its election to terminate this Lease, Landlord shall
promptly commence and diligently prosecute to completion the
repairs to the Premises, provided insurance proceeds are available
to fully repair the damage or Tenant contributes any shortfall in
insurance proceeds (except that Landlord shall not be required to
rebuild, repair, or replace The Tenant Improvements, or any
alterations, additions or improvements installed by or for the
benefit of Tenant or any part of Tenant's Property). During the
time when Landlord is prosecuting such repairs to completion, the
Rent payable hereunder shall be abated proportionately from the
date and to the extent such damage or destruction materially
interferes with Tenant's use or occupancy of the Premises or
portion thereof, as applicable, but only to the extent rental loss
insurance proceeds are received by Landlord.
27.1.3 Damage Near End of Term. Notwithstanding anything to
the contrary contained in this Lease except for the provisions of
Section 27.2 below, if the Premises are damaged or destroyed during
the last year of the then applicable term of this Lease, Landlord
may, at its option, cancel and terminate this Lease by giving
written notice to Tenant of its election to do so within sixty (60)
days after receipt by Landlord of notice from Tenant of the
occurrence of such casualty. If Landlord so elects to terminate
this Lease, all rights of Tenant hereunder shall cease and
terminate ten (10) business days after Tenant's receipt of such
notice.
27.2 Tenant's or Tenant's Representative's Fault. If any portion
of the Premises is damaged or destroyed due to the fault, negligence
(active or passive) or breach of this Lease by Tenant or any of Tenant's
Representatives, Rent shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost of the repair
caused thereby to the extent such cost is not covered by any insurance
proceeds. In addition, notwithstanding any to the contrary contained
herein, Tenant shall not have any rights to terminate this Lease pursuant
to the provisions of this Section 27.
27.3 Uninsured Casualty. Tenant shall be responsible for and
shall pay to Landlord, as Additional Rent, any deductible amounts under
the property insurance policies for the Premises and/or the Park. If any
portion of the Premises is damaged and is not fully covered by insurance
proceeds received by Landlord (and Tenant elects not to pay any such
difference) or if the holder of any indebtedness secured by the Premises
requires that the insurance proceeds be applied to such indebtedness,
then Landlord or Tenant shall also have the right to terminate this Lease
by delivering written notice of termination to the other party within
thirty (30) days after the date of Landlord's delivery of notice to
Tenant of any such event, whereupon all rights and obligations shall
cease and terminate hereunder, except for those obligations expressly
intended to survive any such termination of this Lease. If Tenant or
Landlord elects to terminate this Lease due to any such casualty or
damage to the Premises in accordance with the provisions of this Section
27, Tenant shall use all diligent efforts to vacate the Premises as
quickly as possible after the occurrence of such damage or casualty.
27.4 Tenant's Waiver. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, injury to the business of Tenant,
loss of use of any part of the Premises by Tenant or loss of Tenant's
Property, resulting in any way from such damage, destruction or the
repair thereof, except that, Landlord shall allow Tenant a fair
diminution of Rent during the time and to the extent the Premises are
unfit for occupancy as specifically provided above in this Section 27.
With respect to any damage or destruction which Landlord is obligated to
repair or may elect to repair, Tenant hereby waives all rights to
terminate this Lease, except as otherwise expressly permitted hereunder,
or offset any amounts against Rent pursuant to rights accorded Tenant by
any Law currently existing or hereafter enacted, including but not
limited to, all rights pursuant to the provisions of Sections 1932(2.),
1933(4.), 1941 and 1942 of the California Civil Code, as the same may be
amended, substituted or supplemented from time to time.
28. CONDEMNATION
If twenty-five percent (25%) or more of the Premises is condemned by
eminent domain, inversely condemned or sold in lieu of condemnation for
any public or quasi-public use or purpose ("Condemned"), then Tenant or
Landlord may terminate this Lease as of the date when physical possession
of the Premises is taken and title vests in such condemning authority,
and Rent shall be adjusted to the date of termination. Tenant shall not
because of such condemnation assert any claim against Landlord or the
condemning authority for any compensation because of such condemnation,
and Landlord shall be entitled to receive the entire amount of any award
without deduction for any estate of interest or other interest of Tenant;
provided, however, the foregoing provisions shall not preclude Tenant, at
Tenant's sole cost and expense, from obtaining any separate award to
Tenant for loss of or damage to Tenant's trade fixtures and removable
personal property or for damages for cessation or interruption of
Tenant's business provided such award is separate from Landlord's award
and provided further such separate award does not diminish nor impair the
award otherwise payable to Landlord. In addition to the foregoing,
Tenant shall be entitled to seek compensation for the relocation costs
recoverable by Tenant pursuant to the provisions of California Government
Code Section 7262. If neither party elects to terminate this Lease,
Landlord shall, if necessary, promptly proceed to restore the Premises to
substantially its same condition prior to such partial condemnation,
allowing for the reasonable effects of such partial condemnation, and a
proportionate allowance shall be made to Tenant, on a square foot basis,
for the Rent corresponding to the time during which, and to the part of
the Premises of which, Tenant is deprived on account of such partial
condemnation and restoration. Landlord shall not be required to spend
funds for restoration in excess of the amount received by Landlord as
compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS
29.1 Hazardous Materials Disclosure Certificate: Prior to
executing this Lease, Tenant has completed, executed and delivered to
Landlord Tenant's initial Hazardous Materials Disclosure Certificate (the
"Initial HazMat Certificate"), a copy of which is attached hereto as
Exhibit E and incorporated herein by this reference. Tenant covenants,
represents and warrants to Landlord that the information on the Initial
HazMat Certificate is true and correct and accurately describes the use(s)
of Hazardous Materials which will be made and/or used on the Premises by
Tenant. Tenant shall commencing with the date which is one year from the
Commencement Date and continuing every year thereafter, complete, execute,
and deliver to Landlord, a Hazardous Materials Disclosure Certificate
("the "HazMat Certificate") describing Tenant's present use of Hazardous
Materials on the Premises, and any other reasonably necessary documents
related to such Hazardous Materials as requested by Landlord. The HazMat
Certificate required hereunder shall be in substantially the form as that
which is attached hereto as Exhibit D. Landlord has approved the Initial
HazMat Certificate; however, any such approval by Landlord shall not be
construed to relieve Tenant from its obligations and/or any liabilities
under this Section 29.
29.2 Definition of Hazardous Materials: As used in this Lease, the
term Hazardous Materials shall mean and include (a) any hazardous or toxic
wastes, materials or substances, and other pollutants or contaminants,
which are or become regulated by any Environmental Laws; (b) petroleum,
petroleum by products, gasoline, diesel fuel, crude oil or any fraction
thereof; (c) asbestos and asbestos containing material, in any form,
whether friable or non-friable; (d) polychlorinated biphenyls; (e)
radioactive materials; (f) lead and lead-containing materials, and
carcinogens; (g) any other material, waste or substance displaying toxic,
reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or
threatens to cause a nuisance upon or waste to any portion of the
Premises, the Lot, the Park or any surrounding property; or poses or
threatens to pose a hazard to the health and safety of persons on the
Premises or any surrounding property.
29.3 Prohibition; Environmental Laws: Except for those Hazardous
Materials of the type and in the quantities specified in the Initial
HazMat Certificate and in the HMMP (defined below), Tenant shall not be
entitled to use nor store any Hazardous Materials on, in, or about the
Premises, the Lot and the Park, or any portion of the foregoing, without,
in each instance, obtaining Landlord's prior written consent thereto. If
Landlord consents to any such usage or storage, then Tenant shall be
permitted to use and/or store only those Hazardous Materials that are
necessary for Tenant's business and to the extent disclosed in the Initial
HazMat Certificate and as expressly approved by Landlord in writing,
provided that such usage and storage is only to the extent of the
quantities of Hazardous Materials as specified in the then applicable
HazMat Certificate as expressly approved by Landlord and provided further
that such usage and storage is in full compliance with any and all local,
state and federal environmental, health and/or safety-related laws,
statutes, orders, standards, courts' decisions, ordinances, rules and
regulations (as interpreted by judicial and administrative decisions),
decrees, directives, guidelines, permits or permit conditions, currently
existing and as amended, enacted, issued or adopted in the future which
are or become applicable to Tenant or all or any portion of the Premises
(collectively, the "Environmental Laws"). Tenant agrees that any changes
to the type and/or quantities of Hazardous Materials specified in the most
recent HazMat Certificate may be implemented only with the prior written
consent of Landlord, which consent may be given or withheld in Landlord's
sole discretion. Except for the double contained, leakage monitored
above-ground tank specified in the HMMP (defined below), Tenant shall not
be entitled nor permitted to install any tanks under, on or about the
Premises for the storage of Hazardous Materials without the express
written consent of Landlord, which may be given or withheld in Landlord's
sole discretion. Such above-ground tank in which diesel fuel is stored,
used and/or distributed therefrom shall be sealed in a leak-proof, double-
contained tank using the best available technology at the time of
installation. Landlord shall have the right at all times during the Term
of this Lease (i) subject to the provisions of Section 18 hereof, to
inspect the Premises, (ii) to conduct tests and investigations to
determine whether Tenant is in compliance with the provisions of this
Section 29, and (iii) to request lists of all Hazardous Materials used,
stored or otherwise located on, under or about any portion of the
Premises. The cost of all such inspections, tests and investigations
shall be borne solely by Tenant, if Landlord reasonably determines that
Tenant or any of Tenant's Representatives are directly or indirectly
responsible in any manner for any contamination revealed by such
inspections, tests and investigations. The aforementioned rights granted
herein to Landlord and its representatives shall not create (a) a duty on
Landlord's part to inspect, test, investigate, monitor or otherwise
observe the Premises or the activities of Tenant and Tenant's
Representatives with respect to Hazardous Materials, including without
limitation, Tenant's operation, use and any remediation related thereto,
or (b) liability on the part of Landlord and its representatives for
Tenant's use, storage, disposal or remediation of Hazardous Materials, it
being understood that Tenant shall be solely responsible for all liability
in connection therewith. Notwithstanding anything to the contrary
contained herein, Tenant and Tenant's Representatives shall not conduct
any diesel or gas filling operations in, on, at or about the Premises it
being Tenant's intention to solely use said diesel for emergency generator
situations only. In addition to the foregoing, Tenant and Tenant's
Representatives shall limit the types and amounts of Hazardous Materials
to be stored at the Premises to the types and quantities specified in the
Initial HazMat Certificate attached hereto.
29.4 Tenant's Environmental Obligations: Tenant shall give to
Landlord immediate verbal and follow-up written notice of any spills,
releases, discharges, disposals, emissions, migrations, removals or
transportation of Hazardous Materials on, under or about any portion of
the Premises or in the Park. Tenant, at its sole cost and expense,
covenants and warrants to promptly investigate, clean up, remove, restore
and otherwise remediate (including, without limitation, preparation of any
feasibility studies or reports and the performance of any and all
closures) any spill, release, discharge, disposal, emission, migration or
transportation of Hazardous Materials arising from or related to the
intentional or negligent acts or omissions of Tenant or Tenant's
Representatives such that the affected portions of the Park and any
adjacent property are returned to the condition existing prior to the
appearance of such Hazardous Materials. Any such investigation, clean up,
removal, restoration and other remediation shall only be performed after
Tenant has obtained Landlord's prior written consent, which consent shall
not be unreasonably withheld so long as such actions would not potentially
have a material adverse long-term or short-term effect on any portion of
the Premises, the Lot or the Park. Notwithstanding the foregoing, Tenant
shall be entitled to respond immediately to an emergency without first
obtaining Landlord's prior written consent. Tenant, at its sole cost and
expense, shall conduct and perform, or cause to be conducted and
performed, all closures as required by any Environmental Laws or any
agencies or other governmental authorities having jurisdiction thereof.
If Tenant fails to so promptly investigate, clean up, remove, restore,
provide closure or otherwise so remediate, Landlord may, but without
obligation to do so, take any and all steps necessary to rectify the same
and Tenant shall promptly reimburse Landlord, upon demand, for all costs
and expenses to Landlord of performing investigation, clean up, removal,
restoration, closure and remediation work. All such work undertaken by
Tenant, as required herein, shall be performed in such a manner so as to
enable Landlord to make full economic use of the Premises, the Lot and the
Park after the satisfactory completion of such work. Notwithstanding
anything to the contrary contained herein and in addition to Tenant's
obligations under this Section 29.4 any Hazardous Materials to be stored
at the Premises by Tenant and/or Tenant's Representatives shall be stored
in the tank and concrete containment structure for the tank and the
generators, and handled in the manner specified in the draft Hazardous
Material Management Plan for Tenant's operation at the Building (the final
approved version thereof referred to as the "HMMP") and in strict
accordance with all Environmental Laws, including without limitation, the
regulations, standards and requirements of the National Fire Protection
Association and the applicable building and fire departments. In addition
to any other rights and remedies available to Landlord under the
provisions of this Lease, it will be a material default if Hazardous
Materials are stored and/or used in, on, at or about the Premises in
quantities, or are of a type, other than as specified in the Initial
HazMat Certificate hereto or any subsequent HazMat Certificate, or any
Hazardous Materials are handled in any manner which is different from
those procedures specified in the HMMP or as otherwise required by
Environmental Laws. In addition to any other requirements imposed upon
Tenant and Tenant's Representatives under this Section 29 or in any other
provision of this Lease Tenant shall give immediate written notice to
Landlord of: (a) any enforcement, remediation, or other regulatory action
or order, taken or threatened, by and agency regarding, or in connection
with, the presence, release or threat of release of any Hazardous
Materials in, on, under, about or from the Premises, or otherwise
resulting from Tenant's or Tenant's Representatives' use of the Premises;
(b) all demands or claims made or threatened by any third party against
Tenant or any of Tenant's Representatives and relating to liability, loss,
damage, or injury resulting from the presence, release or threat of
release of any Hazardous Materials in, on, under, about or from any
portion of the Premises, or otherwise arising, in any manner whatsoever,
from Tenant's or Tenant's Representatives' use of the Premises; (c) any
spill, release, or discharge of Hazardous Materials in, on, under, about
or from the Premises, including without limitation, any such spill,
release, or discharge required to be reported to any agency under any
Environmental Law; and (d) all incidents or matters where Tenant or any of
Tenant's Representatives is required to give notice to any agency pursuant
to any Environmental Laws. Tenant shall post and maintain such notices
in, at and about the Premises as required by any Environmental Laws,
including without limitation, any notices required under Proposition 65.
Tenant shall promptly provide to Landlord true and complete copies of all
materials, reports, technical data, notices, and correspondence relating
to the above incidents or any other matters subject to Landlord
notification or notification to other tenants in the Park or to the
general public. Tenant shall also obtain and promptly provide to Landlord
true and complete copies, revisions, and/or modifications of all building
permits, permits, fire permits, manufacturer specifications for the tank
and the generators, approvals, and registrations Tenant receives or
submits with respect to its operations on the Premises, including without
limitation, any revisions or modification to its HMMP, and, at a minimum
annually, inspection reports, leakage reports and test results for the
tank and generators. Tenant hereby covenants, represents and warrants
that it shall promptly and diligently prepare and deliver to Landlord a
final approved HMMP with respect to the Premises by no later than sixty
(60) days after the Lease Date. In addition to the foregoing, Tenant
shall (1) implement vapor control and spill prevention control measures
for the tank and the generators, (2) obtain inspection reports from the
applicable building and fire departments after the installation of the
tank and the generators, and (3) promptly deliver to Landlord evidence
thereof, including a true and complete copy of all such inspection
reports.
29.5 Environmental Indemnity: In addition to Tenant's obligations
as set forth hereinabove, Tenant agrees to, and shall, protect, indemnify,
defend (with counsel acceptable to Landlord) and hold Landlord and the
other Indemnitees harmless from and against any and all claims, judgments,
damages, penalties, fines, liabilities, losses (including, without
limitation, diminution in value of any portion of the Premises, the Lot or
the Park, damages for the loss of or restriction on the use of rentable or
usable space, and from any adverse impact of Landlord's marketing of any
space within the Park), suits, administrative proceedings and costs
(including, but not limited to, attorneys' and consultant fees and court
costs) arising at any time during or after the Term of this Lease in
connection with or related to, directly or indirectly, the use, presence,
transportation, storage, disposal, migration, removal, spill, release or
discharge of Hazardous Materials on, in or about any portion of the
Premises, the Lot or the Park as a result (directly or indirectly) of the
intentional or negligent acts or omissions of Tenant or any of Tenant's
Representatives. Neither the written consent of Landlord to the presence,
use or storage of Hazardous Materials in, on, under or about any portion
of the Premises, the Lot and/or the Park, nor the strict compliance by
Tenant with all Environmental Laws shall excuse Tenant from its
obligations of indemnification pursuant hereto. Tenant shall not be
relieved of its indemnification obligations under the provisions of this
Section 29.5 due to Landlord's status as either an "owner" or "operator"
under any Environmental Laws.
29.6 Survival: Tenant's obligations and liabilities pursuant to
the provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the
condition of all or any portion of the Premises, the Lot and/or the Park
is not as a result of the intentional or negligent acts or omissions of
Tenant or any of Tenant's Representatives in compliance with the
provisions of this Lease with respect to Hazardous Materials, including
without limitation, all Environmental Laws at the expiration or earlier
termination of this Lease, then in Landlord's sole discretion, Landlord
may require Tenant to hold over possession of the Premises until Tenant
can surrender the Premises to Landlord in the condition in which the
Premises existed as of the Commencement Date and prior to the appearance
of such Hazardous Materials except for reasonable wear and tear, including
without limitation, the conduct or performance of any closures as required
by any Environmental Laws. For purposes hereof, the term "reasonable wear
and tear" shall not include any deterioration in the condition or
diminution of the value of any portion of the Premises, the Lot and/or the
Park in any manner whatsoever related to directly, or indirectly,
Hazardous Materials. Any such holdover by Tenant will be with Landlord's
consent, will not be terminable by Tenant in any event or circumstance and
will otherwise be subject to the provisions of Section 22 of this Lease.
30. FINANCIAL STATEMENTS
The provisions of this Section 30 shall not apply to Tenant or any
Related Entity for so long as the Tenant or any Related Entity of Tenant
is a publicly traded company for which audited financial statements are
available to the public. Any assignee or subtenant of Tenant, and Tenant
and any Related Entity of Tenant that is not publicly traded will for the
reliance of Landlord, any lender holding or anticipated to acquire a lien
upon the Premises or the Park or any portion thereof, or any prospective
purchaser of the Building or the Park or any portion thereof, within ten
(10) business days after Landlord's request therefor, but not more often
than once annually so long as Tenant, the assignee, the subtenant or the
Related Entity (as the case may be) is not in default of this Lease,
deliver to Landlord the then current audited financial statements of said
assignee, subtenant, or non-publicly traded Tenant or Related Entity
which statements shall be prepared or compiled by a certified public
accountant and shall present fairly the financial condition of said
entity at such dates and the result of its operations and changes in its
financial positions for the periods ended on such dates. If an audited
financial statement has not been prepared, said entity shall provide
Landlord with an unaudited financial statement and/or such other
information, the type and form of which are acceptable to Landlord in
Landlord's reasonable discretion, which reflects the financial condition
of said entity.
31. GENERAL PROVISIONS
31.1 Time. Time is of the essence in this Lease and with respect
to each and all of its provisions in which performance is a factor.
31.2 Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind
the heirs, successors, executors, administrators and assigns of the
parties hereto.
31.3 Recordation. Tenant shall not record this Lease. Landlord
and Tenant shall, contemporaneously with the execution and delivery of
this Lease, execute, deliver and record a Memorandum of Lease in
substantially the form of Exhibit F hereto.
31.4 Landlord's Personal Liability. The liability of Landlord
(which, for purposes of this Lease, shall include Landlord and the owner
of the Building if other than Landlord) to Tenant for any default by
Landlord under the terms of this Lease shall be limited to the actual
interest of Landlord and its present or future partners or members in the
Premises, and Tenant agrees to look solely to the Premises for
satisfaction of any liability and shall not look to other assets of
Landlord nor seek any recourse against the assets of the individual
partners, members, directors, officers, shareholders, agents or employees
of Landlord (including without limitation, any property management
company of Landlord); it being intended that Landlord and the individual
partners, members, directors, officers, shareholders, agents and
employees of Landlord (including without limitation, any property
management company of Landlord) shall not be personally liable in any
manner whatsoever for any judgment or deficiency. The liability of
Landlord under this Lease is limited to its actual period of ownership of
title to the Premises, and Landlord shall be automatically released from
further performance of any unaccrued obligations under this Lease upon
transfer of Landlord's interest in the Premises.
31.5 Separability. Any provisions of this Lease which shall prove
to be invalid, void or illegal shall in no way affect, impair or
invalidate any other provisions hereof and such other provision shall
remain in full force and effect.
31.6 Choice of Law. This Lease shall be governed by, and
construed in accordance with, the laws of the State of California.
31.7 Attorneys' Fees. In the event any dispute between the
parties results in litigation or other proceeding, the prevailing party
shall be reimbursed by the party not prevailing for all reasonable costs
and expenses, including, without limitation, reasonable attorneys' and
experts' fees and costs incurred by the prevailing party in connection
with such litigation or other proceeding, and any appeal thereof. Such
costs, expenses and fees shall be included in and made a part of the
judgment recovered by the prevailing party, if any.
31.8 Entire Agreement. This Lease supersedes any prior
agreements, representations, negotiations or correspondence between the
parties, and contains the entire agreement of the parties on matters
covered. No other agreement, statement or promise made by any party,
that is not in writing and signed by all parties to this Lease, shall be
binding.
31.9 Warranty of Authority. On the date that Tenant executes this
Lease, Tenant shall deliver to Landlord an original certificate of status
for Tenant issued by the California Secretary of State or statement of
partnership for Tenant recorded in the county in which the Premises are
located, as applicable, and such other documents as Landlord may
reasonably request with regard to the lawful existence of Tenant. Each
person executing this Lease on behalf of a party represents and warrants
that (1) such person is duly and validly authorized to do so on behalf of
the entity it purports to so bind, and (2) if such party is a
partnership, corporation or trustee, that such partnership, corporation
or trustee has full right and authority to enter into this Lease and
perform all of its obligations hereunder. Tenant hereby warrants that
this Lease is valid and binding upon Tenant and, subject to creditors'
rights generally, enforceable against Tenant in accordance with its
terms.
31.10 Notices. Any and all notices and demands required or
permitted to be given hereunder to Landlord shall be in writing and shall
be sent: (a) by United States mail, certified and postage prepaid; or (b)
by personal delivery to the Vice President of operations of Landlord's
property management company; or (c) by overnight courier, addressed to
Landlord, Attention: Vice President, Operations, 00 Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxx 00000. Any and all notices and demands required
or permitted to be given hereunder to Tenant shall be in writing and
shall be sent: (i) by United States mail, certified and postage prepaid;
or (ii) by personal delivery to the General Counsel of Tenant; or (iii)
by overnight courier, all of which shall be addressed to Tenant at
Tenant's Address as stated in the Basic Lease Information or at such
other address as Tenant may specify by notice given to Landlord pursuant
to this Section 31.10. Notice and/or demand shall be deemed given upon
the earlier of actual receipt or the third day following deposit in the
United States mail if notice is sent by mail, when personally delivered
if notice is given by personal delivery or when delivered if notice is
given by overnight courier.
31.11 Joint and Several. If Tenant consists of more than one
person or entity, the obligations of all such persons or entities shall
be joint and several.
31.12 Covenants and Conditions. Each provision to be performed by
Tenant hereunder shall be deemed to be both a covenant and a condition.
31.13 Waiver of Jury Trial. The parties hereto shall and they
hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way related to this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises or the Park, and/or any claim of injury, loss or damage.
31.14 Merger. The voluntary or other surrender of this Lease by
Tenant, the mutual termination or cancellation hereof by Landlord and
Tenant, or a termination of this Lease by Landlord for a material default
by Tenant hereunder, shall not work a merger, and, at the sole option of
Landlord, (i) shall terminate all or any existing subleases or
subtenancies, or (ii) may operate as an assignment to Landlord of any or
all of such subleases or subtenancies. Landlord's election of either or
both of the foregoing options shall be exercised by delivery by Landlord
of written notice thereof to Tenant and all known subtenants under any
sublease.
32. SIGNS
All signs and graphics of every kind located on the exterior of the
Building shall be subject to Landlord's prior written approval, which
approval will not be unreasonably withheld or delayed, and shall be
subject to any applicable governmental laws, ordinances, and regulations
and in compliance with Landlord's reasonable sign criteria as same may
exist from time to time. Tenant shall remove all such signs and graphics
prior to the termination of this Lease. Such installations and removals
shall be made in a manner as to avoid damage or defacement of the
Premises; and Tenant shall repair any damage or defacement, including
without limitation, discoloration caused by such installation or removal.
Landlord shall have the right, at its option, to deduct from the
Security Deposit such sums as are reasonably necessary to remove such
signs, including, but not limited to, the costs and expenses associated
with any repairs necessitated by such removal. Notwithstanding the
foregoing, in no event shall any: (a) neon, flashing or moving sign(s) or
(b) sign(s) which shall interfere with the visibility of any sign,
awning, canopy, advertising matter, or decoration of any kind of any
other business or occupant of the Park be permitted hereunder. Tenant
further agrees to maintain any such sign, awning, canopy, advertising
matter, lettering, decoration or other thing as may be approved in good
condition and repair at all times.
33. MORTGAGEE PROTECTION
Upon any default on the part of Landlord, Tenant will give written notice
by registered or certified mail to any beneficiary of a deed of trust or
mortgagee of a mortgage covering the Premises who has requested such
notice (however, upon executing a subordination agreement said mortgagee
or beneficiary shall be deemed to have requested a notice) and provided
Tenant with notice of their interest together with an address for
receiving notice, and shall offer such beneficiary or mortgagee a
reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or a judicial foreclosure, if
such should prove necessary to effect a cure. If such default cannot be
cured within such time period, then such additional time as may be
necessary will be given to such beneficiary or mortgagee to effect such
cure so long as such beneficiary or mortgagee has commenced the cure
within the original time period and thereafter diligently pursues such
cure to completion, in which event this Lease shall not be terminated
while such cure is being diligently pursued. Tenant agrees that each
lender to whom this Lease has been assigned by Landlord is an express
third party beneficiary hereof. Tenant shall not make any prepayment of
Rent more than one (1) month in advance without the prior written consent
of each such lender, except if Tenant is required to make quarterly
payments of Rent in advance pursuant to the provisions of Section 8
above. Tenant waives the collection of any deposit from such lender(s)
or any purchaser at a foreclosure sale of such lender(s)' deed of trust
unless the lender(s) or such purchaser shall have actually received and
not refunded the deposit. Tenant agrees to make all payments under this
Lease to the lender with the most senior encumbrance upon receiving a
direction, in writing, to pay said amounts to such lender. Tenant shall
comply with such written direction to pay without determining whether an
event of default exists under such lender's loan to Landlord.
34. QUITCLAIM
Upon any termination of this Lease and/or the Purchase Option, Tenant
shall, at Landlord's request, execute, have acknowledged and deliver to
Landlord a quitclaim deed of Tenant's interest in and to the Premises and
the Purchase Option, as applicable. If Tenant wrongfully fails to timely
deliver to Landlord such a quitclaim deed, Tenant hereby agrees to
indemnify, defend and hold Landlord harmless from and against any and all
judgments, claims, losses, damages, actions, liabilities, costs and
expenses (including without limitation, attorneys' fees and costs)
relating to such failure.
35. MODIFICATIONS FOR LENDER
If, in connection with obtaining financing for the Premises or any
portion thereof, Landlord's lender shall request reasonable
modification(s) to this Lease as a condition to such financing, Tenant
shall not unreasonably withhold, delay or defer its consent thereto,
provided such modifications do not materially adversely affect Tenant's
rights hereunder or the use, occupancy or quiet enjoyment of Tenant
hereunder.
36. WARRANTIES OF TENANT
Tenant hereby warrants and represents to Landlord, for the express
benefit of Landlord, that Tenant has undertaken a complete and
independent evaluation of the risks inherent in the execution of this
Lease and the operation of the Premises for the use permitted hereby, and
that, based upon said independent evaluation, Tenant has elected to enter
into this Lease and hereby assumes all risks with respect thereto.
Tenant hereby further warrants and represents to Landlord, for the
express benefit of Landlord, that in entering into this Lease, Tenant has
not relied upon any statement, fact, promise or representation (whether
express or implied, written or oral) not specifically set forth herein in
writing and that any statement, fact, promise or representation (whether
express or implied, written or oral) made at any time to Tenant, which is
not expressly set forth in writing, is hereby waived by Tenant.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
Landlord and Tenant hereby agree and acknowledge that the Premises and/or
the Park may be subject to the requirements of the Americans with
Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq,
including, but not limited to Title III thereof, all regulations and
guidelines related thereto, together with any and all laws, rules,
regulations, ordinances, codes and statutes now or hereafter enacted by
local or state agencies having jurisdiction thereof, including all
requirements of Title 24 of the State of California, as the same may be in
effect on the date of this Lease and may be hereafter modified, amended or
supplemented (collectively, the "ADA"). Any Tenant Improvements to be
constructed hereunder shall be in compliance with the requirements of the
ADA, and all costs incurred for purposes of compliance therewith shall be
a part of and included in the costs of the Tenant Improvements. Tenant
shall be solely responsible for conducting its own independent
investigation of this matter and for ensuring that the design of all
Tenant Improvements strictly comply with all requirements of the ADA.
Subject to reimbursement pursuant to Section 6 of the Lease, if any
barrier removal work or other work is required to the Building, the
Premises or the Park under the ADA, then such work shall be the
responsibility of Landlord; provided, if such work is required under the
ADA as a result of Tenant's use of the Premises or any work or alteration
made to the Premises by or on behalf of Tenant, then such work shall be
performed by Landlord at the sole cost and expense of Tenant. Except as
otherwise expressly provided in this provision, Tenant shall be
responsible at its sole cost and expense for fully and faithfully
complying with all requirements of the ADA, including without limitation,
not discriminating against any disabled persons in the operation of
Tenant's business in or about the Premises, and offering or otherwise
providing auxiliary aids and services as, and when, required by the ADA.
Within ten (10) days after receipt, Landlord and Tenant shall advise the
other party in writing, and provide the other with copies of (as
applicable), any notices alleging violation of the ADA relating to any
portion of the Premises or the Building; any claims made or threatened in
writing regarding noncompliance with the ADA and relating to any portion
of the Premises or the Building; or any governmental or regulatory actions
or investigations instituted or threatened regarding noncompliance with
the ADA and relating to any portion of the Premises or the Building.
Tenant shall and hereby agrees to protect, defend (with counsel acceptable
to Landlord) and hold Landlord and the other Indemnitees harmless and
indemnify the Indemnitees from and against all liabilities, damages,
claims, losses, penalties, judgments, charges and expenses (including
reasonable attorneys' fees, costs of court and expenses necessary in the
prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly,
Tenant's or Tenant's Representatives' violation or alleged violation of
the ADA. Tenant agrees that the obligations of Tenant herein shall
survive the expiration or earlier termination of this Lease.
Notwithstanding anything to the contrary contained herein, if Tenant in
the conduct of its operations in the Premises (and not in making any
alterations or improvements in or about the Premises, including without
limitation, the Tenant Improvements) fails to comply with the ADA
requirements, Tenant shall not be considered to be in default of the
provisions of this Lease so long as Tenant indemnifies Landlord and the
other Indemnitees with respect to said violations, as such indemnity is
set forth herein.
38. BROKERAGE COMMISSION
Landlord and Tenant each represents and warrants for the benefit of the
other that it has had no dealings with any real estate broker, agent or
finder in connection with the Premises and/or the negotiation of this
Lease, except for the Broker(s) (as set forth on Page 1), and that it
knows of no other real estate broker, agent or finder who is or might be
entitled to a real estate brokerage commission or finder's fee in
connection with this Lease or otherwise based upon contacts between the
claimant and Tenant. Each party shall indemnify and hold harmless the
other from and against any and all liabilities or expenses arising out of
claims made for a fee or commission by any real estate broker, agent or
finder in connection with the Premises and this Lease other than
Broker(s), if any, resulting from the actions of the indemnifying party.
Any real estate brokerage commission or finder's fee payable to the
Broker(s) in connection with this Lease shall only be payable and
applicable to the extent of the initial Term of the Lease and to the
extent of the Premises as same exist as of the date on which Tenant
executes this Lease. Unless expressly agreed to in writing by Landlord
and Broker(s), no real estate brokerage commission or finder's fee shall
be owed to, or otherwise payable to, the Broker(s) for any renewals or
other extensions of the initial Term of this Lease or for any additional
space leased by Tenant other than the Premises as same exists as of the
date on which Tenant executes this Lease. Tenant further represents and
warrants to Landlord that Tenant will not receive (i) any portion of any
brokerage commission or finder's fee payable to the Broker(s) in
connection with this Lease or (ii) any other form of compensation or
incentive from the Broker(s) with respect to this Lease. Landlord shall
pay and indemnify and hold Tenant free and harmless from all fees and
commissions owed or hereafter owing to Brokers in connection with this
Lease (but not the Purchase Option for which no commission is due or
payable).
39. QUIET ENJOYMENT
Landlord covenants with Tenant, upon the paying of Rent and observing and
keeping the covenants, agreements and conditions of this Lease on its
part to be kept, and during the periods that Tenant is not otherwise in
default of any of the terms or provisions of this Lease beyond any
applicable cure periods , and subject to the rights of any of Landlord's
lenders, (i) that Tenant shall and may peaceably and quietly hold, occupy
and enjoy the Premises and the Common Areas during the Term of this
Lease, and (ii) neither Landlord, nor any successor or assign of
Landlord, nor any of Landlord's Representatives shall disturb Tenant's
occupancy or enjoyment of the Premises and the Common Areas.
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS
Notwithstanding anything to the contrary contained in this Lease, if
Tenant shall fail to perform any of the terms, provisions, covenants or
conditions to be performed or complied with by Tenant pursuant to this
Lease, and if the failure of Tenant relates to a matter which in
Landlord's judgment reasonably exercised is of an emergency nature and
such failure shall remain uncured for a period of time commensurate with
such emergency, then Landlord may upon twenty-four hours prior written
notice to Tenant, at Landlord's option without any obligation to do so,
and in its sole discretion as to the necessity therefor, perform any such
term, provision, covenant, or condition, or make any such payment and
Landlord by reason of so doing shall not be liable or responsible for any
loss or damage thereby sustained by Tenant or anyone holding under or
through Tenant. If Landlord so performs any of Tenant's obligations
hereunder, the full amount of the cost and expense reasonably entailed or
the reasonable payment so made or the amount of the loss so sustained
shall immediately be owing by Tenant to Landlord, and Tenant shall
promptly pay to Landlord upon demand, as Additional Rent, the full amount
thereof with interest thereon from the date of payment at the greater of
(i) ten percent (10%) per annum, or (ii) the highest rate permitted by
applicable law.
41. ADJUSTMENTS TO BASE RENT
The monthly Base Rent payable by Tenant to Landlord, as set forth in this
Lease, shall be adjusted effective on the first (1st) day of each of the
thirty-first (31st), sixty-first (61st) and ninety-first (91st) month
anniversary dates of the Commencement Date of this Lease (each an
"Adjustment Date"), in accordance with the percentage increase, if any,
in the "Consumer Price Index for Urban Wage Earners and Clerical Workers
(CPI-W) for Los Angeles-Riverside-Orange County, California" (Base:
1982-1984=100), as published by the United States Department of Labor,
Bureau of Labor Statistics ("Index").
The monthly Base Rent payable on each Adjustment Date shall be the product
of the monthly Base Rent in effect on the last day preceding each
Adjustment Date and the fraction described below. The denominator of such
fraction shall be the Index in effect one (1) month prior to the
Commencement Date of the Lease or the last Adjustment Date, as the case
may be ("Base Index"). The numerator of such fraction shall be the Index
in effect one (1) month prior to the last day preceding each Adjustment
Date ("Adjustment Index"). The monthly Base Rent shall be increased and
paid thereafter in accordance with the percentage increase, if any,
between such Indices; provided, however, in no event shall such increase,
on an annual basis, be less than two percent (2%) or more than five
percent (5%).
Should said Bureau discontinue the publication of the above Index, or the
compilation of the Index be materially altered, or publish the same less
frequently, or vary the method of calculation of same, or alter the same
in some other manner, then Landlord shall adopt a substitute index which
is most nearly the same or substitute procedure which reasonably reflects
and monitors consumer prices, and shall be used to make such calculation.
If the Index is changed so that the base year differs from that in
effect when the term commences, the Index shall be converted in
accordance with the conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics, or, if said bureau shall
not publish the same, then with the use of such conversion factor,
formula or table as may be published by Prentice Hall Inc. or by any
other nationally recognized publisher of similar statistical information.
In the event the compilation and/or publication of the Index shall be
discontinued or materially altered, then the index most nearly the same
as the Index shall be used to make such calculation. In the event
Landlord and Tenant cannot agree on such alternative Index, then the
matter shall be submitted to the American Arbitration Association in
accordance with the then rules of the said Association and a decision of
the arbitrators as to the applicable Index shall be binding upon the
parties. The cost of said arbitrator shall be paid equally by Landlord
and Tenant.
Example:
Hypothetical Facts:
Lease Commencement Date or
Last Adjustment Date: 9/1/92
Adjustment Date: 9/1/93
Monthly rent in effect: 8/31/93 $2,000.00
Base Index: July, 1992 - 410.0
Adjustment Index: July, 1993 - 430.0
Adjusted Rent Calculation:
Ratio of Indices: 430.0 = 1.0488 or 4.88%
410.0
Adjusted monthly rent: $2,000.00 x 4.88% = $2,097.60
42. OPTIONS TO EXTEND THE LEASE TERM
42.1 Grant of Extension Options. Subject to the provisions,
limitations and conditions set forth in Section 42.5 below, Tenant shall
have an option (individually, an "Option" and collectively, the
"Options") to extend the term of the Lease for two (2) successive five
(5) year periods (individually, the "First Extended Term" and the
"Second Extended Term", respectively, and collectively, the "Extended
Terms").
42.2 Tenant's Option Notice. Landlord must receive written notice
(an "Option Notice") from Tenant of Tenant's exercise of an Option on a
date which is not more than twelve (12) months nor less than ten (10)
months prior to the end of, with respect to the First Extended Term, the
initial term of the Lease or, with respect to the Second Extended Term,
the First Extended Term. In the event Tenant fails to timely and
properly exercise such Option for the (i) First Extended Term, all rights
to both Options shall automatically terminate and be of no further force
or effect, or (ii) Second Extended Term, all rights to the Option for the
Second Extended Term shall automatically terminate and be of no further
force or effect.
42.3 Establishing the Initial Monthly Base Rent for the Extended
Terms. The initial monthly Base Rent for each of the First Extended Term
and the Second Extended Term shall be ninety-five percent (95%) of the
then current market rent for the then current use of the Premises within
the competitive market area of the Premises (the "Fair Rental Value").
Notwithstanding the foregoing, "Fair Rental Value" of the Premises
means the current market rental value of the Premises as of the
commencement of the First Extended Term or the Second Extended Term, as
applicable, taking into consideration all relevant factors, including
length of term, the warehouse uses permitted under the Lease, the
quality, size, design and location of the Premises, including the
condition and value of existing tenant improvements (but only to the
extent the cost of which has been contributed to by Landlord), and the
monthly base rent paid by tenants for premises comparable to the
Premises, and located within the competitive market area of the Premises.
In no event shall the monthly Base Rent for any period of the First
Extended Term, as determined pursuant to this Section 42.3, be less than
the highest monthly Base Rent charged during the initial term of the
Lease. In no event shall the monthly Base Rent for any period during the
Second Extended Term, as determined pursuant to this Section 42.3, be
less than the highest monthly Base Rent charged during the initial term
or the First Extended Term.
(a) Determination of Base Rent for the First Extended Term. Base
Rent for the First Extended Term of this Lease, if applicable,
shall be a monthly sum, (which in no event shall be less than the
monthly sum payable during the last full calendar month of the
initial term), which shall be determined as follows:
(i) During the period commencing within the Option Notice
and ending nine and one-half (9 1/2) months prior to the
expiration of the initial term, Landlord and Tenant shall
meet at such times as they shall mutually agree and endeavor
in good faith to agree upon the Base Rent for the First
Extended Term.
(ii) If Landlord and Tenant are unable to agree, during the
period stated in subsection (a)(i), on the Base Rent for the
First Extended Term, such Base Rent shall be determined by
appraisal in the manner provided in subsection (c) below.
(b) Determination of Base Rent for the Second Extended Term.
Base Rent for the Second Extended Term of this Lease, if
applicable, shall be a monthly sum (which in no event shall be less
than the monthly sum payable during the last full calendar month of
the First Extended Term), which shall be determined as follows:
(i) During the period commencing with Tenant's delivery of
the Option Notice and ending nine and one-half (9 1/2) months
prior to the expiration of the First Extended Term, Landlord
and Tenant shall meet at such times as they shall mutually
agree and endeavor in good faith to agree upon the Base Rent
for the Second Extended Term.
(ii) If Landlord and Tenant are unable to agree, during the
period stated in subsection (b)(i), on the Base Rent for the
Second Extended Term, such Base Rent shall be determined by
appraisal in the manner provided in subsection (c) below.
(c) Appraisal Process. If Landlord and Tenant are unable to
agree upon the amount of Base Rent payable during either of the
Extended Terms, as provided above, they each shall, not later than
ten (10) days after the end of the period for attempting to agree
upon Base Rent, appoint an independent M.A.I. appraiser who shall
have at least ten (10) years' experience in the commercial real
estate market in which the Premises is located and shall be
familiar with the valuation of comparable property in such area and
otherwise qualified to act as an expert witness over objection to
give opinion testimony addressed to the issue in a court of
competent jurisdiction. Within said ten (10) day period, each
party shall notify the other party in writing of the name, address,
telephone number and qualifications of its appraiser so appointed.
If either party shall fail to notify the other party of its named
appraiser within said ten (10) day period, the determination of
Base Rent by the single appraiser appointed shall be conclusive and
binding upon both Landlord and Tenant.
(i) The appraisers appointed pursuant to this subsection
(c) shall determine the "Fair Rental Value" for the Premises
as of the date of calculation thereof.
(ii) The appraisers shall, not later than eight (8) months
prior to the expiration of the initial term, or the First
Extended Term, as the case may be, report in writing to the
party appointing him/her their opinion as to the Fair Rental
Value. Each party shall, promptly upon receipt of the
appraisal report from its appraiser, provide the other party
with a copy thereof. Not later than seven and one-half (7 1/2)
months prior to the expiration of the applicable Term,
Landlord and Tenant shall meet at such times as they shall
mutually agree and endeavor in good faith to agree upon the
Base Rent based upon the reports of the appraisers. If
Landlord and Tenant are unable to agree on the Base Rent
within the time specified above, the appraisers shall appoint
a third appraiser, qualified as aforesaid, who shall, not
later than six and one-half (6 1/2) months prior to the
expiration of the applicable Term, determine the Fair Rental
Value on the basis of the two appraisal reports previously
prepared and consultation with such appraisers and/or other
experts and competent authorities as such third appraiser
shall deem relevant or appropriate in his/her discretion. So
long as it is not inconsistent with any of the express
provisions of this Lease and is not arbitrary and capricious,
the written report and determination of Fair Rental Value by
the third appraiser shall be accepted by Landlord and Tenant
as the Base Rent, which determination shall be final and
binding and enforceable in a court of competent jurisdiction
with the same force and effect as if the same were a judgment
duly entered by such court. In the event that the two
originally appointed appraisers cannot for any reason agree
on a third M.A.I. appraiser, then either Landlord or Tenant,
on behalf on both, may request appointment of such third
M.A.I. appraiser by the then Chief Judge of the United States
District Court having jurisdiction over the Premises, and
neither party shall raise any question as to such Judge's
full power and jurisdiction to entertain the application for
and make such appointment hereunder.
(iii) In the use of appraisers hereunder, each party shall
pay the fees and expenses of its own appraiser and shall
share equally the fees and expenses of any third appraiser
appointed hereunder.
Upon determination of the initial monthly Base Rent for the First
Extended Term and the Second Extended Term, as applicable, pursuant to
the terms outlined above, Landlord and Tenant shall immediately execute
an amendment to the Lease. Such amendment shall set forth among other
things, the initial monthly Base Rent for the First Extended Term or the
Second Extended Term, as applicable, and the actual commencement date and
expiration date of the First Extended Term or the Second Extended Term,
as the case may be. Tenant shall have no other right to further extend
the term of the Lease under this Section 42 unless Landlord and Tenant
otherwise agree in writing.
42.4 Condition of Premises and Brokerage Commissions for the
Extended Terms. If Tenant timely and properly exercises either Option,
in strict accordance with the terms contained herein: (1) Tenant shall
accept the Premises in its then "AS-IS" condition and, accordingly,
Landlord shall not be required to perform any additional improvements to
the Premises; and (2) Tenant hereby agrees that it will solely be
responsible for any and all brokerage commissions and finder's fees
payable to any broker now or hereafter procured or hired by Tenant or who
otherwise claims a commission based on any act or statement of Tenant
("Tenant's Broker") in connection with the Options; and Tenant hereby
further agrees that Landlord shall in no event or circumstance be
responsible for the payment of any such commissions and fees to Tenant's
Broker.
42.5 Limitations On, and Conditions To, Extension Options. The
Options described in this Section 42 are personal to Tenant and may not
be assigned, voluntarily or involuntarily, separate from or as part of
the Lease except for an assignment to a Related Entity as part of the
assignment of the entirety of this Lease. At Landlord's option, all
rights of Tenant and any Related Entity in, to and under the Options
described in this Section 42 shall terminate and be of no force or effect
if any of the following individual events occur or any combination
thereof occur: (1) Tenant or the Related Entity, as the case may be, is
in default in the performance of any of its obligations under this Lease
beyond applicable notice and cure periods at the time of Tenant's or the
Related Entity's (as the case may be) exercise of the then applicable
Option to extend the then applicable term of this Lease; and/or (2)
Tenant or the Related Entity (as the case may be) has assigned all of its
rights and obligations under the Lease to any party other than a Related
Entity, or Tenant has subleased all of the Premises; and/or (3) Tenant
has failed to exercise properly the Options described in this Section 42
in a timely manner in strict accordance with the provisions of this
Section 42; and/or (4) Tenant or the Related Entity (as the case may be)
no longer has possession of all of the Premises under the Lease.
42.6 Time is of the Essence. Time is of the essence with respect
to each and every time period set forth in this Section 42.
43. OPTION TO EXPAND
43.1 Grant of Expansion Option. Subject to the provisions,
limitations and conditions set forth in this Section 43, Tenant shall
have a one-time option ("Expansion Option") to lease the adjacent
building situated within the Park consisting of approximately 107,182
rentable square feet ("Expansion Premises") on the terms and conditions
as set forth below. Notwithstanding anything to the contrary contained
herein, the Expansion Option shall not be effective until and unless the
subject Expansion Premises becomes available for lease by a third party,
subject and subordinate to the rights of the existing tenant, namely Duty
Free Shoppers (together with its successors and assigns, "DFS"),
presently occupying the Expansion Premises pursuant to the terms and
provisions of its lease, as such lease may be later modified or amended
but in no event extended. Notwithstanding anything to the contrary
contained herein, the Expansion Option shall not be available to Tenant
nor effective if the Expansion Premises are occupied through the
Expansion Option Date defined below.
43.2 Tenant's Election Notice to Lease Expansion Premises; and
Lease Term for Expansion Premises. In order to duly exercise the
Expansion Option hereunder Tenant must deliver to Landlord by no later
than October 1, 2000 ("Expansion Option Date") prior written notice of
its unconditional and unequivocal intention to exercise the Expansion
Option to lease the Expansion Premises (the "Expansion Option Notice")
commencing on the earlier to occur of (i) the date on which the Expansion
Premises becomes available, or (ii) August 1, 2001 if DFS timely vacates
the Expansion Premises and surrenders possession thereof to Landlord in
accordance with DFS' lease agreement (the "EP Commencement Date").
Tenant hereby acknowledges and agrees that Landlord needs and requires at
least nine (9) months' prior written notice of Tenant's election to
exercise the Expansion Option hereunder. If Tenant timely and duly
delivers to Landlord the Expansion Option Notice by the Expansion Option
Date and Tenant also complies with all of the terms and provisions of
this Section 43, the term for the Expansion Premises shall be coterminous
with the Term of this Lease and begin on the EP Commencement Date.
Tenant acknowledges and agrees that the actual commencement date of the
term for the Expansion Premises shall not be dependent upon completion of
any tenant improvement work therein; rather, the actual commencement date
shall be the EP Commencement Date dependent only upon the Expansion
Premises then being vacant and available for lease by Tenant.
43.3 Expansion Premises Base Rent, Security Deposit and Other
Terms. The Rent payable by Tenant for the Expansion Premises shall
initially be the same as is then in effect for the Premises as of the EP
Commencement Date and thereafter shall be subject to adjustments in
accordance with the provisions of Section 41 above. Tenant shall not be
required to pay Base Rent for the Expansion Premises during the first two
(2) calendar months of the Term therefor. If the Expansion Option is
duly exercised, from and after the EP Commencement Date, the term
"Premises" as used herein shall mean and refer to the aggregate of the
Premises, as described herein as of the Lease Date, and the Expansion
Premises. In addition to the increase in Rent, (i) the amount of the
Security Deposit shall be increased by the amount of the last months'
Base Rent payable for the Expansion Premises (as estimated by Landlord)
and Tenant shall pay same to Landlord within ten (10) business days of
delivery to Landlord of the Expansion Option Notice, (ii) the Tenant's
Share for all expenses shall increase to 100% of the Park, (iii) the
number of Tenant's parking spaces shall be increased commensurately, (iv)
Exhibit B shall be modified to provide that there shall be no Tenant
Improvement Allowance attributable or otherwise payable by Landlord with
respect to the Expansion Premises; it being the intention of the parties
that the Tenant pay for all of the costs and expenses associated with any
tenant improvements to be made to the Expansion Premises, (v) the
exclusions from the definition of Operating Expenses shall be modified as
appropriate, including but not limited to, deleting clauses (vi) and
(xii) therefrom, and (vi) the parties shall execute an amendment to this
Lease effectuating the foregoing within ten (10) business days of
delivery to Landlord of the Expansion Option Notice. All other terms and
conditions shall remain the same.
43.4 Brokerage Commission for the Expansion Premises. Tenant
hereby agrees that it will be solely responsible for any and all
brokerage commissions and finder's fees payable or allegedly payable to
any broker now or hereafter procured or otherwise hired by Tenant
("Tenant's Broker") in connection with Tenant's lease of the Expansion
Premises. Tenant hereby further agrees that Landlord shall in no event
or circumstance be responsible or otherwise liable for the payment of any
such brokerage commissions and/or finder's fees to Tenant's Broker and,
accordingly, Tenant shall indemnify, defend and hold Landlord and each of
its partners, members, officers, directors, shareholders, representatives
and agents harmless from and against any and all claims, damages,
judgments, liabilities, costs and expenses (including without limitation,
attorneys' and experts' fees and costs) related thereto.
43.5 Limitations on, and Conditions to, Expansion Option.
43.5.1 The Expansion Option granted to Tenant herein is
personal to Tenant and may not be assigned, voluntarily or
involuntarily, separate from or as a part of the Lease except for
an assignment to a Related Entity as part of the assignment of the
entirety of this Lease. At Landlord's sole option, all rights of
Tenant and any Related Entity in, to and under this Section 43
shall terminate and be of no force or effect if any of the
following individual events occur or any combination thereof occur
at any time during the Term of the Lease: (i) Tenant or the Related
Entity, as the case may be, is in default of any provision of the
Lease beyond applicable notice and cure periods at the time of
Tenant's or the Related Entity's (as the case may be) delivery to
Landlord of the Expansion Option Notice; and/or (ii) Tenant or the
Related Entity (as the case may be) has assigned all of its rights
and delegated its obligations under the Lease to a party other than
a Related Entity or Tenant has subleased all of the Premises;
and/or (iii) Tenant has failed to timely, properly and duly
exercise the Expansion Option in strict accordance with the
provisions of this Section 43; and/or (iv) Tenant or the Related
Entity (as the case may be) no longer has possession of all of the
Premises.
43.5.2 If any of the following described events occur the
Expansion Option shall automatically terminate with respect to the
Expansion Premises and thereafter be of no further force or effect:
(i) Tenant elects not to exercise the Expansion Option; or (ii)
Tenant fails to timely deliver the Expansion Option Notice to
Landlord prior to the Expansion Option Date. If any of the
foregoing events occur, Tenant shall have no further right to
exercise the Expansion Option thereafter. It is the express
intention of the parties hereto that the Expansion Option only be
available to be exercised, declined or deemed declined by Tenant
one time and the Expansion Option shall neither be construed nor
interpreted as being a continuing right of Tenant or of a
continuing nature.
43.6. Confidentiality Obligations. Tenant hereby covenants and
warrants to Landlord that Tenant shall (i) keep and maintain the terms
and provisions of this Section 43 and the terms of any offers,
acceptances and correspondence pursuant to this Section 43 strictly
confidential, and (ii) not disclose, disseminate or otherwise publish the
terms of this Section 43 or the terms of any offers, acceptances and
correspondence to any party other than to Tenant's respective advisors.
The foregoing covenant and warranty made by Tenant shall not apply in
those instances where such disclosure is required by law, a valid court
order, or in order to effectuate the provisions of this Section 43. If
any such disclosure is made, then Tenant shall ensure that each party to
whom such disclosure is made will enter into a similar covenant and
warranty to maintain such information in strict confidence for the
benefit of Landlord. If Tenant violates any of the provisions of this
Section 43.6, then Landlord may immediately terminate the Expansion
Option unless Tenant cures such violation within ten (10) days after
Landlord's delivery to Tenant of written notice thereof.
43.7 Time of the Essence. Time is of the essence in the
performance of the parties' respective obligations set forth in this
Section 43.
44. OPTION TO PURCHASE
44.1 Grant of Purchase Option: Landlord hereby grants to Tenant
the right and option (the "Purchase Option") to purchase the Park
(inclusive of the Buildings, the parking structure and the Lot) subject
to all of the terms, conditions and provisions contained in this Section
44. Notwithstanding anything to the contrary contained herein, if Tenant
is in Chronic Default at any time during the Term of this Lease, then the
Purchase Option granted herein shall immediately expire, lapse and
terminate for all purposes as of the date of the occurrence of the last
of such uncured default and thereafter shall be of no further force or
effect.
44.2 Term of Purchase Option: The term of the Purchase Option
(the "Purchase Option Term") shall be for a period of six (6) months,
commencing on July 1, 1999 and ending on December 31, 1999. Unless
timely and properly exercised as provided herein, the Purchase Option
shall expire, lapse and terminate for all purposes at the end of the
Purchase Option Term and thereafter shall be of no further force or
effect. In such event, within five (5) days thereafter, Tenant shall
execute, acknowledge and deliver to Landlord a quitclaim deed, in
recordable form and as is then acceptable to Landlord, terminating its
interest in, to and under the Purchase Option.
44.3 Exercise of Purchase Option and Execution of Sale Agreement:
Tenant shall exercise the Purchase Option, if at all, by delivering
written notice (the "Notice of Exercise") to Landlord within the Purchase
Option Term and prior to the expiration of the Purchase Option Term. The
Notice of Exercise shall set forth the fact that the Purchase Option is
being unconditionally and unequivocally exercised by Tenant with
absolutely no contingencies except for (i) the delivery by Landlord into
escrow of the Grant Deed and any other documents Landlord is required to
deliver to effectuate the closing contemplated herein, and (ii) a thirty
(30) day inspection period from the date on which the Notice of Exercise
is delivered during which Tenant may perform a "Phase 1" environmental
site assessment, review and approve any other leases, any contracts and
title matters and notify Landlord of its approval of the acquisition of
the Park (the "Inspection Period"). Within one (1) week after Tenant's
delivery to Landlord of the Notice of Exercise, Landlord and Tenant shall
execute and deliver a written sale agreement for the purchase of the
Park, in form acceptable to both Landlord and Tenant (the "Sale
Agreement"). Notwithstanding the foregoing nor anything to the contrary
contained herein, the Sale Agreement shall provide for and contain, inter
alia, the following provisions: (i) the provisions of this Section 44
pertaining the sale of the Park (including but not limited to, the amount
of the Purchase Price as specified herein, the method of payment of the
Purchase Price as specified herein, the identity of the "Escrow Holder"
or "Title Company" as specified herein, and the Closing Date as specified
herein); (ii) that Tenant shall purchase the Park strictly "AS IS",
"WHERE IS" and "WITH ALL FAULTS" and with absolutely no implied or
express representations or warranties from Landlord or any of its agents,
employees or representatives except as otherwise expressly set forth in
Section 44.3.1 below; and (iii) Tenant shall unconditionally and
unequivocally release Landlord and its members, agents, employees,
representatives, lenders, successors and assigns from any and all claims,
liabilities, demands, causes of action, matters, damages, judgments,
losses, expenses, whether foreseeable, unforeseeable, known or unknown,
in any manner relating to the Park, including without limitation, the
condition of the Park. Such release shall be in form acceptable to
Landlord in its sole and absolute discretion, and shall include a release
of claims as specified in California Civil Code Section 1542. If for any
reason whatsoever the Sale Agreement is not executed and delivered by
both Landlord and Tenant prior to the expiration of said one (1) week
period, then unless Landlord expressly extends such 1-week time period in
writing, the Purchase Option shall expire, lapse and terminate for all
purposes at the end of such one (1) week period and thereafter shall be
of no further force or effect.
44.3.1 Limited Representations of Landlord. Except as then
otherwise disclosed by Landlord to Tenant, Landlord shall make the
following representations in the Sale Agreement, to the actual
knowledge of Landlord:
(a) there is no litigation then pending or, to Landlord's
actual knowledge threatened, against Landlord or the Park or any basis
therefor that arises out of the ownership of the Park or that is likely to
materially and detrimentally affect the use or operation of the Park for
Tenant's intended purpose or materially and adversely affect the ability
of Landlord to perform its obligations under the Sale Agreement.
(b) to Landlord's actual knowledge, other than the occupants
of the Park, no other parties have the right of possession to any portion
of the Park.
(c) Landlord has not given any other party an option to
purchase the Park.
(d) to Landlord's actual knowledge, Landlord has not
received written notice of any material pending violations of Laws
excluding any matters or violations relating to Hazardous Materials or the
physical condition of the Park.
44.4 Effect of Exercise and Closing Date: In the event Tenant
exercises the Purchase Option as provided herein, then from the date of
delivery of the Notice of Exercise Tenant unequivocally and
unconditionally agrees to purchase the Park from Landlord and Landlord
agrees to sell the Park in accordance with the provisions contained in
this Section 44 and the Sale Agreement. So long as Tenant has timely and
properly exercised the Purchase Option and executed and delivered the Sale
Agreement in strict accordance with the provisions of this Section 44,
escrow shall close for the sale of the Park on the date which is sixty
(60) days after the date on which Tenant delivers to Landlord the Notice
of Exercise (the "Closing Date"). The Closing Date shall not be extended
to a later date unless Landlord expressly agrees otherwise in writing, in
Landlord's sole and absolute discretion.
44.5 Purchase Price: The purchase price (the "Purchase Price") of
the Park shall be the sum in the amount of Sixteen Million Two Hundred
Forty-Five Thousand Twenty Dollars ($16,245,020.00), subject to
prorations. Tenant shall pay the Purchase Price to Landlord at Close of
Escrow (defined below), in cash, in immediately available funds via wire
transfer or cashier's check drawn upon a California bank, at Close of
Escrow. Tenant shall deliver such funds into escrow by no later than one
(1) business day prior to the Closing Date or such earlier date as may be
required by the Escrow Holder.
44.6 Conveyance: Landlord shall by grant deed, in form reasonably
acceptable to Landlord (the "Grant Deed"), at Close of Escrow (defined
below) convey to Tenant fee title to the Park subject to all taxes and
assessments, matters of record, all encumbrances and liens (other than
any lien of a deed of trust or mortgage executed by Landlord in favor a
lender with respect to the Park or other monetary encumbrances created by
Landlord), applicable Laws, rules and regulations and the exceptions to
title as set forth in a preliminary title report (the "Title Report")
from Fidelity National Title Insurance Company ("Escrow Holder" or "Title
Company"), located at 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (Xx. Xxxx Xxxxx). Evidence of title to the Park shall
be insured by use of the form of a California Land Title Association
policy of title insurance (the "CLTA Owner's Title Policy"), naming
Tenant as the insured, which insurance shall be in the amount of the
Purchase Price.
44.7 Escrow and Possession: Within two (2) business days after
the date on which Tenant delivers to Landlord the Notice of Exercise,
Tenant shall open escrow for this sale with the Title Company. All
escrow instructions shall be consistent with the terms and conditions of
this Section 44 and the Sale Agreement. Close of escrow ("Close of
Escrow") means the moment when the Grant Deed is recorded in the Official
Records of Los Angeles County, California. Title shall be conveyed and
possession given to Tenant at Close of Escrow, subject to this Lease if
Tenant so elects, in writing. Escrow shall close on the Closing Date.
Each party shall timely deposit such documents, monies and written escrow
instructions with the Escrow Holder as may be necessary for the
conveyance of the Park in accordance with the terms of this Section 44
and the Sale Agreement.
44.8 Condition of Park: Tenant acknowledges that prior to Close
of Escrow it or its agents will have occupied the Premises, inspected the
Park and observed the physical characteristics and condition of the Park.
Tenant hereby waives any and all deficiencies and defects in the
physical characteristics and condition of the Park which would be
disclosed by such inspection. Tenant further acknowledges that except
for the limited representations set forth in Section 44.3.1 hereof
neither Landlord or any of Landlord's employees, agents or
representatives have made or will make any representations, warranties or
agreements by or on behalf of Landlord as to any matters concerning the
Park, the present use thereof or the suitability of Tenant's intended use
of the Park, including without limitation, the suitability of the
topography; the availability of water rights or utilities; the present
and future zoning, subdivision and any and all other land use matters;
the condition of the soil, subsoil or groundwater of the Park and any and
all other environmental matters; the purposes(s) to which the Park is
suited; drainage; flooding; access to public roads; or proposed routes of
roads or extensions thereof.
44.9 Closing Costs and Prorations: All costs associated with the
transfer of title to the Park and the associated escrow shall be in
accordance with the customary practices in Los Angeles County except as
otherwise expressly set forth herein. Landlord shall pay the applicable
city transfer taxes (if any), the documentary county transfer taxes, one-
half of the escrow fees, and the recording costs with respect to the
Grant Deed and to remove monetary liens attributable to financing
obtained by Landlord with respect to the Park. Tenant shall pay one-half
of the escrow fees, and the recording costs for any instruments it
desires to be recorded. Tenant may elect to cause the Title Company to
issue an ALTA Owner's Policy of Title Insurance (extended coverage) and
if Tenant so elects, Tenant shall timely provide the Title Company with
an ALTA Survey of the Park, at its sole cost and expense (the "ALTA
Policy"). Landlord shall pay the premium charged for the CLTA Owner's
Title Policy (excluding endorsements) and Tenant shall pay for any
incremental premiums or other charges related to the ALTA Policy
(including endorsements). Real property taxes and assessments, except
for those paid by Tenant under the Lease, shall be prorated as of Close
of Escrow. Rent and other operating expenses for the Lease shall also be
prorated as of Close of Escrow. Each party shall pay the legal fees
incurred for its own legal counsel.
44.10 Broker's Commission: No brokerage commission or fee shall be
due or payable to any party in connection with the transfer of the Park
as contemplated in this Section 44 and in the Sale Agreement. Landlord
and Tenant each covenant to the other that they have not entered into any
agreement or incurred any obligation which may result in the obligation
of the other party to pay a sales or brokerage commission or finder's fee
on this transaction to any party or company.
44.11 Assignment: The terms and provisions of this Section 44
shall be binding upon and inure to the benefit of the parties'
successors. Except for an assignment to a Related Entity as part of this
Lease, the Purchase Option is personal to Tenant and may not be assigned,
voluntarily or involuntarily, to any party or entity, separate from or as
part of the Lease. Any such attempted assignment in violation of the
foregoing shall be null and void.
45. LETTER OF CREDIT
Simultaneously with Tenant's delivery to Landlord of this Lease, the
first month's Base Rent and Security Deposit in accordance with the
provisions of Section 3 above, Tenant shall deliver to Landlord, as
collateral for the full and faithful performance by Tenant of all of its
obligations under this Lease and for all losses and damages Landlord may
suffer as a result of any default by Tenant under this Lease, an
irrevocable and unconditional negotiable letter of credit, in the form
and containing the terms required herein, payable in the City of Irvine,
California running in favor of Landlord issued by a solvent bank under
the supervision of the Superintendent of Banks of the State of
California, or a National Banking Association (the "Issuer"), in the
amount of Five Hundred Thousand Dollars ($500,000.00), (the "Letter of
Credit"). The Letter of Credit shall be (a) at sight, irrevocable and
unconditional, (b) maintained in effect, whether through replacement,
renewal or extension, until one (1) month after the entire Lease Term or
until such time as Tenant achieves three (3) successive quarters of
positive earnings before interest, taxes, depreciation and amortization
as reported in Tenant's audited 10Q (the "Letter of Credit Expiration
Date") and Tenant shall deliver a new Letter of Credit or certificate of
renewal or extension to Landlord at least thirty (30) days prior to the
expiration of the Letter of Credit, without any action whatsoever on the
part of Landlord, (c) subject to the Uniform Customs and Practices for
Documentary Credits (1993-Rev) International Chamber of Commerce
Publication #500, (d) acceptable to Landlord in its reasonable
discretion, and (e) fully assignable by Landlord by amendment thereto in
accordance with customary letter of credit practice and shall permit
partial draws. In addition to the foregoing, the form and terms of the
Letter of Credit (and the bank issuing the same) shall be acceptable to
Landlord, in Landlord's reasonable discretion, and shall provide, among
other things, in effect that: (1) Landlord, or its then managing agent,
shall have the right to draw down an amount up to the face amount of the
Letter of Credit upon the presentation to the issuing bank of Landlord's
(or Landlord's then managing agent's) statement that such (A) amount is
due to Landlord under the terms and conditions of this Lease, it being
understood that if Landlord or its managing agent be a limited liability
company, corporation, partnership or other entity, then such statement
shall be signed by a managing member (if a limited liability company), an
officer (if a corporation), a general partner (if a partnership), or any
authorized party (if another entity), and (B) an event of default has
occurred under this Lease and, all applicable notice and cure periods
have elapsed; (2) the Letter of Credit will be honored by the issuing
bank without inquiry as to the accuracy thereof and regardless of whether
the Tenant disputes the content of such statement; and (3) in the event
of a transfer of Landlord's interest in the Premises, Landlord shall
transfer the Letter of Credit, in whole or in part (or cause at Tenant's
expense a substitute letter of credit to be delivered, as applicable), to
the transferee and thereupon the Landlord shall, without any further
agreement between the parties, be released by Tenant from all liability
therefor, and it is agreed that the provisions hereof shall apply to
every transfer or assignment of the whole or any portion of said Letter
of Credit to a new Landlord. Tenant hereby acknowledges and agrees that
Landlord is entering into this Lease in material reliance upon the
ability of Landlord to draw upon the Letter of Credit upon the occurrence
of any default on the part of Tenant hereunder which continues beyond any
applicable notice and cure periods. Tenant further acknowledges and
agrees that if Landlord cannot draw upon the Letter of Credit within the
times and in the manner as anticipated by Landlord herein, Landlord shall
suffer irreparable damage, harm and injury. From time to time during the
Term of this Lease, including, but not limited to, the event whereby
Tenant meets certain financial condition criterion as set forth in this
Section 45, it is anticipated by the parties that the Letter of Credit
will need to be amended, modified and, possibly reissued. Landlord and
Tenant hereby covenant and agree to cooperate with one another to
promptly effectuate any such amendments, modifications and new issuances,
including without limitation, executing and submitting to the Issuer any
and all documents or instruments as may be reasonably required to
effectuate same. Each and every time during the Term of this Lease there
is a change in the identity or address of the parties, including without
limitation, any change in the identity of Landlord due to the sale,
transfer or other conveyance by Landlord of its rights and interests in,
to and under this Lease to any other party, person or entity, the Letter
of Credit shall immediately be amended or reissued to reflect such
changes and the parties hereby agree to execute and submit to the Issuer
such further applications, documents and instruments as may be necessary
to effectuate same. It is the intention of the parties that each and
every successor and assign of both Landlord and Tenant be bound by and
subject to the terms and provisions of this Section 45. Landlord may, at
any time and without notice to Tenant and without first obtaining
Tenant's consent thereto, assign all or any portion of its interest in
and to the Letter of Credit to another party, person or entity,
regardless of whether or not such assignment is separate from or as a
part of the assignment by Landlord of its rights and interests in and to
this Lease. If, as a result of any such application of all or any part
of the Letter of Credit, the amount of the Letter of Credit shall be less
than Five Hundred Thousand Dollars ($500,000.00), Tenant shall within
five (5) business days thereafter provide Landlord with additional
letter(s) of credit in an amount equal to the deficiency (or a
replacement letter of credit in the total amount of Five Hundred Thousand
Dollars ($500,000.00) and each such additional (or replacement) letter of
credit shall comply with all of the provisions of this Section 45, and if
Tenant fails to do so, notwithstanding anything to the contrary contained
in Section 20 hereof, the same shall constitute an incurable default by
Tenant. Tenant further covenants and warrants that it will neither
assign nor encumber the Letter of Credit or any part thereof and that
neither Landlord nor its successors or assigns will be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
Without limiting the generality of the foregoing, if the Letter of Credit
expires earlier than the Letter of Credit Expiration Date, Landlord will
accept a renewal thereof or substitute letter of credit (such renewal or
substitute letter of credit to be in effect not later than thirty (30)
days prior to the expiration thereof), which shall be irrevocable and
automatically renewable as above provided through the Letter of Credit
Expiration Date upon the same terms as the expiring letter of credit or
such other terms as may be acceptable to Landlord in its reasonable
discretion. However, if the Letter of Credit is not timely renewed or a
substitute letter of credit is not timely received, or if Tenant fails to
maintain the Letter of Credit in the amount and terms set forth in this
Section 45, Landlord shall have the right to present such Letter of
Credit to the bank in accordance with the terms of this Section 45, and
the entire sum evidenced thereby shall be paid to and held by Landlord as
collateral for performance of all of Tenant's obligations under this
Lease and for all losses and damages Landlord may suffer as a result of
any default by Tenant under this Lease. If there shall occur a default
under this Lease as set forth in Section 20 of this Lease, Landlord may,
but without obligation to do so, draw upon the Letter of Credit, in part
or in whole, to cure any default of Tenant and/or to compensate Landlord
for any and all damages of any kind or nature sustained or which may be
sustained by Landlord resulting from Tenant's default. Tenant agrees not
to interfere in any way with payment to Landlord of the proceeds of the
Letter of Credit, either prior to or following a "draw" by Landlord of
any portion of the Letter of Credit, regardless of whether any dispute
exists between Tenant and Landlord as to Landlord's right to draw from
the Letter of Credit. No condition or term of this Lease shall be deemed
to render the Letter of Credit conditional to justify the issuer of the
Letter of Credit in failing to honor a drawing upon such Letter of Credit
in a timely manner. Landlord and Tenant acknowledge and agree that in no
event or circumstance shall the Letter of Credit or any renewal thereof
or substitute therefor be (i) deemed to be or treated as a "security
deposit" within the meaning of California Civil Code Section 1950.7 (as
supplemented, amended, replaced and substituted from time to time), (ii)
subject to the terms of such Section 1950.7 (as supplemented, amended,
replaced and substituted from time to time), or (iii) intended to serve
as a "security deposit" within the meaning of such Section 1950.7 (as
supplemented, amended, replaced and substituted from time to time). The
parties hereto recite that, with respect to the Letter of Credit, (x) the
Letter of Credit is not intended to serve as a security deposit and such
Section 1950.7 (as supplemented, amended, replaced and substituted from
time to time) and any and all other laws, rules and regulations
applicable to security deposits in the commercial context ("Security
Deposit Laws") shall have no applicability or relevancy to the Letter of
Credit and (y) Tenant waives any and all rights, duties and obligations
either party may now or, in the future, will have relating to or arising
from the Security Deposit Laws.
46. TENANT'S ABILITY TO PERFORM LANDLORD'S UNPERFORMED OBLIGATIONS
Notwithstanding anything to the contrary contained in this Lease, if
Landlord shall fail to perform any of the terms, provisions, covenants or
conditions to be performed or complied with by Landlord under Section
11.2 of this Lease with respect only to the Premises (such terms,
provisions, covenants or conditions are referred to herein, collectively
as "Landlord Repair Obligations") after expiration of all applicable
notice and cure periods for Landlord's and any mortgagee's benefit as set
forth in Sections 23 and 33, respectively, then Tenant may, at Tenant's
option and risk, but without any obligation to do so, after delivery of
an additional twenty (20) day prior written notice to Landlord, perform
such Landlord Repair Obligations on Landlord's behalf. If Tenant so
performs any of such Landlord Repair Obligations hereunder, then Tenant
will perform such Landlord Repair Obligations (1) in compliance with all
applicable Laws, regulations and requirements to which Landlord would be
subject under this Lease (if Landlord were performing such Landlord
Repair Obligations), (2) in a good workmanlike manner using materials of
a quality and grade at least equal to that in place as of the date of
delivery of the Premises to Tenant, if applicable, (3) without
interfering with the rights of other tenants of the Park, and (4) in
compliance with the terms and provisions of Section 10.1 hereof, as
applicable. Tenant will promptly assign to Landlord any warranties or
guaranties in respect of any Landlord Repair Obligations. If Tenant so
performs any of such Landlord Repair Obligations hereunder, the full
amount of the fair and reasonable costs and expenses incurred by Tenant
shall be owing by Landlord to Tenant, and Landlord shall pay to Tenant
the full undisputed amount thereof within sixty (60) days of Landlord's
receipt of Tenant's written demand therefor together with reasonable
evidence verifying the amount of such costs and expenses.
47. SATELLITE DISH
Tenant shall have the right (but only to the extent permitted by the City
of El Segundo and all agencies and governmental authorities having
jurisdiction thereof), at Tenant's sole cost and expense, to install and
operate a satellite or microwave dish or dishes ("Satellite Dishes")
along with any necessary cables ("Cables") on a portion of the roof of
the Building to be designated by Landlord ("Roof Space") for the Term of
the Lease (the Satellite Dishes and Cables are hereinafter collectively
referred to as the "Equipment"). The location and size of the Equipment
shall be subject to Landlord's approval, not to unreasonably withheld and
which best promotes the safety, aesthetics and efficiency of the
Equipment; provided, all of the Equipment and any modifications thereto
or placement thereof shall be (i) at Tenant's sole cost and expense, (ii)
contained visually within the roof screen, (iii) installed and operated
to Landlord's reasonable specifications, and (iv) installed, maintained,
operated and removed in accordance with all Recorded Matters, applicable
Laws, and the provisions of Section 10 of this Lease. For purposes
hereof, the Equipment shall be construed as part of the Tenant's Property
and shall be removed by Tenant at the expiration or earlier termination
of this Lease. Landlord shall cooperate reasonably with Tenant to modify
the roof screen placement (subject to all applicable Laws and Recorded
Matters) if required for signal quality, reconfiguration due to the
installation of any HVAC systems and other reasonable considerations;
provided, the cost of all such modifications shall be solely the
responsibility of Tenant. All modifications to the Building, including
the Roof Space, if any, shall be reasonably approved by Landlord prior to
commencement of any work with respect to the Equipment. No additional
rent shall be paid by Tenant for use of the Roof Space and operation of
the Equipment. The Equipment shall remain the property of Tenant and
Tenant shall remove the Equipment upon the expiration or earlier
termination of the Lease in accordance with the provisions of Section 10
of this Lease. Tenant shall restore the Roof Space and any other portion
of the Building affected by the Equipment to its original condition,
excepting ordinary wear and tear and/or damage or destruction due to fire
or other casualty not caused directly or indirectly by Tenant, its
agents, employees, contractors or the Equipment or any part thereof.
Notwithstanding anything to the contrary contained herein, Tenant may not
assign, lease, rent, sublet or otherwise transfer any of its interest in
the Roof Space or the Equipment except together with the remainder of all
of the Premises as more particularly set forth in Section 15. Each of
the other provisions of this Lease shall be applicable to the Equipment
and the use of the Roof Space by Tenant, including without limitation,
Sections 12 and 14 of this Lease. The Equipment shall comply with all
rules and regulations of the Federal Communications Commission and all
other agencies having jurisdiction thereof. If applicable, Tenant shall
provide to Landlord a copy of (i) the Federal Communications Commission
(or other agency) grant which has awarded frequencies to Tenant and (ii)
a list of Tenant's frequencies. Anything to the contrary contained
herein notwithstanding, if, during the Lease Term, as such Term may be
extended, Landlord, in its reasonable judgment, believes that the
Equipment poses a threat to human health or otherwise may be an
environmental hazard that cannot be remediated or has not been remediated
within ten (10) days after Tenant has been notified thereof, then Tenant
shall immediately cease all operations of the Equipment and Tenant shall
remove all of the Equipment within thirty (30) days thereafter. To the
best of Tenant's knowledge, Tenant represents to Landlord that the
Equipment shall not emit or project any electro-magnetic fields which
pose a threat to human health or otherwise may be an environmental
hazard. In addition, Tenant shall be solely responsible for insuring the
Equipment and Landlord shall have no responsibility therefor. Tenant
shall indemnify, defend (by counsel reasonably acceptable to Landlord)
and hold harmless Landlord and the other Indemnitees from and against any
and all claims, demands, liabilities, damages, judgments, losses,
penalties, costs and expenses (including reasonable attorneys' fees)
Landlord may suffer or incur arising out of or related to the
installation, use, operation, maintenance, replacement and/or removal of
the Equipment or any portion thereof, including without limitation. the
cost of repairs and replacements to the roof of the Building occasioned
by the installation, maintenance, repairs and removal of the Equipment.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the
Lease Date referenced in the Basic Lease Information.
LANDLORD:
LINCOLN-RECP CM-ES OPCO, LLC,
a Delaware limited liability company
By: Legacy Partners Commercial, Inc.,
as agent for LINCOLN-RECP CM-ES OPCO, LLC
By: ___________________________
, Vice President
Date: ________________________, 1999
TENANT:
Exodus Communications, Inc.,
a Delaware corporation
By: ____________________________
Name: ____________________________
Title: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
Date: ________________________, 1999
EXHIBIT A
PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to
that certain Lease Agreement, dated for reference purposes as of March
26, 1999 (the "Lease"), by and between LINCOLN-RECP CM-ES OPCO, LLC, a
Delaware limited liability company ("Landlord"), and Exodus
Communications, Inc., a Delaware corporation ("Tenant"), for the
leasing of certain premises located at 000 Xxxxx Xxxx Xxxxxx, Xx Xxxxxxx,
Xxxxxxxxxx (the "Premises").
The Premises consist of the rentable square footage of space specified in
the Basic Lease Information and has the address specified in the Basic
Lease Information. The Premises consist of the entirety of the Building
specified in the Basic Lease Information.
EXHIBIT B
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute
EXHIBIT B to that certain Lease Agreement, dated for reference purposes
as of March 26, 1999 (the "Lease"), by and between LINCOLN-RECP CM-ES
OPCO LLC, a Delaware limited liability company ("Landlord"), and Exodus
Communications, Inc., a Delaware corporation ("Tenant"), for the leasing
of certain premises located at 000 Xxxxx Xxxx Xxxxxx, Xx Xxxxxxx,
Xxxxxxxxxx. The terms, conditions and provisions of this EXHIBIT B are
hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have
the meaning ascribed to such terms as set forth in the Lease.
1. Tenant to Construct Tenant Improvements. Subject to the conditions
set forth below, Tenant shall be solely responsible for the planning,
design, construction and completion of the interior tenant improvements
("Tenant Improvements") to the Premises in accordance with the terms and
conditions of this EXHIBIT B. "Tenant Improvements" shall specifically
not include any of Tenant's trade fixtures, equipment, furniture,
furnishings, telephone equipment or other personal property
(collectively, "Personal Property"). The Tenant Improvements shall
include any and all interior improvements to be made to the Premises as
specified in the Final Drawings (defined below), as agreed to by Tenant
and Landlord.
2. Tenant Improvement Plans.
A. Preliminary Plans and Specifications. Tenant and/or Tenant's
Representatives shall furnish to Landlord preliminary working
architectural and engineering plans and specifications ("Preliminary
Plans and Specifications") for the Tenant Improvements. The Preliminary
Plans and Specifications shall be in sufficient detail to show power and
plumbing requirements, regular and special HVAC needs, telephone and
electrical outlets, lighting, lighting fixtures and related power, and
all other building improvements. All plans, drawings, specifications and
other details describing the Work which have been, or are hereafter,
furnished by or on behalf of Tenant shall be subject to Landlord's
reasonable approval or disapproval, which shall be provided within five
(5) business days after Landlord receives the Preliminary Plans and
Specifications and, if disapproved, Landlord shall return the Preliminary
Plans and Specifications to Tenant, who shall make all necessary
revisions within ten (10) days after Tenant's receipt thereof. This
procedure shall be repeated until Landlord approves the Preliminary Plans
and Specifications. The approved Preliminary Plans and Specifications,
as modified, shall be deemed the "Final Preliminary Plans and
Specifications". Notwithstanding the foregoing, Landlord hereby
consents to the following minimum items comprising the scope of work, the
specifics of which will be included in the Preliminary Plans and
Specifications and subject to Landlord's reasonable approval, as set
forth herein, provided that in giving such approval Landlord shall not
require any material deviation in the following described scope of work:
Demolition Minimum demolition is required. The 1st floor
Electrical Room, freight elevator and stairwell will be
removed. New stairwell will be added in the northwest
corner of the building.
Site Work In order to accommodate new mechanical and electrical
equipment, the following site work will be required.
o Pour concrete pad and install fencing for new air-
cooled condensing units.
o Excavate an area of approximately 60' x 100' in the
rear of the building in order to accommodate a
new block wall and concrete pad.
o Construct block wall approximately 14' high for new
diesel engine generators, switchgear and SCE
electrical equipment.
o Construct block wall building with roof for new UPS,
switchgear and batteries. This room will also be
climate controlled for optimum life.
Structural To accommodate new mechanical fan coil unit, it will be
necessary to construct two equipment platforms inside
of the building at approximately 16' high. Equipment
platform will be 40' wide by approximately 220' long
and be installed running parallel to the north side of
the building and parallel to the south side of the
building. Each equipment platform will accommodate
approximately 5 or 6 mechanical fan coil units.
Interior Construction In the northwest corner of the building Tenant
will construct interior offices and the Network
Operations Center (NOC), NODE (Fiber Room), MIS Room
and Conference Rooms. Level 5 Bullet Resistant walls,
doors and windows will protect the Customer Lobby.
Interior construction to total approximately 10,000 to
12,000 square feet.
Raised Access Floor Approximately 60,000 square feet of the 1st floor
will be covered by a raised access floor system
installed 12" above slab. This accommodates underfloor
power cabling, network cabling and fiber.
Mechanical To properly cool the Internet Data Center area, Air
cooled mechanical systems will be installed
distributing air through overhead ductwork throughout
the building. Fan coil units will be located on
equipment platforms above the T-bar ceiling and below
the roof and will be connected to air cooled condensers
outside of the building installed on concrete equipment
pads.
Electrical Existing main services to the building will be upgraded
to accommodate tenant requirements. SCE has agreed to
bring an upgraded feeder, as well as, a second feeder
to the property. For backup power, five (5) 1250KW
diesel engine generators will be installed with fuel
storage providing a minimum of two (2) days of
operation in the event of power outage. Tenant will
install metering switchgear, transformers and
substations to accommodate installation of
sophisticated electrical equipment consisting of
switchgear, uninterruptible power supply systems and
batteries. Power will be distributed throughout the
Internet Data Center via portable power distribution
units located within the Internet Data Center on the
access floor. Underfloor power cables will be used to
distribute power to each customer co-location space.
Fire Protection Tenant will install a fire alarm and detection
system providing early warning of smoke or fire. Fire
alarms systems will be integrated into a dry type pre-
action sprinkler system providing discharge only in the
event of a fire.
Security and Sophisticated security and monitoring systems
will be installed to monitor and
Monitoring control operation and access of the Internet Data
Center.
Elevator To accommodate the 2nd Floor office space, Tenant will
install a people rated elevator providing access from
the existing Lobby in the southwest corner of the
building to the second floor.
Shipping/
Receiving Dock To remain as is.
Parking Approximately 30 to 40 parking spaces will be eliminated on
the East End of the building to accommodate
installation of diesel engine generators, switchgear
and UPS systems.
Notwithstanding the foregoing or anything to the contrary contained in
this Exhibit B or in the Lease, the aforesaid scope of work shall in all
events and circumstances be in compliance with all applicable Laws,
including without limitation, all applicable requirements of the City of
El Segundo, the Uniform Building Code and local ordinances. Without
limiting the generality of the foregoing, Tenant hereby acknowledges and
agrees that as of the Delivery Date, there will be two hundred thirty-
five (235) exclusive parking spaces striped for Tenant's use within the
Premises. The parties hereby further acknowledge and agree that any
elimination by Tenant of any parking spaces must be in accordance with
the requirements of all applicable Laws, including without limitation,
the requirements of the City of El Segundo with respect thereto. Prior
to Tenant applying for or attempting to obtain any variance, conditional
use permit or other land use approval pursuant to which the zoning and
land use requirements applicable to the Premises will be affected
thereby, Tenant shall first obtain Landlord's prior written consent
thereto, which consent shall not be unreasonably withheld or delayed.
However, Tenant hereby assumes any and all risk that the governmental and
regulatory agencies will not permit parking spaces within the Premises to
be eliminated. Upon Landlord's request to be delivered to Tenant at
least sixty (60) days prior to the expiration or earlier termination of
this Lease, Tenant shall cause any such variance, conditional use permit
or other land use approval obtained by Tenant with respect to the
premises to be removed or discontinued as of the termination of the
Lease.
B. Final Plans and Specifications. After the Final Preliminary
Plans and Specifications are approved by Landlord and are deemed to be
the Final Preliminary Plans and Specifications, Tenant shall cause to be
prepared the final working architectural and engineering plans,
specifications and drawings, ("Final Plans and Specifications") for the
Tenant Improvements. Tenant shall then deliver the Final Plans and
Specifications to Landlord. Landlord shall reasonably approve or
disapprove the Final Plans and Specifications within five (5) business
days after Landlord receives the Final Plans and Specifications and, if
disapproved, Landlord shall return the Final Plans and Specifications to
Tenant, who shall make all necessary revisions within ten (10) days after
Tenant's receipt thereof. This procedure shall be repeated until
Landlord approves the Final Plans and Specifications. The approved Final
Plans and Specifications, as modified, shall be deemed the "Construction
Documents".
C. Miscellaneous. All deliveries of the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final
Plans and Specifications, and the Construction Documents between the
parties shall be via messenger service, personal hand delivery or
overnight parcel service. While Landlord has the right to approve the
Preliminary Plans and Specifications, the Final Preliminary Plans and
Specifications, the Final Plans and Specifications, and the Construction
Documents, Landlord's interest in doing so is to protect the Premises,
the Building and Landlord's interest therein. Accordingly, Tenant shall
not rely upon Landlord's approvals and Landlord shall not be the
guarantor of, nor responsible for, the adequacy and correctness or
accuracy of the Preliminary Plans and Specifications, the Final
Preliminary Plans and Specifications, the Final Plans and Specifications,
and the Construction Documents, or the compliance thereof with applicable
Laws, and Landlord shall incur no liability of any kind by reason of
granting such approvals. Tenant agrees to, and does hereby, assume full,
sole and complete responsibility to ensure that the Final Preliminary
Plans and Specifications, the Final Plans and Specifications, and the
Construction Documents are adequate to fully meet the needs and
requirements of Tenant's intended operations of its business within the
Premises and Tenant's use of the Premises.
D. Building Standard Work. The Construction Documents shall
provide that the Tenant Improvements to be constructed in accordance
therewith must be at least equal, in quality, to Landlord's building
standard materials, quantities and procedures then in use by Landlord
("Building Standards") attached hereto as Exhibit B-2, and shall
consist of improvements which are generic in nature.
E. Construction Agreements. Tenant hereby covenants and agrees
that it will use commercially reasonable efforts to include in each and
every agreement made with the Architect and the Contractor with respect
to the Tenant Improvements, a provision specifying that the Landlord
shall be a third party beneficiary thereof, including without limitation,
a third party beneficiary of all covenants, representations, indemnities
and warranties made by the Architect and/or Contractor.
F. Change Orders. Tenant shall obtain Landlord's prior written
approval of any and all proposed change orders which either affect the
structural integrity of the Building or are otherwise reasonably
considered to be a material change to any of the Construction Documents.
G. Confidentiality. Landlord acknowledges that Tenant has
advised Landlord that (i) Tenant is in the "Managed Internet Services"
business, (ii) the manner in which the Tenant Improvements are designed,
engineered, and constructed is unique, and an integral part of Tenant's
business and, as such, is confidential information and (iii) Tenant's
Property and the manner in which it is integrated and installed is
proprietary and confidential. Landlord agrees to use diligent efforts to
hold and maintain all such confidential information in strict confidence,
not to disclose such information to third parties and not to use any such
information for any purpose except that Landlord may (1) disclose such
information to its employees, members, contractors, agents, consultants,
representatives, lenders and legal representatives who need to know such
information, (2) disclose and/or use such information in order to perform
its obligations under this Lease or in the event of an emergency
involving the Premises, (3) disclose such information to the extent
required in order to sell or otherwise convey the Lot, the Building or
the Park to a purchaser, and (4) disclose such information as may be
required by court order, any Law, subpoena, or otherwise to prosecute or
defend itself with respect to the Lease or any matters relating thereto.
Landlord's breach of this covenant shall be a material breach of this
Lease and Tenant may initiate a legal proceeding to enjoin any such
breach. For purposes hereof, any and all of such information which is in
the public records or otherwise in the public domain shall not be
considered part of the "confidential information" referred to herein.
3. Permits. Tenant, at its sole cost and expense (subject to the
provisions of Paragraph 5 below) shall obtain all governmental approvals
of the Construction Documents to the full extent necessary for the
issuance of a building permit for the Tenant Improvements based upon such
Construction Documents. Tenant, at its sole cost and expense, shall also
cause to be obtained all other necessary approvals and permits from all
governmental agencies having jurisdiction or authority for the
construction and installation of the Tenant Improvements in accordance
with the approved Construction Documents. Tenant, at its sole cost and
expense (subject to the provisions of Paragraph 5 below) shall undertake
all steps necessary to ensure that the construction of the Tenant
Improvements is accomplished in strict compliance with all statutes,
laws, ordinances, codes, rules and regulations applicable to the
construction of the Tenant Improvements and the requirements and
standards of any insurance underwriting board, inspection bureau or
insurance carrier insuring the Premises.
4. Construction.
A. Tenant shall be solely responsible for the construction,
installation and completion of the Tenant Improvements in accordance with
the Construction Documents approved by Landlord and is solely responsible
for the payment of all amounts when payable in connection therewith
without any cost or expense to Landlord, except for Landlord's obligation
to contribute the Tenant Improvement Allowance in accordance with
Paragraph 5 below. Tenant shall diligently proceed with the construction,
installation and completion of the Tenant Improvements in accordance with
the Construction Documents and the completion schedule reasonably approved
by Landlord. No material changes shall be made to the Construction
Documents and the completion schedule approved by Landlord without
Landlord's prior written consent, which consent shall not be unreasonably
withheld.
B. Landlord shall reasonably approve Tenant's selection of the
licensed, insured and bonded general contractor (the "Contractor"), and
after selection of the Contractor, Tenant shall employ the Contractor to
construct the Tenant Improvements in accordance with the Construction
Documents. The construction contracts between Tenant and the Contractor
and between the Contractor and subcontractors shall be subject to
Landlord's prior written approval, which approval shall not be
unreasonably withheld or conditioned. Proof that the Contractor is
licensed in California, is bonded as required under California law, and
has the insurance specified in Exhibit B-1, attached hereto and
incorporated herein by this reference, shall be provided to Landlord at
the time the Tenant requests approval of the Contractor from Landlord.
Tenant shall comply with or cause the Contractor to comply with all other
terms and provisions of Exhibit B-1.
C. Prior to the commencement of the construction and
installation of the Tenant Improvements, Tenant shall provide the
following to Landlord, all of which shall be to Landlord's reasonable
satisfaction and approval:
(i) An estimated budget and cost breakdown for the Tenant
Improvements.
(ii) Estimated completion schedule for the Tenant
Improvements.
(iii) Copies of all required approvals and permits from
governmental agencies having jurisdiction or authority for the
construction and installation of the Tenant Improvements.
(iv) Evidence of Tenant's procurement of insurance required
to be obtained pursuant to the provisions of Paragraphs 4.B and 4.G.
D. Landlord shall, at all reasonable times, have a right to
inspect the Tenant Improvements and Tenant shall immediately cease work
upon written notice from Landlord if the Tenant Improvements are not in
compliance with the Construction Documents approved by Landlord. If
Landlord shall give notice of faulty construction or any other deviation
from the Construction Documents, Tenant shall cause Contractor to make
corrections promptly. However, neither the privilege herein granted to
Landlord to make such inspections, nor the making of such inspections by
Landlord shall operate as a waiver of any rights of Landlord to require
good and workmanlike construction and improvements constructed in
accordance with the Construction Documents.
E. Subject to Landlord complying with its obligations in
Paragraph 5 below, Tenant shall pay and discharge promptly and fully all
claims for labor done and materials and services furnished in connection
with the Tenant Improvements. The Tenant Improvements shall not be
commenced until five (5) business days after Landlord has received notice
from Tenant stating the date the construction of the Tenant Improvements
is to commence so that Landlord can post and record any appropriate
Notice of Non-Responsibility.
F. Tenant shall maintain or cause to be maintained, during the
construction of the Tenant Improvements, at its sole cost and expense,
insurance of the types and in the amounts specified in Exhibit B-1 and in
the applicable provisions of the Lease, together with builders' risk
insurance for the amount of the completed value of the Tenant
Improvements on an all-risk non-reporting form covering all improvements
under construction, including building materials.
G. Except for equipment of Tenant's customers, no materials,
equipment or fixtures shall be delivered to or installed upon the
Premises pursuant to any agreement by which another party has a security
interest or rights to remove or repossess such items, without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld or conditioned.
H. Landlord reserves the right to establish reasonable rules and
regulations for the use of the Building during the course of construction
of the Tenant Improvements, including, but not limited to, construction
parking, storage of materials, hours of work and clean-up of construction
related debris.
I. Upon completion of the Tenant Improvements, Tenant shall
deliver to Landlord the following, all of which shall be to Landlord's
reasonable satisfaction:
(i) Any certificates required for occupancy, including a
permanent and complete Certificate of Occupancy issued by the City of El
Segundo.
(ii) A Certificate of Completion signed by the Architect who
prepared the Construction Documents, reasonably approved by Landlord.
(iii) A cost breakdown itemizing all expenses for the Tenant
Improvements, together with invoices and receipts for the same or other
evidence of payment.
(iv) Final and unconditional mechanic's lien waivers for all
the Tenant Improvements.
(v) A Notice of Completion for execution by Landlord, which
certificate once executed by Landlord shall be recorded by Tenant in the
official record of the County of Los Angeles, and Tenant shall then
deliver the Landlord a true and correct copy of the recorded Notice of
Completion.
(vi) A true and complete copy of all as-built plans and
drawings for the Tenant Improvements.
5. Tenant Improvement Allowance; Tenant Improvement Costs.
A. Subject to Tenant's compliance with the provisions of this
Exhibit B, Landlord shall provide to Tenant an allowance for the
planning, design and construction of the Tenant Improvements in the
Premises, as described in the Construction Documents, in the amount of
approximately One Hundred Eighty-One Thousand Six Hundred Thirty-Six
Dollars ($181,636.00) (the "Tenant Improvement Allowance") based upon
an allowance of Two Dollars ($2.00) per rentable square foot for 90,818
rentable square feet of the Premises which is to be improved, as
described in the Construction Documents. Tenant shall not be entitled to
any credit, abatement or payment from Landlord in the event that the
amount of the Tenant Improvement Allowance specified above exceeds the
actual Tenant Improvement Costs. The Tenant Improvement Allowance shall
be the maximum contribution by Landlord for the Tenant Improvement Costs.
The Tenant Improvement Allowance shall be used to design, prepare, plan,
obtain the approval of, construct and install the Tenant Improvements and
for no other purpose. Except as otherwise expressly provided herein,
Landlord shall have no obligation to contribute the Tenant Improvement
Allowance unless and until the Construction Documents have been approved
by Landlord and Tenant has complied with all requirements set forth in
Paragraph 4.C. of this Exhibit B. The costs to be paid out of the Tenant
Improvement Allowance shall include all reasonable costs and expenses
associated with the design, preparation, approval, planning, construction
and installation of the Tenant Improvements (collectively, the "Tenant
Improvement Costs"), including all of the following:
(i) All costs of the Preliminary Plans and Specifications,
the Final Plans and Specifications, and the Construction Documents, and
engineering costs associated with completion of the State of California
energy utilization calculations under Title 24 legislation;
(ii) All costs of obtaining building permits and other
necessary authorizations and approvals from the City of El Segundo and
other applicable jurisdictions;
(iii) All costs of interior design and finish schedule plans
and specifications including as-built drawings;
(iv) All direct and indirect costs of procuring,
constructing and installing the Tenant Improvements in the Premises,
including, but not limited to, the construction fee for overhead and
profit, the cost of all on-site supervisory and administrative staff,
office, equipment and temporary services rendered by the Contractor in
connection with construction of the Tenant Improvements, and all labor
(including overtime) and materials constituting the Tenant Improvements;
(v) All fees payable to the Architect and any engineer if
they are required to redesign any portion of the Tenant Improvements
following Tenant's and Landlord's approval of the Construction Documents;
(vi) Utility connection fees;
(vii) Inspection fees and filing fees payable to local
governmental authorities, if any; and
(viii) All costs of permanently affixed equipment and non-trade
fixtures provided for in the Construction Documents, including the cost of
installation.
The Tenant Improvement Allowance shall be the sole and maximum
contribution by Landlord for the Tenant Improvement Costs, and the
disbursement of the Tenant Improvement Allowance shall be in the manner
specified herein and shall be subject to the terms and provisions
contained hereinbelow. There shall be no fee payable to, and imposed by
Landlord for any oversight, plan review, or other work or services
provided by or on behalf of Landlord or its representatives.
Landlord will make payments to Tenant from the Tenant Improvement
Allowance to reimburse Tenant for the Tenant Improvement Costs paid or
incurred by Tenant (as invoiced by third parties). All payments of the
Tenant Improvement Allowance shall be by progress payments not more
frequently than once per month and only after satisfaction of the
following conditions precedent: (a) receipt by Landlord of conditional
mechanics' lien releases for the work completed and to be paid by said
progress payment, conditioned only on the payment of the sums set forth
in the mechanics' lien release, executed by the Contractor and all
subcontractors, labor suppliers and materialmen; (b) receipt by Landlord
of unconditional mechanics' lien releases from the Contractor and all
subcontractors, labor suppliers and materialmen for all work other than
that being paid by the current progress payment previously completed by
the Contractor, subcontractors, labor suppliers and materialmen and for
which Tenant has received funds from the Tenant Improvement Allowance to
pay for such work; (c) receipt by Landlord of any documentation
reasonably required by Landlord detailing the work that has been
completed and the materials and supplies used as of the date of Tenant's
request for the progress payment, including, without limitation,
invoices, bills, or statements for the work completed and the materials
and supplies used; and (d) completion by Landlord or Landlord's agents of
any inspections of the work completed and materials and supplies used as
deemed reasonably necessary by Landlord (Landlord hereby agrees to cause
such inspections to be done, if at all, within five (5) business days
after Landlord's receipt of a request from Tenant for the then applicable
progress payment). Tenant Improvement Allowance progress payments shall
be paid to Tenant within fourteen (14) days from the satisfaction of the
conditions set forth in the immediately preceding sentence.
Notwithstanding the foregoing to the contrary, Landlord shall be entitled
to withhold and retain five percent (5%) of the Tenant Improvement
Allowance or of any Tenant Improvement Allowance progress payment until
the earlier to occur of Landlord's receipt of all unconditional and final
lien waivers and releases (with no notation therein of sums being
disputed) or the lien-free expiration of the time for filing of any
mechanics' liens claimed or which might be filed on account of any work
ordered by Tenant or the Contractor or any subcontractor in connection
with the construction and installation of the Tenant Improvements.
B. Landlord shall not be obligated to pay any Tenant Improvement
Allowance progress payment or the Tenant Improvement Allowance retention
if on the date Tenant is entitled to receive the Tenant Improvement
Allowance progress payment or the Tenant Improvement Allowance retention,
Tenant is in default of any of the provisions of the Lease beyond any
applicable cure period. Such payments shall resume upon Tenant
completely, timely and satisfactorily curing any such default within the
time periods which may be provided for in the Lease.
C. If the total and actual cost of designing, planning,
constructing and installing the Tenant Improvements is less than the
Tenant Improvement Allowance, the Tenant Improvement Allowance shall be
automatically reduced to the amount which is equal to said actual Tenant
Improvement Costs.
6. Termination. If the Lease is terminated prior to the Completion
Date, for any reason due to the default of Tenant hereunder, in addition
to any other remedies available to Landlord under the Lease, Landlord
shall have the right to pursue any and all remedies available at law or
in equity, including any and all costs incurred by Landlord and not
reimbursed or otherwise paid by Tenant through the date of termination in
connection with the Tenant Improvements to the extent planned, installed
and/or constructed as of such date of termination, including, but not
limited to, any costs related to the removal of all or any portion of the
Tenant Improvements and restoration costs related thereto. Subject to
the provisions of the Lease regarding surrender of the Premises, upon the
expiration or earlier termination of the Lease, Tenant shall be required
to remove the items comprising the Tenant Improvements in accordance with
the provisions of Section 10 of the Lease.
7. Lease Provisions; Conflict. The terms and provisions of the
Lease, insofar as they are applicable, in whole or in part, to this
EXHIBIT B, are hereby incorporated herein by reference, and specifically
including all of the provisions of Section 31 of the Lease. In the event
of any conflict between the terms of the Lease and this EXHIBIT B, the
terms of this EXHIBIT B shall prevail. Any amounts payable by Tenant to
Landlord hereunder shall be deemed to be Additional Rent under the Lease
and, upon any default in the payment of same, Landlord shall have all
rights and remedies available to it as provided for in the Lease.
EXHIBIT C
RULES AND REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute
EXHIBIT C to that certain Lease Agreement dated for reference purposes as
of March 26, 1999 (the "Lease"), by and between LINCOLN-RECP CM-ES
OPCO, LLC, a Delaware limited liability company ("Landlord"), and
Exodus Communications, Inc., a Delaware corporation ("Tenant"), for the
leasing of certain premises located at 000 Xxxxx Xxxx Xxxxxx, Xx Xxxxxxx,
Xxxxxxxxxx (the "Premises"). The terms, conditions and provisions of
this EXHIBIT C are hereby incorporated into and are made a part of the
Lease. Any capitalized terms used herein and not otherwise defined
herein shall have the meaning ascribed to such terms as set forth in the
Lease.
1. Tenant shall not suffer or permit the obstruction of any Common
Areas, including driveways, walkways and stairways.
2. Landlord reserves the right to refuse access to any persons
Landlord in good faith judges to be a threat to the safety,
reputation, or property of the Park and its occupants.
3. Tenant shall not make or permit any noise or odors that annoy or
interfere with other Tenants or persons having business within the
Park.
4. Tenant shall not keep animals or birds within the Park, and shall
not bring bicycles, motorcycles or other vehicles into areas not
designated as authorized for the same.
5. Tenant shall not make, suffer or permit litter except in
appropriate receptacles for that purpose.
6. Tenant shall be responsible for the inappropriate use of any toilet
rooms, plumbing or other utilities. No foreign substances of any
kind are to be inserted therein.
7. Tenant shall not deface the walls, partitions or other surfaces of
the premises of the Park.
8. Tenant shall return all keys at the termination of its tenancy and
shall be responsible for the cost of replacing any keys that are
lost.
9. No window coverings, shades or awnings shall be installed or used
by Tenant, without Landlord's written prior consent.
10. Tenant shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Landlord or
by applicable governmental agencies as non-smoking areas.
11. The Premises shall not be used for lodging.
12. Tenant shall comply with all safety, fire protection and evacuation
regulations established by any applicable governmental agency.
13. Landlord reserves the right to waive any one of these rules or
regulations and/or as to any particular Tenant, and any such waiver
shall not constitute a waiver of any other rule or regulation or
any subsequent application thereof to such Tenant.
14. Tenant assumes all risks from theft or vandalism and agrees to keep
its Premises locked as may be required.
15. Landlord reserves the right to make such other reasonable rules and
regulations not inconsistent with the terms of this Lease as it may
from time to time deem necessary for the appropriate operation and
safety of the Park and its occupants. Tenant agrees to abide by
these and such rules and regulations.
16. The maintenance, washing, waxing or cleaning of any vehicles in or
about the Premises is prohibited.
17. There shall not be any outside storage of any equipment, property,
furnishings, inventory or other goods in the areas surrounding the
Building but within the Premises, except as expressly contemplated
in Tenant's HMMP.
EXHIBIT D
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE - SAMPLE
Your cooperation in this matter is appreciated. Initially, the
information provided by you in this Hazardous Materials Disclosure
Certificate is necessary for the Landlord (identified below) to evaluate
and finalize a lease agreement with you as tenant. After a lease
agreement is signed by you and the Landlord (the "Lease Agreement"), on an
annual basis in accordance with the provisions of Section 29 of the signed
Lease Agreement, you are to provide an update to the information initially
provided by you in this certificate. The information contained in the
initial Hazardous Materials Disclosure Certificate and each annual
certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required
by (i) any lenders and owners and their respective environmental
consultants, (ii) any prospective purchaser(s) of all or any portion of
the property on which the Premises are located, (iii) Landlord to defend
itself or its lenders, partners or representatives against any claim or
demand, and (iv) any laws, rules, regulations, orders, decrees, or
ordinances, including, without limitation, court orders or subpoenas. Any
and all capitalized terms used herein, which are not otherwise defined
herein, shall have the same meaning ascribed to such term in the signed
Lease Agreement. Any questions regarding this certificate should be
directed to, and when completed, the certificate should be delivered to:
Landlord: LINCOLN-RECP CM-ES OPCO, LLC
c/o Legacy Partners Commercial, Inc.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Property Manager
Phone: (000) 000-0000
Name of Tenant: Exodus Communications, Inc., a Delaware corporation
Mailing Address: 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000-0000
Contact Person, Title and Telephone Number(s):
___________________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
______________________________________________________________
Address of Premises: 000 Xxxxx Xxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx
00000
Length of Initial Term: One Hundred Twenty (120) months
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or
about the Premises, including, without limitation, principal
products processed, manufactured or assembled services and
activities to be provided or otherwise conducted. Existing tenants
should describe any proposed changes to on-going operations.
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing tenants
should describe any Hazardous Materials which continue to be
used, generated, stored or disposed of in, on or about the
Premises.
Wastes Yes 0 No 0
Chemical Products Yes 0 No 0
Other Yes 0 No 0
If Yes is marked attach all MSDS's and please explain: (MSDS's
Attached ")
___________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or disposed
of in, on or about the Premises, including the applicable
hazard class and an estimate of the quantities of such
Hazardous Materials at any given time; estimated annual
throughput; the proposed location(s) and method of storage
(excluding nominal amounts of ordinary household cleaners and
janitorial supplies which are not regulated by any
Environmental Laws); and the proposed location(s) and method
of disposal for each Hazardous Material, including, the
estimated frequency, and the proposed contractors or
subcontractors. Existing tenants should attach a list
setting forth the information requested above and such list
should include actual data from on-going operations and the
identification of any variations in such information from the
prior year's certificate.
Attach a Site Plan indicating all storage areas - (Attached
")
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing tenants
should describe any such actual or proposed activities,
including any required SPCC Plan.
Yes 0 No 0
If yes, please explain:
_____________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing tenants should describe any additional
identification numbers issued since the previous certificate.
Yes 0 No 0
Describe RCRA status:
______________________________________________
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe
any new reports filed.
Yes 0 No 0
If yes, attach a copy of the most recent report filed. (")
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
storm drain? sewer?
surface water? no wastewater or other wastes
discharged.
______ grounds? _______ facility treatment plant?
(i.e., compressor blow-down)
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
(Note: Generally, discharges to storm drains will be
prohibited without prior review and approval from Landlord)
5.2 Will any such wastewater or waste be treated before
discharge?
Yes 0 No 0
If yes, describe the type of treatment proposed to be
conducted. Existing tenants should describe the actual
treatment conducted.
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the
Premises that will discharge into the air; and will such air
emissions be monitored? Existing tenants should indicate
whether or not there are any such air filtration systems or
stacks in use in, on or about the Premises which discharge
into the air and whether such air emissions are being
monitored.
Yes 0 No 0
If yes, please describe:
_______________________________________________
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing tenants should specify any such equipment
being operated in, on or about the Premises.
Spray booth(s) Incinerator(s)
Dip tank(s) Other (Please describe)
Drying oven(s) No Equipment Requiring Air Permits
______ Dry-cleaning
If yes, please describe:
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("HMMP") pursuant to Fire
Department or other governmental or regulatory agencies'
requirements? Existing tenants should indicate whether or
not an HMMP is required and has been prepared.
Yes 0 No 0
If yes, attach a copy of the HMMP. Existing tenants should attach a copy
of any required updates to the HMMP.
7.2 (CA Only) Are any of the Hazardous Materials, and in
particular chemicals, proposed to be used in your operations
in, on or about the Premises regulated under Proposition 65?
Existing tenants should indicate whether or not there are
any new Hazardous Materials being so used which are regulated
under Proposition 65.
Yes 0 No 0
If yes, please explain:
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws,
has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees or has
your company received requests for information, notice or
demand letters, or any other inquiries regarding its
operations? Existing tenants should indicate whether or not
any such actions, orders or decrees have been, or are in the
process of being, undertaken or if any such requests have
been received.
Yes 0 No 0
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of
these actions, orders or decrees and also describe any
requests, notices or demands, and attach a copy of all such
documents. Existing tenants should describe and attach a
copy of any new actions, orders, decrees, requests, notices
or demands not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health
and safety concerns?
Yes 0 No 0
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety
concerns? Existing tenants should indicate whether or not
there have been any such problems or complaints from adjacent
tenants, owners or other neighbors at, about or near the
Premises.
Yes 0 No 0
If yes, please describe. Existing tenants should describe any
such problems or complaints not already disclosed to Landlord
under the provisions of the signed Lease Agreement.
8.4 Please provide the addresses for each space leased by your
Company within the State of California in the past ten years
the name and phone number of each Landlord.
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company
with respect to its proposed operations in, on or about the
Premises, including, without limitation, any wastewater
discharge permits, air emissions permits, and use permits or
approvals. Existing tenants should attach copies of any new
permits and licenses as well as any renewals of permits or
licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous
Materials Disclosure Certificate is being delivered in connection with,
and as required by, Landlord in connection with the evaluation and
finalization of a Lease Agreement and will be attached thereto as an
exhibit; (B) that this Hazardous Materials Disclosure Certificate is
being delivered in accordance with, and as required by, the provisions of
Section 29 of the Lease Agreement; and (C) that Tenant shall have and
retain full and complete responsibility and liability with respect to any
of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such
certificate. Tenant further agrees that none of the following described
acts or events shall be construed or otherwise interpreted as either (a)
excusing, diminishing or otherwise limiting Tenant from the requirement
to fully and faithfully perform its obligations under the Lease with
respect to Hazardous Materials, including, without limitation, Tenant's
indemnification of the Indemnitees and compliance with all Environmental
Laws, or (b) imposing upon Landlord, directly or indirectly, any duty or
liability with respect to any such Hazardous Materials, including,
without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or
to ensure that Tenant is in compliance with all Environmental Laws; (i)
the delivery of such certificate to Landlord and/or Landlord's acceptance
of such certificate, (ii) Landlord's review and approval of such
certificate, (iii) Landlord's failure to obtain such certificate from
Tenant at any time, or (iv) Landlord's actual or constructive knowledge
of the types and quantities of Hazardous Materials being used, stored,
generated, disposed of or transported on or about the Premises by Tenant
or Tenant's Representatives. Notwithstanding the foregoing or anything
to the contrary contained herein, the undersigned acknowledges and agrees
that Landlord and its partners, lenders and representatives may, and
will, rely upon the statements, representations, warranties, and
certifications made herein and the truthfulness thereof in entering into
the Lease Agreement and the continuance thereof throughout the term, and
any renewals thereof, of the Lease Agreement.
I ___________________________ and _________________________, acting with
full authority to bind the (proposed) Tenant and on behalf of the
(proposed) Tenant, certify, represent and warrant that the information
contained in this certificate is true and correct.
TENANT:
Exodus Communications, Inc., a Delaware corporation
BY:
NAME:
TITLE:
BY:
NAME:
TITLE:
DATE:
EXHIBIT E
TENANT'S INITIAL HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
SEE ATTACHED
EXHIBIT F
MEMORANDUM OF LEASE
AND
OPTION TO PURCHASE
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
Legacy Partners Commercial, Inc.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Portfolio Manager
MEMORANDUM OF LEASE
AND
OPTION TO PURCHASE
This Memorandum of Lease and Option to Purchase (the
"Memorandum") is made this ___________ day of March , 1999 between
LINCOLN-RECP CM-ES OPCO, LLC, a Delaware limited liability company
("Landlord"), and EXODUS COMMUNICATIONS, INC., a Delaware corporation
("Tenant"), who agree as follows:
I. TERM AND PREMISES
By Lease Agreement, dated for reference purposes as of March 26,
1999 (the "Lease"), Landlord leases to Tenant and Tenant leases from
Landlord those certain premises located at 000 Xxxxx Xxxx Xxxxxx, Xx
Xxxxxxx, Xxxxxxxxxx (the "Leased Premises"), being a portion of the land
which is more particularly described on Exhibit "1" attached hereto and
made a part hereof (the "Park"). The Leased Premises consists of a
single building (the "Building") containing approximately 90,818 rentable
square feet together with vehicular parking spaces, pedestrian walkways
and landscaping as specifically granted to Tenant in the Lease and as
more particularly described in the Lease. Tenant shall lease the Leased
Premises from Landlord for an initial term of ten (10) years from and
after the Commencement Date, as more particularly set forth in Section 2
of the Lease. The Lease grants to Tenant two (2) successive options to
extend the initial term of the Lease, each of such extension terms being
for a period of five (5) years, each from the date on which the Lease
would otherwise expire. Each and all of the provisions of said Lease, as
the same may be amended from time to time, are incorporated into this
Memorandum by this reference. Any capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed to such terms in
the Lease.
II. OPTION TO PURCHASE
Tenant has a Purchase Option to acquire the Park subject to all
of the terms, conditions and provisions contained in the Lease, and in
particular, Section 45 of the Lease. The Purchase Option Term is for a
period of six (6) months commencing July 1, 1999 and ending on December
31, 1999. If Tenant does not properly exercise the Purchase Option
within said Purchase Option Term, Tenant shall have no further right or
option to purchase the Park and the Purchase Option shall be of no force
or effect.
III. PURPOSE OF MEMORANDUM
The purpose of this Memorandum is for recordation and the notice
thereby imparted. This Memorandum does not and shall not, in any way,
modify the provisions of the Lease or the Purchase Option referred to
above.
IV. COUNTERPARTS
This Memorandum may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which shall, taken
together, be deemed one instrument.
LANDLORD:
LINCOLN-RECP CM-ES OPCO, LLC,
a Delaware limited liability company
By: Legacy Partners Commercial, Inc.,
as agent for LINCOLN-RECP CM-ES OPCO, LLC
By: ___________________________
, Vice President
TENANT:
Exodus Communications, Inc.,
a Delaware corporation
By: __________________________________
Its: __________________________________
By: __________________________________
Its: __________________________________
EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement") is made as of the ____ day of _____________, 1999, between
Credit Suisse First Boston Mortgage Capital LLC ("Lender") and EXODUS
COMMUNICATIONS, INC., a Delaware corporation ("Tenant").
RECITALS
A. The undersigned is the tenant ("Tenant") under the
"Lease." For purposes hereof the "Lease" shall mean and refer to that
certain Lease Agreement, dated for reference purposes as of March 26,
1999, for those certain premises (the "Premises") situated at 000 Xxxxx
Xxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx (the "Building"). All capitalized
terms not otherwise defined herein shall have the meanings set forth in
the Lease.
Tenant is the tenant under a certain lease (the "Lease"), dated
as of March 26, 1999, with LINCOLN-RECP CM-ES OPCO, LLC, a Delaware
limited liability company ("Landlord"), of the Premises as more
particularly described in Exhibit A hereto.
B. This Agreement is being entered into in connection with a
certain loan (the "Loan") which Lender has made to Landlord, and
secured in part by a Deed of Trust, Assignment of Leases and Rents and
Security Agreement on the Premises (the "Deed of Trust ") dated as of
________________________, 199_ and an assignment of leases and rents
dated as of ________________________, 199_ (the "Assignment"; the Deed
of Trust, the Assignment and the other documents executed and delivered
in connection with the Loan are hereinafter collectively referred to as
the "Loan Documents").
AGREEMENT
For mutual consideration, including the mutual covenants and
agreements set forth below, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Tenant agrees that the Lease and all terms and conditions
contained therein and all rights, options, liens and charges created
thereby, including without limitation, the Purchase Option, is and shall
be subject and subordinate in all respects to the Loan Documents and to
all present or future advances under the obligations secured thereby and
all renewals, amendments, modifications, consolidations, replacements and
extensions of secured obligations and the Loan Documents, to the full
extent of all amounts secured by the Loan Documents from time to time.
2. Lender agrees that, if Lender exercises any of its rights
under the Loan Documents such that it becomes the owner of the Premises,
including but not limited to an entry by Lender pursuant to the Deed of
Trust, a foreclosure of the Deed of Trust, a power of sale under the Deed
of Trust or otherwise: (a) the Lease (including without limitation, the
Purchase Option if said option has not been earlier terminated or, by its
terms, expired) shall continue in full force and effect as a direct lease
between Lender and Tenant, and subject to all the terms, covenants and
conditions of the Lease, and (b) Lender shall not disturb Tenant's right
of quiet possession of the Premises under the terms of the Lease so long
as Tenant is not in default beyond any applicable grace period of any
term, covenant or condition of the Lease.
3. Tenant agrees that, in the event of a exercise of the power
of sale or foreclosure of the Deed of Trust by Lender or the acceptance
of a deed in lieu of foreclosure by Lender or any other succession of
Lender to ownership of the Premises, Tenant will attorn to and recognize
Lender as its landlord under the Lease for the remainder of the term of
the Lease (including all extension periods which have been or are
hereafter exercised) upon the same terms and conditions as are set forth
in the Lease, and Tenant hereby agrees to pay and perform all of the
obligations of Tenant pursuant to the Lease.
4. Tenant agrees that, in the event Lender succeeds to the
interest of Landlord under the Lease, Lender shall not be:
(a) liable in any way for any act, omission, neglect or default of
any prior Landlord (including, without limitation, the then defaulting
Landlord), or
(b) subject to any claim, defense, counterclaim or offsets
which Tenant may have against any prior Landlord (including, without
limitation, the then defaulting Landlord), or
(c) bound by any payment of rent or additional rent which
Tenant might have paid for more than one month in advance of the due date
under the Lease to any prior Landlord (including, without limitation, the
then defaulting Landlord), or
(d) bound by any obligation to make any payment to Tenant
which was required to be made prior to the time Lender succeeded to any
prior Landlord's interest, or
(e) accountable for any monies deposited with any prior
Landlord (including security deposits), except to the extent such monies
are actually received by Lender, or
(f) bound by any amendment or modification of the Lease
made without the written consent of Lender.
Nothing contained herein shall prevent Lender from naming Tenant in
any foreclosure or other action or proceeding initiated in order for
Lender to avail itself of and complete any such foreclosure or other
remedy.
5. Tenant hereby agrees to give to Lender copies of all notices
of Landlord default(s) under the Lease in the same manner as, and
whenever, Tenant shall give any such notice of default to Landlord and no
such notice of default shall be deemed given to Landlord unless and until
a copy of such notice shall have been so delivered to Lender. Lender
shall have the right but no obligation to remedy any landlord default
under the Lease, or to cause any default of Landlord under the Lease to
be remedied, and for such purpose Tenant hereby grants Lender, in
addition the period given to Landlord for remedying defaults, an
additional 30 days to remedy, or cause to be remedied, any such default.
Tenant shall accept performance by Lender of any term, covenant,
condition or agreement to be performed by Landlord under the Lease with
the same force and effect as though performed by Landlord. No Landlord
default under the Lease shall exist or shall be deemed to exist (i) as
long as Lender, in good faith, shall have commenced to cure such default
within the above reference time period and shall be prosecuting the same
to completion with reasonable diligence, subject to force majeure, or
(ii) if possession of the Premises is required in order to cure such
default, or if such default is not susceptible of being cured by Lender,
as long as Lender, in good faith, shall have notified Tenant that Lender
intends to institute proceedings under the Loan Documents, and,
thereafter, as long as such proceedings shall have been instituted and
shall be prosecuted with reasonable diligence. In the event of the
termination of the Lease by reason of any default thereunder by Landlord,
upon Lender's written request, given within thirty (30) days after any
such termination, Tenant, within fifteen (15) days after receipt of such
request, shall execute and deliver to Lender or its designee or nominee a
new lease of the Premises for the remainder of the term of the Lease upon
all of the terms, covenants and conditions of the Lease. Neither Lender
nor its designee or nominee shall become liable under the Lease unless
and until Lender or its designee or nominee becomes, and then only with
respect to periods in which Lender or its designee or nominee remains,
the owner of the Premises. In no event shall Lender have any personal
liability as successor to Landlord and Tenant shall look only to the
estate and property of Lender in the Premises for the satisfaction of
Tenant's remedies for the collection of a judgment (or other judicial
process) requiring the payment of money in the event of any default by
Lender as Landlord under the Lease, and no other property or assets of
Lender shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to the
Lease. Lender shall have the right, without Tenant's consent, to
foreclose the Deed of Trust or to accept a deed in lieu of foreclosure of
the Deed of Trust or to exercise any other remedies under the Loan
Documents.
6. Tenant has no knowledge of any prior assignment or pledge of
the rents accruing under the Lease by Landlord. Tenant hereby
acknowledges the making of the Assignment from Landlord to Lender in
connection with the Loan. Tenant acknowledges that the interest of the
Landlord under the Lease is to be assigned to Lender solely as security
for the purposes specified in said assignments, and Lender shall have no
duty, liability or obligation whatsoever under the Lease or any extension
or renewal thereof, either by virtue of said assignments or by any
subsequent receipt or collection of rents thereunder, unless Lender shall
specifically undertake such liability in writing.
7. If Tenant is a corporation, each individual executing this
Agreement on behalf of said corporation represents and warrants that s/he
is duly authorized to execute and deliver this Agreement on behalf of
said corporation, in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the by-laws
of said corporation, and that this Agreement is binding upon said
corporation in accordance with its terms. If Landlord is a partnership,
each individual executing this Agreement on behalf of said partnership
represents and warrants that s/he is duly authorized to execute and
deliver this Agreement on behalf of said partnership in accordance with
the partnership agreement for said partnership.
8. Any notice, election, communication, request or other
document or demand required or permitted under this Agreement shall be in
writing and shall be deemed delivered on the earlier to occur of (a)
receipt or (b) the date of delivery, refusal or nondelivery indicated on
the return receipt, if deposited in a United States Postal Service
Depository, postage prepaid, sent certified or registered mail, return
receipt requested, or if sent via recognized commercial courier service
providing for a receipt, addressed to Tenant or Lender, as the case may
be at the following addresses:
If to Tenant: Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
If to Lender: Credit Suisse First Boston Mortgage Capital
LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxxxx, Esq.
9. The term "Lender" as used herein includes any successor or
assign of the named Lender herein, including without limitation, any co-
lender at the time of making the Loan, any purchaser at a foreclosure sale
and any transferee pursuant to a deed in lieu of foreclosure, and their
successors and assigns, and the term "Tenant" as used herein includes any
successor and assign of the named Tenant herein.
10. If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall
be deemed modified to the extent necessary to be enforceable, or if such
modification is not practicable such provision shall be deemed deleted
from this Agreement, and the other provisions of this Agreement shall
remain in full force and effect.
11. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by
an instrument in writing executed by the party against which enforcement
of the termination, amendment, supplement, waiver or modification is
sought.
\\\\\ continued on next page
12. This Agreement shall be construed in accordance with the laws
of the State of California.
13. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which shall, taken
together, be deemed one agreement.
Witness the execution hereof as of the date first above written.
LENDER:
Credit Suisse First Boston Mortgage Capital LLC
By:
Name:
Title:
TENANT:
Exodus Communications, Inc.,
a Delaware corporation
By: __________________________________
Its: __________________________________
By: __________________________________
Its: __________________________________
The undersigned Landlord hereby consents to the foregoing Agreement
and confirms the facts stated in the foregoing Agreement.
LANDLORD:
LINCOLN-RECP CM-ES OPCO, LLC,
a Delaware limited liability company
By: Legacy Partners Commercial, Inc.,
as agent for LINCOLN-RECP CM-ES OPCO, LLC
By: ___________________________
, Vice President
EXHIBIT H
TENANT'S CONFIDENTIALITY AGREEMENT
CONFIDENTIAL NONDISCLOSURE AGREEMENT
1. Proprietary Information is technical or business information
describing or related to the activities of Exodus Communications, Inc.
(Exodus) which: (1) Exodus has generated at private expense and holds
in confidence, or (2) Exodus has received from third parties under an
obligation to maintain as confidential.
2. Visitor agrees not to disclose the Proprietary Information to any
third party. Visitor agrees to use the Proprietary Information only
for purposes expressly authorized in writing by Exodus and not to use
it for Visitor's own use.
3. The Visitor agrees that disclosure of Proprietary Information received
from Exodus shall be limited only to those of Visitor's (or Visitor's
employers) employees with a strict need to know for purposes expressly
authorized in writing by Exodus.
4. The obligations and duties set forth hereunder shall continue for a
period of three (3) years from receipt by Visitor.
5. Visitor shall not expose Exodus to any of Visitor's proprietary or
confidential information, or to the confidential or proprietary
information of any third party.
6. The terms of a confidential nondisclosure agreement previously
executed by Exodus and Visitor (or Visitor's employer), if any, will
supersede the terms of this agreement.
Your signature on this line indicates that you have read the above
confidential nondisclosure agreement and have agreed to abide by its
contents.
Signature_____________________________________________________________
_______
EXHIBIT I
TENANT'S PROPERTY
1. Permanent and temporary generator systems including enclosures and
fuel tanks with the associated electronic and manual switch gear.
2. Mechanical Systems i.e., Air Conditioning, and condenser systems,
air handlers and electrical dampers.
3. Raised flooring, racking, cage materials, cabinets and patch
panels.
4. UPS Battery Systems including electrical switch gear.
5. Any customer satellite dishes installed on roof or parking lot
areas.
6. FM200 fire suppression canisters, piping and nozzles.
7. VESDA or smoke sensor stations in ceiling or floor area.
8. Inside or outside security cameras, access card reader stations,
VCR, multiplexer, monitors, and computers.
9. Partition and conference room furniture systems and freestanding,
cabinets, storage units.
10. Telephone and voice mail system with desk stations and
receptionist, computers, servers, printers, phone sets.
11. Fiber Muxes or other Telco equipment installed in MPOE rooms.
12. Emergency distribution board and telephone backboard with
connectors.
13. Maintenance bypass electronic and manual switch gear.
14. Transformers and Power Distributions Units installed on premises.
15. Kitchen appliances like microwaves, refrigerators and vending
machines.
16. Console monitors, screen projection and screens in command center.
17. Bulletproof/resistant glass.
18. Satellite dishes or other communications equipment installed on
roof.
19. Customer and vendor equipment and related materials.
20. Tenant, tenant customer and tenant vendor personal property.
