SINGLE-TENANT INDUSTRIAL LEASE
(TRIPLE NET)
LANDLORD:
AEW/LBA ACQUISITION CO. 11, LLC,
a California limited liability company
TENANT:
CYMER, INC.,
a Nevada corporation
STANDARD FORM SINGLE-TENANT INDUSTRIAL LEASE
TABLE OF CONTENTS
Section Title Page
SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS iii
1. Premises 1
2. Term 1
3. Rent 3
4. Triple Net Lease 4
5. Security Deposit 4
6. Use 4
7. Payments and Notices 6
8. Brokers 6
9. Surrender; Holding Over 7
10. Taxes 7
11. Repairs 8
12. Alterations 8
13. Liens 9
14. Assignment and Subletting 9
15. Entry by Landlord 10
16. Utilities and Services 10
17. Indemnification and Xxxxxxxxxxx 00
00. Damage or Destruction 11
19. Eminent Domain 12
20. Tenant's Insurance 13
21. Waiver of Subrogation 14
22. Tenant's Default and Landlord's Remedies 14
23. Landlord's Default 16
24. Subordination 16
25. Estoppel Certificate 16
26. Easements 17
27. Modification and Cure Rights of Landlord's Mortgagees
and Lessors 17
28. Quiet Enjoyment 17
29. Transfer of Landlord's Interest 17
30. Limitation on Landlord's Liability 17
31. Miscellaneous 17
32. Lease Execution 19
EXHIBITS
EXHIBIT "A" Site Plan
EXHIBIT "B" Legal Description of Premises
EXHIBIT "C" Work Letter Agreement
Schedule 1 Description of Conceptual Plans
EXHIBIT "D" Sample Form of Notice of Lease Term Dates
EXHIBIT "E" Environmental Questionnaire
EXHIBIT "F" Sample Form of Tenant Estoppel Certificate
EXHIBIT "G" Description of Parking Lot Improvements
EXHIBIT "H" Prior Occupant's FF&E
STANDARD FORM SINGLE-TENANT INDUSTRIAL LEASE
INDEX OF DEFINED TERMS
Abandonment 14
Acquisition Costs 1
Acquisition Date 3
Actual Commencement Date for Manufacturing Building iii
Actual Commencement Date for Office Building iii
Actual Commencement Date for Parking Lot iii
Basic Elements 8
Buildings iii
Business Day 6
Cap 13
Conceptual Plans Exhibit C
Depository 12
Early Occupancy Date 2
Effective Date 1
Event of Default 14
Extension Option 2
Extension Options 2
Fair Market Rental 2
Force Majeure Delays 18
Hazardous Materials 5
Indemnified Claims 11
Insurance Failure Notice 11
Landlord 1
Landlord Indemnified Parties 5
Landlord's Parties 5
Laws 1
Lease 1
Losses 1
Manufacturing Building iii
Manufacturing Building Allowance Exhibit C
Office Building iii
Office Building Allowance Exhibit C
Option Period 2
Parcel 1 iii
Parcel 2 iii
Parking Lot iii
Parking Lot Improvement Costs 1
Parking Lot Improvements 1
PCBs 5
Permitted Assignees 10
Permitted Business 9
Pre-Approved Change 8
Premises iii
Proceeds 12
Property iii
Real Property Taxes 7
Respective Commencement Dates 2
Restoration 11
Restore 11
Substantial Completion 1
Substantially Complete 1
Summary 1
Tenant 1
Tenant Change 8
Tenant Changes 8
Tenant Improvement Allowance Items Exhibit C
Tenant Improvements Exhibit C
Tenant Indemnified Parties 5
Tenant's Parties 5
Term 1
Transfer 10
Transfer Date 10
Transfer Notice 10
Transfer Fee 10
Vacation 14
Work Letter 2
SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS
This SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS ("Summary") is hereby
incorporated into and made a part of the attached Single-Tenant Industrial
Lease which pertains to the Premises described in Section 1.3 below. All
references in the Lease to the "Lease" shall include this Summary. All
references in the Lease to any term defined in this Summary shall have the
meaning set forth in this Summary for such term. Any initially capitalized
terms used in this Summary and any initially capitalized terms in the Lease
which are not otherwise defined in this Summary shall have the meaning given
to such terms in the Lease.
1.1 Landlord's Address: AEW/LBA Acquisition Co. 11, LLC
c/o Xxxxxx Xxxxxxx Associates 00000 Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxx 000 Xxx Xxxxx,
Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.2 Tenant's Address: Cymer, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.3 Premises: The industrial development located at 00000 Xxx Xxx
Xxxxx Xxxxx and an adjacent undeveloped parcel, in the City
of San Diego, County of San Diego State of California, as
shown on the site plan attached hereto as Exhibit "A". The
real property ("Property") which is a part of the Premises is
more particularly described in Exhibit "B" attached hereto.
The Premises includes all buildings, improvements and
facilities, now or subsequently located on the Property from
time to time, including, without limitation, the one (1)
building of approximately 36,959 square feet of space (the
"Office Building"), the one (1) building of approximately
100,205 square feet of space (the "Manufacturing Building")
(the Office Building and the Manufacturing Building are
hereinafter sometimes collectively referred to as the
"Buildings" and the portion of the Property underlying the
Buildings is described, and defined herein, as "Parcel 1" on
Exhibit "B" attached hereto), both of which Buildings are
currently located on the Property, as depicted on the site
plan attached hereto as Exhibit "A". The aggregate rentable
square feet of the Buildings is 137,164 square feet. The
Premises also includes that certain lot (described, and
defined herein, as "Parcel 2" on Exhibit "B" attached hereto)
which shall be improved by Landlord in accordance with the
terms of Section 1.2 of the Lease (the "Parking Lot").
1.4 Estimated Commencement Date for Office Building: December 16,
1996; Actual Commencement Date for Office
Building: Fifteen (15) calendar days after Landlord's
delivery of the Office Building in the condition required by
Section 2.3 of the Lease.
1.5 Actual Commencement Date for Manufacturing Building: June 1,
1997
1.6 Estimated Commencement Date for Parking Lot: March 1, 1997;
Actual Commencement Date for Parking Lot to be determined as
provided in Section 1.2 of the Lease.
1.7 Lease Expiration Date: January 1, 201 0, subject to two (2)
extension options of five (5) years each pursuant to Section
2.4 of the Lease.
1.8 Rent for Office Building and Manufacturing Building:
Monthly Rent Annual Rent
Year Xxxxxx Xxxxxxxx/Xxxxxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx/Xxxxxxxxxxxxx Xxxxxxxx
0 $35,111.05/$95,194.75 $421,332.60/$1,142,337.00
2 $36,164.38/$98,050.59 $433,972.58/$1,176,607.11
3 $37,249.31/$100,992.11 $446,991.76/$1,211,905.32
4 $38,336.79/$104,021.87 $460,401.51/$1,248,262.48
5 $39,517.80/$107,142.53 $474,213.55/$I,285,710.36
6 $40,703.33/$110,356.81 $488,439.96/$1,324,281.67
7 $41,924.43/$113,667.51 $503,093.16/$1,364,010.12
8 $43,182.16/$117,077.54 $518,185.95/$1,404,930.42
9 $44,477.63/$120,589.86 $533,731.53/$1,447,078.33
10 $45,811.96/$124,207.56 $549,743.48/$1,490,490.68
11 $47,186.32/$127,933.78 $566,235.78/$1,535,205.41
12 $48,601.90/$131,771.80 $583,222.86/$1,581,261.57
13 $50,059.96/$135,724.95 $600,719.54/$1,628,699.41
For purposes of calculating Rent for the Manufacturing Building, Year 1 shall
be deemed to end on the day prior to the first anniversary of the Actual
Commencement Date for Office Building, and Year 2 and all subsequent years of
the Term as it relates to the Manufacturing Building will commence on the
respective anniversary dates of the Actual Commencement Date for Office
Building. Annual Rent is specified on an annualized basis, and if any Year
specified above does not contain twelve (12) months, the Rent payable during
such Year shall be appropriately prorated.
1.9 Rent for Parking Lot: Tenant shall pay Landlord Annual Rent
for the Parking Lot in an initial amount equal to twelve
percent (12%) of the sum of the (i) Acquisition Costs (as
defined in Section 1.2 of the Lease) and the (ii) Parking Lot
Improvement Costs (as defined in Section 1.2 of the Lease).
Commencing on the first anniversary of the Actual
Commencement Date for Parking Lot, and on each anniversary
date thereafter, the Annual Rent for Parking Lot will be
increased by three percent (3%) of the amount payable
immediately prior to such adjustment date.
1.10 Security Deposit: $2,224,41 6.00, subject to return as set
forth in Section 5 of the Lease.
1.11 Permitted Use: The Office Building may be used only for
general office purposes and, to the extent allowed by
applicable law, research and development and laboratory use.
The Manufacturing Building may be used only for research,
development, design, fabrication, storage, light
manufacturing and assembly and any other use allowed by
applicable law. The Parking Lot may be used only for the
parking of vehicles by Tenant's employees, agents,
contractors, invitees and visitors.
1.12 Brokers: Xxxx Xxxxxxx & Company representing Landlord and
The Xxxxxx Xxxxxx Group representing Tenant.
1.13 Interest Rate: The lesser of: (a) the rate announced from
time to time by Xxxxx Fargo Bank or, if Xxxxx Fargo Bank
ceases to exist or ceases to publish such rate, then the rate
announced from time to time by the largest (as measured by
deposits) chartered operating bank operating in California,
as its "prime rate" or "reference rate", plus three percent
(3%); or (b) the maximum rate permitted by law.
1.14 Tenant Improvements: The tenant improvements installed or to
be installed in the Premises by Tenant, as described in the
Work Letter Agreement attached hereto as Exhibit "C".
SINGLE-TENANT INDUSTRIAL LEASE
This LEASE ("Lease"), which includes the preceding Summary of Basic Lease
Information and Definitions ("Summary") attached hereto and incorporated
herein by this reference, is made as of the 19th day of December, 1996, by
and between AEW/LBA ACQUISITION CO. 11, LLC, a California limited liability
company ("Landlord"), and CYMER, INC., a Nevada corporation ("Tenant").
1. Premises.
1.1 Lease of Premises. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Premises upon and subject to the terms,
covenants and conditions contained in this Lease to be performed by each party.
1.2 Parking Lot. Promptly following the Acquisition Date (as defined in
Section 2.5 below), Landlord shall begin construction of facilities for
parking on a portion of the Parking Lot (the "Parking Lot Improvements") as
described on Exhibit "G" attached hereto. Landlord shall cause the Parking
Lot Improvements to be constructed in accordance with all then-applicable
laws. The "Actual Commencement Date for the Parking Lot" shall occur upon
Substantial Completion of the Parking Lot Improvements. "Substantial
Completion" or "Substantially Complete" is herein defined as the date upon
which all of the following have been satisfied: (i) construction of the
Parking Lot Improvements is complete, as determined by Landlord's
construction contractor; (ii) Landlord has obtained all permits or approvals
from the City of San Diego as may be necessary for the use of the Parking Lot
Improvements as a parking lot and delivered evidence of same to Tenant; and
(iii) Tenant has accepted the Parking Lot Improvements (Tenant may not
accept the Parking Lot Improvements only if they are not constructed
substantially in accordance with the requirements of Exhibit "G", or if they
do not comply with then-applicable laws, and Tenant's failure to give Landlord
written notice of Tenant's non-acceptance of the Parking Lot Improvements
within five (5) business days following the date of Tenant's receipt of
written notice of the satisfaction of clause (i) above and clause (ii) above
(accompanied by materials to be delivered pursuant to clause (ii) above) will be
deemed Tenant's acceptance of the Parking Lot Improvements). Upon Substantial
Completion of the Parking Lot Improvements, Landlord shall assign to Tenant
all warranties for the Parking Lot Improvements from Landlord's construction
contractor and all warranties available at law or in equity and Landlord
shall have no further obligations or liabilities to Tenant concerning the
Parking Lot Improvements; however, Landlord shall cooperate with Tenant as
necessary to enforce such warranties. For purposes of calculating the Rent
for the Parking Lot, (a) "Acquisition Costs" is defined as all reasonable
costs and expenses incurred by Landlord in connection with or arising from the
purchase of the Parking Lot including, without limitation, the purchase price,
escrow and title charges and fees, documentary and transfer taxes, recording
costs, loan fees and costs, if any, attorneys fees and any and all other
costs or expenses of such purchase, and (b) "Parking Lot Improvement Costs"
is defined as all reasonable hard and soft costs incurred by Landlord in
connection with or arising from the design and construction of the Parking
Lot Improvements, including, without limitation, design, drafting,
architecture and engineering fees, permitting and other governmental fees
and charges, and costs, contractor and subcontractor charges and fees and
any and all other costs or expenses of construction. The Rent for the Parking
Lot shall be paid in monthly installments equal to one-twelfth (1/12th) of the
Rent described in Section 1.9 of the Summary of Basic Lease Information and
Definitions.
1.3 AS-IS. Tenant acknowledges and agrees that, except to the extent
specifically set forth in Section 1.2 above with respect to the construction
of the Parking Lot Improvements by Landlord, Landlord has not made, does not
make and specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guarantees of any kind or character
whatsoever concerning or with respect to (a) the value, nature, quality or
condition of the Premises; (b) the suitability of the Premises for any and
all activities and uses which Tenant may conduct thereon; (c) the compliance
of the Premises with any laws, rules, ordinances or regulations of any
applicable governmental authority or body, including, without limitation,
environmental laws (collectively, "Laws"); (d) the habitability,
merchantability, marketability, profitability or fitness for a particular
purpose of the Premises; (e) the manner or quality of the construction or
materials incorporated into the Premises; (f) the manner, quality, state of
repair or lack of repair of the Premises; or (g) any other matter with
respect to the Premises. Tenant further acknowledges and agrees that having
been given the opportunity to inspect the Premises, Tenant is relying solely on
its own investigation of the Premises and not on any information provided or to
be provided by Landlord. Tenant further acknowledges and agrees that any
information provided or to be provided by or on behalf of Landlord with
respect to the Premises, was obtained from a variety of sources and that
Landlord has not made any independent investigation or verification of such
information and makes no representations as to the accuracy or completeness of
such information. Tenant further acknowledges and agrees that, except to the
extent specifically set forth in Section 1.2 above with respect to the
Parking Lot Improvements, the leasing of the Premises as provided for herein
is made on an "AS-IS" condition and basis with all faults. Tenant and anyone
claiming by, through or under Tenant hereby fully and irrevocably releases
Landlord from any and all claims that it may now have or hereafter acquire
against Landlord for any cost, loss, liability, damage, expense, demand, action
or cause of action arising from or related to any construction defects, errors,
omissions or other conditions (excluding, however, environmental matters, now
or hereafter affecting the Premises), except as otherwise specifically set
forth herein (collectively, "Losses"), except to the extent (i) such Losses
arise from the negligence or misconduct or breach of this Lease of or by
Landlord or Landlord's Parties or (ii) Landlord has indemnified Tenant
against such Losses. This release includes claims of which Tenant is presently
unaware or which Tenant does not presently suspect to exist in its favor
which, if known by Tenant, would materially affect Tenant's release of
Landlord. Tenant specifically waives the provision of California Civil Code
1542, which provides as follows: "A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected
his settlement with the debtor."
2. Term.
2.1 Term; Notice of Lease Dates. This Lease shall be effective upon the
date first above written (the "Effective Date"). Subject to Section 2.4(a)
below, the term of this Lease (the "Term") shall commence upon the Actual
Commencement Date for Office Building, the Actual Commencement Date for
Manufacturing Building, and the Actual Commencement Date for Parking Lot with
respect to the Office Building, Manufacturing Building and Parking Lot,
respectively (hereinafter the Actual Commencement Dates for the Office
Building, the Manufacturing Building and the Parking Lot may be collectively
referred to as the "Respective Commencement Dates"). Within ten (10) days
after Landlord's written request, Tenant and Landlord shall execute a written
confirmation of the Respective Commencement Dates in the form of the Notice
of Lease Term Dates attached hereto as Exhibit "D". The Notice of Lease Term
Dates executed by Landlord shall be binding upon Tenant unless Tenant objects
thereto in writing within such ten (10) day period.
2.2 Estimated Commencement Date for Parking Lot. It is estimated by the
parties that Landlord will deliver possession of the Parking Lot, and that
the Term of this Lease respecting the Parking Lot will commence on, the
Estimated Commencement Date for Parking Lot set forth in Section 1.6 of the
Summary. The Estimated Commencement Date for Parking Lot is merely an estimate
of the Actual Commencement Date for Parking Lot and, consequently, Tenant
agrees that Landlord shall have no liability to Tenant for any loss or
damage, nor shall Tenant be entitled to terminate or cancel this Lease
(except as set forth in Section 2.5 below) if the Term of this Lease
respecting the Parking Lot does not commence by the Estimated Commencement Date
for Parking Lot for any reason whatsoever, including any delays in
Substantial Completion of the Parking Lot Improvements.
If Landlord has not delivered possession of the Parking Lot by June 1, 1997,
due to Landlord's failure to Substantially Complete the Parking Lot
Improvements (as such date is subject to extension by one day for each day
Landlord is delayed in constructing the Parking Lot Improvements due to
Force Majeure Delays), then Tenant may, following delivery of written notice to
Landlord, construct the Parking Lot Improvements substantially in accordance
with Exhibit "G". In such event, the Actual Commencement Date for Parking
Lot shall be the earlier to occur of (i) the date of Substantial Completion
of the Parking Lot Improvements or (ii) ninety (90) days following the date
Tenant gives Landlord written notice of its election to construct the Parking
Lot Improvements. Within thirty (30) days following Substantial Completion
of the Parking Lot Improvements and delivery to Landlord of evidence of the
lien-free completion thereof and the costs incurred by Tenant in connection
therewith, Landlord will reimburse Tenant the actual cost of construction of
the Parking Lot Improvements. If Landlord fails to so reimburse Tenant
within said thirty (30) day period, then the Rent for the Parking Lot will
be calculated without the inclusion of the Parking Lot Improvement Costs,
notwithstanding Section 1.9 of the Summary to the contrary.
2.3 Delivery; Early Occupancy. Landlord shall deliver possession of all
of Parcel 1 on the first (lst) business day following the Acquisition Date
(as that term is defined in Section 2.5 below) (the "Early Occupancy Date") for
purposes of construction of improvements to the Premises in accordance with
the Work Letter attached hereto as Exhibit "C" ("Work Letter"); provided,
however, Tenant acknowledges that approximately 30,000 square feet of the
Manufacturing Building (in the approximate location depicted on Exhibit "A")
and certain areas outside of the Manufacturing Building (as described on
Exhibit "A") will be occupied by ALCOA (the current owner of the Premises)
pursuant to a license for the purpose of removing certain trade fixtures,
equipment and personal property, which removal is expected to be completed
by February 28, 1997. Landlord represents and warrants to Tenant that such
license will require ALCOA to vacate such space by February 28, 1997 (with an
extension right to March 31, 1997). Landlord will exercise good faith efforts
to cause ALCOA to remove its trade fixtures, equipment and personal property
and vacate such portion of the Manufacturing Building by February 28, 1997
(or March 31, 1997, as applicable) and will exercise all remedies available
under such license to cause such vacation. Notwithstanding anything to the
contrary contained in this Lease (including, but not limited to, the Work Letter
attached hereto), Tenant shall not perform or cause to be performed any tests
or studies affecting or relating to the soils or subsurface areas below the
Premises without prior written notice to and approval of Landlord, which
approval shall not be unreasonably withheld or delayed. Such early occupancy
shall be subject to all of the terms and conditions of this Lease (including,
without limitation, Sections 10, 17, 20 and 22) except that Tenant will not
be obligated to pay Monthly Rent for the Office Building or operating
expenses for the Premises until the Actual Commencement Date for Office
Building, and Tenant will not be obligated to pay Monthly Rent for the
Manufacturing Building until the Actual Commencement Date for Manufacturing
Building (however, Tenant will pay operating expenses associated with the
entire Premises commencing on the Actual Commencement Date for Office Building).
Landlord shall deliver the Office Building and Manufacturing Building in
broom-clean condition and without any of ALCOA's trade fixtures, equipment or
personal property other than those items identified on Exhibit "H" attached
hereto.
2.4 Options to Extend. Tenant shall have two (2) options (individually,
an "Extension Option" and collectively, the "Extension Options") to extend
the Term for a period (individually, an "Option Period") of five (5) years,
each commencing upon the Lease Expiration Date and the expiration of the
first (1st) Option Period, as the case may be, upon the same terms and
conditions previously applicable, except for the grant of any exercised
Extension Option and Annual Rent (which shall be determined as set forth
below). Each Extension Option may be validly exercised only by notice in
writing received by Landlord not later than twelve (12) months prior to
commencement of the Option Period; provided, however, that the Extension
Option may be validly exercised only if no material Event of Default exists
as of the date of exercise and, at Landlord's option, as of the commencement
of the Option Period. If Tenant does not exercise an Extension Option during
the exercise period set forth above in strict accordance with the provisions
hereof, the Extension Options shall forever terminate and be of no further
force or effect. The Extension Options are personal to the original Tenant
and any Permitted Assignee, may not be exercised by any person or entity
other than the original Tenant or any Permitted Assignee, and shall become
null and void if the original Tenant assigns its interest in this Lease or
sublets any portion of the Premises to anyone other than a Permitted Assignee.
Annual Rent during each Option Period shall be equal to Fair Market Rental as
of the commencement of such Option Period. For purposes hereof, "Fair Market
Rental" shall mean the base rent payable to a willing landlord by a willing
tenant having a similar financial responsibility, credit rating and
capitalization as Tenant then has, taking into account all other relevant
factors for like and comparable space including, without limitation, the
uses permitted under this Lease, the lack of obligation to construct Tenant
Improvements, and the limited real estate commission payable, improved with
tenant improvements of like and comparable quality to those then existing in
the Premises in the Rancho Xxxxxxxx business district of San Diego (or, if no
comparable conditions exist in such area, then in the 0-00 xxxxxxxx xxxx xx
Xxx Xxxxx). At least six (6) months prior to the Option Period, Landlord
shall notify Tenant of the Fair Market Rental as determined by Landlord. Any
dispute between the parties hereto with respect to the amount so determined
shall be resolved by appraisal, as set forth below; provided, however, that
there shall be deemed not to be such a dispute unless Tenant notifies
Landlord thereof in writing within one (1) month after Landlord so notifies
Tenant of the Fair Market Rental and Tenant sets forth in such notice
Tenant's determination of Fair Market Rental. If, in the event of a dispute,
the appraisers have not determined the Fair Market Rental by commencement of
the Option Period, Tenant shall pay as Annual Rent the amount determined by
Landlord until such time as the Fair Market Rental has been determined by
arbitration, whereupon Tenant shall pay any additional amount due to
Landlord based upon such subsequent determination of Fair Market Rental.
If the Annual Rent so paid by Tenant is higher than that ultimately
determined by the arbitration process, then Landlord shall reimburse
such difference to Tenant.
If Tenant timely notifies Landlord in writing of Tenant's dispute regarding
Landlord's determination of the Fair Market Rental, then Fair Market
Rental shall be determined as follows. Landlord and Tenant shall each
appoint one appraiser who shall by profession be a real estate appraiser
active over the five (5) year period ending on the date of such
appointment in the appraisal of commercial properties in San Diego County
and who shall not have been employed or engaged by either party during
said five (5) year period. Each such appraiser shall be appointed
within fifteen (15) days after Tenant notifies Landlord of Tenant's dispute of
Landlord's determination of Fair Market Rental. The two appraisers so
appointed shall within fifteen (15) days of the date of the appointment of
the last appointed appraiser agree upon and appoint a third appraiser who
shall be qualified under the same criteria set forth above. The three
appraisers shall, within thirty (30) days of the appointment of the
third appraiser, reach a decision as to whether the parties shall use
Landlord's or Tenant's submitted Fair Market Rental for the Premises, and
shall notify Landlord and Tenant thereof. Such decision shall be based
upon the criteria and variables set forth above. The new Annual Rent shall
thereafter be equal to the Fair Market Rental of the Premises so
selected by the appraisers. The decision of the majority of the three
appraisers shall be binding upon Landlord and Tenant. If either Landlord
or Tenant fails to appoint an appraiser within the time period specified
hereinabove, the appraiser appointed by one of them shall reach a decision,
notify Landlord and Tenant thereof, and such appraisers decision shall be
binding upon Landlord and Tenant. If the two appraisers fail to agree upon
and appoint a third appraiser, the two appraisers shall request the presiding
judge of the Superior Court of San Diego, acting in his private capacity, or
the head of the local chapter of the leading appraisal group, to appoint the
third appraiser. Each party shall pay for its own appraiser and one-half
(1/2) of the cost of the third appraiser.
Anything to the contrary herein notwithstanding, Landlord and Tenant agree
that in no event shall Fair Market Rental for any full calendar month
during an Option Period, whether determined by Landlord, by Tenant or by
appraisal, ever be less than the Monthly Rent payable by Tenant for the
full calendar month immediately preceding the Option Term for which Fair
Market Rental is to be determined.
2.5 Conditions Precedent.
(a) Tenant acknowledges that Landlord is currently in escrow to
acquire the Premises and Landlord intends to deliver
possession of Parcel 1 to Tenant within one (1) business day
following the date Landlord acquires the Premises (the
"Acquisition Date"). Landlord's and Tenant's obligations
under this Lease are conditioned upon Landlord's acquisition
of the Premises on or before March 1, 1997. If Landlord has
not acquired the Premises by March 1, 1997, then Landlord
shall return the first month's Monthly Rent and the Security
Deposit to Tenant and this Lease shall terminate and neither
party shall have any further obligations to the other
hereunder.
(b) Landlord will not be obligated to deliver possession of the
Premises to Tenant (but Tenant will be liable for Rent if
Landlord can otherwise deliver the Premises, or the
applicable portion thereof, to Tenant as required hereunder)
until Landlord has received from Tenant all of the following:
(i) a copy of this Lease fully executed by Tenant; (ii)
evidence satisfactory to Landlord of the deposit of the
Security Deposit in accordance with Section 5 below, and the
first installment of Monthly Rent in accordance with Section
3.1 below; and (iii) copies of policies of insurance or
certificates thereof as required under Section 21 of this
Lease.
(c) If, as of the delivery of possession of the Parcel 1,
Landlord's interest in the Premises is subject to a mortgage
or deed of trust, then Tenant's obligations hereunder shall
be subject to Landlord's delivery to Tenant of a commercially
reasonable non-disturbance agreement (which agreement shall
recognize Tenant's offset rights under the Work Letter). If
such non-disturbance agreement has not been delivered to
Tenant by the Actual Commencement Date for Office Building,
Tenant may terminate this Lease by giving Landlord written
notice thereof within ten (10) days thereafter, but prior to
Landlord's delivery of such non-disturbance agreement.
3. Rent.
3.1 Annual Rent. Tenant agrees to pay Landlord, as rent for the Premises,
the Annual Rent designated in Sections 1.8 and 1.9 of the Summary. The
Annual Rent shall be paid by Tenant in twelve (12) equal monthly installments
of Monthly Rent in the amounts designated in Sections 1.8 and 1.9 of the
Summary in advance on the first day of each and every calendar month
commencing upon the Respective Commencement Dates, except that the first full
month's Monthly Rent for the Office Building and the Manufacturing Building
shall, upon execution of this Lease by Tenant, be delivered into the escrow
referred to in Section 2.5(a) above with instructions for disbursement to
Landlord upon (i) Landlord's acquisition of the Premises and (ii) the
determination of the escrow holder that it is in a position, without the
requirement for Landlord to satisfy any additional conditions, to deliver to
Landlord (and deliver a copy to Tenant) an owner's policy of title insurance
insuring Landlord as the fee owner of the Property subject to Tenant's
leasehold estate (as evidenced by a recorded memorandum of lease) in (a) first
priority position or (b) second position, provided that the policy also
evidences the recording of a nondisturbance, recognition and attornment
agreement satisfying the requirements of Section 2.5(c) above executed by
Tenant, Landlord and the holder of the lien shown on the title report as
having priority over Tenant's leasehold estate. Monthly Rent for any
partial month shall be prorated in the proportion that the number of days
this Lease is in effect during such month bears to the actual number of
days in such month.
3.2 Additional Rent; Management Fee. All amounts and charges payable by
Tenant under this Lease in addition to the Annual Rent described in Section
3.1 above shall be considered additional rent for the purposes of this Lease,
and the word "Rent" in this Lease shall include such additional rent unless
the context specifically or clearly implies that only the Annual Rent is
referenced. The Annual Rent and additional rent shall be paid to Landlord as
provided in Section 7, without any prior demand therefor and without any
deduction or offset, in lawful money of the United States of America. Tenant
shall pay to Landlord as additional rent an annual management fee equal to
two percent (2%) of Annual Rent for the Premises. Such fee shall be payable
in twelve (1 2) equal monthly installments together with Monthly Rent.
3.3 Late Payments. Late payments of Monthly Rent and/or any item of
additional rent will be subject to interest and a late charge as provided in
Sections 22.6 and 22.7 below.
4. Triple-Net Lease. All Rent shall be absolutely net to Landlord so
that this Lease shall yield net to Landlord, the Rent to be paid each
month during the Term of this Lease. Accordingly, except as specifically set
forth herein, all costs, expenses and obligations of every kind or nature
whatsoever relating to the Premises (excepting the Acquisition Costs) which
may arise or become due during the Term of this Lease with respect to
the Premises shall be paid by Tenant. Nothing herein contained shall be
deemed to require Tenant to pay or discharge any liens or mortgages of any
character whatsoever which may exist or hereafter be placed upon the
Premises by an affirmative act or omission of Landlord.
5. Security Deposit. Concurrently with the execution of this Lease,
Tenant shall deposit the Security Deposit designated in Section 1.10 of the
Summary into an investment escrow account with Xxxxxx Xxxxxxx or
Xxxxxxxxxx Securities or such other investment company as is reasonably
acceptable to both Landlord and Tenant. The escrow instructions for such
account shall be subject to Landlord's prior approval and must provide
the following: (i) Landlord will not acquire any rights to the monies in such
account until Landlord's acquisition of the Premises and delivery of
possession of Parcel 1 as contemplated in Section 2.3 (unless such delivery
does not occur by reason of the failure of Tenant's obligations described in
Section 2.5(b) above) and Landlord has satisfied the conditions to
disbursement of the first full month's Monthly Rent set forth in Section 3.1
of this Lease; (ii) that Landlord shall have a first priority security
interest in the monies in such account, (iii) Landlord will have access to
the monies in such account upon Landlord's delivery of a certificate to the
escrow holder certifying that (A) there exists an Event of Default, and (B)
Landlord is entitled to receive such payment(s) in the specified amount
pursuant to the terms and conditions of the Lease; (iv) that Tenant shall have
the right to direct the investment decisions for the account provided that
all such investments shall be limited to those customarily utilized in a
conservative pension fund investment portfolio; (v) that escrow shall
distribute all earnings from the account in excess of the then-required
Security Deposit directly to Tenant; and (vi) any funds remaining in the
account after thirty (30) days following the expiration or earlier termination
of this Lease for which Landlord has not requested disbursement pursuant to
clause (iii) above within said thirty (30) day period shall be returned to
Tenant. If Landlord withdraws more funds from the escrow account than
necessary to cure an Event of Default, Landlord shall promptly re-deposit
such excess funds into the escrow account. If Landlord fails to re-deposit
such funds into the escrow account within five (5) Business Days after
Landlord realizes or reasonably should have realized that Landlord had
withdrawn excess funds, Landlord shall also be obligated to pay to Tenant
interest on such amount at the Interest Rate from the expiration of such five
(5) Business Day period until the date of re-deposit. Landlord may not
request a withdrawal from the escrow account after thirty (30) days following
the expiration or sooner termination of this Lease. Tenant hereby
acknowledges and agrees that Landlord shall have no liability or
responsibility for any loss of principal or interest not caused by Landlord
from such account and that Tenant shall, within ten (10) days from the date
of any such loss, deposit cash into the account sufficient to restore the
Security Deposit to its then-required amount. The Security Deposit shall be
held as security for the full and faithful performance by Tenant of all
of the terms, covenants and conditions of this Lease to be performed
by Tenant during the Term. The Security Deposit is not, and may not be
construed by Tenant to constitute, rent for the last month or any portion
thereof. If Tenant defaults with respect to any of its obligations under
this Lease, Landlord may (but shall not be required to) use, apply or
retain all or any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any other amount, loss or
damage which Landlord may spend, incur or suffer by reason of Tenant's
default. If any portion of the Security Deposit is so used or applied,
Tenant shall, within ten (10) days after demand therefor, deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its
original amount. The Security Deposit (or any balance thereof remaining
following Landlord's use of the Security Deposit [or portion thereof as
permitted by this Lease] which has not been restored by Tenant) shall be
returned to Tenant within thirty (30) days following the expiration of the
Lease Term. If Landlord sells its interest in the Premises during the Lease
Term and if Landlord transfers to the purchaser the Security Deposit (or
balance thereof, and such purchaser acknowledges receipt thereof, then, upon
such sale, Landlord shall be discharged from any further liability with
respect to the Security Deposit. So long as no Event of Default under this
Lease has occurred prior to the reduction dates set forth below, the
required Security Deposit shall be reduced in accordance with the following
schedule if, on or before the date for any scheduled reduction in the required
Security Deposit, Landlord has not delivered a request for a withdrawal from
such account, accompanied by the required certificate described above :
Month of
Lease Term respecting the
Office Building Required Security Deposit
1-12 $2,224,416.00
13-24 $1,516,277.00
25-36 $808,138.00
37-end $100,000.00
Landlord will waive the requirement to maintain the Security Deposit
upon the satisfaction of the following conditions: (i) at the time of
Tenant's request for such waiver, Tenant has a tangible net worth of
at least Seventy-Five Million Dollars ($75,000,000.00) and no Event of
Default exists and (ii) during the immediately preceding six (6) month
period, there has been no Event of Default and Tenant has maintained a
tangible net worth of at least Seventy-Five Million Dollars ($75,000,000.00).
6. Use.
6.1 General. Tenant shall use the Premises solely for the Permitted
Use specified in Section 1.1 I of the Summary, and shall not use or
permit the Premises to be used for any other use or purpose whatsoever.
Tenant shall, at its sole cost and expense, observe and comply with all
requirements of any board of fire underwriters or similar body relating to
the Premises, and all laws, statutes, codes, rules and regulations now or
hereafter in force relating to or affecting the use, occupancy, alteration
or improvement (whether structural or non-structural) of the Premises,
including, without limitation, the provisions of Title III of the Americans
with Disabilities Act of 1990 as it pertains to Tenant's use, occupancy,
improvement and alteration (whether structural or non-structural) of the
Premises. Tenant shall not use or allow the Premises to be used (a) in
violation of any recorded covenants, conditions and restrictions
affecting the Premises or of any law or governmental rule or regulation, or of
any certificate of occupancy issued for the Premises, or (b) for any
unlawful purpose. Tenant shall not cause, maintain or permit any nuisance
in, on or about the Premises, nor commit or suffer to be committed any
waste in, on or about the Premises. Notwithstanding any provision to the
contrary herein, Tenant's obligations to comply with laws, ordinances,
regulations and the like shall not include the obligation to
comply with environmental laws, ordinances, regulations and the like except
to the extent applicable to Hazardous Materials introduced to the Premises
by Tenant or Tenant's Parties, and Landlord releases Tenant from, and
waives any and all claims against, Tenant for any liability resulting from
any Hazardous Materials not introduced to the Premises by Tenant or Tenant's
Parties.
6.2 Signs, Awnings and Canopies. Tenant shall have the exclusive
right to install upon the Premises such signage as Tenant deems
appropriate provided Tenant obtains approval from all governmental
authorities having jurisdiction over the Premises and from Landlord,
which approval shall not be unreasonably withheld or delayed. Tenant
agrees to maintain any such sign, awning, canopy, decoration, lettering or
advertising matter as may be approved by Landlord in good condition and
repair at all times. At the expiration or earlier termination of this Lease,
at Landlord's election, Tenant shall remove all signs, awnings, canopies,
decorations, lettering and advertising and shall repair any damage to the
Premises resulting therefrom all at Tenant's sole cost and expense. If
Tenant fails to maintain any such approved sign, awning, decoration,
lettering, or advertising, Landlord may do so following thirty (30) days'
prior written notice to Tenant and Tenant shall reimburse Landlord
for such cost. If, without Landlord's prior written consent, Tenant
installs any sign, awning, decoration, lettering or advertising, or fails to
remove any such item(s) at the expiration or earlier termination of
this Lease, Landlord may have such item(s) removed and stored and may
repair any damage to the Premises at Tenant's expense. The removal,
repair and/or storage costs shall bear interest until paid at the Interest
Rate.
6.3 Hazardous Materials. Except for ordinary and general office supplies,
such as copier toner, liquid paper, glue, ink and commo household
cleaning materials (some or all of which may constitute "Hazardous
Materials" as defined in this Lease), neither Tenant nor its agents,
employees, subtenants, assignees, licensees, contractors or invitees
(collectively, "Tenant's Parties") shall cause any Hazardous Materials to be
brought upon, stored, used, handled, generated, released or disposed of on, in,
under or about the Premises without the prior written consent of Landlord,
which consent Landlord may withhold in its sole but reasonable discretion.
Concurrently with the execution of this Lease, Tenant agrees to complete
and deliver to Landlord an Environmental Questionnaire in the form of
Exhibit "E" attached hereto. Upon the expiration or earlier termination of
this Lease, Tenant agrees to promptly remove from the Premises, at its sole
cost and expense, any and all Hazardous Materials, including any equipment or
systems containing Hazardous Materials which are installed, brought upon,
stored, used, generated or released upon, in, under or about the Premises
by Tenant or any of Tenant's Parties.
To the fullest extent permitted by law, Tenant agrees to promptly indemnify,
protect, defend and hold harmless Landlord and Landlord's partners,
officers, directors, employees, agents, successors and assigns
(collectively, "Landlord Indemnified Parties") from and against any and all
claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation,
clean-up, removal, remediation and restoration costs, sums paid in settlement
of claims, attorneys' fees, consultant fees and expert fees and court costs)
which arise or result from the presence of Hazardous Materials on, in, under or
about the Premises and which are caused by Tenant or any of Tenant's
Parties. Tenant agrees to promptly notify Landlord of any release of
Hazardous Materials which Tenant becomes aware of during the Term of this
Lease, whether caused by Tenant or any other persons or entities. In
the event of any release of Hazardous Materials caused by Tenant or any of
Tenant's Parties, Landlord shall have the right, but not the obligation, to
cause Tenant to immediately take all steps Landlord deems necessary or
appropriate to remediate such release and prevent any similar future
release to the satisfaction of Landlord and Landlord's mortgagee(s). At
all times during the Term of this Lease, Landlord will have the right,
but not the obligation, to enter upon the Premises to inspect, investigate,
sample and/or monitor the Premises to determine if Tenant is in compliance
with the terms of this Lease regarding Hazardous Materials. As used in
this Lease, the term "Hazardous Materials" shall mean and include any
hazardous or toxic materials, substances or wastes as now or hereafter
designated under any law, statute, ordinance, rule, regulation, order or
ruling of any agency of the State, the United States Government or any
local governmental authority, including, without limitation, asbestos,
petroleum, petroleum hydrocarbons and petroleum based products, urea
formaldehyde foam insulation, polychlorinated biphenyis ("PCBs"), and freon
and other chlorofluorocarbons. The provisions of this Section 6.3 will
survive the expiration or earlier termination of this Lease.
To the fullest extent permitted by law, Landlord agrees to promptly
indemnify, protect, defend and hold harmless Tenant and Tenant's partners,
officers, directors, employees, agents, successors and assigns
(collectively, "Tenant Indemnified Parties") from and against any and all
claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation,
clean-up, removal, remediation and restoration costs, sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees and
court costs) which arise or result from the presence of Hazardous Materials
on, in, under or about the Premises and which are caused by Landlord or
any of Landlord's employees, agents or contractor (collectively, "Landlord's
Parties"). Notwithstanding any provision to the contrary in this Lease, if
any environmental condition arises with respect to the Premises for which
Tenant has been released from liability hereunder, and for which Tenant
is therefore not responsible under this Lease, and Landlord does not
remediate such environmental condition (which Landlord shall have the right but
not the obligation hereunder to do, unless caused by Landlord or Landlord's
Parties) as and to the extent required by applicable law and adequately
protect the health and safety of Tenant and Tenant's Parties during such
remediation activity, and such environmental condition would pose a
material threat to the health and safety of Tenant's Parties if
unremediated, then (i) Tenant shall have the right to terminate this Lease,
effective upon the date stated in Tenant's written notice to Landlord (and
Landlord's Lender) exercising such right to terminate; provided, however,
Landlord (or Landlord's lender) may rescind such termination by commencing
such remediation and providing for such adequate protection within ninety
(90) days following receipt of such termination notice, and thereafter
diligently pursuing such remediation to completion, and (ii) if such
environmental condition was not caused by Landlord or Landlord's Parties, then
neither Landlord nor Landlord's Parties shall have, and Tenant, on behalf
of itself only, releases Landlord and Landlord's Parties from, any
liability arising from such environmental condition. Notwithstanding the
foregoing, Tenant's termination right under clause (i) of the preceding
sentence shall not apply with respect to the environmental condition of
the Premises disclosed by that certain AEPI Permit By Rule/Conditionally
Authorized Facility Closure Plan amended as of December 11, 1996 and those
certain Specifications for Decontamination and Demolition, provided such
environmental condition is remediated in accordance with said plans and
specifications.
Notwithstanding the foregoing, Landlord consents to the storage and use at
the Premises, and disposal from the Premises, of certain Hazardous Materials
upon the following conditions:
(a) The Hazardous Materials are only those materials that are
necessary for Tenant's manufacture of semiconductor capital
equipment at the Premises;
(b) The storage, use and disposal of the Hazardous Materials
complies with all applicable laws, and no disposal of the
Hazardous Materials shall be through the drains of the
Premises or the trash receptacles at the Premises without
Landlord's prior written consent;
(c) The storage, use and disposal of the Hazardous Materials does
not result in objectionable odors or health hazards to
adjacent owners;
(d) Tenant obtains and maintains all permits and approvals
necessary for the storage, use and disposal of the Hazardous
Materials;
(e) On the first day of each calendar year during the Term (and,
in addition, promptly following the date Tenant uses, stores
or disposes new Hazardous Materials that have not been
previously disclosed to Landlord), Tenant shall deliver to
Landlord a disclosure statement containing the following:
(i) A list containing, to the best knowledge of Tenant, all
Hazardous Materials and the quantities thereof stored,
used or disposed from the Premises during the preceding
calendar year;
(ii) A statement that (A) the use, storage and disposal of
such Hazardous Materials complies with all applicable
laws, (B) Tenant has all necessary permits and approvals
for the use, storage and disposal thereof, and (C)
identifies the method of disposal of such Hazardous
Materials; and
(iii) Copies of all necessary permits and approvals
relating to the use, storage and disposal of such
Hazardous Materials to the extent not previously
delivered to Landlord;
(f) Tenant shall immediately advise Landlord in writing of, and
provide Landlord a copy of:
(i) Any notice of violation or potential or alleged
violation of any law concerning Hazardous Materials
received by Tenant from any governmental agency;
(ii) Any and all inquiry, investigation, enforcement, clean-
up, removal or governmental or regulatory actions
instituted or threatened relating to Tenant or the
Premises; and
(iii) All claims made or threatened by any third party
against Tenant or the Premises relating to any Hazardous
Materials.
In the event any of the preceding conditions are not satisfied, Tenant shall
immediately cease the use, storage and disposal of Hazardous Materials
until all such conditions are satisfied. Landlord's consent to the use,
storage and disposal of such Hazardous Materials shall not constitute
an assumption of the risk respecting the same and Tenant shall indemnify,
protect, defend and hold the Landlord Indemnified Parties harmless from
and against the same as required by this Section 6.3.
6.4 Refuse and Sewage. Tenant agrees not to keep any trash, garbage,
waste or other refuse on the Premises except in sanitary containers and
agrees to regularly and frequently remove same from the Premises. Tenant
shall keep all containers or other equipment used for storage of such
materials in a clean and sanitary condition. Tenant shall, at Tenant's
sole cost and expense, properly dispose of all sanitary sewage and shall
not use the sewage disposal system for the disposal of anything except
sanitary sewage. Tenant shall keep the sewage disposal system free of all
obstructions and in good operating condition. Tenant shall contract directly
for all trash disposal services at Tenant's sole cost and expense.
7. Payments and Notices. All Rent and other sums payable by Tenant to
Landlord hereunder shall be paid to Landlord at the address designated in
Section 1.1 of the Summary, or to such other persons and/or at such other
places as Landlord may hereafter designate in writing. Any notice required or
permitted to be given hereunder must be in writing and may be given by
personal delivery (including delivery by nationally recognized overnight
courier or express mailing service), facsimile transmission, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Tenant at the address(es) designated in Section 1.2 of the
Summary, or to Landlord at the address(es) designated in Section 1.1 of
the Summary. Any notice or report addressed to Tenant or to Landlord shall
be deemed to have been given (i) when delivered if given by personal
delivery, (ii) instantaneously upon confirmation of receipt of facsimile
if such confirmation is on or before 5:00 p.m. (recipient's time) on a
Business Day, otherwise on the next Business Day, (iii) on the date the U.S.
Post office certifies delivery, nondeliverability or refusal of delivery if
such notice or report was deposited in the United States mail, certified,
postage prepaid, and (iv) in all other cases when actually received.
Either party may change its address by giving notice of the same in
accordance with this Paragraph. The term "Business Day") as used in
this Lease shall mean Monday through Friday, excepting those holidays
observed by the U.S. PostalService.
8. Brokers. The parties recognize that the broker(s) who
negotiated this Lease are stated in Section 1.12 of the Summary.
Each party represents and warrants to the other, that, to its
knowledge, no other broker, agent or finder (a) negotiated or was
instrumental in negotiating or consummating this Lease on its
behalf, and (b) is or might be entitled to a commission or
compensation in connection with this Lease. Any broker, agent or
finder of Tenant whom Tenant has failed to disclose herein shall
be paid by Tenant. Tenant shall indemnify, protect, defend (by
counsel reasonably approved in writing by Landlord) and hold
Landlord harmless from and against any and all claims, judgments,
suits, causes of action, damages, losses, liabilities and
expenses (including attorneys' fees and court costs) resulting
from any breach by Tenant of the foregoing representation,
including, without limitation, any claims that may be asserted
against Landlord by any broker, agent or finder undisclosed by
Tenant herein. Landlord shall indemnify, protect, defend (by
counsel reasonably approved in writing by Tenant) and hold Tenant
harmless from and against any and all claims, judgments, suits,
causes of action, damages, losses, liabilities and expenses
(including attorneys' fees and court costs) resulting from any
breach by Landlord of the foregoing representation, including,
without limitation, any claims that may be asserted against
Tenant by any broker, agent or finder undisclosed by Landlord
herein. The foregoing indemnities shall survive the expiration
or earlier termination of this Lease.
9. Surrender; Holding Over.
9.1 Surrender of Premises. Upon the expiration or sooner
termination of this Lease, Tenant shall surrender all keys for
the Premises to Landlord, and Tenant shall deliver exclusive
possession of the Premises to Landlord broom clean and in the
same condition and repair as existed on the date the initial
Tenant Improvements were completed, reasonable wear and tear
excepted (and casualty damage excepted if this Lease is
terminated as a result thereof pursuant to Section 18),
condemnation excepted and Hazardous Materials not caused to be
present in, on , under or about the Premises by Tenant or
Tenant's Parties excepted, with all of Tenant's personal property
(and those items, if any, of Tenant Improvements and Tenant
Changes identified by Landlord pursuant to Section 12.2 below)
removed therefrom and all damage caused by such removal repaired,
as required pursuant to Sections 12.2 and 12.3 below. If, for
any reason, Tenant fails to surrender the Premises on the
expiration or earlier termination of this Lease, with such
removal and repair obligations completed in the time required by
Sections 12.2 and 12.3 below, then, in addition to the provisions
of Section 9.3 below and Landlord's rights and remedies under
Section 12.4 and the other provisions of this Lease, Tenant shall
indemnify, protect, defend (by counsel reasonably approved in
writing by Landlord) and hold Landlord harmless from and against
any and all claims, judgments, suits, causes of action, damages,
losses, liabilities and expenses (including attorneys' fees and
court costs) resulting from such failure to surrender, including,
without limitation, any claim made by any succeeding tenant based
thereon. The foregoing indemnity shall survive the expiration or
earlier termination of this Lease.
9.2 Holding Over. If Tenant holds over after the expiration or
earlier termination of the Lease Term, then, without waiver of
any right on the part of Landlord as a result of Tenant's failure
to timely surrender possession of the Premises to Landlord,
Tenant shall become a tenant at sufferance only, upon the terms
and conditions set forth in this Lease so far as applicable
(including Tenant's obligation to pay all costs, expenses and any
other additional rent under this Lease), but at a Monthly Rent
equal to: one hundred twenty-five percent (125%) of the Monthly
Rent applicable to the Premises immediately prior to the date of
such expiration or earlier termination. Acceptance by Landlord
of rent after such expiration or earlier termination shall not
constitute a consent to a hold over hereunder or result in an
extension of this Lease.
10. Taxes.
10.1 Real Property Taxes. Tenant shall pay all general and
special real property taxes, assessments (including, without
limitation, change in ownership taxes or assessments), liens,
bond obligations, license fees or taxes and any similar
impositions in-lieu of other impositions now or previously within
the definition of real property taxes or assessments and any and
all assessments under any covenants, conditions and restrictions
affecting the Premises (collectively "Real Property Taxes") which
may be levied or assessed against the Premises applicable to the
period from the Early Occupancy Date with respect to Parcel 1,
and the Actual Commencement Date for Parking Lot with respect to
Parcel 2, until the expiration or sooner termination of this
Lease. Notwithstanding the foregoing provisions, if the Real
Property Taxes are not levied and assessed against the Premises
as separate tax parcels, then Tenant shall pay Tenant's pro rata
share of all Real Property Taxes which may be levied or assessed
by any lawful authority against the land and improvements of the
separate tax parcel on which the Premises are located. Tenant's
pro rata share under such circumstances shall be apportioned
according to the floor area of the Premises as it relates to the
total leasable floor area of all of the buildings (including the
Premises) situated in the separate tax parcel in which the
Premises is located.
Tenant reserves the right to approve any assessment of public
improvements that may affect the Premises to the extent Landlord
has such night. Any future assessments for public improvements
may be paid by Landlord in full or in installments, but Tenant's
contribution will be determined and payable based on the
assumption that such assessments were allowed to go to bond and
became payable in installments.
All Real Property Taxes for the tax year in which the Early
Occupancy Date and the Actual Commencement Date for Parking Lot
occur and for the tax year in which this Lease terminates shall
be apportioned and adjusted so that Tenant shall not be
responsible for any Real Property Taxes for a period of time
occurring prior to the Early Occupancy Date and the Actual
Commencement Date for Parking Lot or subsequent to the expiration
of the Lease term.
Tenant agrees to pay to the taxing authority entitled thereto the
total Real Property Taxes due. Any of said payments to be made
directly to the taxing authority shall be made prior to the
delinquency date established by the taxing authority, and Tenant
shall, concurrently with such payment, deliver evidence of such
payment to Landlord. Failure of Tenant to pay said Real Property
Taxes as and when herein specified shall, in addition to all
other rights and remedies of Landlord hereunder, subject Tenant
to any fine, penalty, interest, or cost which Landlord may incur
as a result thereof. Tenant shall, within thirty (30) days after
demand, reimburse Landlord for any such fine, penalty, interest,
or cost, together with interest thereon at the Interest Rate.
If at any time during the Term under the laws of the United
States, or the state, county, municipality, or any political
subdivision thereof in which the Premises is located, a tax or
excise on rent or any other tax however described is levied or
assessed by any such political body against Landlord on account
of rent payable to Landlord hereunder or any tax based on or
measured by expenditures made by Tenant on behalf of Landlord,
such tax or excise shall be considered "Real Property Taxes" for
purposes of this Section 10.1, and shall be payable in full by
Tenant. Such taxes or excises shall be payable within ten (IO)
days after Tenant's receipt of the tax xxxx therefor from
Landlord.
10.2 Personal Property Taxes. Tenant shall be liable for, and
shall pay before delinquency, all taxes and assessments (real and
personal) levied against (a) any personal property or trade
fixtures placed by Tenant in or about the Premises (including any
increase in the assessed value of the Premises based upon the
value of any such personal property or trade fixtures); and (b)
any Tenant Improvements or alterations in the Premises (whether
installed and/or paid for by Landlord or Tenant). If any such
taxes or assessments are levied against Landlord or Landlord's
property, Landlord may, after written notice to Tenant (and under
proper protest if requested by Tenant) pay such taxes and
assessments, and Tenant shall reimburse Landlord therefor within
ten (10) business days after demand by Landlord; provided,
however, Tenant, at its sole cost and expense, shall have the
right, with Landlord's cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of any such taxes
and assessments so paid under protest.
11. Repairs.
11.1 Tenant's Repair Obligations. Tenant shall at all times and
at Tenant's sole cost and expense, keep, maintain, clean, repair,
replace and preserve the Premises and all parts thereof, both
structural and non-structural, including, without limitation,
utility meters, plumbing, pipes and conduits, all heating,
ventilating and air conditioning systems located within the
Premises, all fixtures, furniture and equipment, Tenant's signs,
if any, locks, closing devices, security devices, windows, window
sashes, casements and frames, floors and floor coverings,
shelving, restrooms, ceilings, interior and exterior walls, roof,
foundations, skylights, interior and demising walls, doors,
electrical and lighting equipment, sprinkler systems, parking
areas, driveways, walkways, parking lots, loading dock areas and
doors, rail spur areas, fences, signs, lawns and landscaping, if
any, and any Tenant Improvements, Tenant Changes or other
alterations, additions and other property and/or fixtures located
within the Premises in good condition and repair, except for
reasonable wear and tear, casualty damage (if Tenant is not
obligated to repair hereunder), condemnation and Hazardous
Materials not introduced to, in, on, under or about the Premises
by Tenant or Tenant's Parties. Tenant's repair and maintenance
obligations shall include, but not be limited to, slurry coating
the parking areas of Parcel 1 and the Parking Lot every thirty
(30) months; parking area and driveway sweeping and repairing;
and responsibility for painting. Tenant agrees to procure and
maintain maintenance contracts for all heating, ventilating and
air conditioning systems with reputable contractors reasonably
approved by Landlord. Such maintenance and repairs shall be
performed with due diligence, lien-free and in a good and
workmanlike manner, by licensed contractor(s) which are selected
by Tenant and approved by Landlord, which approval Landlord shall
not unreasonably withhold or delay. Except to the extent
provided in Section 1.2 above with respect to the construction of
the Parking Lot Improvements, Landlord shall have no obligation
to alter, remodel, improve, repair, renovate, redecorate or paint
all or any part of the Premises.
11.2 Landlord's Repair Rights. Tenant waives the right to make
repairs at Landlord's expense under any law, statute or ordinance
now or hereafter in effect (including the provisions of
California Civil Code Section 1942 and any successive sections or
statutes of a similar nature). If Tenant fails to perform
Tenant's obligations under Section 11.1 hereof, or under any
other provision of this Lease, then Landlord shall have the
option (but not the obligation) to enter upon the Premises after
ten (10) days' prior written notice to Tenant, or in the case of
an emergency immediately without prior notice, to perform such
obligations on Tenant's behalf necessary to return the Premises
to good order, condition and repair. The costs incurred by
Landlord pursuant to this Section 11.2 shall become due and
payable to Landlord, upon demand.
11.3 Landlord's Contribution to Certain Expenditures. If any
replacement obligation of Tenant under Section 11.1 with respect
to a Basic Element would normally be capitalized under normal
accounting practice and is in excess of Twenty-Five Thousand
Dollars ($25,000.00), and if as a result of such expenditure the
useful life of the Basic Element (as such useful life is based on
the estimated actual life pursuant to generally accepted
accounting practices) will extend beyond the Term, then, subject
to the requirements set forth in this Section 11.3, Landlord will
reimburse Tenant for Landlord's prorata share thereof within
thirty (30) days following the expiration or sooner termination
of this Lease; provided, however, Landlord will have no such
reimbursement obligation if this Lease terminates as a result of
an Event of Default. Landlord's prorata share of such
expenditure shall be a fraction, the numerator of which is the
number of months remaining on the useful life of the Basic
Element after the expiration or sooner termination of this Lease,
and the denominator of which is the total number of months of the
useful life of the Basic Element. As a condition precedent to
Landlord's obligation to reimburse Tenant for a prorata share of
any such expenditure, Tenant shall first obtain Landlord's prior
written approval of the contractor, the plans and specifications,
the amount of any such expenditure and the useful life resulting
from such expenditure, which approval shall not be unreasonably
withheld or delayed. Upon such approval, either party shall, at
the other party's request, enter into an amendment of this Lease
identifying the amount subject to reimbursement by Landlord. The
"Basic Elements" are the foundations and structural walls of the
Premises, HVAC equipment and the roof.
12. Alterations.
12.1 Tenant Changes; Conditions.
(a) Tenant shall not make any alterations, additions,
improvements or decorations to the Premises (collectively,
"Tenant Changes," and individually, a "Tenant Change") unless
Tenant first obtains Landlord's prior written approval
thereof, which approval Landlord shall not unreasonably
withhold or delayed. Notwithstanding the foregoing,
Landlord's prior approval shall not be required for any
Tenant Change which satisfies all of the following conditions
(hereinafter a "Pre-Approved Change"): (i) the costs of such
Tenant Change does not exceed Fifty Thousand Dollars
($50,000.00); (iii) Tenant delivers to Landlord final plans,
specifications and working drawings for such Tenant Change at
least ten (1 0) days prior to commencement of the work
thereof; (iv) Tenant and such Tenant Change otherwise satisfy
all other conditions set forth in this Section 12.1; and (v)
the Tenant Change does not affect the structural, mechanical,
life-safety or exterior elements of the Premises.
(b) All Tenant Changes shall be performed: (i) in accordance with
the approved plans, specifications and working drawings; (ii)
lien-free and in a good and workmanlike manner; (iii) in
compliance with all applicable laws, rules and regulations of
all governmental agencies and authorities including, without
limitation, the provisions of Title III of the Americans with
Disabilities Act of 1990; and (iv) at such times, in such
manner and subject to such rules and regulations as Landlord
may from time to time reasonably designate.
(c) Throughout the performance of the Tenant Changes, Tenant
shall obtain, or cause its contractors to obtain, workers
compensation insurance and commercial general liability
insurance in reasonable amounts.
12.2 Removal of Tenant Changes and Tenant Improvements. All
Tenant Changes and the initial Tenant Improvements in the
Premises (whether installed or paid for by Landlord or Tenant),
shall become the property of Landlord and shall remain upon and
be surrendered with the Premises at the end of the Term of this
Lease; provided, however, (i) Tenant shall remove those items of
the initial Tenant Improvements, if any, designated for removal
pursuant to the Work Letter and (ii) Landlord may, by written
notice delivered to Tenant on or before the expiration of the
Lease Term (or upon any sooner termination of this Lease)
identify those items of Tenant Changes which Landlord shall
require Tenant to remove at the end of the Term of this Lease
(however, if Tenant, prior to the installation of any Tenant
Changes, requested in writing that Landlord identify whether the
proposed Tenant Changes must be removed at the expiration or
termination of this Lease [which notice further informed Landlord
that Landlord's failure to respond within ten (1 0) days would
result in Landlord's waiver of the right to require removal of
the Tenant Changes], and Landlord did not give Tenant written
notice within ten (1 0) days thereafter that Landlord would
require the removal of any such items, then Tenant will not be
required to remove the same at the expiration or termination of
this Lease). If Landlord requires Tenant to remove any such
items as described above, Tenant shall, at its sole cost, remove
the identified items on or before the later to occur of (i) the
expiration or sooner termination of this Lease or (ii) thirty
(30) days following Tenant's receipt of written notice of such
requirement, and repair any damage to the Premises caused by such
removal (or, at Landlord's option, shall pay to Landlord all of
Landlord's reasonable costs of such removal and repair provided
that Landlord provides Tenant with reasonable evidence that
Landlord incurred such costs). Notwithstanding the thirty (30)
day time period for Tenant's removal specified above, if such
removal cannot be completed without incurring overtime charge,
such time period shall be extended by the period reasonably
required to permit Tenant to complete such removal and repair (if
any repair is required).
12.3 Removal of Personal Property. All articles of personal
property owned by Tenant or installed by Tenant at its expense in
the Premises (including business and trade fixtures, furniture
and movable partitions) shall be, and remain, the property of
Tenant, and shall be removed by Tenant from the Premises, at
Tenant's sole cost and expense, on or before the expiration or
sooner termination of this Lease. Tenant shall repair any damage
caused by such removal.
12.4 Tenant's Failure to Remove. If Tenant fails to remove by
the expiration or sooner termination of this Lease all of its
personal property, or if Tenant fails to remove any items of
Tenant Improvements or Tenant Changes identified by Landlord for
removal pursuant to, and within the time required by, Section
12.2 above, Landlord may, (without liability to Tenant for loss
thereof), at Tenant's sole cost and in addition to Landlord's
other rights and remedies under this Lease, at law or in equity:
(a) remove and store such items in accordance with applicable
law; and/or (b) upon ten (1 0) days' prior notice to Tenant, sell
all or any such items at private or public sale for such price as
Landlord may obtain as permitted under applicable law. Landlord
shall apply the proceeds of any such sale to any amounts due to
Landlord under this Lease from Tenant (including Landlord's
attorneys' fees and other costs incurred in the removal, storage
and/or sale of such items), with any remainder to be paid to
Tenant.
13. Liens. Tenant shall not permit any mechanic's,
materialmen's or other liens to be filed against all or any part
of the Premises, nor against Tenant's leasehold interest in the
Premises, by reason of or in connection with any repairs,
alterations, improvements or other work contracted for or
undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees.
Tenant shall, at Landlord's request, provide Landlord with
enforceable, conditional and final lien releases (and other
reasonable evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing
labor and/or materials with respect to the Premises. Landlord
shall have the right at all reasonable times to post on the
Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such
liens are filed, Tenant shall, at its sole cost, immediately
cause such lien to be released of record or bonded so that it no
longer affects title to the Premises. If Tenant fails to cause
such lien to be so released or bonded within the earlier to occur
of (i) five (5) days prior to the date the lien may be foreclosed
upon or (ii) twenty (20) days after Tenant has actual notice of
the filing thereof, Landlord may, without waiving its rights and
remedies based on such breach, and without releasing Tenant from
any of its obligations, cause such lien to be released by any
means it shall deem proper, including payment in satisfaction of
the claim giving rise to such lien. If Landlord acquires
knowledge that any such lien has been filed against the Premises,
Landlord will promptly give Tenant written notice thereof.
Tenant shall pay to Landlord within five (5) days after receipt
of invoice from Landlord, any sum paid by Landlord to remove such
liens, together with interest at the Interest Rate from the date
of such payment by Landlord.
14. Assignment and Subletting.
14.1 Restriction on Transfer. Tenant will not assign or encumber
this Lease in whole or in part, nor sublet all or any part of the
Premises, without the prior written consent of Landlord, which
consent Landlord will not unreasonably withhold or delay, except
as provided in this Section 14. The consent by Landlord to any
assignment, encumbrance or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent
assignment or subletting. This prohibition against assigning or
subletting shall be construed to include a prohibition against
any assignment or subletting by operation of law. If this Lease
is assigned by Tenant, or if the Premises or any part thereof are
sublet or occupied by any person or entity other than Tenant,
Landlord may collect rent from the assignee, and apply the net
amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a
waiver on the part of Landlord, or the acceptance of the
assignee, subtenant or occupant as Tenant, or a release of Tenant
from the further performance by Tenant of covenants on the part
of Tenant herein contained unless expressly made in writing by
Landlord. Irrespective of any assignment or sublease, Tenant
shall remain fully liable under this Lease and shall not be
released from performing any of the terms, covenants and
conditions of this Lease. Without limiting in any way Landlord's
right to withhold its consent on any reasonable grounds, it is
agreed that Landlord will not be acting unreasonably in refusing
to consent to an assignment or sublease if, in Landlord's
opinion, (i) the net worth or financial capabilities of such
assignee or subtenant is less than that of Tenant at the date
hereof, (ii) the proposed assignee does not have the financial
capability to fulfill the obligations imposed by the assignment,
(iii) the proposed assignment or sublease involves a change of
use of the Premises from that specified herein, or (iv) the
proposed assignee is not, in Landlord's reasonable opinion, of
reputable or good character. Any proposed assignee or subtenant
which Landlord does not disapprove shall be deemed a "Permitted
Business." If Tenant assigns this Lease or sublets the Premises
to a third party who is not in any way affiliated or connected
with Tenant by way of a merger, reorganization, consolidation or
otherwise, fifty percent (50%) of any rent, additional rent or
other compensation paid to Tenant in addition to the Rent payable
to Landlord as set forth in this Lease shall be paid by Tenant to
Landlord as additional rent. In calculating excess rent or other
consideration which may be payable to Landlord under this
Section, Tenant will be entitled to deduct commercially
reasonable third party brokerage commissions and attorneys' fees
and other amounts reasonably and actually expended by Tenant in
connection with such assignment or subletting if acceptable
written evidence of such expenditures is provided to Landlord.
If Tenant is a corporation, or is an unincorporated association
or partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association or partnership
in the aggregate in excess of forty-nine percent (49%) shall be
deemed an assignment within the meaning and provisions of this
Section 14.1. Notwithstanding any provision to the contrary in
this Lease, Tenant may, without Landlord's prior written consent
and without any participation by Landlord in assignment and
subletting proceeds, sublet the Premises or assign this Lease to:
(i) a subsidiary, affiliate, division or corporation controlled
or under common control with Tenant-, (ii) a successor
corporation related to Tenant by merger, consolidation,
nonbankruptcy reorganization, or government action; or (iii) a
purchaser of substantially all of Tenant's assets (collectively,
"Permitted Assignees"), provided that, within ten (10) days
following the effective date of such transaction, Tenant gives
Landlord written notice of the transaction and sufficient
information to evidence that the transaction satisfies the
foregoing requirements, together with the Permitted Assignee's
assumption of Tenant's obligations hereunder in the case of an
assignment. For the purpose of this Lease, sale or transfer of
Tenant's capital stock through any public exchange shall not be
deemed an assignment, subletting, or any other transfer of the
Lease or the Premises. Landlord's consent to any proposed
assignment or subletting shall not be unreasonably withheld and,
if not given or withheld within fifteen (1 5) days following
Landlord's receipt of the Transfer Notice, shall be deemed given,
provided that the Transfer Notice informs Landlord that the
failure to respond within fifteen (15) days will be deemed
Landlord's consent.
14.2 Transfer Notice. If Tenant desires to effect an assignment,
encumbrance or subletting (a "Transfer"), then at least thirty
(30) days prior to the date when Tenant desires the Transfer to
be effective (the "Transfer Date"), Tenant agrees to give
Landlord a notice (the "Transfer Notice"), stating the name,
address and business of the proposed assignee, sublessee or other
transferee (sometimes referred to hereinafter as "Transferee"),
reasonable information (including references) concerning the
character, ownership, and financial condition of the proposed
Transferee, the Transfer Date, any ownership or commercial
relationship between Tenant and the proposed Transferee, and the
consideration and all other material terms and conditions of the
proposed Transfer, all in such detail as Landlord may reasonably
require.
14.3 Landlord's Options. Within fifteen (15) days of Landlord's
receipt of any Transfer Notice, and any additional information
requested by Landlord concerning the proposed Transferee's
financial responsibility, Landlord will notify Tenant of its
election to do one of the following: (i) consent to the proposed
Transfer; or (ii) refuse such consent, which refusal shall be on
reasonable grounds.
14.4 Additional Conditions. Within ten (10) days following any
Transfer, Tenant shall deliver to Landlord of a true copy of the
fully executed instrument of assignment, sublease, transfer or
hypothecation, in form and substance reasonably satisfactory to
Landlord. No Transfer will release Tenant of Tenant's
obligations under this Lease or alter the primary liability of
Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. Consent by Landlord to one
Transfer will not be deemed consent to any subsequent Transfer.
In the event of default by any Transferee of Tenant or any
successor of Tenant in the performance of any of the terms
hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such Transferee or
successor. If Tenant effects a Transfer or requests the consent
of Landlord to any Transfer (whether or not such Transfer is
consummated), then, upon demand, and as a condition precedent to
Landlord's consideration of the proposed assignment or sublease,
Tenant agrees to pay Landlord a non-refundable administrative fee
of Five Hundred Dollars ($500.00), plus Landlord's reasonable
attorneys' fees and costs incurred by Landlord in reviewing such
proposed assignment or sublease.
15. Entry by Landlord. Landlord and its employees and agents
shall at all reasonable times have the right to enter the
Premises to inspect the same, to exhibit the Premises to
prospective lenders or purchasers (or during the last year of the
Term, to prospective tenants), to post notices of non-
responsibility, and/or to alter, improve or repair the Premises
as contemplated by Section 11.2 in the event Tenant fails to
perform its obligations under Section 11.1, all without being
deemed guilty of or liable for any breach of Landlord's covenant
of quiet enjoyment or any eviction of Tenant, and without
abatement of rent. In exercising such entry rights, Landlord
shall endeavor to minimize, as reasonably practicable, the
interference with Tenant's business, and shall provide Tenant
with reasonable advance written notice of such entry (except in
emergency situations). Any entry to the Premises obtained by
Landlord by any of said means or otherwise shall not under any
circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of
Tenant from the Premises or any portion thereof, or grounds for
any abatement or reduction of Rent and Landlord shall not have
any liability to Tenant for any damages or losses on account of
any such entry by Landlord except, subject to the provisions of
Sections 21.1 and 23, to the extent of Landlord's negligence or
willful misconduct.
16. Utilities and Services. Tenant shall be solely responsible
for and shall promptly pay all charges for heat, air
conditioning, water, gas, electricity or any other utility used,
consumed or provided in, furnished to or attributable to the
Premises directly to the supplying utility companies. Tenant
shall reimburse Landlord within ten (10) days of billing for
fixture charges and/or water tariffs, if applicable, which are
charged to Landlord by local utility companies. Landlord will
notify Tenant of this charge as soon as it becomes known. This
charge will increase or decrease with current charges being
levied against Landlord or the Premises by the local utility
company, and will be due as additional rent. In no event shall
Rent xxxxx or shall Landlord be liable for any interruption or
failure in the supply of any such utility services to Tenant.
17. Indemnification and Exculpation.
17.1 Tenant's Assumption of Risk and Waiver. Except to the
extent such matter is attributable to the breach of this Lease or
the negligence or willful misconduct of Landlord or Landlord's
Parties (but subject to the waivers and releases in Section 21),
Landlord shall not be liable to Tenant, Tenant's employees,
agents or invitees for: (i) any damage to property of Tenant, or
of others, located in, on or about the Premises, (ii) the loss of
or damage to any property of Tenant or of others by theft or
otherwise, (iii) any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or leaks from any part of the Premises
or from the pipes, appliance of plumbing works or from the roof,
street or subsurface or from any other places or by dampness or
by any other cause of whatsoever nature, or (iv) any such damage
caused by other persons in the Premises, occupants of adjacent
property, or the public, or caused by operations in construction
of any private, public or quasi-public work. Landlord shall in
no event be liable for any consequential damages or loss of
business or profits and Tenant hereby waives any and all claims
for any such damages. All property of Tenant kept or stored on
the Premises shall be so kept or stored at the sole risk of
Tenant and Tenant shall hold Landlord harmless from any claims
arising out of damage to the same, including subrogation claims
by Tenant's insurance carriers, unless such damage shall be
caused by the breach of this Lease or the negligence or willful
misconduct of Landlord or Landlord's Parties and such damage is
not covered by the insurance required to be maintained by Tenant
under this Lease. Landlord or its agents shall not be liable for
interference with the light or other intangible rights.
17.2 Tenant's Indemnification of Landlord. Except to the extent
such matter is caused by the breach of this Lease or the
negligence or misconduct of Landlord or Landlord's Parties (but
subject to the waivers and releases in Section 21), Tenant shall
be liable for, and shall indemnify, defend, protect and hold
Landlord and Landlord's partners, officers, directors, employees,
agents, successors and assigns (collectively, "Landlord
Indemnified Parties") harmless from and against, any and all
claims, damages, judgments, suits, causes of action, losses,
liabilities and expenses, including attorneys' fees and court
costs (collectively, "Indemnified Claims"), arising or resulting
from (a) any act or omission of Tenant or any of Tenant's
Parties; (b) the use of the Premises and conduct of Tenant's
business by Tenant or any Tenant Parties, or any other activity,
work or thing done, permitted or suffered by Tenant or any Tenant
Parties, in or about the Premises; and/or (c) any default by
Tenant of any obligations on Tenant's part to be performed under
the terms of this Lease. In case any action or proceeding is
brought against Landlord or any Landlord Indemnified Parties by
reason of any such Indemnified Claims, Tenant, upon notice from
Landlord, shall defend the same at Tenant's expense by counsel
reasonably approved in writing by Landlord, which approval shall
not be unreasonably withheld.
17.3 Survival; No Release of Insurers. Tenant's indemnification
obligation under Section 17.2, shall survive the expiration or
earlier termination of this Lease. Tenant's covenants,
agreements and indemnification in Sections 17.1 and 17.2 above,
are not intended to and shall not relieve any insurance carrier
of its obligations under policies required to be carried by
Tenant, pursuant to the provisions of this Lease.
18. Damage or Destruction.
18.1 Obligation to Restore. Except as set forth below, in case
of damage to or destruction of the Premises, whether or not by a
risk required to be covered by insurance as set forth in Section
20 of this Lease, this Lease shall not terminate and Tenant shall
promptly restore, rebuild, replace or repair (hereinafter
referred to as "Restore" or "Restoration") the Premises to
substantially the same condition as existed immediately prior to
such damage or destruction. Such Restoration shall be commenced
promptly but in no event later than ninety (90) days after the
casualty and shall thereafter be prosecuted with due diligence.
Notwithstanding the foregoing or any provision to the contrary in
this Lease, the following shall apply to and modify Tenant's
obligations to Restore the Premises and/or any trade fixtures or
equipment thereon or therein owned by Tenant, provided that
Tenant, at Tenant's option may exercise any right to terminate
pursuant to the last grammatical paragraph of Section 18.1:
(a) If Tenant has carried insurance in the amounts, types
and with insurance companies required by this Lease, and the
insurance company(ies) issuing such policy(ies) fail(s)
(through no fault of Tenant) to make the appropriate
insurance proceeds available within ninety (90) days
following a casualty to which such insurance applies (or if
Landlord has elected to maintain the All Risks insurance for
the Premises pursuant to Section 20.4 and either fails to so
maintain such insurance or if the insurance company fails,
through no fault of Tenant, to make the appropriate insurance
proceeds available within ninety (90) days following a
casualty to which such insurance applies), and there is no
reasonable expectation that such proceeds will be made
available in a timely manner, then Tenant shall have no
obligation to Restore and Tenant shall have the right to
terminate this Lease (i) if Landlord (or Landlord's lender)
does not notify Tenant, within sixty (60) days following the
date Tenant gives Landlord (and Landlord's lender) written
notice of such failure on the part of the insurance
company(ies) (the "Insurance Failure Notice"), that Landlord
(or Landlord's lender) will Restore the Premises within three
hundred (300) days following the Insurance Failure Notice or
(ii) if Landlord (or Landlord's lender) undertakes
Restoration but fails to complete such Restoration within
three hundred (300) days following the Insurance Failure
Notice. If Landlord (or Landlord's lender) does so Restore
the Premises and Tenant does not terminate this Lease, then
Tenant will Restore its trade fixtures and equipment.
Notwithstanding any provision to the contrary in this Lease,
if Landlord has elected to carry the All-Risk insurance under
Section 20.4 and the deductible exceeds the deductible Tenant
is permitted to maintain hereunder, Tenant shall not be
required to pay all or any portion of such excess deductible.
(b) If casualty damage Restored by Tenant is uninsured (any
"deductible" amount applicable to any insurance policy
covering the casualty in question shall be deemed to mean
that the casualty damage is uninsured to the extent of the
deductible) to the extent of ten percent (1 0%) or more of
the full replacement cost of the building or buildings in
question, and Tenant Restores (or intends to Restore) such
casualty damage, then Tenant shall have the onetime option,
upon written notice to Landlord given within one hundred
twenty (120) days following such casualty event, to elect to
extend the then-current Term for an additional ten (10) year
period upon all of the terms and conditions of this Lease
(including the right to exercise any options to extend then
remaining and to occupy the Premises pursuant to any
previously exercised options), provided that the Monthly Rent
for any such extended Term shall be equal to the Monthly Rent
in effect during the year immediately preceding such extended
Term, increased by an amount equal to three percent (3%) of
such previous year's Monthly Rent, and Monthly Rent for each
subsequent year of said extended Term shall be increased by
an amount equal to three percent (3%) of the preceding year's
Monthly Rent. There shall be no adjustment to fair market
rent in connection with any such extended Term.
Notwithstanding the foregoing, however, in the case of damage to
or destruction of the Premises during the last eighteen (18)
months of the Term that will render the Premises, in Tenant's
reasonable opinion, inaccessible or unusable for purposes of
conducting Tenant's business for more than ninety (90) days,
Tenant may elect to terminate this Lease by giving Landlord
written notice of such election within thirty (30) days following
the casualty, in which event Tenant shall have no obligation to
Restore the Premises; provided, however, Tenant shall deliver any
insurance proceeds to Landlord in accordance with Section 18.5
below.
18 2 Reconstruction and Repair Requirements. Tenant shall
obtain Landlord's prior approval of all plans for
Restoration work performed by Tenant, which approval shall not be
unreasonably withheld or delayed.
18.3 No Rent Abatement During Reconstruction. There shall be
no Rent abatement during Restoration of the
Premises or during that period after any casualty and prior to
commencement of Restoration.
Notwithstanding the foregoing, in the event Landlord elects to
maintain rental loss insurance pursuant to Section 20.4, then the
following shall apply: In the event that as a result of any
casualty damage to the Premises, Tenant is prevented from using,
and does not use, the Premises or does not use some portion
thereof, then the Rent shall be abated or reduced, as the case
may be, during the period that Tenant continues to be so
prevented from using and does not use the Premises or does not
use some portion thereof, in the proportion that the rentable
square feet of the portion of the Premises that Tenant is
prevented from using, and does not use, bears to the total
rentable square feet of the Premises; 'provided, however, Tenant
shall only be entitled to such abatement so long as Tenant is
complying with its Restoration obligations under Section 1 B. 1
and in no event may such abatement continue beyond the later to
occur of (i) twelve (12) months following the casualty or (ii)
the expiration date of coverage under Landlord's rental loss
insurance policy. Notwithstanding the foregoing to the contrary,
if the damage is due to the willful or intentional misconduct of
Tenant or any Tenant Parties, there shall be no abatement of Rent
unless such abatement (i) is covered by the rental loss insurance
maintained by Landlord or (ii) would have been covered by the
rental insurance loss insurance required to be maintained under
Section 20.4 in the event Landlord has failed to maintain such
insurance.
18.4 Adjustment of Loss and Disbursement of Insurance Proceeds
upon Restoration. Except for Restoration that is reasonably
expected to cost less than Fifty Thousand Dollars ($50,000), any
adjustment of the loss with the insurance company(ies) by Tenant
must be made with Landlord's consent, which will not be
unreasonably withheld or delayed. If Landlord elects to maintain
All Risk insurance pursuant to Section 20.4, then Landlord shall
adjust any loss covered thereby subject to Tenant's consent,
which will not be unreasonably withheld or delayed. All proceeds
of the insurance policies maintained pursuant to Section 20.1 (a)
and/or Section 20.4 ("Proceeds") shall be deposited with a
depository acceptable to Landlord and Tenant (the "Depository").
If the Proceeds are insufficient to cover the anticipated cost of
Restoration, Tenant shall deposit with the Depository prior to
the commencement of Restoration funds in the amount of such
deficiency. The Depository shall disburse the Proceeds and
Tenant's funds, if applicable, during the course of Restoration
in accordance with customary construction disbursements,
including a ten percent (10%) retention. If, after the
Restoration has been completed in accordance with the terms of
this Lease, there are remaining funds held by the Depository,
then such funds (after first deducting from such funds the fees
and expenses of the Depository) shall be delivered to Tenant. If
there are not sufficient funds remaining to pay for the
Depository's fees and expenses, Tenant shall be responsible for
the payment of same.
18.5 Disbursement of Insurance Proceeds upon Termination. Upon
any termination of this Lease under the provisions of this
Article 18, all proceeds from insurance policies maintained under
Section 20 shall be disbursed and paid to Landlord, except to the
extent such proceeds are paid by one or more insurers with
respect to Tenant's furniture, equipment trade fixtures and other
personal property and those items of Tenant Changes and Tenant
Improvements that must be removed from the Premises at the
expiration or earlier termination of this Lease pursuant to
Section 12.2.
18.6 Waiver of Termination. The agreements contained in this
Article 10 provide a material part of the consideration for this
Lease and in bargaining for and obtaining its rights under this
Article 18, Tenant waives any right to terminate this Lease under
Section 1932 and/or 1933 of the Civil Code of California, or any
similar statute or law now or hereafter in force.
19. Eminent Domain.
19.1 Total or Partial Taking. In case all of the Premises, or
such part thereof as shall materially and substantially interfere
with Tenant's ability to conduct its business upon the Premises,
shall be taken for any public or quasi-public purpose by any
lawful power or authority by exercise of the right of
appropriation, condemnation or eminent domain, or sold to prevent
such taking, Tenant shall have the right to terminate this Lease
effective as of the date possession is required to be surrendered
to said authority. Tenant shall not assert any claim against
Landlord or the taking authority for any compensation because of
such taking, and Landlord shall be entitled to receive the entire
amount of any award without deduction for any estate or interest
of Tenant; provided, however, in the event of such a taking,
Tenant shall be entitled to such portion of the award as shall be
attributable to the loss of the unamortized cost of the
improvements to the Premises made and paid for by Tenant pursuant
to Exhibit "C" (such amortization being the same as that used by
Tenant for federal income tax purposes), relocation costs,
goodwill and for damage to, or the cost of removal of, Tenant's
personal property. In the event the amount of property or the
type of estate taken shall not materially and substantially
interfere with the ability of Tenant to conduct its business upon
the Premises, Landlord shall be entitled to the entire amount of
the award without deduction for any estate or interest of Tenant,
Landlord shall restore the Premises to substantially their same
condition prior to such partial taking to the extent of any award
proceeds received by Landlord, and a fair and equitable abatement
shall be made to Tenant for the Annual Rent corresponding to the
time during which, an(i to the part of the Premises of which,
Tenant shall be so deprived on account of such taking and
restoration.
19.2 Temporary Taking. In the event of taking of the Premises or
any part thereof for temporary use, (i) this Lease shall be and
remain unaffected thereby and Rent shall not xxxxx, and (ii)
Tenant shall be entitled to receive for itself such portion or
portions of any award made for such use with respect to the
period of the taking which is within the Lease Term. For
purposes of this Section 19.2, a temporary taking shall be
defined as a taking for a period of one (1) year or less.
19.3 Waiver of Termination. Tenant and Landlord waive any right
to terminate this Lease under Section 1265.130 of the California
Code of Civil Procedure, or any similar statute or law now or
hereafter in force.
20. Tenant's Insurance.
20.1 Types of Insurance. On or before the earlier of the Early
Occupancy Date (for Parcel 1), the Actual Commencement Date for
Parking Lot (for Parcel 2) or the date Tenant commences or causes
to be commenced any work of any type in or on any portion of the
Premises, and continuing during the entire Term, Tenant shall
obtain and keep in full force and effect respecting Parcel 1 or
Parcel 2 or both, as applicable, the following insurance:
(a) All Risk insurance, including fire and extended coverage,
sprinkler leakage, vandalism, malicious mischief, flood (if
the Premises are in a flood zone) and earthquake coverage
upon property of every description and kind located on the
Premises, without limitation, furniture, equipment and any
other personal property, any Tenant Changes, the Buildings,
the Tenant Improvements, and the Parking Lot Improvements in
an amount not less than the full replacement cost thereof.
In the event that there shall be a dispute as to the amount
which comprises full replacement cost, the decision of
Landlord or the mortgagees of Landlord shall be presumptive.
No co-insurance provision shall apply under such insurance
policy or, in the alternative, the insurance policy shall
contain an agreed amount endorsement. All references to
earthquake coverage herein shall be deemed to include
earthquake sprinkler leakage coverage.
Notwithstanding the foregoing, if earthquake coverage is not
available from an insurer satisfying the requirements of
Section 20.2 below with a deductible satisfying the
requirements of Section 20.2 below, or if such earthquake
coverage is available from an insurer satisfying the
requirements of Section 20.2 but the premium for such
insurance is in excess of Thirty Thousand Dollars
($30,000.00) per year (the "Cap"), then Tenant, following at
least thirty (30) days' prior written notice thereof to
Landlord, shall have no obligation to maintain earthquake
insurance so long as such insurance is not available for
less than or equal to the Cap; provided, however, if
Landlord gives Tenant written notice that Landlord will
reimburse Tenant one-half (1/2) of the amount of the
earthquake insurance premium in excess of the Cap and if the
insurance policy will satisfy the requirements of Section
20.2, Tenant shall be obligated to obtain such earthquake
insurance until Landlord gives Tenant written notice of its
rescission of such election. If Landlord has agreed to
reimburse Tenant one-half (1/2) of the amount of such
excess, Landlord shall do so within thirty (30) days
following receipt of an invoice therefor, and if Landlord
fails to so reimburse Tenant, Tenant may deduct one-half (%)
of such excess against Rent. The Cap shall be subject to
annual increases in the same proportion as increases, if
any, in the Consumer Price Index-Urban Wage Earners and
Clerical Workers (Los Angeles-Anaheim-Riverside) All-items
Base 1982-84=1 00, or successor index, using the month in
which this Lease is executed as the base month.
(b) Commercial general liability insurance coverage, including
personal injury, bodily injury (including wrongful death),
property damage, operations hazard, owners protective
coverage, contractual liability (including Tenant's
indemnification obligations under this Lease, including
Section 17 hereof, but only to the extent such
indemnification obligations are covered under a commercial
general liability policy), liquor liability (if Tenant serves
or stores alcohol on the Premises), products and completed
operations liability, and owned/non-owned auto liability,
with a general aggregate of not less than Five Million
Dollars ($5,000,000). The general aggregate amount of such
commercial general liability insurance shall be increased
every five (5) years during the Term of this Lease to an
amount reasonably required by Landlord but in no event
greater than that commonly required of similar tenants of
similar buildings in the Rancho Xxxxxxxx area of San Diego
County.
(c) Workers compensation and employees liability insurance, in
statutory amounts and limits.
(d) Loss of income, extra expense and business interruption
insurance covering a minimum of twelve (12) months of
Tenant's Rent and such additional amounts as will reimburse
Tenant for direct or indirect loss of earnings attributable
to all perils commonly insured against by prudent tenants or
attributable to prevention of access to the Premises or
Tenant's parking areas as a result of such perils.
(e) Any other form or forms of insurance as Tenant or Landlord or
the mortgagees of Landlord may reasonably require from time
to time, in form, amounts and for insurance risks against
which a prudent tenant would protect itself, but only to the
extent such risks and amounts are available in the insurance
market at commercially reasonable costs.
20.2 Requirements. Each policy required to be obtained by Tenant
hereunder shall: (a) be issued by insurers authorized to do
business in the state in which the Premises is located and rated
not less than financial class VII, and not less than policyholder
rating A- in the most recent version of Best's Key Rating Guide
(provided that, in any event, the same insurance company shall
provide the coverages described in Sections 20.1 (a) and 20.1(d)
above); (b) be in then-standard form; (c) name Tenant as named
insured thereunder and shall name Landlord and, at Landlord's
request, Landlord's mortgagees and ground lessors of which Tenant
has been informed in writing, as additional insureds (and with
respect to the insurance described in Sections 20.1 (a) and (d)
above, as loss-payees thereunder), all as their respective
interests may appear (however, as to the insurance described in
Section 20.1 (d) above, the loss-payees' interest in the
insurance proceeds will be limited only to those amounts
allocable to Tenant's rental obligations hereunder following a
casualty at the Premises and shall be further limited to as and
when such rental obligations become due and payable); (d) shall
not have a deductible amount exceeding Ten Thousand Dollars
($10,000.00) (or such higher amount as Landlord may permit in its
reasonable discretion, but in no event may the All-Risk insurance
deductible be greater than five percent (5%) of the replacement
cost), except that with respect to earthquake coverage, the
deductible amount shall not exceed ten percent (10%) of the total
insured value (however, the deductible shall be, at Landlord's
option, five percent (5%) during all times Tenant has a net worth
of less than Twenty-Five Million Dollars ($25,000,000), as such
net worth amount is subject to increase in the same manner as the
Cap pursuant to Section 20.1 (a) above); (e) specifically provide
that the insurance afforded by such policy for the benefit of
Landlord and Landlord's mortgagees and ground lessors shall be
primary, and any insurance carried by Landlord or Landlord's
mortgagees and ground lessors shall be excess and non-
contributing; (o except for worker's compensation insurance,
contain an endorsement that the insurer (only with respect to the
policy required by Section 20.1 (a) above) waives its right to
subrogation as described in Section 22 below; and (g) contain an
undertaking by the insurer to notify Landlord (and the mortgagees
and ground lessors of Landlord who are named as additional
insureds) in writing not less than thirty (30) days prior to any
change, reduction in coverage, cancellation or other termination
thereof. Tenant agrees to deliver to Landlord, as soon as
practicable after the placing of the required insurance, but in
no event later than ten (1 0) days after the date Tenant takes
possession of all or any part of the Premises, certificates from
the insurance company evidencing the existence of such insurance
and Tenant's compliance with the foregoing provisions of this
Section 20). Tenant shall cause replacement certificates to be
delivered to Landlord not less than five (5) days prior to the
expiration of any such policy or policies. If any such initial
or replacement certificates are not furnished within the time(s)
specified herein, Tenant shall be deemed to be in material
default under this Lease without the benefit of any additional
notice or cure period provided in Section 22.1 below, and
Landlord shall have the right, but not the obligation, to procure
such policies and certificates at Tenant's expense.
20.3 Effect on Insurance. Tenant shall not do or permit to be
done anything which will violate or invalidate any insurance
policy maintained by Tenant hereunder. If Tenant's occupancy or
conduct of its business in or on the Premises results in any
increase in premiums for any insurance carried by Landlord,
Tenant shall pay such increase as additional rent within ten (1
0) days after being billed therefor by Landlord. If any
insurance coverage carried by Landlord shall be canceled or
reduced (or cancellation or reduction thereof shall be
threatened) by reason of the use or occupancy of the Premises by
Tenant or by anyone permitted by Tenant to be upon the Premises,
and if Tenant fails to remedy such condition within five (5) days
after notice thereof, Tenant shall be deemed to be in default
under this Lease, without the benefit of any additional notice or
cure period specified in Section 22.1 below, and Landlord shall
have all remedies provided in this Lease, at law or in equity,
including, without limitation, the right (but not the obligation)
to enter upon the Premises and attempt to remedy such condition
at Tenant's cost.
20.4 Landlord's Option to Insure. Landlord shall have the option
from time to time to maintain the All Risk insurance referred to
in Section 20.1(a) above covering the property described therein
(other than Tenant's personal property, furniture and equipment,
which Tenant shall continue to insure) and/or rental loss
insurance covering Tenant's rental obligations hereunder for a
period of at least twelve (12) months (or such longer period of
time as Tenant may request) by giving Tenant written notice
thereof. If Landlord elects to maintain such insurance, Tenant
shall have no obligation to maintain such insurance on the
property or obligations covered thereby until Landlord elects not
to maintain such insurance by giving Tenant at least sixty (60)
days' prior written notice thereof. Tenant shall reimburse
Landlord, as additional rent, the cost of such insurance within
thirty (30) days following receipt of an invoice therefor;
however, Tenant's obligation to reimburse the cost of earthquake
coverage in excess of the Cap shall be limited to one-half of
such excess.
21. Waiver of Subrogation.
21.1 Waiver. Notwithstanding any provision to the contrary
herein, the parties release each other and their respective
agents, employees, successors, assignees and subtenants from any
claims or damages or losses which are caused by or result from
(a) property damage insured against under any property insurance
policy carried by Tenant pursuant to the provisions of this Lease
and enforceable at the time of such damage or loss or which is
actually carried by either party, or (b) property damage which
would have been covered under any insurance required to be
obtained and maintained by Tenant under Section 20 of this Lease
(or which Landlord has elected to carry under Section 20.4 above)
had such insurance been obtained and maintained as required
therein. The foregoing waiver shall be in addition to, and not a
limitation of, any other waivers or releases contained in this
Lease.
21.2 Waiver of Insurers. Each party shall cause any property
insurance policy obtained by it with respect to the Premises to
provide that the insurer waives all rights of recovery by way of
subrogation in connection with any claims, losses and damages
covered by such policy. If Tenant fails to maintain property
insurance required hereunder (or if Landlord elects to carry the
All-Risk insurance pursuant to Section 20.4 and fails to so
maintain such insurance), such insurance shall be deemed to be
self-insured with a deemed full waiver of subrogation as set
forth in the immediately preceding sentence.
22. Tenant's Default and Landlord's Remedies.
22.1 Tenant's Default, The occurrence of any one or more of
the following events shall constitute an "Event of
Default" under this Lease by Tenant:
(a) the vacation or abandonment of the Premises by Tenant.
"Abandonment" is herein defined to mean any absence by Tenant
from the Premises for five (5) Business Days or longer while
in default of any other provision of this Lease. "Vacation"
shall mean vacating the Premises without providing a
reasonable level of security to minimize the potential for
vandalism, or where the coverage of the property insurance
under Section 20.1 (a) is jeopardized as a result thereof;
(b) the failure by Tenant to make any payment of Rent or any
other payment required to be made by Tenant hereunder, within
three (3) Business Days after Tenant's receipt of notice from
Landlord that such payment is past due;
(c) the failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to
be observed or performed by Tenant, other than as specified
in Sections 22.1 (a) or . (b) above, where such failure shall
continue for a period of thirty (30) days after written
notice thereof from Landlord to Tenant; provided, however,
that, if the nature of Tenant's default is such that more
than thirty (30) days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant
shall commence such cure within said thirty (30) day period
and thereafter diligently prosecute such cure to completion;
or
(d) (i) the making by Tenant of any general assignment for
the benefit of creditors, (ii) the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a
petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition
filed against the Tenant, the same is dismissed within sixty
(60) days), (iii) the appointment of a trustee or receiver to
take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within
sixty (60) days, or (iv) the attachment, execution or other
judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease
where such seizure is not discharged within sixty (60) days.
Any notice under this Section 22.1 shall be in lieu of, and not
in addition to, any notice required under California Code of
Civil Procedure, Section 1161.
22.2 Landlord's Remedies; Termination. In the event of any such
default by Tenant, in addition to any other remedies available to
Landlord under this Lease, at law or in equity, Landlord shall
have the immediate option to terminate this Lease and all rights
of Tenant hereunder. In the event that Landlord shall elect to
so terminate this Lease, then Landlord may recover from Tenant:
(a) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus
(b) the worth at the time of the award of the amount by which the
unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided;
plus
(c) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided; plus
(d) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which, in the ordinary
course of things, would be likely to result therefrom
including, but not limited to: unamortized Tenant Improvement
costs; attorneys' fees; unamortized brokers' commissions; the
costs of refurbishment, alterations, renovation and repair of
the Premises; and removal (including the repair of any damage
caused by such removal) and storage (or disposal) of Tenant's
personal property, equipment, fixtures, Tenant Changes,
Tenant Improvements and any other items which Tenant is
required under this Lease to remove but does not remove,
As used in Sections 22.2(a) and 22.2(b) above, the "worth at the
time of award" is computed by allowing interest at the Interest
Rate set forth in Section 1.13 of the Summary. As used in
Section 22.2(c) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus
one percent (1%).
22.3 Landlord's Remedies; Re-Entry Rights. In the event of any
such default by Tenant, in addition to any other remedies
available to Landlord under this Lease, at law or in equity,
Landlord shall also have the right, with or without terminating
this Lease, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed, stored
and/or disposed of pursuant to Section 12.4 of this Lease or any
other procedures permitted by applicable law. No re-entry or
taking possession of the Premises by Landlord pursuant to this
Section 22.3, and no acceptance of surrender of the Premises or
other action on Landlord's part, shall be construed as an
election to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction or unless Tenant's
right to possession of the Premises is terminated.
22.4 Landlord's Remedies; Continuation of Lease. In the event of
any such default by Tenant, in addition to any other remedies
available to Landlord under this Lease, at law or in equity,
Landlord shall have the right to continue this Lease in full
force and effect, whether or not Tenant shall have abandoned the
Premises so long as Landlord does not terminate Tenant's right to
possession of the Premises. The foregoing remedy shall also be
available to Landlord pursuant to California Civil Code Section
1951.4 and any successor statute thereof in the event Tenant has
abandoned the Premises. In the event Landlord elects to continue
this Lease in full force and effect pursuant to this Section
22.4, then Landlord shall be entitled to enforce all of its
rights and remedies under this Lease, including the right to
recover rent as it becomes due. Landlord's election not to
terminate this Lease pursuant to this Section 22.4 or pursuant to
any other provision of this Lease, at law or in equity, shall not
preclude Landlord from subsequently electing to terminate this
Lease or pursuing any of its other remedies.
22.5 Landlord's Right to Perform. Except as specifically
provided otherwise in this Lease, all covenants and agreements by
Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any abatement or offset of
rent. If Tenant shall fail to pay any sum of money (other than
Annual Rent) or perform any other act on its part to be paid or
performed hereunder and such failure shall continue for three (3)
Business Days with respect to monetary obligations (or ten (1 0)
days with respect to non-monetary obligations) after Tenant's
receipt of written notice thereof from Landlord, Landlord may,
without waiving or releasing Tenant from any of Tenant's
obligations, make such payment or perform such other act on
behalf of Tenant. All sums so paid by Landlord and all necessary
incidental costs incurred by Landlord in performing such other
acts shall be payable by Tenant to Landlord within five (5) days
after demand therefor as additional rent.
22.6 Interest. If any monthly installment of Annual Rent, or any
other amount payable by Tenant hereunder is not received by
Landlord by the tenth (10th) day following the due date, it shall
bear interest at the Interest Rate set forth in Section 1.14 of
the Summary from the date due until paid. All interest, and any
late charges imposed pursuant to Section 22.7 below, shall be
considered additional rent due from Tenant to Landlord under the
terms of this Lease.
22.7 Late Charges. Tenant acknowledges that, in addition to
interest costs, the late payments by Tenant to Landlord of any
Annual Rent or other sums due under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact
amount of such costs being extremely difficult and impractical to
fix. Such other costs include, without limitation, processing,
administrative and accounting charges and late charges that may
be imposed on Landlord by the terms of any mortgage, deed of
trust or related loan documents encumbering the Premises.
Accordingly, if any monthly installment of Annual Rent or any
other amount payable by Tenant hereunder is not received by
Landlord within five (5) days after the due date thereof, Tenant
shall pay to Landlord an additional sum of four percent (4%) of
the overdue amount as a late charge, but in no event more than
the maximum late charge allowed by law. The parties agree that
such late charge represents a fair and reasonable estimate of the
costs that Landlord will incur by reason of any late payment as
hereinabove referred to by Tenant, and the payment of late
charges and interest are distinct and separate in that the
payment of interest is to compensate Landlord for the use of
Landlord's money by Tenant, while the payment of late charges is
to compensate Landlord for Landlord's processing, administrative
and other costs incurred by Landlord as a result of Tenant's
delinquent payments. Acceptance of a late charge or interest
shall not constitute a waiver of Tenant's default with respect to
the overdue amount or prevent Landlord from exercising any of the
other rights and remedies available to Landlord under this Lease
or at law or in equity now or hereafter in effect.
22.8 Rights and Remedies Cumulative. All rights, options and
remedies of Landlord contained in this Section 22 and elsewhere
in this Lease shall be construed and held to be cumulative, and
no one of them shall be exclusive of the other, and Landlord
shall have the right to pursue any one or all of such remedies or
any other remedy or relief which may be provided by law or in
equity, whether or not stated in this Lease. Nothing in this
Section 22 shall be deemed to limit or otherwise affect Tenant's
indemnification of Landlord pursuant to any provision of this
Lease.
23. Landlord's Default. Landlord shall not be in default in the
performance of any obligation required to be performed by
Landlord under this Lease unless Landlord has failed to perform
such obligation within thirty (30) days after the receipt of
written notice from Tenant specifying in detail Landlord's
failure to perform; provided however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are
required for its performance, then Landlord shall not be deemed
in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to
completion. Upon any such uncured default by Landlord, Tenant
may exercise any of its rights provided in law or at equity;
provided, however: (a) Tenant shall have no right to offset or
xxxxx Rent in the event of any default by Landlord under this
Lease, except to the extent offset rights are specifically
provided to Tenant in this Lease; (b) Tenant's rights and
remedies hereunder shall be limited to the extent (i) Tenant has
expressly waived in this Lease any of such rights or remedies,
and/or (ii) this Lease otherwise expressly limits Tenant's rights
or remedies, including the limitation on Landlord's liability
contained in Section 30 hereof; and (c) Tenant shall not have the
right to terminate this Lease as a result of any such default.
24. Subordination. At the request of Landlord or any mortgagee
of a mortgage or a beneficiary of a deed of trust now or
hereafter encumbering all or any portion of the Premises, or any
lessor of any ground or master lease now or hereafter affecting
all or any portion of the Premises, this Lease shall be subject
and subordinate at all times to such ground or master leases (and
such extensions and modifications thereof, and to the lien of
such mortgages and deeds of trust (as well as to any advances
made thereunder and to all renewals, replacements, modifications
and extensions thereof; provided, however, no subordination of
this Lease shall result in Tenant being disturbed in its
possession of the Premises or in the enjoyment of its rights
under this Lease so long as Tenant is not in default with respect
to its obligations hereunder, and any subordination agreement
which Landlord, any mortgagee or ground lessor requests Tenant to
execute to effect or confirm such subordination shall so provide
and shall further provide that if the holder of any such lease or
lien succeeds to the position of Landlord under the Lease,
whether by foreclosure or termination of the ground or master
lease, such successor-in-interest shall recognize Tenant as its
tenant and shall perform the obligations of Landlord under the
Lease accruing subsequent to the date such successor-in-interest
succeeds to the position of Landlord and shall recognize Tenant's
offset rights under the Work Letter. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause
to be subordinated any or all ground or master leases or the lien
of any or all mortgages or deeds of trust to this Lease. In the
event that any ground or master lease terminates for any reason
or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall attorn
to and become the tenant of such successor and such successor-in-
interest shall recognize Tenant as its tenant and shall perform
the obligations of Landlord under the Lease accruing subsequent
to the date such successor-in-interest succeeds to the position
of Landlord. Tenant hereby waives its rights under any current
or future law which gives or purports to give Tenant any right to
terminate or otherwise adversely affect this Lease and the
obligations of Tenant hereunder in the event of any such
foreclosure proceeding or sale. Subject to the foregoing, Tenant
covenants and agrees to execute and deliver to Landlord within
ten (1 0) days after receipt of written demand by Landlord and in
the form reasonably required by Landlord and reasonably
acceptable to Tenant, any additional documents evidencing the
priority or subordination of this Lease with respect to any such
ground or master lease or the lien of any such mortgage or deed
of trust or Tenant's agreement to attorn. Should Tenant fail to
sign and return any such documents within said ten (10) day
period, and should such failure continue for an additional ten
(10) days following written notice thereof to Tenant, Tenant
shall be in default hereunder without the benefit of any
additional notice or cure periods specified in Section 22.1
above. Notwithstanding any provision to the contrary in this
Lease, insurance proceeds shall be used as set forth herein, and
any subordination agreement to be executed by Tenant shall so
provide and shall provide that Tenant's offset rights under the
Work Letter shall be recognized.
25. Estoppel Certificate.
25.1 Tenant's Obligations. Within ten (1 0) Business Days
following Landlord's written request, Tenant shall execute and
deliver to Landlord an estoppel certificate, in a form
substantially similar to the form of Exhibit "F" attached hereto,
certifying: (a) the Respective Commencement Dates of this Lease;
(b) that this Lease is unmodified and in full force and effect
(or, if modified, that this Lease is in full force and effect as
modified, and stating the date and nature of such modifications);
(c) the date to which the Rent and other sums payable under this
Lease have been paid; (d) that there are not, to the best of
Tenant's knowledge, any defaults under this Lease by either
Landlord or Tenant, except as specified in such certificate; and
(e) such other matters as are reasonably requested by Landlord.
Any such estoppel certificate delivered pursuant to this Section
25.1 may be relied upon by any mortgagee, beneficiary, purchaser
or prospective purchaser of any portion of the Premises, as well
as their assignees.
25.2 Tenant's Failure to Deliver. Tenant's failure to deliver
such estoppel certificate within such time, which failure
continues for an additional ten (10) day period following written
notice thereof to Tenant, shall constitute a default hereunder
without the applicability of any additional notice and cure
periods specified in Section 22.1 above and shall be conclusive
upon Tenant that: (a) this Lease is in full force and effect
without modification, except as may be represented by Landlord;
(b) there are no uncured defaults in Landlord's or Tenant's
performance (other than Tenant's failure to deliver the estoppel
certificate); and (c) not more than one (1) month's rental has
been paid in advance. Tenant shall indemnify, protect, defend
(with counsel reasonably approved by Landlord in writing) and
hold Landlord harmless from and against any and all claims,
judgments, suits, causes of action, damages, losses, liabilities
and expenses (including attorneys' fees and court costs)
attributable to any failure by Tenant to timely deliver any such
estoppel certificate to Landlord pursuant to Section 25.1 above.
26. Easements. Landlord reserves to itself the right, from time
to time, to grant such easements, rights and dedications that
Landlord deems necessary or desirable, and to cause the
recordation of parcel maps and restrictions, so long as such
easements, rights, dedications, maps and restrictions do not
interfere with the use and enjoyment of the Premises by Tenant.
Tenant shall sign any of the aforementioned documents promptly
following the request of Landlord.
27. Modification and Cure Rights of Landlord's Mortgagees and
Lessors.
27.1 Modifications. If, in connection with Landlord's obtaining
or entering into any financing or ground lease for any portion of
the Premises, the lender or ground lessor shall request
modifications to this Lease, Tenant shall, within ten (10) days
after request therefor, execute an amendment to this Lease
including such modifications, provided such modifications are
reasonable, do not increase the obligations of Tenant hereunder,
do not decrease Tenant's rights and benefits hereunder, and do
not otherwise adversely affect the leasehold estate created
hereby or Tenant's rights hereunder.
27.2 Cure Rights. In the event of any default on the part of
Landlord, Tenant will give notice by registered or certified mail
to any beneficiary of a deed of trust or mortgagee covering the
Premises or ground lessor of Landlord whose address shall have
been furnished to Tenant in writing, and shall offer such
beneficiary, mortgagee or ground lessor a reasonable opportunity
to cure the default (including with respect to any such
beneficiary or mortgagee, time to obtain possession of the
Premises, subject to this Lease and Tenant's rights hereunder, by
power of sale or judicial foreclosure, if such should prove
necessary to effect a-cure).
28. Quiet Enjoyment. Landlord covenants and agrees with Tenant
that, upon Tenant performing all of the covenants and provisions
on Tenant's part to be observed and performed under this Lease
(including payment of rent hereunder), Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises in
accordance with and subject to the terms and conditions of this
Lease.
29. Transfer of Landlord's Interest. The term "Landlord" as used
in this Lease, so far as covenants or obligations on the part of
the Landlord are concerned, shall be limited to mean and include
only the owner or owners, at the time in question, of the fee
title to, or a lessee's interest in a ground lease of, the
Premises. In the event of any transfer or conveyance of any such
title or interest (other than a transfer for security purposes
only), the transferor shall be automatically relieved of all
covenants and obligations on the part of Landlord contained in
this Lease accruing after the date of such transfer or conveyance
except that such transferor shall remain liable for any portion
of the Security Deposit held by such transferor and not returned
to Tenant or delivered to the transferee at the time of such
transfer. Landlord and Landlord's transferees and assignees
shall have the absolute right to transfer all or any portion of
their respective title and interest in the Premises and/or this
Lease without the consent of Tenant, and such transfer or
subsequent transfer shall not be deemed a violation on Landlord's
part of any of the terms and conditions of this Lease.
30. Limitation on Landlord's Liability. Notwithstanding
anything contained in this Lease to the contrary, the obligations
of Landlord under this Lease (including any actual or alleged
breach or default by Landlord) do not constitute personal
obligations of the individual partners, directors, officers or
shareholders of Landlord or Landlord's partners, and Tenant shall
not seek recourse against the individual partners, directors,
officers or shareholders of Landlord or Landlord's partners, or
any of their personal assets for satisfaction of any liability
with respect to this Lease. In addition, in consideration of the
benefits accruing hereunder to Tenant and notwithstanding
anything contained in this Lease to the contrary, Tenant hereby
covenants and agrees for itself and all of its successors and
assigns that the liability of Landlord for its obligations under
this Lease (including any liability as a result of any actual or
alleged failure, breach or default hereunder by Landlord), shall
be limited solely to, and Tenant's and its successors' and
assigns' sole and exclusive remedy shall be against, Landlord's
interest in the Premises and proceeds therefrom, and no other
assets of Landlord.
31. Miscellaneous.
31.1 Governing Law. This Lease shall be governed by, and
construed pursuant to, the laws of the state in which the
Premises is located.
31.2 Successors and Assigns. Subject to the provisions of
Section 29 above, and except as otherwise provided in this Lease,
all of the covenants, conditions and provisions of this Lease
shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective heirs, personal
representatives and permitted successors and assigns; provided,
however, no rights shall inure to the benefit of any Transferee
of Tenant unless the Transfer to such Transferee is made in
compliance with the provisions of Section 14, and no options or
other rights which are expressly made personal to the original
Tenant hereunder or in any rider attached hereto shall be
assignable to or exercisable by anyone other than the original
Tenant under this Lease except as expressly set forth herein.
31.3 No Merger. The voluntary or other surrender of this Lease
by Tenant or a mutual termination thereof shall not work as a
merger and shall, at the option of Landlord, either (a) terminate
all or any existing subleases, or (b) operate as an assignment to
Landlord of Tenant's interest under any or all such subleases.
31.4 Professional Fees. If either Landlord or Tenant should
bring suit against the other with respect to this Lease,
including for unlawful detainer or any other relief against the
other hereunder (including arbitration proceedings pursuant to
the Work Letter), then all costs and expenses incurred by the
prevailing party therein (including, without limitation, its
actual appraisers', accountants', attorneys' and other
professional fees, expenses and court costs), shall be paid by
the other party.
31.5 Waiver. The waiver by either party of any breach by the
other party of any term, covenant or condition herein contained
shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant and condition herein
contained, nor shall any custom or practice which may become
established between the parties in the administration of the
terms hereof be deemed a waiver of, or in any way affect, the
right of any party to insist upon the performance by the other in
strict accordance with said terms. No waiver of any default of
either party hereunder shall be implied from any acceptance by
Landlord or delivery by Tenant (as the case may be) of any rent
or other payments due hereunder or any omission by the non-
defaulting party to take any action on account of such default if
such default persists or is repeated, and no express waiver shall
affect defaults other than as specified in said waiver. The
subsequent acceptance of rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease other than the failure
of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
31.6 Terms and Headings. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular.
Words used in any gender include other genders. The Section
headings of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any
part hereof.
31.7 Time. Time is of the essence with respect to performance of
every provision of this Lease in which time or performance is a
factor. All references in this Lease to "days" shall mean
calendar days unless specifically modified herein to be
"business" days.
31.8 Prior Agreements; Amendments. This Lease, including the
Summary and all Exhibits and Riders attached hereto contains
all of the covenants, provisions, agreements, conditions and
understandings between Landlord and Tenant concerning the
Premises and any other matter covered or mentioned in this Lease,
and no prior agreement or understanding, oral or written, express
or implied, pertaining to the Premises or any such other matter
shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in
interest. The parties acknowledge that all prior agreements,
representations and negotiations are deemed superseded by the
execution of this Lease to the extent they are not expressly
incorporated herein.
31.9 Separability. The invalidity or unenforceability of any
provision of this Lease (except for Tenant's obligation to pay
Rent) shall in no way affect, impair or invalidate any other
provision hereof, and such other provisions shall remain valid
and in full force and effect to the fullest extent permitted by
law.
31.10 Recording. Neither Landlord nor Tenant shall record
this Lease. In addition, neither party shall record a short form
memorandum of this Lease without the prior written consent (and
signature on the memorandum) of the other, and provided that
prior to recordation Tenant executes and delivers to Landlord, in
recordable form, a properly acknowledged quitclaim deed or other
instrument extinguishing all of the Tenant's rights and interest
in and to the Premises, and designating Landlord as the
transferee, which deed or other instrument shall be held by
Landlord and may be recorded by Landlord once this Lease
terminates or expires (but not prior thereto). If such short
form memorandum is recorded in accordance with the foregoing, the
party requesting the recording shall pay for all costs of or
related to such recording, including, but not limited to,
recording charges and documentary transfer taxes.
31.11 Exhibits and Riders. All Exhibits and Riders attached
to this Lease are hereby incorporated in this Lease for all
purposes as though set forth at length herein.
31.12 Auctions. Tenant shall have no right to conduct any
auction in, on or about the Premises.
31.13 Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of a lesser amount than the rent
payment herein stipulated shall be deemed to be other than on
account of the rent, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy
provided in this Lease. Tenant agrees that each of the foregoing
covenants and agreements shall be applicable to any covenant or
agreement either expressly contained in this Lease or imposed by
any statute or at common law.
31.14 Financial Statements. Upon ten (10) days prior written
request from Landlord (which Landlord may make at any time during
the Term but no more often than once in any calendar year),
Tenant shall deliver to Landlord then current public financial
statement of Tenant. At Landlord's request, Tenant will add
Landlord to its mailing list to receive Tenant's public financial
reports when published (three (3) quarterly reports and one (1)
annual report). If Tenant is not a publicly traded corporation,
then the financial statements to be delivered by Tenant shall be
prepared in accordance with generally acceptable accounting
principles and certified as true in all material respects by
Tenant.
31.15 No Partnership. Landlord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its
business, or otherwise, or joint venturer or a member of a joint
enterprise with Tenant by reason of this Lease.
31.16 Force Majeure. In the event that either party hereto
shall be delayed or hindered in or prevented from the performance
of any act required hereunder by reason of strikes, lock-outs,
labor troubles, inability to procure materials, failure of power,
governmental moratorium or other governmental action or inaction
(including failure, refusal or delay in issuing permits,
approvals and/or authorizations), injunction or court order,
riots, insurrection, war, fire, earthquake, flood or other
natural disaster or other reason of a like nature not the fault
of the party delaying in performing work or doing acts required
under the terms of this Lease (but excluding delays due to
financial inability) (herein collectively, "Force Majeure
Delays"), then performance of such act shall be excused for the
period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period
of such delay. The provisions of this Section 31.16 shall not
apply to nor operate to excuse Tenant from the payment of Monthly
Rent, additional rent or any other payments strictly in
accordance with the terms of this Lease.
31.17 Counterparts. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all
of which shall be one and the same agreement.
.1
31.18 Nondisclosure of Lease Terms. Tenant acknowledges and
agrees that the terms of this Lease are confidential and
constitute proprietary information of Landlord. Disclosure of
the terms could adversely affect the ability of Landlord to
negotiate other leases and impair Landlord's relationship with
other tenants. Accordingly, Tenant agrees that it, and its
partners, officers, directors, employees, agents and attorneys,
shall not intentionally and voluntarily disclose the terms and
conditions of this Lease to any newspaper or other publication or
any other tenant or apparent prospective tenant of the Building
or other portion of the Premises, or real estate agent, either
directly or indirectly, without the prior written consent of
Landlord, provided, however, that Tenant may disclose the terms
to prospective subtenants or assignees under this Lease. Tenant
shall have the right to make any disclosures concerning this
Lease and its terms which are required by law.
31.19 Non-Discrimination. Tenant acknowledges and agrees
that there shall be no discrimination against, or segregation of,
any person, group of persons, or entity on the basis of race,
color, creed, religion, age, sex, marital status, national
origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises,
or any portion thereof.
32. Lease Execution.
32.1 Tenant's Authority. If Tenant executes this Lease as a
partnership or corporation, then Tenant and the persons and/or
entities executing this Lease on behalf of Tenant represent and
warrant that: (a) Tenant is a duly authorized and existing
partnership or corporation, as the case may be, and is qualified
to do business in the state in which the Premises are located;
(b) such persons and/or entities executing this Lease are duly
authorized to execute and deliver this Lease on Tenant's behalf
in accordance with the Tenant's partnership agreement (if Tenant
is a partnership), or a duly adopted resolution of Tenant's board
of directors and the Tenant's by-laws (if Tenant is a
corporation); and (c) this Lease is binding upon Tenant in
accordance with its terms.
32.2 Joint and Several Liability. If more than one person or
entity executes this Lease as Tenant: (a) each of them is and
shall be jointly and severally liable for the covenants,
conditions, provisions and agreements of this Lease to be kept,
observed and performed by Tenant; and (b) the act or signature
of, or notice from or to, any one or more of them with respect to
this Lease shall be binding upon each and all of the persons and
entities executing this Lease as Tenant with the same force and
effect as if each and all of them had so acted or signed, or
given or received such notice.
32.3 No Option. The submission of this Lease for examination or
execution by Tenant does not constitute a reservation of or
option for the Premises and this Lease shall not become effective
as a Lease until it has been executed by Landlord and delivered
to Tenant.
32.4 Landlord's Authority. Landlord represents and warrants to
Tenant that: (a) Landlord is a duly authorized and existing
limited partnership and is qualified to do business in
California; (b) the persons and entities executing this Lease are
duly authorized to execute and deliver this Lease on Landlord's
behalf in accordance with Landlord's partnership agreement; and
(c) this Lease is binding upon Landlord in accordance with its
terms.
IN WITNESS WHEREOF, the parties have executed this Lease as of
the day and year first above written.
"TENANT" CYMER, INC.,
a Nevada corporation
By: /s/
Name: Xxxxxxx X. Xxxxx, III
Title: Sr. Vice President and
Chief Financial Officer
"LANDLORD" AEW/LBA ACQUISITION CO. 11, LLC, a
California limited liability company
By: Eastrich No. 175, LLC, a
California limited liability
company, its member-manager
By: /s/
Name:
Its: Authorized Signatory
Exhibits:
Exhibit "A" Site Plan
Exhibit "B" Legal Description of Premises
Exhibit "C" Work Letter Agreement
Schedule 1 Description of Conceptual Plans
Exhibit "D" Sample Form of Notice of Lease Term Dates
Exhibit "E" Environmental Questionnaire
Exhibit "F" Sample Form of Tenant Estoppel Certificate
Exhibit "G" Description of Parking Lot Improvements
Exhibit "H" Prior Occupant's FF&E
The Company will undertake to supply any of the above documents
upon request of the Securities and Exchange Commission.
