LEASE AGREEMENT
BY AND BETWEEN
AETNA LIFE INSURANCE COMPANY,
A CONNECTICUT CORPORATION
AS LANDLORD
AND
FINISAR CORPORATION
A CALIFORNIA CORPORATION
AS TENANT
DATED MAY 26, 1999
TABLE OF CONTENTS
Page
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1. Demise...................................................................................................1
2. Premises.................................................................................................1
3. Term.....................................................................................................2
4. Rent.....................................................................................................3
5. Utility Expenses.........................................................................................8
6. Late Charge..............................................................................................8
7. Security Deposit.........................................................................................9
8. Possession...............................................................................................9
9. Use Of Premises.........................................................................................10
10. Acceptance Of Premises..................................................................................11
11. Surrender...............................................................................................12
12. Alterations And Additions...............................................................................12
13. Maintenance And Repairs Of Premises.....................................................................14
14. Landlord's Insurance....................................................................................15
15. Tenant's Insurance......................................................................................15
16. Indemnification.........................................................................................17
17. Subrogation.............................................................................................17
18. Signs...................................................................................................17
19. Free From Liens.........................................................................................18
20. Entry By Landlord.......................................................................................18
21. Destruction And Damage..................................................................................18
22. Condemnation............................................................................................21
23. Assignment And Subletting...............................................................................22
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24. Tenant's Default........................................................................................24
25. Landlord's Remedies.....................................................................................26
26. Landlord's Right To Perform Tenant's Obligations........................................................29
27. Attorney's Fees.........................................................................................29
28. Taxes...................................................................................................30
29. Effect Of Conveyance....................................................................................30
30. Tenant's Estoppel Certificate...........................................................................30
31. Subordination...........................................................................................30
32. Environmental Covenants.................................................................................31
33. Notices.................................................................................................34
34. Waiver..................................................................................................34
35. Holding Over............................................................................................34
36. Successors And Assigns..................................................................................35
37. Time....................................................................................................35
38. Brokers.................................................................................................35
39. Limitation Of Liability.................................................................................35
40. Financial Statements....................................................................................35
41. Rules And Regulations...................................................................................35
42. Mortgagee Protection....................................................................................36
43. Entire Agreement........................................................................................36
44. Interest................................................................................................36
45. Construction............................................................................................36
46. Representations And Warranties Of Tenant................................................................36
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47. Security................................................................................................37
48. Jury Trial Waiver.......................................................................................37
49. Option To Renew.........................................................................................38
50. Option To Expand Premises...............................................................................39
51. Satellite Dish..........................................................................................40
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EXHIBIT
A Diagram of the Premises
A-1 Diagram indicating Location of
Exclusive Parking Spaces
B Tenant Improvements
B-1 Preliminary Plans
B-2 Final Plans and Specifications for
Tenant Improvements
C Commencement and Expiration Date Memorandum
D Rules and Regulations
E Sign Criteria
F Hazardous Materials Disclosure Certificate
G Tenant Improvements Loan Amortization Memorandum
H Diagram of the Expansion Space
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LEASE AGREEMENT
This Lease Agreement is made and entered into by and between Landlord
and Tenant on the Lease Date. The defined terms used in this Lease which are
defined in the Basic Lease Information attached to this Lease Agreement ("BASIC
LEASE INFORMATION") shall have the meaning and definition given them in the
Basic Lease Information. The Basic Lease Information, the exhibits, the addendum
or addenda described in the Basic Lease Information, and this Lease Agreement
are and shall be construed as a single instrument and are referred to herein as
the "LEASE".
1. DEMISE. In consideration for the rents and all other
charges and payments payable by Tenant, and for the agreements, terms and
conditions to be performed by Tenant in this Lease, Landlord does hereby
lease to Tenant, and Tenant does hereby hire and take from Landlord, the
Premises described below (the "PREMISES"), upon the agreements, terms and
conditions of this Lease for the Term hereinafter stated.
2. PREMISES.
(a) The Premises demised by this Lease is located in that
certain building (the "Building") specified in the Basic Lease Information,
which Building is located in that certain real estate development (the
"PROJECT") specified in the Basic Lease Information. The Premises has the
address and contains the square footage specified in the Basic Lease
Information. The approximate location and dimensions of the Premises are
depicted on EXHIBIT A, which is attached hereto and incorporated herein by this
reference; provided, however, that any statement of square footage set forth in
this Lease. or that may have been used in calculating any of the economic terms
hereof, is an approximation which Landlord and Tenant agree is reasonable and,
except as expressly set forth in Paragraph 4(c)(3) below, no economic terms
based thereon shall be subject to revision whether or not the actual square
footage is more or less. Tenant shall have the non-exclusive right (in common
with the other tenants, Landlord and any other person granted use by Landlord)
to use the Common Areas (as hereinafter defined), except that, with respect to
parking, Tenant shall have only a license to use the number of exclusive and
designated parking spaces (the "EXCLUSIVE PARKING SPACES") and non-exclusive and
undesignated parking spaces set forth in the Basic Lease Information in the
Project's parking areas (the "PARKING AREAS"); provided, however, that Landlord
shall not be required to enforce Tenant's right to use such parking spaces; and,
provided further, that the number of parking spaces allocated to Tenant
hereunder shall be reduced on a proportionate basis in the event any of the
parking spaces in the Parking Areas are taken or otherwise eliminated as a
result of any Condemnation (as hereinafter defined) or casualty event affecting
such Parking Areas. Tenant's Exclusive Parking Spaces shall be located in the
area shown on EXHIBIT A-1 hereto. No easement for light or air is incorporated
in the Premises. For purposes of this Lease, the term "COMMON AREAS" shall mean
all areas and facilities outside the Premises and within the exterior boundary
line of the Project that are provided and designated by Landlord for the
non-exclusive use of Landlord, Tenant and other tenants of the Project and their
respective employees, guests and invitees.
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(b) The Premises demised by this Lease shall include the
Tenant Improvements (as that term is defined in the tenant improvement work
agreement attached hereto as EXHIBIT B) to be constructed by Landlord within the
interior of the Premises. Landlord shall construct the Tenant Improvements on
the terms and conditions set forth in EXHIBIT B. Landlord and Tenant agree to
and shall be bound by the terms and conditions of EXHIBIT B.
(c) Landlord has the right, in its sole discretion, from time
to time, to: (i) make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, ingress, egress, direction of
driveways, entrances, corridors and walkways; provided, however, that the number
of parking spaces allocated to Tenant hereunder shall be subject to reduction
only as provided in Paragraph 2(a) above; (ii) close temporarily any of the
Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available; (iii) add additional buildings and improvements to
the Common Areas or remove existing buildings or improvements therefrom; (iv)
use the Common Areas while engaged in making additional improvements, repairs or
alterations to the Project or any portion thereof; and (v) do and perform any
other acts or make any other changes in, to or with respect to the Common Areas
and the Project as Landlord may, in its sole discretion, deem to be appropriate.
Landlord will use reasonable efforts to minimize interference with the conduct
of Tenant's business in the Premises in performing any of the foregoing actions.
3. TERM. The term of this Lease (the "TERM") shall be for the
period of months specified in the Basic Lease Information, commencing on the
earliest to occur of the following dates (the "COMMENCEMENT DATE"):
(a) The date the Tenant Improvements are approved by the
appropriate governmental agency as being in accordance with its building code
and the building permit issued for such improvements, as evidenced by the
issuance of a final building inspection approval; or
(b) The date Landlord's architect and general contractor have
both certified in writing to Tenant that the Tenant Improvements have been
substantially completed in accordance with the plans and specifications
therefor; or
(c) The date Tenant commences occupancy of the Premises;
provided, however, that Tenant shall not be deemed to have commenced occupancy
of the Premises for purposes of this Paragraph 3(c) if Tenant enters upon the
Premises prior to the Commencement Date solely for the purpose of installing
telephone cabling and furniture in accordance with Paragraph 8(b) below.
In the event the actual Commencement Date, as determined pursuant to
the foregoing, is a date other than the Estimated Commencement Date specified in
the Basic Lease Information, then Landlord and Tenant shall promptly execute a
Commencement and Expiration Date Memorandum in the form attached hereto as
EXHIBIT C, wherein the parties shall specify the Commencement Date, the date on
which the Term expires (the "EXPIRATION DATE") and the date on which Tenant is
to commence paying Rent.
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4. RENT.
(a) BASE RENT.
(1) Commencing on the Rent Commencement Date (as
hereinafter defined), Tenant shall pay to Landlord, in advance on the first
day of each month, without further notice or demand and without offset,
rebate, credit (except as specified in Paragraph 4(a)(2) below) or deduction
for any reason whatsoever, the monthly installments of rent specified in the
Basic Lease Information (the "BASE RENT"). As used herein, "RENT COMMENCEMENT
DATE" means the earlier of (i) the Commencement Date, or (ii) the date that
is ninety (90) days after the date of this Lease. Tenant acknowledges and
agrees that Rent shall be payable hereunder commencing on the Rent
Commencement Date, irrespective of whether or not the Tenant Improvements
have been completed and the Term has commenced by such date.
(2) Notwithstanding anything to the contrary
contained in this Lease, Tenant shall be entitled to a credit against the
monthly Base Rent payable pursuant to Paragraph 4(a)(1) above in the amounts
set forth below:
MONTHS BASE RENT CREDIT
1-12 $295.20
13-24 304.43
25-36 313.65
37-48 322.88
49-60 332.10
61-72 341.33
73-84 350.55
(3) Upon execution of this Lease, Tenant shall pay
to Landlord the Prepaid Rent and first monthly installment of estimated
Additional Rent (as hereinafter defined) specified in the Basic Lease
Information to be applied toward Base Rent and Additional Rent for the month
of the Term specified in the Basic Lease Information.
(b) ADDITIONAL RENT. This Lease is intended to be a
triple-net Lease with respect to Landlord; and subject to Paragraph 13(b)
below, the Base Rent owing hereunder is (1) to be paid by Tenant absolutely
net of all costs and expenses relating to Landlord's ownership and operation
of the Project and the Building, and (2) not to be reduced, offset or
diminished, directly or indirectly, by any cost, charge or expense payable
hereunder by Tenant or by others in connection with the Premises, the
Building and/or the Project or any part thereof. The provisions of this
Paragraph 4(b) for the payment of Tenant's Proportionate Share(s) of Expenses
(as hereinafter defined) are intended to pass on to Tenant its share of all
such costs and expenses. In addition to the Base Rent, commencing on the Rent
Commencement Date, Tenant shall pay to Landlord, in accordance with this
Paragraph 4, Tenant's Proportionate Share(s) of all costs and expenses paid
or incurred by Landlord in connection with the ownership, operation,
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maintenance, management and repair of the Premises, the Building and/or the
Project or any part thereof (collectively, the "EXPENSES"), including,
without limitation, all the following items (the "ADDITIONAL RENT"):
(1) TAXES AND ASSESSMENTS. All real estate taxes
and assessments, which shall include any form of tax, assessment, fee,
license fee, business license fee, levy, penalty (if a result of Tenant's
delinquency), or tax (other than net income, estate, succession, inheritance,
transfer or franchise taxes), imposed by any authority having the direct or
indirect power to tax, or by any city, county, state or federal government or
any improvement or other district or division thereof, whether such tax is
(i) determined by the area of the Premises, the Building and/or the Project
or any part thereof, or the Rent and other sums payable hereunder by Tenant
or by other tenants, including, but not limited to, any gross income or
excise tax levied by any of the foregoing authorities with respect to receipt
of Rent and/or other sums due under this Lease; (ii) upon any legal or
equitable interest of Landlord in the Premises, the Building and/or the
Project or any part thereof; (iii) upon this transaction or any document to
which Tenant is a party creating or transferring any interest in the
Premises, the Building and/or the Project; (iv) levied or assessed in lieu
of, in substitution for, or in addition to, existing or additional taxes
against the Premises, the Building and/or the Project, whether or not now
customary or within the contemplation of the parties; or (v) surcharged
against the parking area. Tenant and Landlord acknowledge that Proposition 13
was adopted by the voters of the State of California in the June, 1978
election and that assessments, taxes, fees, levies and charges may be imposed
by governmental agencies for such purposes as fire protection, street,
sidewalk, road, utility construction and maintenance, refuse removal and for
other governmental services which may formerly have been provided without
charge to property owners or occupants. It is the intention of the parties
that all new and increased assessments, taxes, fees, levies and charges due
to any cause whatsoever are to be included within the definition of real
property taxes for purposes of this Lease. "TAXES AND ASSESSMENTS" shall also
include legal and consultants' fees, costs and disbursements incurred in
connection with proceedings to contest, determine or reduce taxes, Landlord
specifically reserving the right, but not the obligation, to contest by
appropriate legal proceedings the amount or validity of any taxes.
(2) INSURANCE. All insurance premiums for the
Building and/or the Project or any part thereof, including premiums for "all
risk" fire and extended coverage insurance, commercial general liability
insurance, rent loss or abatement insurance, earthquake insurance, flood or
surface water coverage, and other insurance as Landlord deems necessary in
its sole discretion, and any deductibles paid under policies of any such
insurance (provided, however, that Tenant shall not be responsible for any
deductible under any policy of earthquake insurance in excess of five percent
(5%) of the then replacement cost of the Project, per occurrence).
(3) UTILITIES. The cost of all Utilities (as
hereinafter defined) serving the Premises, the Building and the Project that
are not separately metered to Tenant, any assessments or charges for
Utilities or similar purposes included within any tax xxxx for the Building
or the Project, including without limitation, entitlement fees, allocation
unit fees, and/or any similar fees or charges and any penalties (if a result
of Tenant's delinquency) related thereto, and any amounts, taxes, charges,
surcharges, assessments or impositions levied, assessed or imposed upon the
Premises, the Building or the Project or any part thereof, or upon Tenant's
use
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and occupancy thereof, as a result of any rationing of Utility services or
restriction on Utility use affecting the Premises, the Building and/or the
Project, as contemplated in Paragraph 5 below (collectively, "UTILITY
EXPENSES").
(4) COMMON AREA EXPENSES. All costs to operate,
maintain, repair, replace, supervise, insure and administer the Common Areas,
including supplies, materials, labor and equipment used in or related to the
operation and maintenance of the Common Areas, including parking areas
(including, without limitation, all costs of resurfacing and restriping
parking areas), signs and directories on the Building and/or the Project,
landscaping (including maintenance contracts and fees payable to landscaping
consultants), amenities, sprinkler systems, sidewalks, walkways, driveways,
curbs, lighting systems and security services, if any, provided by Landlord
for the Common Areas, and any charges, assessments, costs or fees levied by
any association or entity of which the Project or any part thereof is a
member or to which the Project or any part thereof is subject.
(5) PARKING CHARGES. Any parking charges or other
costs levied, assessed or imposed by, or at the direction of, or resulting
from statutes or regulations, or interpretations thereof, promulgated by any
governmental authority or insurer in connection with the use or occupancy of
the Building or the Project.
(6) MAINTENANCE AND REPAIR COSTS. Except for costs
which are the responsibility of Landlord pursuant to Paragraph 13(b) below,
all costs to maintain, repair, and replace the Premises, the Building and/or
the Project or any part thereof, including without limitation, (i) all costs
paid under maintenance, management and service agreements such as contracts
for janitorial, security and refuse removal, (ii) all costs to maintain,
repair and replace the roof coverings of the Building or the Project or any
part thereof, (iii) all costs to maintain, repair and replace the heating,
ventilating, air conditioning, plumbing, sewer, drainage, electrical, fire
protection, life safety and security systems and other mechanical and
electrical systems and equipment serving the Premises, the Building and/or
the Project or any part thereof (collectively, the "SYSTEMS").
(7) LIFE SAFETY COSTS. All costs to install,
maintain, repair and replace all life safety systems, including, without
limitation, all fire alarm systems, serving the Premises, the Building and/or
the Project or any part thereof (including all maintenance contracts and fees
payable to life safety consultants) whether such systems are or shall be
required by Landlord's insurance carriers, Laws (as hereinafter defined) or
otherwise.
(8) MANAGEMENT AND ADMINISTRATION. All costs for
management and administration of the Premises, the Building and/or the
Project or any part thereof, including, without limitation, a Property
Management Fee (as hereinafter defined), accounting, auditing, billing,
postage, Salaries and Benefits (as hereinafter defined), payroll taxes and
legal and accounting costs (specifically excluding, however, legal fees
incurred in connection with lease negotiations with tenants, disputes with
tenants, the sale or refinancing of the Building and the construction of
additional improvements on the Project) and fees for licenses and permits
related to the ownership and operation of the Project. For purposes of this
Paragraph 4(b)(8), the following terms shall have the following meanings:
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(A) "MANAGEMENT FEE" means the actual property
management fee paid by Landlord to the property manager of the Project;
provided, however, that if the property manager shall at any time hereafter
be an Affiliate (as hereinafter defined) of Landlord, then the Management Fee
shall not exceed the management fees customarily paid by institutional owners
and advisors (collectively, "INSTITUTIONAL OWNERS") to institutional property
managers for properties similar to and in the vicinity of the Project.
(B) "SALARIES AND BENEFITS" means the salaries
and benefits for clerical and supervisory employees involved in the
management of the Project, whether such employees are located on the Project
or off-site; provided, however, that if the property manager shall at any
time hereafter be an Affiliate of Landlord, then the Salaries and Benefits
shall not exceed the salaries and benefits customarily charged by
Institutional Owners to tenants under triple-net leases of buildings similar
to and in the vicinity of the Project; and, provided further, that so long as
Aetna Life Insurance Company is the Landlord hereunder, Tenant shall not be
responsible for the payment of any Salaries and Benefits.
(C) "AFFILIATE" means an entity that controls,
is controlled by or is under common control with, Landlord; and a party shall
be deemed to "control" another party for purposes of the aforesaid definition
only if the first party owns more than fifty percent (50%) of the stock or
other beneficial interests of the second party.
Notwithstanding anything in this Paragraph 4(b) to the contrary, with
respect to all sums payable by Tenant as Additional Rent under this Paragraph
4(b) for the replacement of any item or the construction of any new item in
connection with the physical operation of the Premises, the Building or the
Project (i.e., HVAC, roof membrane or coverings and parking area) which is a
capital item the replacement of which would be capitalized under Landlord's
commercial real estate accounting practices, Tenant shall be required to pay
only the pro rata share of the cost of the item falling due within the Term
(including any Renewal Term) based upon the amortization of the same over the
useful life of such item, as reasonably determined by Landlord.
(c) PAYMENT OF ADDITIONAL RENT.
(1) Upon commencement of this Lease, Landlord shall submit
to Tenant an estimate of monthly Additional Rent for the period between the
Commencement Date and the following December 31 and Tenant shall pay such
estimated Additional Rent on a monthly basis, in advance, on the first day of
each month. Tenant shall continue to make said monthly payments until
notified by Landlord of a change therein. If at any time or times Landlord
determines that the amounts payable under Paragraph 4(b) for the current year
will vary from Landlord's estimate given to Tenant, Landlord, by notice to
Tenant, may revise the estimate for such year, and subsequent payments by
Tenant for such year shall be based upon such revised estimate. By May 1 of
each calendar year, Landlord shall endeavor to provide to Tenant a statement
showing the actual Additional Rent due to Landlord for the prior calendar
year, to be prorated during the first year from the Commencement Date. If the
total of the monthly payments of Additional Rent that Tenant has made for the
prior calendar year is less than the actual Additional Rent chargeable to
Tenant for such prior calendar year, then Tenant shall pay the difference in
a lump sum within ten (10) days after receipt of such statement from
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Landlord. Any overpayment by Tenant of Additional Rent for the prior calendar
year shall be credited towards the Additional Rent next due.
(2) Landlord's then-current annual operating and capital
budgets for the Building and the Project or the pertinent part thereof shall
be used for purposes of calculating Tenant's monthly payment of estimated
Additional Rent for the current year, subject to adjustment as provided
above. Landlord shall make the final determination of Additional Rent for the
year in which this Lease terminates as soon as possible after termination of
such year. Even though the Term has expired and Tenant has vacated the
Premises, Tenant shall remain liable for payment of any amount due to
Landlord in excess of the estimated Additional Rent previously paid by
Tenant, and, conversely, Landlord shall promptly return to Tenant any
overpayment. Failure of Landlord to submit statements as called for herein
shall not be deemed a waiver of Tenant's obligation to pay Additional Rent as
herein provided.
(3) With respect to Expenses which Landlord allocates to the
Building, Tenant's "PROPORTIONATE SHARE" shall be the percentage set forth in
the Basic Lease Information as Tenant's Proportionate Share of the Building,
as adjusted by Landlord from time to time for a remeasurement of or changes
in the physical size of the Premises or the Building, whether such changes in
size are due to an addition to or a sale or conveyance of a portion of the
Building or otherwise. With respect to Expenses which Landlord allocates to
the Project as a whole or to only a portion of the Project, Tenant's
"PROPORTIONATE SHARE" shall be, with respect to Expenses which Landlord
allocates to the Project as a whole, the percentage set forth in the Basic
Lease Information as Tenant's Proportionate Share of the Project and, with
respect to Expenses which Landlord allocates to only a portion of the
Project, a percentage calculated by Landlord from time to time in its sole
discretion and furnished to Tenant in writing, in either case as adjusted by
Landlord from time to time for a remeasurement of or changes in the physical
size of the Premises or the Project, whether such changes in size are due to
an addition to or a sale or conveyance of a portion of the Project or
otherwise. Notwithstanding the foregoing, Landlord may equitably adjust
Tenant's Proportionate Share(s) for all or part of any item of expense or
cost reimbursable by Tenant that relates to a repair, replacement, or service
that benefits only the Premises or only a portion of the Building and/or the
Project or that varies with the occupancy of the Building and/or the Project.
Without limiting the generality of the foregoing, Tenant understands and
agrees that Landlord shall have the right to adjust Tenant's Proportionate
Share(s) of any Utility Expenses based upon Tenant's use of the Utilities or
similar services as reasonably estimated and determined by Landlord based
upon factors such as size of the Premises and intensity of use of such
Utilities by Tenant such that Tenant shall pay the portion of such charges
reasonably consistent with Tenant's use of such Utilities and similar
services. If Tenant disputes any such estimate or determination of Utility
Expenses, then Tenant shall either pay the estimated amount or cause the
Premises to be separately metered at Tenant's sole expense.
(d) GENERAL PAYMENT TERMS. The Base Rent, Additional Rent
and all other sums payable by Tenant to Landlord hereunder, including,
without limitation, payments of principal and interest on the Tenant
Improvements Loan (as defined in EXHIBIT B hereto), any late charges assessed
pursuant to Paragraph 6 below and any interest assessed pursuant to Paragraph
45 below, are referred to as the "RENT". All Rent shall be paid without
deduction, offset or abatement in lawful money of the United States of
America. Checks are to be made
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payable to Aetna Life Insurance Company and shall be mailed to: Xxxxxxx Park
Properties, Department #66268, Xx Xxxxx, Xxxxxxxxxx 00000-0000 or to such
other person or place as Landlord may, from time to time, designate to Tenant
in writing. The Rent for any fractional part of a calendar month at the
commencement or termination of the Lease term shall be a prorated amount of
the Rent for a full calendar month based upon a thirty (30) day month.
5. UTILITY EXPENSES.
(a) Tenant shall pay the cost of all water, sewer use, sewer
discharge fees and permit costs and sewer connection fees, gas, heat,
electricity, refuse pick-up, janitorial service, telephone and all materials
and services or other utilities (collectively, "UTILITIES") billed or metered
separately to the Premises and/or Tenant, together with all taxes,
assessments, charges and penalties added to or included within such cost.
Tenant acknowledges that the Premises, the Building and/or the Project may
become subject to the rationing of Utility services or restrictions on
Utility use as required by a public utility company, governmental agency or
other similar entity having jurisdiction thereof. Tenant acknowledges and
agrees that its tenancy and occupancy hereunder shall be subject to such
rationing or restrictions as may be imposed upon Landlord, Tenant, the
Premises, the Building and/or the Project, and Tenant shall in no event be
excused or relieved from any covenant or obligation to be kept or performed
by Tenant by reason of any such rationing or restrictions. Tenant agrees to
comply with energy conservation programs implemented by Landlord by reason of
rationing, restrictions or Laws.
(b) Landlord shall not be liable for any loss, injury or
damage to property caused by or resulting from any variation, interruption,
or failure of Utilities due to any cause whatsoever, or from failure to make
any repairs or perform any maintenance. No temporary interruption or failure
of such services incident to the making of repairs, alterations,
improvements, or due to accident, strike, or conditions or other events shall
be deemed an eviction of Tenant or relieve Tenant from any of its obligations
hereunder. In no event shall Landlord be liable to Tenant for any damage to
the Premises or for any loss, damage or injury to any property therein or
thereon occasioned by bursting, rupture, leakage or overflow of any plumbing
or other pipes (including, without limitation, water, steam, and/or
refrigerant lines), sprinklers, tanks, drains, drinking fountains or
washstands, or other similar cause in, above, upon or about the Premises, the
Building, or the Project.
6. LATE CHARGE. Notwithstanding any other provision of this
Lease, Tenant hereby acknowledges that late payment to Landlord of Rent, or
other amounts due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. If any Rent or other sums due from Tenant are not
received by Landlord or by Landlord's designated agent within five (5) days
after their due date, then Tenant shall pay to Landlord a late charge equal
to five percent (5%) of such overdue amount, plus any costs and attorneys'
fees incurred by Landlord by reason of Tenant's failure to pay Rent and/or
other charges when due hereunder. Landlord and Tenant hereby agree that such
late charges represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of Tenant's late payment and shall not be
construed as a penalty. Landlord's acceptance of such late charges shall not
constitute a waiver of Tenant's default with respect to such overdue amount
or estop Landlord from exercising any of the other rights and remedies
granted under this Lease.
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INITIALS: LANDLORD _________ TENANT _______
7. SECURITY DEPOSIT. Concurrently with Tenant's execution of
the Lease, Tenant shall deposit with Landlord the Security Deposit specified
in the Basic Lease Information as security for the full and faithful
performance of each and every term, covenant and condition of this Lease.
Landlord may use, apply or retain the whole or any part of the Security
Deposit as may be reasonably necessary (a) to remedy Tenant's default in the
payment of any Rent, (b) to repair damage to the Premises caused by Tenant,
(c) to clean the Premises upon termination of this Lease, (d) to reimburse
Landlord for the payment of any amount which Landlord may reasonably spend or
be required to spend by reason of Tenant's default, or (e) to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. Should Tenant faithfully and fully comply with all of the
terms, covenants and conditions of this Lease, within thirty (30) days
following the expiration of the Term, the Security Deposit or any balance
thereof shall be returned to Tenant or, at the option of Landlord, to the
last assignee of Tenant's interest in this Lease. Landlord shall not be
required to keep the Security Deposit separate from its general funds and
Tenant shall not be entitled to any interest on such deposit. If Landlord so
uses or applies all or any portion of said deposit, within five (5) days
after written demand therefor Tenant shall deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to the full extent of the
above amount, and Tenant's failure to do so shall be a default under this
Lease. In the event Landlord transfers its interest in this Lease, Landlord
shall transfer the then remaining amount of the Security Deposit to
Landlord's successor in interest, and thereafter Landlord shall have no
further liability to Tenant with respect to such Security Deposit.
8. POSSESSION.
(a) TENANT'S RIGHT OF POSSESSION. Subject to Paragraphs
8(b) and 8(c), Tenant shall be entitled to possession of the Premises upon
commencement of the Term.
(b) EARLY OCCUPANCY. Notwithstanding anything to the
contrary contained herein, Tenant shall have the right to enter upon the
Premises at times acceptable to Landlord during the fifteen (15) day period
prior to the Commencement Date for the sole purpose of installing Tenant's
telephone cabling and furniture, provided that Tenant shall not interfere
with the construction and installation of the Tenant Improvements nor conduct
its business in the Premises during such period, and provided further, that
such entry shall be subject to all of the terms and conditions of this Lease,
excluding only the obligation to pay Rent.
(c) DELAY IN DELIVERING POSSESSION. If for any reason
whatsoever, Landlord cannot deliver possession of the Premises to Tenant on or
before the Estimated Commencement Date, this Lease shall not be void or
voidable, nor shall Landlord, or Landlord's agents, advisors, employees,
partners, shareholders, directors, invitees or independent contractors
(collectively, "LANDLORD'S AGENTS"), be liable to Tenant for any loss or damage
resulting therefrom. Tenant shall not be liable for Rent until Landlord delivers
possession of the Premises to Tenant. The Expiration Date shall be extended by
the same number of days that Tenant's possession of the Premises was delayed
beyond the Estimated Commencement Date.
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9. USE OF PREMISES.
(a) PERMITTED USE. The use of the Premises by Tenant and
Tenant's agents, advisors, employees, partners, shareholders, directors,
invitees and independent contractors (collectively, "TENANT'S AGENTS") shall
be solely for the Permitted Use specified in the Basic Lease Information and
for no other use. Tenant shall not permit any objectionable or unpleasant
odor, smoke, dust, gas, noise or vibration to emanate from or near the
Premises. The Premises shall not be used to create any nuisance or trespass,
for any illegal purpose, for any purpose not permitted by Laws, for any
purpose that would invalidate the insurance or increase the premiums for
insurance on the Premises, the Building or the Project or for any purpose or
in any manner that would interfere with other tenants' use or occupancy of
the Project. If any of Tenant's office machines or equipment disturb any
other tenant in the Building, then Tenant shall provide adequate insulation
or take such other action as may be necessary to eliminate the noise or
disturbance. Tenant agrees to pay to Landlord, as Additional Rent, any
increases in premiums on policies resulting from Tenant's Permitted Use or
any other use or action by Tenant or Tenant's Agents which increases
Landlord's premiums or requires additional coverage by Landlord to insure the
Premises. Tenant agrees not to overload the floor(s) of the Building.
(b) COMPLIANCE WITH GOVERNMENTAL REGULATIONS AND PRIVATE
RESTRICTIONS. Tenant and Tenant's Agents shall, at Tenant's expense, faithfully
observe and comply with (1) all municipal, state and federal laws, statutes,
codes, rules, regulations, ordinances, requirements, and orders (collectively,
"LAWS"), now in force or which may hereafter be in force pertaining to the
Premises or Tenant's use of the Premises, the Building or the Project, including
without limitation, any Laws requiring installation of fire sprinkler systems,
seismic reinforcement and related alterations, and removal of asbestos, whether
substantial in cost or otherwise, provided, however, that except as provided in
Paragraph 9(c) below, Tenant shall not be required to make or, except as
provided in Paragraph 4 above, pay for, structural changes to the Premises or
the Building not related to Tenant's specific use of the Premises unless the
requirement for such changes is imposed as a result of any improvements or
additions made or proposed to be made at Tenant's request; (2) all recorded
covenants, conditions and restrictions affecting the Project ("PRIVATE
RESTRICTIONS") now in force or which may hereafter be in force; and (3) any and
all rules and regulations set forth in EXHIBIT D and any other rules and
regulations now or hereafter promulgated by Landlord related to parking or the
operation of the Premises, the Building and/or the Project (collectively, the
"RULES AND REGULATIONS"). The judgment of any court of competent jurisdiction,
or the admission of Tenant in any action or proceeding against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any such Laws or
Private Restrictions, shall be conclusive of that fact as between Landlord and
Tenant.
(c) COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT. Landlord
and Tenant hereby agree and acknowledge that the Premises, the Building and/or
the Project may be subject to, among other Laws, the requirements of the
Americans with Disabilities Act, a federal law codified at 42 U.S.C. 12101 ET
SEQ., including, but not limited to Title III thereof, and all regulations and
guidelines related thereto, together with any and all laws, rules, regulations,
ordinances, codes and statutes now or hereafter enacted by local or state
agencies having jurisdiction thereof, including all requirements of Title 24 of
the State of California, as the same may be in effect on the date of this Lease
and may be hereafter modified, amended or
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supplemented (collectively, the "ADA"). Any Tenant Improvements to be
constructed hereunder shall be in compliance with the requirements of the
ADA, and all costs incurred for purposes of compliance therewith shall be a
part of and included in the costs of the Tenant Improvements. Tenant shall be
solely responsible for conducting its own independent investigation of this
matter and for ensuring that the design of all Tenant Improvements strictly
complies with all requirements of the ADA. Subject to reimbursement pursuant
to Paragraph 4 above, if any barrier removal work or other work is required
to the Building, the Common Areas or the Project under the ADA, then such
work shall be the responsibility of Landlord; provided, if such work is
required under the ADA as a result of Tenant's use of the Premises or any
work or Alteration (as hereinafter defined) made to the Premises by or on
behalf of Tenant, then such work shall be performed by Landlord at the sole
cost and expense of Tenant. Except as otherwise expressly provided in this
provision, Tenant shall be responsible at its sole cost and expense for fully
and faithfully complying with all applicable requirements of the ADA,
including without limitation, not discriminating against any disabled persons
in the operation of Tenant's business in or about the Premises, and offering
or otherwise providing auxiliary aids and services as, and when, required by
the ADA. Within ten (10) days after receipt, Tenant shall advise Landlord in
writing, and provide Landlord with copies of (as applicable), any notices
alleging violation of the ADA relating to any portion of the Premises, the
Building or the Project; any claims made or threatened orally or in writing
regarding noncompliance with the ADA and relating to any portion of the
Premises, the Building, or the Project; or any governmental or regulatory
actions or investigations instituted or threatened regarding noncompliance
with the ADA and relating to any portion of the Premises, the Building or the
Project. Tenant shall and hereby agrees to protect, defend (with counsel
acceptable to Landlord) and hold Landlord and Landlord's Agents harmless and
indemnify Landlord and Landlord's Agents from and against all liabilities,
damages, claims, losses, penalties, judgments, charges and expenses
(including attorneys' fees, costs of court and expenses necessary in the
prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly,
Tenant's or Tenant's Agents' violation or alleged violation of the ADA.
Tenant agrees that the obligations of Tenant herein shall survive the
expiration or earlier termination of this Lease.
10. ACCEPTANCE OF PREMISES.
(a) By entry hereunder, Tenant accepts the Premises as suitable for
Tenant's intended use and as being in good and sanitary operating order,
condition and repair, AS IS, and without representation or warranty by
Landlord as to the condition, use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant.
(b) Notwithstanding the terms of Paragraph 10(a) above, Landlord
shall cause the mechanical, electrical and plumbing systems serving the
Premises to be in good working order and the roof on the Building to be in
good condition on the Commencement Date. Any claims by Tenant under the
preceding sentence shall be made in writing not later than the thirtieth
(30th) day after the Commencement Date. In the event Tenant fails to deliver
a written claim to Landlord on or before such thirtieth (30th) day, then
Landlord shall be conclusively deemed to have satisfied its obligations under
this Paragraph 10(b).
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11. SURRENDER. Tenant agrees that on the last day of the Term, or on the
sooner termination of this Lease, Tenant shall surrender the Premises to
Landlord (a) in good condition and repair (damage by acts of God, fire, and
normal wear and tear excepted), but with all interior walls painted or
cleaned so they appear painted, any carpets cleaned, all floors cleaned and
waxed, all non-working light bulbs and ballasts replaced and all roll-up
doors and plumbing fixtures in good condition and working order, and (b)
otherwise in accordance with Paragraph 32(h). Normal wear and tear shall not
include any damage or deterioration to the floors of the Premises arising
from the use of forklifts in, on or about the Premises (including, without
limitation, any marks or stains on any portion of the floors), and any damage
or deterioration that would have been prevented by proper maintenance by
Tenant, or Tenant otherwise performing all of its obligations under this
Lease. On or before the expiration or sooner termination of this Lease, (i)
Tenant shall remove all of Tenant's Property (as hereinafter defined) and
Tenant's signage from the Premises, the Building and the Project and repair
any damage caused by such removal, and (ii) Landlord may, by notice to Tenant
given not later than ninety (90) days prior to the Expiration Date (except in
the event of a termination of this Lease prior to the scheduled Expiration
Date, in which event no advance notice shall be required), require Tenant at
Tenant's expense to remove any or all Alterations and to repair any damage
caused by such removal. Any of Tenant's Property not so removed by Tenant as
required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and
disposition of such property; provided, however, that Tenant shall remain
liable to Landlord for all costs incurred in storing and disposing of such
abandoned property of Tenant. All Tenant Improvements and Alterations except
those which Landlord requires Tenant to remove shall remain in the Premises
as the property of Landlord. If the Premises are not surrendered at the end
of the Term or sooner termination of this Lease, and in accordance with the
provisions of this Paragraph 11 and Paragraph 32(h) below, Tenant shall
continue to be responsible for the payment of Rent (as the same may be
increased pursuant to Paragraph 35 below) until the Premises are so
surrendered in accordance with said Paragraphs, and Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all loss or
liability resulting from delay by Tenant in so surrendering the Premises
including, without limitation, any loss or liability resulting from any claim
against Landlord made by any succeeding tenant or prospective tenant founded
on or resulting from such delay and losses to Landlord due to lost
opportunities to lease any portion of the Premises to any such succeeding
tenant or prospective tenant, together with, in each case, actual attorneys'
fees and costs.
12. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not make, or permit to be made, any alteration,
addition or improvement (hereinafter referred to individually as an
"ALTERATION" and collectively as the "ALTERATIONS") to the Premises or any
part thereof without the prior written consent of Landlord, which consent
shall not be unreasonably withheld; provided, however, that Landlord shall
have the right in its sole and absolute discretion to consent or to withhold
its consent to any Alteration which affects the structural portions of the
Premises, the Building or the Project or the Systems serving the Premises,
the Building and/or the Project or any portion thereof (collectively,
"STRUCTURAL ALTERATIONS"). Notwithstanding the foregoing, Tenant shall have
the right to make Alterations (specifically excluding, however, Structural
Alterations) to the Premises with prior notice to but without the consent of
Landlord, provided that such Alterations are constructed and
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performed in full compliance with the terms of Paragraphs 12(b) through (f)
below and do not exceed Ten Thousand Dollars ($10,000) in cost on an
individual basis or Twenty Thousand Dollars ($20,000) in the aggregate over
the Term of this Lease (collectively, "PERMITTED ALTERATIONS").
(b) Any Alteration to the Premises shall be at Tenant's sole cost
and expense, in compliance with all applicable Laws and all requirements
requested by Landlord, including, without limitation, the requirements of any
insurer providing coverage for the Premises or the Project or any part
thereof, and in accordance with plans and specifications approved in writing
by Landlord, and shall be constructed and installed by a contractor approved
in writing by Landlord. As a further condition to giving consent, Landlord
may require Tenant to provide Landlord, at Tenant's sole cost and expense, a
payment and performance bond in form acceptable to Landlord, in a principal
amount not less than one and one-half times the estimated costs of such
Alterations, to ensure Landlord against any liability for mechanic's and
materialmen's liens and to ensure completion of work. Before Alterations may
begin, valid building permits or other permits or licenses required must be
furnished to Landlord, and, once the Alterations begin, Tenant will
diligently and continuously pursue their completion. Landlord may monitor
construction of the Alterations and Tenant shall reimburse Landlord for its
costs (including, without limitation, the costs of any construction manager
retained by Landlord) in reviewing plans and documents and in monitoring
construction. Tenant shall maintain during the course of construction, at its
sole cost and expense, builders' risk insurance for the amount of the
completed value of the Alterations on an all-risk non-reporting form covering
all improvements under construction, including building materials, and other
insurance in amounts and against such risks as Landlord shall reasonably
require in connection with the Alterations. In addition to and without
limitation on the generality of the foregoing, Tenant shall ensure that its
contractor(s) procure and maintain in full force and effect during the course
of construction a "broad form" commercial general liability and property
damage policy of insurance naming Landlord, Landlord's investment advisor and
agent, Allegis Realty Investors LLC, Tenant and Landlord's lenders as
additional insureds. The minimum limit of coverage of the aforesaid policy
shall be in the amount of not less than Three Million Dollars ($3,000,000.00)
for injury or death of one person in any one accident or occurrence and in
the amount of not less than Three Million Dollars ($3,000,000.00) for injury
or death of more than one person in any one accident or occurrence, and shall
contain a Severability of interest clause or a cross liability endorsement.
Such insurance shall further insure Landlord and Tenant against liability for
property damage of at least One Million Dollars ($1,000,000.00).
(c) All Alterations, including, but not limited to, heating,
lighting, electrical, air conditioning, fixed partitioning, drapery, wall
covering and paneling, built-in cabinet work and carpeting installations made
by Tenant, together with all property that has become an integral part of the
Premises or the Building, shall at once be and become the property of
Landlord, and shall not be deemed trade fixtures or Tenant's Property. If
requested by Landlord, Tenant will pay, prior to the commencement of
construction, an amount determined by Landlord necessary to cover the costs
of demolishing such Alterations and/or the cost of returning the Premises and
the Building to its condition prior to such Alterations.
(d) No private telephone systems and/or other related computer or
telecommunications equipment or lines may be installed without Landlord's
prior written
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consent. If Landlord gives such consent, all equipment must be installed
within the Premises and, at the request of Landlord made at any time prior to
the expiration of the Term, removed upon the expiration or sooner termination
of this Lease and the Premises restored to the same condition as before such
installation.
(e) Notwithstanding anything herein to the contrary, before
installing any equipment or lights which generate an undue amount of heat in
the Premises, or if Tenant plans to use any high-power usage equipment in the
Premises, Tenant shall obtain the written permission of Landlord. Landlord
may refuse to grant such permission unless Tenant agrees to pay the costs to
Landlord for installation of supplementary air conditioning capacity or
electrical systems necessitated by such equipment.
(f) Tenant agrees not to proceed to make any Alterations,
notwithstanding consent from Landlord to do so, until Tenant notifies
Landlord in writing of the date Tenant desires to commence construction or
installation of such Alterations and Landlord has approved such date in
writing, in order that Landlord may post appropriate notices to avoid any
liability to contractors or material suppliers for payment for Tenant's
improvements. Tenant will at all times permit such notices to be posted and
to remain posted until the completion of work.
13. MAINTENANCE AND REPAIRS OF PREMISES.
(a) MAINTENANCE BY TENANT. Throughout the Term, Tenant shall, at its
sole expense, (1) keep and maintain in good order and condition the Premises,
and repair and replace every part thereof, including glass, windows, window
frames, window casements, skylights, interior and exterior doors, door frames
and door closers; interior lighting (including, without limitation, light
bulbs and ballasts), the plumbing and electrical systems exclusively serving
the Premises, all communications systems serving the Premises, Tenant's
signage, interior demising walls and partitions, equipment, interior painting
and interior walls and floors, and the roll-up doors, ramps and dock
equipment, including, without limitation, dock bumpers, dock plates, dock
seals, dock levelers and dock lights located in or on the Premises (excepting
only those portions of the Building or the Project to be maintained by
Landlord, as provided in Paragraph 13(b) below), (2) furnish all expendables,
including light bulbs, paper goods and soaps, used in the Premises, and (3)
keep and maintain in good order and condition, repair and replace all of
Tenant's security systems in or about or serving the Premises and, except to
the extent that Landlord notifies Tenant in writing of its intention to
arrange for such monitoring, cause the fire alarm systems serving the
Premises to be monitored by a monitoring or protective services firm approved
by Landlord in writing. Tenant shall not do nor shall Tenant allow Tenant's
Agents to do anything to cause any damage, deterioration or unsightliness to
the Premises, the Building or the Project.
(b) MAINTENANCE BY LANDLORD. Subject to the provisions of Paragraphs
13(a), 21 and 22, and further subject to Tenant's obligation under Paragraph
4 to reimburse Landlord, in the form of Additional Rent, for Tenant's
Proportionate Share(s) of the cost and expense of the following items,
Landlord agrees to repair and maintain the following items: the roof
coverings (provided that Tenant installs no additional air conditioning or
other equipment on the roof that damages the roof coverings, in which event
Tenant shall pay all costs resulting from the presence of such additional
equipment); the Systems serving the Premises and the Building,
14
excluding the plumbing and electrical systems exclusively serving the
Premises; and the Parking Areas, pavement, landscaping, sprinkler systems,
sidewalks, driveways, curbs, and lighting systems in the Common Areas.
Subject to the provisions of Paragraphs 13(a), 21 and 22, Landlord, at its
own cost and expense, agrees to repair and maintain the following items: the
structural portions of the roof (specifically excluding the roof coverings),
the foundation, the footings, the floor slab, and the load bearing walls and
exterior walls of the Building (excluding any glass and any routine
maintenance, including, without limitation, any painting, sealing, patching
and waterproofing of such walls). Notwithstanding anything in this Paragraph
13 to the contrary, Landlord shall have the right to either repair or to
require Tenant to repair any damage to any portion of the Premises, the
Building and/or the Project caused by or created due to any act, omission,
negligence or willful misconduct of Tenant or Tenant's Agents and to restore
the Premises, the Building and/or the Project, as applicable, to the
condition existing prior to the occurrence of such damage; provided, however,
that in the event Landlord elects to perform such repair and restoration
work, Tenant shall reimburse Landlord upon demand for all costs and expenses
incurred by Landlord in connection therewith. Landlord's obligation hereunder
to repair and maintain is subject to the condition precedent that Landlord
shall have received written notice of the need for such repairs and
maintenance and a reasonable time to perform such repair and maintenance.
Tenant shall promptly report in writing to Landlord any defective condition
known to it which Landlord is required to repair, and failure to so report
such defects shall make Tenant responsible to Landlord for any liability
incurred by Landlord by reason of such condition.
(c) TENANT'S WAIVER OF RIGHTS. Tenant hereby expressly waives all
rights to make repairs at the expense of Landlord or to terminate this Lease,
as provided for in California Civil Code Sections 1941 and 1942, and 1932(l),
respectively, and any similar or successor statute or law in effect or any
amendment thereof during the Term.
14. LANDLORD'S INSURANCE. Landlord shall purchase and keep in force fire,
extended coverage and "all risk" insurance covering the Building and the
Project. Tenant shall, at its sole cost and expense, comply with any and all
reasonable requirements pertaining to the Premises, the Building and the
Project of any insurer necessary for the maintenance of reasonable fire and
commercial general liability insurance, covering the Building and the
Project. Landlord, at Tenant's cost, may maintain "Loss of Rents" insurance,
insuring that the Rent will be paid in a timely manner to Landlord for a
period of at least twelve (12) months if the Premises, the Building or the
Project or any portion thereof are destroyed or rendered unusable or
inaccessible by any cause insured against under this Lease.
15. TENANT'S INSURANCE.
(a) COMMERCIAL GENERAL LIABILITY INSURANCE. Tenant shall, at
Tenant's expense, secure and keep in force a "broad form" commercial general
liability insurance and property damage policy covering the Premises,
insuring Tenant, and naming Landlord, Landlord's investment advisors and
agents from time to time, including, without limitation, Allegis Realty
Investors LLC, and Landlord's lenders as additional insureds, against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises. The minimum limit of coverage of such policy shall be in the amount
of not less than Three Million Dollars ($3,000,000.00) for injury or death of
one person in any one accident or occurrence and in the
15
amount of not less than Three Million Dollars ($3,000,000.00) for injury or
death of more than one person in any one accident or occurrence, shall
include an extended liability endorsement providing contractual liability
coverage (which shall include coverage for Tenant's indemnification
obligations in this Lease), and shall contain a severability of interest
clause or a cross liability endorsement. Such insurance shall further insure
Landlord and Tenant against liability for property damage of at least Three
Million Dollars ($3,000,000.00). Landlord may from time to time require
reasonable increases in any such limits if Landlord believes that additional
coverage is necessary or desirable. The limit of any insurance shall not
limit the liability of Tenant hereunder. No policy maintained by Tenant under
this Paragraph 15(a) shall contain a deductible greater than Two Thousand
Five Hundred Dollars ($2,500.00). No policy shall be cancelable or subject to
reduction of coverage without thirty (30) days prior written notice to
Landlord, and loss payable clauses shall be subject to Landlord's approval.
Such policies of insurance shall be issued as primary policies and not
contributing with or in excess of coverage that Landlord may carry, by an
insurance company authorized to do business in the State of California for
the issuance of such type of insurance coverage and rated A:XIII or better in
Best's Key Rating Guide.
(b) PERSONAL PROPERTY INSURANCE. Tenant shall maintain in full force
and effect on all of its personal property, furniture, furnishings, trade or
business fixtures and equipment (collectively, "TENANT'S PROPERTY") on the
Premises, a policy or policies of fire and extended coverage insurance with
standard coverage endorsement to the extent of the full replacement cost
thereof. No such policy shall contain a deductible greater than Two Thousand
Five Hundred Dollars ($2,500.00). During the term of this Lease the proceeds
from any such policy or policies of insurance shall be used for the repair or
replacement of the fixtures and equipment so insured. Landlord shall have no
interest in the insurance upon Tenant's equipment and fixtures and will sign
all documents reasonably necessary in connection with the settlement of any
claim or loss by Tenant. Landlord will not carry insurance on Tenant's
possessions.
(c) WORKER'S COMPENSATION INSURANCE; EMPLOYER'S LIABILITY INSURANCE.
Tenant shall, at Tenant's expense, maintain in full force and effect worker's
compensation insurance with not less than the minimum limits required by law,
and employer's liability insurance with a minimum limit of coverage of One
Million Dollars ($1,000,000).
(d) EVIDENCE OF COVERAGE. Tenant shall deliver to Landlord
certificates of insurance and true and complete copies of any and all
endorsements required herein for all insurance required to be maintained by
Tenant hereunder at the time of execution of this Lease by Tenant. Tenant
shall, at least thirty (30) days prior to expiration of each policy, furnish
Landlord with certificates of renewal or "binders" thereof. Each certificate
shall expressly provide that such policies shall not be cancelable or
otherwise subject to modification except after thirty (30) days prior written
notice to Landlord and the other parties named as additional insureds as
required in this Lease (except for cancellation for nonpayment of premium, in
which event cancellation shall not take effect until at least ten (10) days
notice has been given to Landlord).
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16. INDEMNIFICATION.
(a) OF LANDLORD. Tenant shall indemnify and hold harmless Landlord
and Landlord's Agents against and from any and all claims, liabilities,
judgments, costs, demands, causes of action and expenses (including, without
limitation, reasonable attorneys' fees) arising from (1) the use of the
Premises, the Building or the Project by Tenant or Tenant's Agents, or from
any activity done, permitted or suffered by Tenant or Tenant's Agents in or
about the Premises, the Building or the Project, and (2) any act, neglect,
fault, willful misconduct or omission of Tenant or Tenant's Agents, or from
any breach or default in the terms of this Lease by Tenant or Tenant's
Agents, and (3) any action or proceeding brought on account of any matter in
items (1) or (2). If any action or proceeding is brought against Landlord by
reason of any such claim, upon notice from Landlord, Tenant shall defend the
same at Tenant's expense by counsel reasonably satisfactory to Landlord. As a
material part of the consideration to Landlord, Tenant hereby releases
Landlord and Landlord's Agents from responsibility for, waives its entire
claim of recovery for and assumes all risk of (i) damage to property or
injury to persons in or about the Premises, the Building or the Project from
any cause whatsoever (except that which is caused by the gross negligence or
willful misconduct of Landlord or Landlord's Agents or by the failure of
Landlord to observe any of the terms and conditions of this Lease, if such
failure has persisted for an unreasonable period of time after written notice
of such failure), or (ii) loss resulting from business interruption or loss
of income at the Premises. The obligations of Tenant under this Paragraph 16
shall survive any termination of this Lease.
(b) NO IMPAIRMENT OF INSURANCE. The foregoing indemnity shall not
relieve any insurance carrier of its obligations under any policies required
to be carried by either party pursuant to this Lease, to the extent that such
policies cover the peril or occurrence that results in the claim that is
subject to the foregoing indemnity.
17. SUBROGATION. Landlord and Tenant hereby mutually waive any claim
against the other and its Agents for any loss or damage to any of their
property located on or about the Premises, the Building or the Project that
is caused by or results from perils covered by property insurance carried by
the respective parties, to the extent of the proceeds of such insurance
actually received with respect to such loss or damage, whether or not due to
the negligence of the other party or its Agents. Because the foregoing
waivers will preclude the assignment of any claim by way of subrogation to an
insurance company or any other person, each party now agrees to immediately
give to its insurer written notice of the terms of these mutual waivers and
shall have their insurance policies endorsed to prevent the invalidation of
the insurance coverage because of these waivers. Nothing in this Paragraph 17
shall relieve a party of liability to the other for failure to carry
insurance required by this Lease.
18. SIGNS. Tenant shall not place or permit to be placed in, upon, or
about the Premises, the Building or the Project any exterior lights,
decorations, balloons, flags, pennants, banners, advertisements or notices,
or erect or install any signs, windows or door lettering, placards,
decorations, or advertising media of any type which can be viewed from the
exterior the Premises without obtaining Landlord's prior written consent or
without complying with Landlord's signage criteria specified on EXHIBIT E
hereto, as the same may be modified by Landlord from time to time, and with
all applicable Laws, and will not conduct, or permit to be conducted, any
sale by auction on the Premises or otherwise on the Project. Subject to
17
complying with the terms of this Paragraph 18, Tenant shall have the right to
place identification signage on the two (2) monument signs existing on the
Project on the date of this Lease. Tenant shall remove any sign,
advertisement or notice placed on the Premises, the Building or the Project
by Tenant upon the expiration of the Term or sooner termination of this
Lease, and Tenant shall repair any damage or injury to the Premises, the
Building or the Project caused thereby, all at Tenant's expense. If any signs
are not removed, or necessary repairs not made, Landlord shall have the right
to remove the signs and repair any damage or injury to the Premises, the
Building or the Project at Tenant's sole cost and expense.
19. FREE FROM LIENS. Tenant shall keep the Premises, the Building and the
Project free from any liens arising out of any work performed, material
furnished or obligations incurred by or for Tenant. In the event that Tenant
shall not, within ten (10) days following the imposition of any such lien,
cause the lien to be released of record by payment or posting of a proper
bond, Landlord shall have in addition to all other remedies provided herein
and by law the right but not the obligation to cause same to be released by
such means as it shall deem proper, including payment of the claim giving
rise to such lien. All such sums paid by Landlord and all expenses incurred
by it in connection therewith (including, without limitation, attorneys'
fees) shall be payable to Landlord by Tenant upon demand. Landlord shall have
the right at all times to post and keep posted on the Premises any notices
permitted or required by law or that Landlord shall deem proper for the
protection of Landlord, the Premises, the Building and the Project, from
mechanics' and materialmen's liens. Tenant shall give to Landlord at least
five (5) business days' prior written notice of commencement of any repair or
construction on the Premises.
20. ENTRY BY LANDLORD. Tenant shall permit Landlord and Landlord's Agents
to enter into and upon the Premises at all reasonable times, upon reasonable
notice (except in the case of an emergency, for which no notice shall be
required), and subject to Tenant's reasonable security arrangements, for the
purpose of inspecting the same or showing the Premises to prospective
purchasers, lenders or tenants or to alter, improve, maintain and repair the
Premises or the Building as required or permitted of Landlord under the terms
hereof, or for any other business purpose, without any rebate of Rent and
without any liability to Tenant for any loss of occupation or quiet enjoyment
of the Premises thereby occasioned (except for actual damages resulting from
the sole active gross negligence or willful misconduct of Landlord); and
Tenant shall permit Landlord to post notices of non-responsibility and
ordinary "for sale" or "for lease" signs. No such entry shall be construed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction of Tenant from the Premises. Landlord may temporarily close
entrances, doors, corridors, elevators or other facilities without liability
to Tenant by reason of such closure in the case of an emergency and when
Landlord otherwise deems such closure necessary.
21. DESTRUCTION AND DAMAGE.
(a) If the Premises are damaged by fire or other perils covered by
extended coverage insurance, Landlord shall, at Landlord's option:
(1) In the event of total destruction (which shall mean
destruction or damage in excess of thirty-three percent (33%) of the full
insurable value thereof) of the
18
Premises, elect either to commence promptly to repair and restore the
Premises and prosecute the same diligently to completion, in which event this
Lease shall remain in full force and effect; or not to repair or restore the
Premises, in which event this Lease shall terminate. Landlord shall give
Tenant written notice of its intention within sixty (60) days after the date
(the "CASUALTY DISCOVERY DATE") Landlord obtains actual knowledge of such
destruction. If Landlord elects not to restore the Premises, this Lease shall
be deemed to have terminated as of the date of such total destruction.
(2) In the event of a partial destruction (which shall mean
destruction or damage to an extent not exceeding thirty-three percent (33%)
of the full insurable value thereof) of the Premises for which Landlord will
receive insurance proceeds sufficient to cover the cost to repair and restore
such partial destruction and, if the damage thereto is such that the Premises
may be substantially repaired or restored to its condition existing
immediately prior to such damage or destruction within one hundred eighty
(180) days from the Casualty Discovery Date, Landlord shall commence and
proceed diligently with the work of repair and restoration, in which event
the Lease shall continue in full force and effect. If such repair and
restoration requires longer than one hundred eighty (180) days or if the
insurance proceeds therefor (plus any amounts Tenant may elect or is
obligated to contribute) are not sufficient to cover the cost of such repair
and restoration, Landlord may elect either to so repair and restore, in which
event the Lease shall continue in full force and effect, or not to repair or
restore, in which event the Lease shall terminate. In either case, Landlord
shall give written notice to Tenant of its intention within sixty (60) days
after the Casualty Discovery Date. If Landlord elects not to restore the
Premises, this Lease shall be deemed to have terminated as of the date of
such partial destruction.
(3) Notwithstanding anything to the contrary contained in this
Paragraph, in the event of damage to the Premises occurring during the last
twelve (12) months of the Term, Landlord and Tenant shall each have the right
to terminate this Lease by written notice of such election given to the other
party within thirty (30) days after the Casualty Discovery Date; provided,
however, that Tenant shall have the right to terminate this Lease pursuant to
this Paragraph 21(a)(3) only if Tenant's use and occupancy of the Premises
are materially interfered with as a result of such damage.
(b) If the Premises are damaged by any peril not covered by extended
coverage insurance, and the cost to repair such damage exceeds any amount
Tenant may agree to contribute, Landlord may elect either to commence
promptly to repair and restore the Premises and prosecute the same diligently
to completion, in which event this Lease shall remain in full force and
effect; or not to repair or restore the Premises, in which event this Lease
shall terminate. Landlord shall give Tenant written notice of its intention
within sixty (60) days after the Casualty Discovery Date. If Landlord elects
not to restore the Premises, this Lease shall be deemed to have terminated as
of the date on which Tenant surrenders possession of the Premises to
Landlord, except that if the damage to the Premises materially impairs
Tenant's ability to continue its business operations in the Premises, then
this Lease shall be deemed to have terminated as of the date such damage
occurred.
(c) Notwithstanding anything to the contrary in this Xxxxxxxxx 00,
Xxxxxxxx shall have the option to terminate this Lease, exercisable by notice
to Tenant within sixty (60) days after the Casualty Discovery Date, in each
of the following instances:
19
(1) If more than thirty-three percent (33%) of the full
insurable value of the Building or the Project is damaged or destroyed,
regardless of whether or not the Premises are destroyed.
(2) If the Building or the Project or any portion thereof is
damaged or destroyed and the repair and restoration of such damage requires
longer than one hundred eighty (180) days from the Casualty Discovery Date.
(3) If the Building or the Project or any portion thereof is
damaged or destroyed and the insurance proceeds therefor are not sufficient
to cover the costs of repair and restoration.
(4) If the Building or the Project or any portion thereof is
damaged or destroyed during the last twelve (12) months of the Term.
(d) If the Premises is damaged or destroyed to the extent that the
Premises cannot be substantially repaired or restored by Landlord within one
hundred eighty (180) days after the Casualty Discovery Date, Tenant may
terminate this Lease immediately upon notice thereof to Landlord, which
notice shall be given, if at all, not later than fifteen (15) days after
Landlord notifies Tenant of Landlord's estimate of the period of time
required to repair such damage or destruction.
(e) In the event of repair and restoration as herein provided, the
monthly installments of Base Rent shall be abated proportionately in the
ratio which Tenant's use of the Premises is impaired during the period of
such repair or restoration, but only to the extent of rental abatement
insurance proceeds received by Landlord; provided, however, that Tenant shall
not be entitled to such abatement to the extent that such damage or
destruction resulted from the acts or inaction of Tenant or Tenant's Agents.
Except as expressly provided in the immediately preceding sentence with
respect to abatement of Base Rent, Tenant shall have no claim against
Landlord for, and hereby releases Landlord and Landlord's Agents from
responsibility for and waives its entire claim of recovery for any cost, loss
or expense suffered or incurred by Tenant as a result of any damage to or
destruction of the Premises, the Building or the Project or the repair or
restoration thereof, including, without limitation, any cost, loss or expense
resulting from any loss of use of the whole or any part of the Premises, the
Building or the Project and/or any inconvenience or annoyance occasioned by
such damage, repair or restoration.
(f) If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall repair or restore only the initial tenant
improvements, if any, constructed by Landlord in the Premises pursuant to the
terms of this Lease, substantially to their condition existing immediately
prior to the occurrence of the damage or destruction; and Tenant shall
promptly repair and restore, at Tenant's expense, Tenant's Alterations which
were not constructed by Landlord.
(g) Tenant hereby waives the provisions of California Civil Code
Section 1932(2) and Section 1933(4) which permit termination of a lease upon
destruction of the leased premises, and the provisions of any similar law now
or hereinafter in effect, and the provisions of this Paragraph 22 shall
govern exclusively in case of such destruction.
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22. CONDEMNATION.
(a) If twenty-five percent (25%) or more of either the Premises, the
Building or the Project or the parking areas for the Building or the Project
is taken for any public or quasi-public purpose by any lawful governmental
power or authority, by exercise of the right of appropriation, inverse
condemnation, condemnation or eminent domain, or sold to prevent such taking
(each such event being referred to as a "CONDEMNATION"), Landlord may, at its
option, terminate this Lease as of the date title vests in the condemning
party. If twenty-five percent (25%) or more of the Premises is taken and if
the Premises remaining after such Condemnation and any repairs by Landlord
would be untenantable for the conduct of Tenant's business operations, Tenant
shall have the right to terminate this Lease as of the date title vests in
the condemning party. If either party elects to terminate this Lease as
provided herein, such election shall be made by written notice to the other
party given within thirty (30) days after the nature and extent of such
Condemnation have been finally determined. If neither Landlord nor Tenant
elects to terminate this Lease to the extent permitted above, Landlord shall
promptly proceed to restore the Premises, to the extent of any Condemnation
award received by Landlord, to substantially the same condition as existed
prior to such Condemnation, allowing for the reasonable effects of such
Condemnation, and a proportionate abatement shall be made to the Base Rent
corresponding to the time during which, and to the portion of the floor area
of the Premises (adjusted for any increase thereto resulting from any
reconstruction) of which, Tenant is deprived on account of such Condemnation
and restoration, as reasonably determined by Landlord. Except as expressly
provided in the immediately preceding sentence with respect to abatement of
Base Rent, Tenant shall have no claim against Landlord for, and hereby
releases Landlord and Landlord's Agents from responsibility for and waives
its entire claim of recovery for any cost, loss or expense suffered or
incurred by Tenant as a result of any Condemnation or the repair or
restoration of the Premises, the Building or the Project or the parking areas
for the Building or the Project following such Condemnation, including,
without limitation, any cost, loss or expense resulting from any loss of use
of the whole or any part of the Premises, the Building, the Project or the
parking areas and/or any inconvenience or annoyance occasioned by such
Condemnation, repair or restoration. The provisions of California Code of
Civil Procedure Section 1265.130, which allows either party to petition the
Superior Court to terminate the Lease in the event of a partial taking of the
Premises, the Building or the Project or the parking areas for the Building
or the Project, and any other applicable law now or hereafter enacted, are
hereby waived by Tenant.
(b) Landlord shall be entitled to any and all compensation, damages,
income, rent, awards, or any interest therein whatsoever which may be paid or
made in connection with any Condemnation, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease or
otherwise; provided, however, that Tenant shall be entitled to receive any
award separately allocated by the condemning authority to Tenant for Tenant's
relocation expenses or the value of Tenant's Property (specifically excluding
fixtures, Alterations and other components of the Premises which under this
Lease or by law are or at the expiration of the Term will become the property
of Landlord), provided that such award does not reduce any award otherwise
allocable or payable to Landlord.
21
23. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not voluntarily or by operation of law, (1)
mortgage, pledge, hypothecate or encumber this Lease or any interest herein,
(2) assign or transfer this Lease or any interest herein, sublease the
Premises or any part thereof, or any right or privilege appurtenant thereto,
or allow any other person (the employees and invitees of Tenant excepted) to
occupy or use the Premises, or any portion thereof, without first obtaining
the written consent of Landlord, which consent shall not be withheld
unreasonably provided that (i) Tenant is not then in Default under this Lease
nor is any event then occurring which with the giving of notice or the
passage of time, or both, would constitute a Default hereunder, and (ii) the
proposed transfer is not an assignment or a sublease under a previous
assignment or an existing sublease. When Tenant requests Landlord's consent
to such assignment or subletting, it shall notify Landlord in writing of the
name and address of the proposed assignee or subtenant and the nature and
character of the business of the proposed assignee or subtenant and shall
provide (A) a fully completed Hazardous Materials Disclosure Certificate for
such assignee or subtenant in the form of EXHIBIT F hereto, and (B) current
and prior financial statements for the proposed assignee or subtenant, which
financial statements shall be audited to the extent available and shall in
any event be prepared in accordance with generally accepted accounting
principles. Tenant shall also provide Landlord with a copy of the proposed
sublease or assignment agreement, including all material terms and conditions
thereof. Except in the case of an assignment or sublease to a Tenant
Affiliate (as hereinafter defined), Landlord shall have the option, to be
exercised within thirty (30) days of receipt of the foregoing, to (1)
terminate this Lease as of the commencement date stated in the proposed
sublease or assignment, (2) sublease or take an assignment, as the case may
be, from Tenant of the interest, or any portion thereof, in this Lease and/or
the Premises that Tenant proposes to assign or sublease, on the same terms
and conditions as stated in the proposed sublet or assignment agreement, (3)
consent to the proposed assignment or sublease, or (4) refuse its consent to
the proposed assignment or sublease, providing that such consent shall not be
unreasonably withheld so long as Tenant is not then in Default under this
Lease nor is any event then occurring which with the giving of notice or the
passage of time, or both, would constitute a Default hereunder. In the event
Landlord elects to terminate this Lease or sublease or take an assignment
from Tenant of the interest, or portion thereof, in the Lease and/or the
Premises that Tenant proposes to assign or sublease as provided in the
foregoing clauses (1) and (2), respectively, then Landlord shall have the
additional right to negotiate directly with Tenant's proposed assignee or
subtenant and to enter into a direct lease or occupancy agreement with such
party on such terms as shall be acceptable to Landlord in its sole and
absolute discretion, and Tenant hereby waives any claims against Landlord
related thereto, including, without limitation, any claims for any
compensation or profit related to such lease or occupancy agreement.
(b) Notwithstanding anything to the contrary contained in Paragraph
23(a) above, Tenant shall have the right with the consent of Landlord, which
consent shall not be unreasonably withheld, to assign this Lease or to
sublease the Premises or any part thereof to a Tenant Affiliate. In the event
Tenant proposes to enter into an assignment or sublease with a Tenant
Affiliate, then Tenant shall provide Landlord with the information required
to be delivered pursuant to said Paragraph 23 (a). Landlord shall have the
option, to be exercised within thirty (30) days of receipt of the foregoing,
to (1) consent to the proposed assignment or sublease, or (2) refuse its
consent to the proposed assignment or sublease, providing that such
22
consent shall not be unreasonably withheld. For purposes of this Paragraph
23, a "Tenant Affiliate" shall mean an entity that controls, is controlled by
or is under common control with, Tenant; and a party shall be deemed to
"control" another party for purposes of the aforesaid definition only if the
first party owns more than fifty percent (50%) of the stock or other
beneficial interests of the second party.
(c) Without otherwise limiting the criteria upon which
Landlord may withhold its consent under Paragraphs 23(a) and (b) above, Landlord
shall be entitled to consider all reasonable criteria including, but not limited
to, the following: (1) whether or not the proposed subtenant or assignee is
engaged in a business which, and the use of the Premises will be in an manner
which, is in keeping with the then character and nature of all other tenancies
in the Project, (2) whether the use to be made of the Premises by the proposed
subtenant or assignee will conflict with any so-called "exclusive" use then in
favor of any other tenant of the Building or the Project, and whether such use
would be prohibited by any other portion of this Lease, including, but not
limited to, any rules and regulations then in effect, or under applicable Laws,
and whether such use imposes a greater load upon the Premises and the Building
and Project services then imposed by Tenant, (3) the business reputation of the
proposed individuals who will be managing and operating the business operations
of the assignee or subtenant, and the long-term financial and competitive
business prospects of the proposed assignee or subtenant, and (4) the
creditworthiness and financial stability of the proposed assignee or subtenant
in light of the responsibilities involved. In any event, Landlord may withhold
its consent to any assignment or sublease, if (i) the actual use proposed to be
conducted in the Premises or portion thereof conflicts with the provisions of
Paragraph 9(a) or (b) above or with any other lease which restricts the use to
which any space in the Building or the Project may be put, or (ii) the proposed
assignment or sublease requires alterations, improvements or additions to the
Premises or portions thereof.
(d) If Landlord approves an assignment or subletting as herein
provided, Tenant shall pay to Landlord, as Additional Rent, seventy-five percent
(75%) of the difference, if any, between (1) the Base Rent plus Additional Rent
allocable to that part of the Premises affected by such assignment or sublease
pursuant to the provisions of this Lease, and (2) the rent and any additional
rent payable by the assignee or sublessee to Tenant, less reasonable and
customary market-based leasing commissions, if any, incurred by Tenant in
connection with such assignment or sublease. The assignment or sublease
agreement, as the case may be, after approval by Landlord, shall not be amended
without Landlord's prior written consent, and shall contain a provision
directing the assignee or subtenant to pay the rent and other sums due
thereunder directly to Landlord upon receiving written notice from Landlord that
Tenant is in default under this Lease with respect to the payment of Rent. In
the event that, notwithstanding the giving of such notice, Tenant collects any
rent or other sums from the assignee or subtenant, then Tenant shall hold such
sums in trust for the benefit of Landlord and shall immediately forward the same
to Landlord. Landlord's collection of such rent and other sums shall not
constitute an acceptance by Landlord of attornment by such assignee or
subtenant. A consent to one assignment, subletting, occupation or use shall not
be deemed to be a consent to any other or subsequent assignment, subletting,
occupation or use, and consent to any assignment or subletting shall in no way
relieve Tenant of any liability under this Lease. Any assignment or subletting
without Landlord's consent shall be void, and shall, at the option of Landlord,
constitute a Default under this Lease.
23
(e) Notwithstanding any assignment or subletting, Tenant and
any guarantor or surety of Tenant's obligations under this Lease shall at all
times remain fully responsible and liable for the payment of the Rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such assignment or
subletting).
(f) Tenant shall pay Landlord's reasonable fees (including,
without limitation, the fees of Landlord's counsel), incurred in connection with
Landlord's review and processing of documents regarding any proposed assignment
or sublease.
(g) Notwithstanding anything in this Lease to the contrary, in
the event Landlord consents to an assignment or subletting by Tenant in
accordance with the terms of this Paragraph 24, Tenant's assignee or subtenant
shall have no right to further assign this Lease or any interest therein or
thereunder or to further sublease all or any portion of the Premises. In
furtherance of the foregoing, Tenant acknowledges and agrees on behalf of itself
and any assignee or subtenant claiming under it (and any such assignee or
subtenant by accepting such assignment or sublease shall be deemed to
acknowledge and agree) that no sub-subleases or further assignments of this
Lease shall be permitted at any time.
(h) Tenant acknowledges and agrees that the restrictions,
conditions and limitations imposed by this Paragraph 24 on Tenant's ability to
assign or transfer this Lease or any interest herein, to sublet the Premises or
any part thereof, to transfer or assign any right or privilege appurtenant to
the Premises, or to allow any other person to occupy or use the Premises or any
portion thereof, are, for the purposes of California Civil Code Section 1951.4,
as amended from time to time, and for all other purposes, reasonable at the time
that the Lease was entered into, and shall be deemed to be reasonable at the
time that Tenant seeks to assign or transfer this Lease or any interest herein,
to sublet the Premises or any part thereof, to transfer or assign any right or
privilege appurtenant to the Premises, or to allow any other person to occupy or
use the Premises or any portion thereof.
24. TENANT'S DEFAULT. The occurrence of any one of the following events
shall constitute an event of default on the part of Tenant ("DEFAULT"):
(a) The vacation or abandonment of the Premises by Tenant for
a period of ten (10) consecutive days or any vacation or abandonment of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse, or the failure of Tenant to continuously operate Tenant's
business in the Premises, in each of the foregoing cases irrespective of whether
or not Tenant is then in monetary default under this Lease. Tenant agrees to
notice and service of notice as provided for in this Lease and waives any right
to any other or further notice or service of notice which Tenant may have under
any statute or law now or hereafter in effect;
(b) Failure to pay any installment of Rent or any other monies
due and payable hereunder, said failure continuing for a period of five (5) days
after the same is due;
(c) A general assignment by Tenant or any guarantor or surety
of Tenant's obligations hereunder (collectively, "GUARANTOR") for the benefit of
creditors;
24
(d) The filing of a voluntary petition in bankruptcy by Tenant
or any Guarantor, the filing by Tenant or any Guarantor of a voluntary petition
for an arrangement, the filing by or against Tenant or any Guarantor of a
petition, voluntary or involuntary, for reorganization, or the filing of an
involuntary petition by the creditors of Tenant or any Guarantor, said
involuntary petition remaining undischarged for a period of sixty (60) days;
(e) Receivership, attachment, or other judicial seizure of
substantially all of Tenant's assets on the Premises, such attachment or other
seizure remaining undismissed or undischarged for a period of sixty (60) days
after the levy thereof;
(f) Death or disability of Tenant or any Guarantor, if Tenant
or such Guarantor is a natural person, or the failure by Tenant or any Guarantor
to maintain its legal existence, if Tenant or such Guarantor is a corporation,
partnership, limited liability company, trust or other legal entity;
(g) Failure of Tenant to execute and deliver to Landlord any
estoppel certificate, subordination agreement, or lease amendment within the
time periods and in the manner required by Paragraphs 30 or 31 or 42, and/or
failure by Tenant to deliver to Landlord any financial statement within the time
period and in the manner required by Paragraph 40;
(h) An assignment or sublease, or attempted assignment or
sublease, of this Lease or the Premises by Tenant contrary to the provision of
Paragraph 24, unless such assignment or sublease is expressly conditioned upon
Tenant having received Landlord's consent thereto;
(i) Failure of Tenant to restore the Security Deposit to the
amount and within the time period provided in Paragraph 7 above;
(j) Failure in the performance of any of Tenant's covenants,
agreements or obligations hereunder (except those failures specified as events
of Default in subparagraphs (b), (l) or (m) above or any other subparagraphs of
this Paragraph 25, which shall be governed by such other Paragraphs), which
failure continues for ten (10) days after written notice thereof from Landlord
to Tenant, provided that, if Tenant has exercised reasonable diligence to cure
such failure and such failure cannot be cured within such ten (10) day period
despite reasonable diligence, Tenant shall not be in default under this
subparagraph so long as Tenant thereafter diligently and continuously prosecutes
the cure to completion and actually completes such cure within thirty (30) days
after the giving of the aforesaid written notice;
(k) Chronic delinquency by Tenant in the payment of Rent, or
any other periodic payments required to be paid by Tenant under this Lease.
"CHRONIC DELINQUENCY" shall mean failure by Tenant to pay Rent, or any other
payments required to be paid by Tenant under this Lease within three (3) days
after written notice thereof for any three months (consecutive or
nonconsecutive) during any period of twelve (12) months. In the event of a
Chronic delinquency, in addition to Landlord's other remedies for Default
provided in this Lease, at Landlord's option, Landlord shall have the right to
require that Rent be paid by Tenant quarterly, in advance;
25
(l) Chronic overuse by Tenant or Tenant's Agents of the number
of undesignated parking spaces set forth in the Basic Lease Information.
"CHRONIC OVERUSE" shall mean use by Tenant or Tenant's Agents of a number of
parking spaces greater than the number of parking spaces set forth in the Basic
Lease Information more than three (3) times during the Term after written notice
by Landlord;
(m) Any insurance required to be maintained by Tenant pursuant
to this Lease shall be canceled or terminated or shall expire or be reduced or
materially changed, except as permitted in this Lease; and
(n) Any failure by Tenant to discharge any lien or encumbrance
placed on the Project or any part thereof in violation of this Lease within ten
(10) days after the date such lien or encumbrance is filed or recorded against
the Project or any part thereof.
Tenant agrees that any notice given by Landlord pursuant to Paragraph
25(j), (k) or (1) above shall satisfy the requirements for notice under
California Code of Civil Procedure Section 1161, and Landlord shall not be
required to give any additional notice in order to be entitled to commence an
unlawful detainer proceeding.
25. LANDLORD'S REMEDIES.
(a) TERMINATION. In the event of any Default by Tenant, then
in addition to any other remedies available to Landlord at law or in equity and
under this Lease, Landlord shall have the immediate option to terminate this
Lease and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect to so terminate
this Lease then Landlord may recover from Tenant:
(1) the worth at the time of award of any unpaid Rent
and any other sums due and payable which have been earned at the time of such
termination; plus
(2) the worth at the time of award of the amount by
which the unpaid Rent and any other sums due and payable which would have
been earned after termination until the time of award exceeds the amount of
such rental loss Tenant proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by
which the unpaid Rent and any other sums due and payable for the balance of
the term of this Lease after the time of award exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided; plus
(4) 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 would be likely
to result therefrom, including, without limitation, (A) any costs or expenses
incurred by Landlord (1) in retaking possession of the Premises; (2) in
maintaining, repairing, preserving, restoring, replacing, cleaning, altering,
remodeling or rehabilitating the Premises or any affected portions of the
Building or the Project, including such actions undertaken in connection with
the reletting or attempted reletting of the Premises to a new tenant or
tenants; (3) for leasing commissions, advertising costs and other expenses of
26
reletting the Premises; or (4) in carrying the Premises, including taxes,
insurance premiums, utilities and security precautions; (B) any unearned
brokerage commissions paid in connection with this Lease; (C) reimbursement
of any previously waived or abated Base Rent or Additional Rent or any free
rent or reduced rental rate granted hereunder; and (D) any concession made or
paid by Landlord to the benefit of Tenant in consideration of this Lease
including, but not limited to, any moving allowances, contributions, payments
or loans by Landlord for tenant improvements or build-out allowances
(including without limitation, any unamortized portion of the Tenant
Improvement Allowance (such Tenant Improvement Allowance to be amortized over
the Term in the manner reasonably determined by Landlord), if any, and any
outstanding balance (principal and accrued interest) of the Tenant
Improvement Loan, if any), or assumptions by Landlord of any of Tenant's
previous lease obligations; plus
(5) such reasonable attorneys' fees incurred by
Landlord as a result of a Default, and costs in the event suit is filed by
Landlord to enforce such remedy; and plus
(6) at Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time
by applicable law.
As used in subparagraphs (1) and (2) above, the "WORTH AT THE TIME OF
AWARD" is computed by allowing interest at an annual rate equal to twelve
percent (12%) per annum or the maximum rate permitted by law, whichever is less.
As used in subparagraph (3) 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%). Tenant waives
redemption or relief from forfeiture under California Code of Civil Procedure
Sections 1174 and 1179, or under any other pertinent present or future Law, in
the event Tenant is evicted or Landlord takes possession of the Premises by
reason of any Default of Tenant hereunder.
(b) CONTINUATION OF LEASE. In the event of any Default by
Tenant., then in addition to any other remedies available to Landlord at law or
in equity and under this Lease, Landlord shall have the remedy described in
California Civil Code Section 1951.4 (Landlord may continue this Lease in effect
after Tenant's Default and abandonment and recover Rent as it becomes due,
provided Tenant has the right to sublet or assign, subject only to reasonable
limitations). In addition, Landlord shall not be liable in any way whatsoever
for its failure or refusal to relet the Premises. For purposes of this Paragraph
26(b), the following acts by Landlord will not constitute the termination of
Tenant's right to possession of the Premises:
(1) Acts of maintenance or preservation or efforts to
relet the Premises, including, but not limited to, alterations, remodeling,
redecorating, repairs, replacements and/or painting as Landlord shall
consider advisable for the purpose of reletting the Premises or any part
thereof, or
(2) The appointment of a receiver upon the initiative
of Landlord to protect Landlord's interest under this Lease or in the
Premises.
(c) RE-ENTRY. In the event of any Default by Tenant, Landlord
shall also have the right, with or without terminating this Lease, in compliance
with applicable law, to re-enter
27
the Premises and remove all persons and property from the Premises; such
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Tenant.
(d) RELETTING. In the event of the abandonment of the Premises
by Tenant or in the event that Landlord shall elect to re-enter as provided in
Paragraph 26(c) or shall take possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord does not
elect to terminate this Lease as provided in Xxxxxxxxx 00(x), Xxxxxxxx may from
time to time, without terminating this Lease, relet the Premises or any part
thereof for such term or terms and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable with
the right to make alterations and repairs to the Premises in Landlord's sole
discretion. In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied in the following
order: (1) to reasonable attorneys' fees incurred by Landlord as a result of a
Default and costs in the event suit is filed by Landlord to enforce such
remedies; (2) to the payment of any indebtedness other than Rent due hereunder
from Tenant to Landlord; (3) to the payment of any costs of such reletting; (4)
to the payment of the costs of any alterations and repairs to the Premises; (5)
to the payment of Rent due and unpaid hereunder; and (6) the residue, if any,
shall be held by Landlord and applied in payment of future Rent and other sums
payable by Tenant hereunder as the same may become due and payable hereunder.
Should that portion of such rentals received from such reletting during any
month, which is applied to the payment of Rent hereunder, be less than the Rent
payable during the month by Tenant hereunder, then Tenant shall pay such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as ascertained, any costs and
expenses incurred by Landlord in such reletting or in making such alterations
and repairs not covered by the rentals received from such reletting.
(e) TERMINATION. No re-entry or taking of possession of the
Premises by Landlord pursuant to this Paragraph 26 shall be construed as an
election to terminate this Lease unless a written notice of such intention is
given to Tenant or unless the termination thereof is decreed by a court of
competent jurisdiction. Notwithstanding any reletting without termination by
Landlord because of any Default by Tenant, Landlord may at any time after such
reletting elect to terminate this Lease for any such Default.
(f) CUMULATIVE REMEDIES. The remedies herein provided are not
exclusive and Landlord shall have any and all other remedies provided herein or
by law or in equity.
(g) NO SURRENDER. No act or conduct of Landlord, whether
consisting of the acceptance of the keys to the Premises, or otherwise, shall be
deemed to be or constitute an acceptance of the surrender of the Premises by
Tenant prior to the expiration of the Term, and such acceptance by Landlord of
surrender by Tenant shall only flow from and must be evidenced by a written
acknowledgment of acceptance of surrender signed by Landlord. The surrender of
this Lease by Tenant, voluntarily or otherwise, shall not work a merger unless
Landlord elects in writing that such merger take place, but shall operate as an
assignment to Landlord of any and all existing subleases, or Landlord may, at
its option, elect in writing to treat such surrender as a merger terminating
Tenant's estate under this Lease, and thereupon Landlord may terminate any
28
or all such subleases by notifying the sublessee of its election so to do
within five (5) days after such surrender.
26. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS.
(a) Without limiting the rights and remedies of Landlord
contained in Paragraph 25 above, if Tenant shall be in Default in the
performance of any of the terms, provisions, covenants or conditions to be
performed or complied with by Tenant pursuant to this Lease, then Landlord may
at Landlord's option, without any obligation to do so, and without notice to
Tenant perform any such term, provision, covenant, or condition, or make any
such payment and Landlord by reason of so doing shall not be liable or
responsible for any loss or damage thereby sustained by Tenant or anyone holding
under or through Tenant or any of Tenant's Agents.
(b) Without limiting the rights of Landlord under Paragraph
26(a) above, Landlord shall have the right at Landlord's option, without any
obligation to do so, to perform any of Tenant's covenants or obligations under
this Lease without notice to Tenant in the case of an emergency, as determined
by Landlord in its sole and absolute judgment, or if Landlord otherwise
determines in its sole discretion that such performance is necessary or
desirable for the proper management and operation of the Building or the Project
or for the preservation of the rights and interests or safety of other tenants
of the Building or the Project.
(c) If Landlord performs any of Tenant's obligations hereunder
in accordance with this Paragraph 26, the full amount of the cost and expense
incurred or the payment so made or the amount of the loss so sustained shall
immediately be owing by Tenant to Landlord, and Tenant shall promptly pay to
Landlord upon demand, as Additional Rent, the full amount thereof with interest
thereon from the date of payment by Landlord at the lower of (1) ten percent
(10%) per annum, or (2) the highest rate permitted by applicable law.
27. ATTORNEY'S FEES.
(a) If either party hereto fails to perform any of its
obligations under this Lease or if any dispute arises between the parties hereto
concerning the meaning or interpretation of any provision of this Lease, then
the defaulting party or the party not prevailing in such dispute, as the case
may be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable attorneys'
fees and disbursements. Any such attorneys' fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Lease shall be
recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys' fees obligation is intended to be severable from
the other provisions of this Lease and to survive and not be merged into any
such judgment.
(b) Without limiting the generality of Paragraph 27(a) above,
if Landlord utilizes the services of an attorney for the purpose of collecting
any Rent due and unpaid by Tenant or in connection with any other breach of this
Lease by Tenant, Tenant agrees to pay Landlord actual attorneys' fees as
determined by Landlord for such services, regardless of the fact that no legal
action may be commenced or filed by Landlord.
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28. TAXES. Tenant shall be liable for and shall pay, prior to
delinquency, all taxes levied against Tenant's Property. If any Alteration
installed by Tenant or any of Tenant's Property is assessed and taxed with the
Project or Building, Tenant shall pay such taxes to Landlord within ten (10)
days after delivery to Tenant of a statement therefor.
29. EFFECT OF CONVEYANCE. The term "LANDLORD" as used in this Lease
means, from time to time, the then current owner of the Building or the Project
containing the Premises, so that, in the event of any sale of the Building or
the Project, Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder, and it shall be deemed and
construed, without further agreement between the parties and the purchaser at
any such sale, that the purchaser of the Building or the Project has assumed and
agreed to carry out any and all covenants and obligations of Landlord hereunder.
30. TENANT'S ESTOPPEL CERTIFICATE. From time to time, upon written
request of Landlord, Tenant shall execute, acknowledge and deliver to Landlord
or its designee, a written certificate stating (a) the date this Lease was
executed, the Commencement Date of the Term and the date the Term expires; (b)
the date Tenant entered into occupancy of the Premises; (c) the amount of Rent
and the date to which such Rent has been paid; (d) that this Lease is in full
force and effect and has not been assigned, modified, supplemented or amended in
any way (or, if assigned, modified, supplemented or amended, specifying the date
and terms of any agreement so affecting this Lease); (e) that this Lease
represents the entire agreement between the parties with respect to Tenant's
right to use and occupy the Premises (or specifying such other agreements, if
any); (f) that all obligations under this Lease to be performed by Landlord as
of the date of such certificate have been satisfied (or specifying those as to
which Tenant claims that Landlord has yet to perform); (g) that all required
contributions by Landlord to Tenant on account of Tenant's improvements have
been received (or stating exceptions thereto); (h) that on such date there exist
no defenses or offsets that Tenant has against the enforcement of this Lease by
Landlord (or stating exceptions thereto); (i) that no Rent or other sum payable
by Tenant hereunder has been paid more than one (1) month in advance (or stating
exceptions thereto); (j) that security has been deposited with Landlord, stating
the original amount thereof and any increases thereto; and (k) any other matters
evidencing the status of this Lease that may be required either by a lender
making a loan to Landlord to be secured by a deed of trust covering the Building
or the Project or by a purchaser of the Building or the Project. Any such
certificate delivered pursuant to this Paragraph 30 may be relied upon by a
prospective purchaser of Landlord's interest or a mortgagee of Landlord's
interest or assignee of any mortgage upon Landlord's interest in the Premises.
If Tenant shall fail to provide such certificate within ten (10) days of receipt
by Tenant of a written request by Landlord as herein provided, such failure
shall, at Landlord's election, constitute a Default under this Lease, and Tenant
shall be deemed to have given such certificate as above provided without
modification and shall be deemed to have admitted the accuracy of any
information supplied by Landlord to a prospective purchaser or mortgagee.
31. SUBORDINATION. Landlord shall have the right to cause this Lease to
be and remain subject and subordinate to any and all mortgages, deeds of trust
and ground leases, if any ("ENCUMBRANCES") that are now or may hereafter be
executed covering the Premises, or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or
to be made thereunder and without regard to the time or character of
30
such advances, together with interest thereon and subject to all the terms and
provisions thereof; provided only, that in the event of termination of any such
ground lease or upon the foreclosure of any such mortgage or deed of trust, so
long as Tenant is not in default, the holder thereof ("HOLDER") shall agree to
recognize Tenant's rights under this Lease as long as Tenant shall pay the Rent
and observe and perform all the provisions of this Lease to be observed and
performed by Tenant. Within ten (10) days after Landlord's written request,
Tenant shall execute, acknowledge and deliver any and all reasonable documents
required by Landlord or the Holder to effectuate such subordination. If Tenant
fails to do so, such failure shall constitute a Default by Tenant under this
Lease. Notwithstanding anything to the contrary set forth in this Paragraph 31,
Tenant hereby attorns and agrees to attorn to any person or entity purchasing or
otherwise acquiring the Premises at any sale or other proceeding or pursuant to
the exercise of any other rights, powers or remedies under such Encumbrance.
32. ENVIRONMENTAL COVENANTS.
(a) Prior to executing this Lease, Tenant has completed,
executed and delivered to Landlord a Hazardous Materials Disclosure Certificate
("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached
hereto as EXHIBIT F and incorporated herein by this reference. Tenant covenants,
represents and warrants to Landlord that the information on the Initial
Disclosure Certificate is true and correct and accurately describes the
Hazardous Materials which will be, manufactured, treated, used or stored on or
about the Premises by Tenant or Tenant's Agents. Tenant shall, on each
anniversary of the Commencement Date and at such other times as Tenant desires
to manufacture, treat, use or store on or about the Premises new or additional
Hazardous Materials which were not listed on the Initial Disclosure Certificate,
complete, execute and deliver to Landlord an updated Disclosure Certificate
(each, an "UPDATED DISCLOSURE CERTIFICATE") describing Tenant's then current and
proposed future uses of Hazardous Materials on or about the Premises, which
Updated Disclosure Certificates shall be in the same format as that which is set
forth in EXHIBIT F or in such updated format as Landlord may require from time
to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not
less than thirty (30) days prior to the date Tenant intends to commence the
manufacture, treatment, use or storage of new or additional Hazardous Materials
on or about the Premises, and Landlord shall have the right to approve or
disapprove such new or additional Hazardous Materials in its sole and absolute
discretion. Tenant shall make no use of Hazardous Materials on or about the
Premises except as described in the Initial Disclosure Certificate or as
otherwise approved by Landlord in writing in accordance with this Paragraph
32(a).
(b) As used in this Lease, the term "HAZARDOUS MATERIALS"
shall mean and include any substance that is or contains (1) any "hazardous
substance" as now or hereafter defined in Section 10l(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA") (42 U.S.C. Section 9601 ET SEQ.) or any regulations promulgated under
CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource
Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 ET
SEQ.) or any regulations promulgated under RCRA; (3) any substance now or
hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15
U.S.C. Section 2601 ET SEQ.) or any regulations promulgated under TSCA; (4)
petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum
hydrocarbons; (5) asbestos and asbestos-containing material, in any
31
form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead
and lead-containing materials; or (8) any additional substance, material or
waste (A) the presence of which on or about the Premises (i) requires
reporting, investigation or remediation under any Environmental Laws (as
hereinafter defined), (ii) causes or threatens to cause a nuisance on the
Premises or any adjacent area or property or poses or threatens to pose a
hazard to the health or safety of persons on the Premises or any adjacent
area or property, or (iii) which, if it emanated or migrated from the
Premises, could constitute a trespass, or (B) which is now or is hereafter
classified or considered to be hazardous or toxic under any Environmental
Laws.
(c) As used in this Lease, the term "ENVIRONMENTAL LAWS" shall
mean and include (1) CERCLA, RCRA and TSCA; and (2) any other federal, state or
local laws, ordinances, statutes, codes, rules, regulations, orders or decrees
now or hereinafter in effect relating to (A) pollution, (B) the protection or
regulation of human health, natural resources or the environment, (C) the
treatment, storage or disposal of Hazardous Materials, or (D) the emission,
discharge, release or threatened release of Hazardous Materials into the
environment.
(d) Tenant agrees that during its use and occupancy of the
Premises it will (1) not (A) permit Hazardous Materials to be present on or
about the Premises except in a manner and quantity necessary for the ordinary
performance of Tenant's business or (B) release, discharge or dispose of any
Hazardous Materials on, in, at, under, or emanating from, the Premises, the
Building or the Project; (2) comply with all Environmental Laws relating to the
Premises and the use of Hazardous Materials on or about the Premises and not
engage in or permit others to engage in any activity at the Premises in
violation of any Environmental Laws; and (3) immediately notify Landlord of (A)
any inquiry, test, investigation or enforcement proceeding by any governmental
agency or authority against Tenant, Landlord or the Premises, Building or
Project relating to any Hazardous Materials or under any Environmental Laws or
(B) the occurrence of any event or existence of any condition that would cause a
breach of any of the covenants set forth in this Paragraph 32.
(e) If Tenant's use of Hazardous Materials on or about the
Premises results in a release, discharge or disposal of Hazardous Materials on,
in, at, under, or emanating from, the Premises, the Building or the Project,
Tenant agrees to investigate, clean up, remove or remediate such Hazardous
Materials in full compliance with (1) the requirements of (A) all Environmental
Laws and (B) any governmental agency or authority responsible for the
enforcement of any Environmental Laws; and (2) any additional requirements of
Landlord that are reasonably necessary to protect the value of the Premises, the
Building or the Project.
(f) Upon reasonable notice to Tenant, Landlord may inspect the
Premises and surrounding areas for the purpose of determining whether there
exists on or about the Premises any Hazardous Material or other condition or
activity that is in violation of the requirements of this Lease or of any
Environmental Laws. Such inspections may include, but are not limited to,
entering the Premises or adjacent property with drill rigs or other machinery
for the purpose of obtaining laboratory samples. Landlord shall not be limited
in the number of such inspections during the Term of this Lease. In the event
(1) such inspections reveal the presence of any such Hazardous Material or other
condition or activity in violation of the requirements of this Lease or of any
Environmental Laws, or (2) Tenant or its Agents contribute or knowingly consent
to the presence of any Hazardous Materials in, on, under, through or about the
Premises, the Building
32
or the Project or exacerbate the condition of or the conditions caused by any
Hazardous Materials in, on, under, through or about the Premises, the
Building or the Project, Tenant shall reimburse Landlord for the cost of such
inspections within ten (10) days of receipt of a written statement therefor.
Tenant will supply to Landlord such historical and operational information
regarding the Premises and surrounding areas as may be reasonably requested
to facilitate any such inspection and will make available for meetings
appropriate personnel having knowledge of such matters. Tenant agrees to give
Landlord at least sixty (60) days' prior notice of its intention to vacate
the Premises so that Landlord will have an opportunity to perform such an
inspection prior to such vacation. The right granted to Landlord herein to
perform inspections shall not create a duty on Landlord's part to inspect the
Premises, or liability on the part of Landlord for Tenant's use, storage,
treatment or disposal of Hazardous Materials, it being understood that Tenant
shall be solely responsible for all liability in connection therewith.
(g) Landlord shall have the right, but not the obligation,
prior or subsequent to a Default, without in any way limiting Landlord's other
rights and remedies under this Lease, to enter upon the Premises, or to take
such other actions as it deems necessary or advisable, to investigate, clean up,
remove or remediate any Hazardous Materials or contamination by Hazardous
Materials present on, in, at, under, or emanating from, the Premises, the
Building or the Project in violation of Tenant's obligations under this Lease or
under any Environmental Laws. Notwithstanding any other provision of this Lease,
Landlord shall also have the right, at its election, in its own name or as
Tenant's agent, to negotiate, defend, approve and appeal, at Tenant's expense,
any action taken or order issued by any governmental agency or authority with
regard to any such Hazardous Materials or contamination by Hazardous Materials.
All costs and expenses paid or incurred by Landlord in the exercise of the
rights set forth in this Paragraph 32 shall be payable by Tenant upon demand.
(h) Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of debris, waste or
Hazardous Materials placed on, about or near the Premises by Tenant or Tenant's
Agents, and in a condition which complies with all Environmental Laws and any
additional requirements of Landlord that are reasonably necessary to protect the
value of the Premises, the Building or the Project, including, without
limitation, the obtaining of any closure permits or other governmental permits
or approvals related to Tenant's use of Hazardous Materials in or about the
Premises. Tenant's obligations and liabilities pursuant to the provisions of
this Paragraph 32 shall survive the expiration or earlier termination of this
Lease. If it is determined by Landlord that the condition of all or any portion
of the Premises, the Building, and/or the Project is not in compliance with the
provisions of this Lease with respect to Hazardous Materials, including, without
limitation, all Environmental Laws, at the expiration or earlier termination of
this Lease, then at Landlord's sole option, Landlord may require Tenant to hold
over possession of the Premises until Tenant can surrender the Premises to
Landlord in the condition in which the Premises existed as of the Commencement
Date and prior to the appearance of such Hazardous Materials except for normal
wear and tear, including, without limitation, the conduct or performance of any
closures as required by any Environmental Laws. The burden of proof hereunder
shall be upon Tenant. For purposes hereof, the term "NORMAL WEAR AND TEAR" shall
not include any deterioration in the condition or diminution of the value of any
portion of the Premises, the Building, and/or the Project in any manner
whatsoever related to directly, or indirectly, Hazardous Materials. Any such
holdover by Tenant will be with
33
Landlord's consent, will not be terminable by Tenant in any event or
circumstance and will otherwise be subject to the provisions of Paragraph 35
of this Lease.
(i) Tenant agrees to indemnify and hold harmless Landlord from
and against any and all claims, losses (including, without limitation, loss in
value of the Premises, the Building or the Project, liabilities and expenses
(including attorney's fees)) sustained by Landlord attributable to (1) any
Hazardous Materials placed on or about the Premises, the Building or the Project
by Tenant or Tenant's Agents, or (2) Tenant's breach of any provision of this
Paragraph 32.
(j) The provisions of this Paragraph 32 shall survive the
expiration or earlier termination of this Lease.
33. NOTICES. All notices and demands which are required or may be
permitted to be given to either party by the other hereunder shall be in writing
and shall be sent by United States mail, postage prepaid, certified, or by
personal delivery or overnight courier, addressed to the addressee at Tenant's
Address or Landlord's Address as specified in the Basic Lease Information, or to
such other place as either party may from time to time designate in a notice to
the other party given as provided herein. Copies of all notices and demands
given to Landlord shall additionally be sent to Landlord's property manager at
the address specified in the Basic Lease Information or at such other address as
Landlord may specify in writing from time to time. Notice shall be deemed given
upon actual receipt (or attempted delivery if delivery is refused ), if
personally delivered, or one (1) business day following deposit with a reputable
overnight courier that provides a receipt, or on the third (3rd) day following
deposit in the United States mail in the manner described above.
34. WAIVER. The waiver of any breach of any term, covenant or
condition of this Lease shall not be deemed to be a waiver of such term,
covenant or condition or of any subsequent breach of the same or any other
term, covenant or condition herein contained. The subsequent acceptance of
Rent by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such Rent. No delay or omission in the exercise of any
right or remedy of Landlord in regard to any Default by Tenant shall impair
such a right or remedy or be construed as a waiver. Any waiver by Landlord of
any Default must be in writing and shall not be a waiver of any other Default
concerning the same or any other provisions of this Lease.
35. HOLDING OVER. Any holding over after the expiration of the Term,
without the express written consent of Landlord, shall constitute a Default and,
without limiting Landlord's remedies provided in this Lease, such holding over
shall be construed to be a tenancy at sufferance, at a rental rate equal to the
greater of one hundred fifty percent (150%) of the fair market rental value for
the Premises as determined by Landlord or two hundred percent (200%) of the Base
Rent last due in this Lease, plus Additional Rent, and shall otherwise be on the
terms and conditions herein specified, so far as applicable; provided, however,
in no event shall any renewal or expansion option or other similar right or
option contained in this Lease be deemed applicable to any such tenancy at
sufferance. If the Premises are not surrendered at the end of the Term or sooner
termination of this Lease, and in accordance with the provisions of
34
Paragraphs 11 and 32(h), Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all loss or liability resulting from delay
by Tenant in so surrendering the Premises including, without limitation, any
loss or liability resulting from any claim against Landlord made by any
succeeding tenant or prospective tenant founded on or resulting from such
delay and losses to Landlord due to lost opportunities to lease any portion
of the Premises to any such succeeding tenant or prospective tenant, together
with, in each case, actual attorneys' fees and costs.
36. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions
of this Lease shall, subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and assigns of all of
the parties hereto. If Tenant shall consist of more than one entity or
person, the obligations of Tenant under this Lease shall be joint and several.
37. TIME. Time is of the essence of this Lease and each and every
term, condition and provision herein.
38. BROKERS. Landlord and Tenant each represents and warrants to the
other that neither it nor its officers or agents nor anyone acting on its behalf
has dealt with any real estate broker except the Broker(s) specified in the
Basic Lease Information in the negotiating or making of this Lease, and each
party agrees to indemnify and hold harmless the other from any claim or claims,
and costs and expenses, including attorneys' fees, incurred by the indemnified
party in conjunction with any such claim or claims of any other broker or
brokers to a commission in connection with this Lease as a result of the actions
of the indemnifying party.
39. LIMITATION OF LIABILITY. Tenant agrees that, in the event of any
default or breach by Landlord with respect to any of the terms of the Lease to
be observed and performed by Landlord (1) Tenant shall look solely to the
then-current landlord's interest in the Building for the satisfaction of
Tenant's remedies for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord; (2) no other property or assets of
Landlord, its partners, shareholders, officers, directors, employees, investment
advisors, or any successor in interest of any of them (collectively, the
"LANDLORD PARTIES") shall be subject to levy, execution or other enforcement.
procedure for the satisfaction of Tenant's remedies; (3) no personal liability
shall at any time be asserted or enforceable against the Landlord Parties; and
(4) no judgment will be taken against the Landlord Parties. The provisions of
this section shall apply only to the Landlord and the parties herein described,
and shall not be for the benefit of any insurer nor any other third party.
40. FINANCIAL STATEMENTS. Within ten (10) days after Landlord's
request, Tenant shall deliver to Landlord the then current financial statements
of Tenant (including interim periods following the end of the last fiscal year
for which annual statements are available), prepared or compiled by a certified
public accountant, including a balance sheet and profit and loss statement for
the most recent prior year. all prepared in accordance with generally accepted
accounting principles consistently applied.
41. RULES AND REGULATIONS. Tenant agrees to comply with such
reasonable rules and regulations as Landlord may adopt from time to time for
the orderly and proper operation of the Building and the Project. Such rules
may include but shall not be limited to the following:
35
(a) restriction of employee parking to a limited, designated area or areas;
and (b) regulation of the removal, storage and disposal of Tenant's refuse
and other rubbish at the sole cost and expense of Tenant. The then current
rules and regulations shall be binding upon Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible to Tenant for the failure
of any other person to observe and abide by any of said rules and
regulations. Landlord's current rules and regulations are attached to this
Lease as EXHIBIT D.
42. MORTGAGEE PROTECTION. Tenant agrees to give to any trust deed
or mortgage holder ("HOLDER"), by registered mail, at the same time as it is
given to Landlord, a copy of any notice of default given to Landlord,
provided that prior to such notice Tenant has been notified, in writing (by
way of notice of assignment of rents and leases, or otherwise), of the
address of such Holder. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease, then
the Holder shall have an additional twenty (20) days after expiration of such
period, or after receipt of such notice from Tenant (if such notice to the
Holder is required by this Paragraph 42), whichever shall last occur within
which to cure such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within such twenty
(20) days, any Holder has commenced and is diligently pursuing the remedies
necessary to cure such default (including but not limited to commencement of
foreclosure proceedings, if necessary to effect such cure), in which event
this Lease shall not be terminated.
43. ENTIRE AGREEMENT. This Lease, including the Exhibits and any
Addenda attached hereto, which are hereby incorporated herein by this reference,
contains the entire agreement of the parties hereto, and no representations,
inducements, promises or agreements, oral or otherwise, between the parties, not
embodied herein or therein, shall be of any force and effect.
44. INTEREST. Any installment of Rent and any other sum due from
Tenant under this Lease which is not received by Landlord within ten (10)
days from when the same is due shall bear interest from the date such payment
was originally due under this Lease until paid at an annual rate equal to the
maximum rate of interest permitted by law. Payment of such interest shall not
excuse or cure any Default by Tenant. In addition, Tenant shall pay all costs
and attorneys' fees incurred by Landlord in collection of such amounts.
45. CONSTRUCTION. This Lease shall be construed and interpreted
in accordance with the laws of the State of California. The parties
acknowledge and agree that no rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall be employed
in the interpretation of this Lease, including the Exhibits and any Addenda
attached hereto. All captions in this Lease are for reference only and shall
not be used in the interpretation of this Lease. Whenever required by the
context of this Lease, the singular shall include the plural, the masculine
shall include the feminine, and vice versa. If any provision of this Lease
shall be determined to be illegal or unenforceable, such determination shall
not affect any other provision of this Lease and all such other provisions
shall remain in full force and effect.
46. REPRESENTATIONS AND WARRANTIES OF TENANT. Tenant hereby makes
the following representations and warranties, each of which is material and
being relied upon by
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Landlord, is true in all respects as of the date of this Lease, and shall
survive the expiration or termination of the Lease.
(a) If Tenant is an entity, Tenant is duly organized, validly
existing and in good standing under the laws of the state of its organization
and the persons executing this Lease on behalf of Tenant have the full right and
authority to execute this Lease on behalf of Tenant and to bind Tenant without
the consent or approval of any other person or entity. Tenant has full power,
capacity, authority and legal right to execute and deliver this Lease and to
perform all of its obligations hereunder. This Lease is a legal, valid and
binding obligation of Tenant, enforceable in accordance with its terms.
(b) Tenant has not (1) made a general assignment for the
benefit of creditors, (2) filed any voluntary petition in bankruptcy or suffered
the filing of an involuntary petition by any creditors, (3) suffered the
appointment of a receiver to take possession of all or substantially all of its
assets, (4) suffered the attachment or other judicial seizure of all or
substantially all of its assets, (5) admitted in writing its inability to pay
its debts as they come due, or (6) made an offer of settlement, extension or
composition to its creditors generally.
47. SECURITY.
(a) Tenant acknowledges and agrees that, while Landlord may
engage security personnel to patrol the Building or the Project, Landlord is not
providing any security services with respect to the Premises, the Building or
the Project and that Landlord shall not be liable to Tenant for, and Tenant
waives any claim against Landlord with respect to, any loss by theft or any
other damage suffered or incurred by Tenant in connection with any unauthorized
entry into the Premises or any other breach of security with respect to the
Premises, the Building or the Project.
(b) Tenant hereby agrees to the exercise by Landlord and
Landlord's Agents, within their sole discretion, of such security measures as,
but not limited to, the evacuation of the Premises, the Building or the Project
for cause, suspected cause or for drill purposes, the denial of any access to
the Premises, the Building or the Project and other similarly related actions
that it deems necessary to prevent any threat of property damage or bodily
injury. The exercise of such security measures by Landlord and Landlord's
Agents, and the resulting interruption of service and cessation of Tenant's
business, if any, shall not be deemed an eviction or disturbance of Tenant's use
and possession of the Premises, or any part thereof, or render Landlord or
Landlord's Agents liable to Tenant for any resulting damages or relieve Tenant
from Tenant's obligations under this Lease.
48. JURY TRIAL WAIVER. Tenant hereby waives any right to trial by
jury with respect to any action or proceeding (i) brought by Landlord, Tenant
or any other party, relating to (A) this Lease and/or any understandings or
prior dealings between the parties hereto, or (B) the Premises, the Building
or the Project or any part thereof, or (ii) to which Landlord is a party.
Tenant hereby agrees that this Lease constitutes a written consent to waiver
of trial by jury pursuant to the provisions of California Code of Civil
Procedure Section 631, and Tenant does hereby constitute and appoint Landlord
its true and lawful attorney-in-fact, which appointment is coupled with an
interest, and Tenant does hereby authorize and empower Landlord, in the name,
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place and stead of Tenant, to file this Lease with the clerk or judge of any
court of competent jurisdiction as a statutory written consent to waiver of
trial by jury.
49. OPTION TO RENEW. Tenant shall have one (1) option (the "RENEWAL
OPTION") to extend the Term for a period of five (5) years beyond the Expiration
Date (the "RENEWAL TERM"). The Renewal Option is personal to Tenant and may not
be exercised by any sublessee or assignee, or by any other successor or assign
of Tenant, excluding only a Tenant Affiliate to whom Tenant's entire right,
title and interest under this Lease is assigned pursuant to Paragraph 23 above.
The Renewal Option shall be effective only if Tenant is not in Default under
this Lease, nor has any event occurred which with the giving of notice or the
passage of time, or both, would constitute a Default hereunder, either at the
time of exercise of the Renewal Option or the time of commencement of the
Renewal Term. The Renewal Option must be exercised, if at all, by written notice
(the "ELECTION NOTICE") from Tenant to Landlord given not more than twelve (12)
months nor less than nine (9) months prior to the expiration of the initial
Term. Except as hereinafter provided in this Paragraph 49, any such notice given
by Tenant to Landlord shall be irrevocable. If Tenant fails to exercise the
Renewal Option in a timely manner as provided for above, the Renewal Option
shall be void. The Renewal Term shall be upon the same terms and conditions as
the initial Term, except that the annual Base Rent during the Renewal Term shall
be equal to the prevailing market rate for space in similarly situated buildings
in the vicinity of the Building comparable to the Premises in location, size,
condition, quality and type at the commencement of the Renewal Term. As used
herein, the term "prevailing market rate" shall mean the base annual rental for
such comparable space, taking into account any additional rental and all other
payments and escalations payable hereunder and by tenants under leases of such
comparable space. Landlord shall endeavor to notify Tenant in writing (such
notice being hereinafter referred to as the "RENEWAL RATE NOTICE") of the
prevailing market rate for the Renewal Term within thirty (30) days after
Landlord's receipt of the Election Notice. Tenant shall have ten (10) days after
receipt of the Renewal Rate Notice (the "RESPONSE PERIOD") to advise Landlord
whether or not Tenant agrees with Landlord's determination of the prevailing
market rate and, if Tenant disagrees with such determination, to discuss and
negotiate such rate with Landlord. If Tenant agrees with Landlord's
determination, or if during the Response Period the parties agree in writing on
a different rental rate, then Landlord and Tenant shall promptly enter into an
amendment to this Lease providing for the lease of the Premises by Tenant during
the Renewal Term upon the terms stated in the Renewal Rate Notice or such other
terms as may be agreed to by the parties during the Response Period, each in the
exercise of its sole and absolute discretion. If Tenant disputes Landlord's
determination of the prevailing market rate and if the parties fail to agree in
writing on a different rental rate prior to the expiration of the Response
Period, Tenant shall have the right to rescind its Election Notice in writing
within the Response Period and neither party shall have any further rights or
obligations under this Paragraph 49. If Tenant fails to provide Landlord with
written notice of rescission prior to the expiration of the Response Period,
then Tenant shall be deemed to have accepted Landlord's determination of the
prevailing market rate (except to the extent that Landlord and Tenant have
agreed in writing on a different rental rate as provided in this Paragraph 49).
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50. OPTION TO EXPAND PREMISES.
(a) Tenant shall have a one-time option (the "EXPANSION
OPTION") to lease all, but not less than all, of the remaining space within the
Building consisting of approximately twenty three thousand one hundred
ninety-eight (23,198) square feet and shown on EXHIBIT H hereto (the "EXPANSION
SPACE") upon the expiration or sooner termination of the Prior Expansion Space
Lease (as hereinafter defined). The Expansion Option is personal to Tenant and
may not be exercised by any sublessee or assignee, or by any other successor or
assign of Tenant. excluding only a Tenant Affiliate to whom Tenant's entire
right, title and interest under this Lease is assigned pursuant to Paragraph 23
above. The Expansion Option shall be effective only if Tenant is not in Default
under this Lease, nor has any event occurred which with the giving of notice or
the passage of time, or both, would constitute a Default hereunder, either at
the time of exercise of the Expansion Option or on the Expansion Commencement
Date (as hereinafter defined). Prior to or promptly following the expiration or
sooner termination of the Prior Expansion Space Lease, Landlord shall notify
Tenant in writing of the availability of the Expansion Space (such written
notice being herein referred to as the "EXPANSION SPACE AVAILABILITY NOTICE").
Tenant shall thereafter have the right to exercise the Expansion Option by
written notice (the "EXPANSION NOTICE") to Landlord given not later than ten
(10) days after Tenant's receipt of the Expansion Space Availability Notice.
Except as hereinafter provided in this Paragraph 50, any Expansion Notice given
by Tenant to Landlord shall be irrevocable. As used herein, "PRIOR EXPANSION
SPACE LEASE" means a lease to be hereafter entered into by Landlord with a
third-party tenant covering the Expansion Space, which lease shall have a term
not exceeding three years unless otherwise agreed by Tenant in writing.
(b) In the event Tenant fails to exercise the Expansion
Option in a timely manner as provided herein, the Expansion Option shall be
null and void and of no further force or effect. If Tenant validly exercises
the Expansion Option, then (1) Tenant's lease of the Expansion Space shall
commence on a date (the "EXPANSION COMMENCEMENT DATE") specified by Landlord
in writing, which date shall not be earlier than the expiration or sooner
termination of the Prior Expansion Space Lease, (2) Tenant's lease of the
Expansion Space shall be coterminous with the expiration or sooner
termination of this Lease (including any Renewal Term), and (3) the Expansion
Space shall be leased to Tenant upon the same terms and conditions as
contained in this Lease, except that (A) the annual Base Rent payable with
respect to the Expansion Space shall be determined in accordance with
Paragraph 50(c) below, (B) Tenant's Proportionate Share shall be increased to
one hundred percent (100%), and (C) except to the extent that Landlord agrees
in the Expansion Rate Notice (as hereinafter defined) to provide a tenant
improvement allowance or a tenant improvement loan to Tenant, the Expansion
Space shall be delivered to Tenant in its "AS-IS" condition on the Expansion
Commencement Date, Tenant acknowledging and agreeing that Landlord shall have
no obligation to improve, remodel or otherwise alter the Expansion Space
prior to or after the Expansion Commencement Date.
(c) The annual Base Rent payable with respect to the
Expansion Space shall be equal to an amount specified by Landlord in a
written notice (the "EXPANSION RATE NOTICE") to Tenant given prior to the
Expansion Commencement Date. Tenant shall have ten (10) days after receipt of
the Expansion Rate Notice (the "EXPANSION RESPONSE PERIOD") to advise
Landlord whether or not Tenant agrees to pay the Base Rent specified in the
Expansion Rate
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Notice. If Tenant agrees to pay such Base Rent, then Landlord and Tenant
shall promptly enter into an amendment to this Lease providing for the lease
of the Expansion Space by Tenant upon the terms stated in the Expansion Rate
Notice. If Tenant does not agree to pay the Base Rent specified in the
Expansion Rate Notice, Tenant shall have the right to rescind its Expansion
Notice in writing within the Expansion Response Period and neither party
shall have any further rights or obligations under this Paragraph 50. If
Tenant fails to provide Landlord with written notice of rescission prior to
the expiration of the Expansion Response Period, then Tenant shall be deemed
to have agreed to pay the Base Rent specified in the Expansion Rate Notice.
(d) In the event Tenant exercises or is deemed to have
exercised the Expansion Option, then from and after the Expansion Commencement
Date, the term "Premises," whenever used in this Lease, shall mean the original
Premises demised under this Lease and the Expansion Space.
51. SATELLITE DISH. Subject to Landlord's prior written approval
of the plans and specifications therefor (including, without limitation, the
location, size, and color of the equipment), during the Term, Tenant may, at
its sole cost and expense, construct and maintain a satellite dish on the
roof of the Building (the "SATELLITE DISH"); provided, however, Landlord
shall have the right to withhold its approval of the plans and
specifications, in its sole and absolute discretion, if Landlord reasonably
determines that the Satellite Dish will affect the structural integrity of
the roof. Upon receipt of Landlord's prior written approval of the plans and
specifications as set forth herein, Tenant shall erect the Satellite Dish in
accordance with the approved plans and specifications, in a good and
workmanlike manner, in accordance with all applicable Laws now in force or
hereafter enacted and all other requirements of Landlord, and after Tenant
has received all requisite approvals therefor (the "APPLICABLE
REQUIREMENTS"), and in a manner so as not to interfere with the use of the
Building or any adjacent building by any other tenant or occupant. Tenant
shall at all times maintain the Satellite Dish in a good, clean and safe
condition, in accordance with the Applicable Requirements, and in a manner so
as not to interfere with the use of the Building or any adjacent building by
any other tenant or occupant. Tenant shall have access to the roof only when
accompanied by Landlord or the property manager of the Project. Upon the
expiration or sooner termination of this Lease or Tenant's right to
possession of the Premises, Tenant shall, at Tenant's sole cost and expense,
promptly remove the Satellite Dish and repair any damage to the Building
resulting therefrom. If Tenant fails to remove the Satellite Dish within
fifteen (15) days following the expiration or sooner termination of this
Lease or Tenant's right to possession of the Premises, Landlord may, at
Tenant's expense, remove the Satellite Dish and perform the related
restoration and repair work, and use, dispose of or take such other actions
with respect to the Satellite Dish as Landlord may deem appropriate, all
without compensation or payment to Tenant. Tenant shall defend, indemnify and
hold harmless Landlord from all losses, claims, liabilities, judgments,
costs, demands, causes of action and expenses (including, without limitation,
attorneys' fees) arising from or relating to the construction, installation,
maintenance, use or removal of the Satellite Dish. The rights granted to
Tenant pursuant to this paragraph may not be assigned.
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Landlord and Tenant have executed and delivered this Lease as of the
Lease Date specified in the Basic Lease Information.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY, FINISAR CORPORATION,
a Connecticut corporation a California corporation
By: Allegis Realty Investors LLC
Its Investment Advisor and Agent
By: /s/ X.X. Xxxxxxx
-----------------------
Print Name: X.X. Xxxxxxx
---------------
Its: CFO
----------------------
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
Vice President By:
-----------------------
Print Name:
---------------
Its:
----------------------
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