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EXHIBIT 10.30
LEASE
DATED August , 1999
BY AND BETWEEN
LAFAYETTE BUSINESS PARK, LLC
as Landlord
and
UNIVERSAL ACCESS, INC.
as Tenant
AFFECTING PREMISES COMMONLY KNOWN AS
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
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SUMMARY OF BASIC LEASE TERMS
SECTION
(LEASE REFERENCE) TERMS
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A. LEASE REFERENCE DATE: August __, 1999
(Introduction)
B. Landlord: LAFAYETTE BUSINESS PARK, LLC,
(Introduction) a California limited liability company
C. Tenant: UNIVERSAL ACCESS, INC.
(Introduction) an Illinois corporation
D. Premises: That area consisting of 14,040 square feet of
(Section 1.15) rentable area the address of which is 0000 Xxxxxxxxx
Xxxxxx, Xxxxx X-X, Xxxxx Xxxxx, Xxxxxxxxxx, within the
Building approximately as shown on Exhibit A.
E. Project: The land and Improvements shown on Exhibit A
(Section 1.16) consisting of Four buildings the aggregate rentable area of
which is 65,400 square feet.
F. Building: The building in which the Premises are located
(Section 1.6) known as 0000 Xxxxxxxxx Xxxxxx containing 14,040 square
feet of rentable area.
G. Tenant's Share: 100.00% of Building Common Operating
(Section 1.31) Expenses, 21.47% of Project Common Operating
Expenses
H. Tenant's Allocated Parking Stalls: Twenty (20) stalls.
(Section 4.4)
I. Scheduled Commencement Date: January 1, 2000
(Section 2.2)
J. Lease Term: Thirteen (13) Years (plus the partial month
(Section 1.13) following the Commencement Date if such date is not the
first day of a month) with two (2), five (5) year options
to extend as set forth in Exhibit E.
K. Initial Base Monthly Rent: $14,040.00
(Section 3.1/8.1) Thereafter, increases as described in the Lease Rider.
Initial Monthly XXX Estimate: $560.00
INITIAL MONTHLY RENT AND XXX: $14,600.00
L. Prepaid Rent; $28,640.00 to be applied to first month's
(Section 3.3) rent.
M. Security Deposit: See Lease Rider
(Section 3.6)
N. Permitted Use: Telecommunications business, including
(Section 4.1) general office use, the installation and maintenance of its
telecommunication systems and equipment and the
collocation of telephone systems belonging to Tenant's
customers.
O. Tenant's Liability Insurance Minimum: $1,000,000.00
(Section 9.1)
P. Landlord's Address: 0000 Xxxx Xxxxxx
(Section 1.2) Xxxxxxxx, Xxxxxxxxxx 00000
Q. Tenant's Address: 0000 Xxxxxxxxx Xxxxxx
(Section 1.2) Xxxxx Xxxxx, Xxxxxxxxxx 00000
R. Lease: This Lease includes the Summary of Basic Lease Terms,
(Section 1.12) the Lease, and the following exhibits and addenda: Lease
Rider, Exhibit A (site plan of the Project indicating
location of the Premises), Exhibit B (Landlord's
Improvements), Exhibit C (Sign Criteria), Exhibit D
(Surrender Condition), Exhibit E (Option to Extend), and
Exhibit F (Tenant's Alterations).
The foregoing Summary is hereby incorporated into and made a part of this
Lease. Each reference in this Lease to any terms of the Summary shall mean the
respective information set forth above and shall be construed to incorporate
all of the terms provided under the particular paragraph pertaining to such
information. In the event of any conflict between the Summary and the Lease, the
Summary shall control.
LANDLORD: TENANT:
LAFAYETTE BUSINESS PARK, LLC UNIVERSAL ACCESS, INC.,
a California limited liability an Illinois corporation
corporation
By: /s/ [Signature Illegible] By: /s/ XXXXXX X. XXXXXX, XX.
------------------------------- ------------------------------------
Its: Member Its: COO
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Dated: 9/21/99 Dated: 8/31/99
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L E A S E
ARTICLE I
DEFINITIONS
1.1 ADDITIONAL RENT: The term "Additional Rent" is defined in Section
3.2.
1.2 ADDRESS FOR NOTICES: The term "Address for Notices" shall mean the
addresses set forth in Sections P and Q of the Summary; provided, however, that
after the Commencement Date, Tenant's Address for Notices shall be the address
of the Premises.
1.3 AGENTS: The term "Agents" shall mean the following: (i) with respect
to Landlord or Tenant, the agents, employees, contractors, and invitees of such
party; and (ii) in addition with respect to Tenant, Tenant's subtenants and
their respective agents, employees, contractors, and invitees.
1.4 AGREED INTEREST RATE: The term "Agreed Interest Rate" shall mean the
lesser of (i) ten percent (10%) or (ii) the maximum interest rate permitted by
Law.
1.5 BASE MONTHLY RENT: The term "Base Monthly Rent" shall mean the fixed
monthly rent payable by Tenant pursuant to Paragraph 3.1 which is specified in
Section K of the Summary.
1.6 BUILDING: The term "Building" shall mean the building in which the
Premises are located which Building is identified in Section F of the Summary,
the rentable area of which is referred to herein as the "Building Rentable
Area."
1.7 COMMON AREA: The term "Common Area" shall mean all areas and
facilities within the Project that are not designated by Landlord for the
exclusive use of Tenant or any other lessee or other occupant of the Project,
including the parking areas, access and perimeter roads, pedestrian sidewalks,
landscaped areas, trash enclosures, recreation areas and the like.
1.8 COMMON OPERATING EXPENSES: The term "Common Operating Expenses" is
defined in Paragraph 8.2.
1.9 EFFECTIVE DATE: The term "Effective Date" shall mean the date the
last signatory to this Lease whose execution is required to make it binding on
the parties hereto shall have executed this Lease.
1.10 LANDLORD'S INSURANCE: The term "Landlord's Insurance" is defined in
Paragraph 9.2.
1.11 LAW: The term "Law" shall mean any judicial decision, statute,
resolution, regulation, rule, administrative court order, or other requirement
of any municipal, county, state, federal or other government agency or authority
having jurisdiction over the parties to this Lease or the Premises, or both, in
effect either at the Effective Date or any time during the Lease Term.
1.12 LEASE: The term "Lease" shall mean the Summary and all elements of
this Lease identified in Section B of the Summary, all of which are attached
hereto and incorporated herein by this reference.
1.13 LEASE TERM: The term "Lease Term" shall mean the term of this Lease
which shall commence on the Commencement Date and continue for the period
specified in Section 1 of the Summary.
1.14 LENDER: The term "Lender" shall mean any beneficiary, mortgagee,
secured party, lender, or other holder of any Security Instrument.
1.15 PREMISES: The term "Premises" shall mean the rentable area within
the Building described in Section D of the Summary located approximately as
shown on Exhibit A.
1.16 PROJECT: The term "Project" shall mean that real property and the
improvements thereon which are specified in Section E of the Summary, the
rentable area of which is referred to herein as the "Project Rentable Area."
1.17 REAL PROPERTY TAXES: The term "Real Property Taxes" is defined in
Paragraph 8.4.
1.18 SECURITY INSTRUMENT: The term "Security Instrument" shall mean any
underlying lease, mortgage or deed of trust which now or hereafter affects any
portion of the Project.
1.19 SUMMARY: The term "Summary" shall mean the Summary of Basic Lease
Terms executed by Landlord and Tenant that is part of this Lease.
1.20 TENANT'S ALTERATIONS: The term "Tenant's Alterations" shall mean all
improvements, additions, alterations, and fixtures installed in the Premises by
Tenant at its expense.
1.21 TENANT'S SHARE: The term "Tenant's Share" shall mean the percentage
obtained by dividing Tenant's rentable area by the Building Rentable Area, which
as of the Effective Date is the percentage identified in Section G of the
Summary.
ARTICLE 2
DEMISE, CONSTRUCTION, AND
ACCEPTANCE
2.1 DEMISE OF PREMISES: Landlord hereby leases to Tenant, and Tenant
leases from Landlord, the Premises for the Lease Term upon the terms and
conditions hereof.
2.2 COMMENCEMENT DATE: The Lease Term shall begin on the first to occur
of the following, which shall be the "Commencement Date": (i) the date specified
in Section 1 of the Summary (the "Scheduled Commencement Date") if Landlord is
not required to construct improvements under Exhibit B; or (ii) the date
Landlord offers to deliver possession of the Premises to Tenant following
substantial completion of all improvements to be constructed by Landlord under
Exhibit B, except for punchlist items which do not prevent Tenant from using the
Premises; or (iii) the date Tenant enters into occupancy of the Premises.
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2.3 DELIVERY AND ACCEPTANCE OF POSSESSION: If Landlord is unable to
deliver possession of the Premises to Tenant on or before the Scheduled
Commencement Date for any reason whatsoever, this Lease shall not be void or
voidable, and Landlord shall not be liable for any loss or damage resulting
therefrom; provided that, the Lessor Term shall not commence until Landlord
delivers possession of the Premises to Tenant. At the time Landlord delivers
possession of the Premises to Tenant. Tenant agrees to accept possession of the
Premises in its then existing condition, "as-is", including all patent and
latent defects, subject only to any defects in the Premises existing at the time
Tenant takes possession and of which Tenant notifies Landlord in writing within
one hundred eighty (180) days of the Commencement Date.
ARTICLE 3
RENT
3.1 BASE MONTHLY RENT: Throughout the Lease Term, Tenant shall pay to
Landlord the Base Monthly Rent set forth in Section K of the Summary (the "Base
Monthly Rent").
3.2 ADDITIONAL RENT: All charges due from Tenant under this Lease shall
be deemed additional rent (the "Additional Rent").
3.3 PAYMENT OF RENT: Concurrently with the execution of this Lease,
Tenant shall pay to Landlord the amount set forth in Section L of the Summary as
prepayment of rent for credit against the first installment(s) of Base Monthly
Rent. All rent required to be paid in monthly installments shall be paid in
advance on the first day of each calendar month during the Lease Term to
Landlord at the address set forth in Section P of the Summary or to such other
address as Landlord may from time to time indicate. All rent shall be paid in
lawful money of the United States, without any abatement (except as set forth
herein) detection or affect whatsoever, and without any prior demand therefor.
3.4 LATE CHARGE AND INTEREST ON RENT IN DEFAULT: If any Base Monthly Rent
or Additional Rent is not received by Landlord from Tenant when due, then Tenant
shall immediately pay to Landlord a late charge equal to the greater of (i) then
percent (10%) of each delinquent rent or (ii) One Hundred Dollars ($100.00), as
liquidated damages for Tenant's failure to make timely payment. If any rent
remains delinquent for a period in excess of thirty (30) days then, in addition
to such late charge, Tenant shall pay to Landlord interest on any rent that is
not paid when due at the Agreed Interest Rate following the date such amount
became due until paid. This paragraph shall not be deemed to grant Tenant an
extension of time within which to pay rent or prevent Landlord from exercising
any other right or remedy.
3.5 RETURNED CHECK FEE: A Twenty Five Dollar ($25.00) charge will be
paid by Tenant as Additional Rent to Landlord for each check returned unpaid by
the bank and Tenant shall replace the payment with a Cashier's Check or
Certified Check. If Tenant has two (2) or more checks returned for insufficient
funds at any time during its tenancy, Landlord, at its option, may request all
payments, current and future, be made by Cashier's Check or Certified Check.
3.6 SECURITY DEPOSIT: On the Effective Date, Tenant shall deposit with
Landlord the amount set forth in Section M of the Summary as security for the
performance by Tenant of its obligations under this Lease, and not as
prepayment of rent (the "Security Deposit"). Landlord may from time to time
apply all or any portion of the Security Deposit to remedy any default by
Tenant to the extent permitted by Law. If any part of the Security Deposit is
so used, Tenant agrees to pay promptly upon demand on account in cash
sufficient to restore the Security Deposit to the full original amount.
Landlord shall not be deemed a trustee of the Security Deposit, may use the
Security Deposit in business, and shall not be required to regregate if from
its general accounts. Tenant shall not be entitled to any interest on the
Security Deposit.
ARTICLE 4
USE OF PREMISES
4.1 LIMITATION ON USE: Tenant shall use the Premises solely for the use
specified in Section N of the Summary (the "Permitted Use"). Tenant shall not
do anything in or about the Premises which will cause any damage or structural
injury to the Building or Common Area or operate any equipment within the
Premises which will overload, damages or impair electrical systems, HVAC,
sprinkler systems, sanitary sewer systems or other mechanical equipment
servicing the Building or the Project. Tenant shall not attach, hang or
suspend anything from the ceiling, roof, walls or columns of the Building or
set any load on the floor in excess of the load limits for which such items are
designed nor operate hard wheel forklifts within the Premises. Tenant shall not
change the exterior of the Building or install any equipment or antennas on or
make any penetrations of the exterior or roof of this Building. Tenant shall
not commit or permit any waste or nuisance in or about the Premises. Tenant
shall not conduct on any portion of the Premises or the Project any sale of any
kind. No articles of any kind shall be stored upon or permitted to resale
outside of the Premises.
4.2 COMPLIANCE WITH LAW: Tenant shall comply with, and shall not use the
Premises in any manner which violates any Laws now or hereafter affecting the
Project. Tenant shall not use the Premises in any manner which will cause a
cancellation of any insurance policy covering the Building or which posses an
unreasonable risk of damage or injury to the Premises. Tenant shall comply with
all reasonable requirements of any insurance company, insurance underwriter, or
Board of Fire Underwriters which are necessary to maintain the insurance
coverage carried by either Landlord or Tenant pursuant to this Lease.
Notwithstanding anything contained in this Lease to the contrary, Tenant shall
not be required to make any structural repairs or alterations to the Premises
which may be required by Law (whether presently existing or hereafter enacted),
insurance regulations or otherwise, except to the extent as may be required by
the acts or omissions of Tenant or its Agents or required as a result of
Tenant's or its Agent's specific use of the Premises.
4.3 SIGNS: Tenant shall not place on any portion of the Premises any
signage or communicative material which is visible from the exterior of the
Building without the prior written approval of Landlord. All such approved signs
shall strictly conform in all Laws, restrictive covenants and Landlord's sign
criteria attached as Exhibit C and shall be installed and maintained in good
condition at the expense of Tenant throughout the Lease Term.
4.4 PARKING: Tenant shall be entitled to the non-exclusive use of
unreserved and unassigned parking spaces equal to the number of Tenant's
Allocated Parking Stalls contained within the Project described in Section H of
the Summary for its use and the use of Tenant's Agents, the location of which
may be designated from time to time by Landlord. Tenant and Tenants Agents
shall park vehicles no larger than full size passenger automobiles or pick-up
trucks on the Project and any oversized vehicles (i.e., larger than full size
passenger automobiles or pick-up trucks) may be parked at the Project only on a
temporary basis for pick-up and delivery purposes. Tenant shall not at any time
park or permit the parking of Tenant's vehicles or trucks, or the vehicles or
trucks of his employees, invitees or others, in any portion of the Common Area
not designated by Landlord for such use by Tenant. Tenant shall not abandon any
inoperative vehicles or equipment on any portion of the Common Area, nor shall
Tenant, its employees, invitees, suppliers or others park or store any vehicle
on any portion of the Common Areas, including designated parking areas
unattended for any period longer than twenty-four (24)
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hours. Landlord reserves the right, after having given Tenant reasonable
notice, to have any vehicles owned by Tenant or Tenant's Agents utilizing
parking spaces in excess of the parking spaces allowed for Tenant's use or
parked in unauthorized areas to be towed away at Tenant's cost.
4.5 RULES AND REGULATIONS: Landlord may promulgate reasonable rules and
regulations applicable to the occupants of the Project. Such rules and
regulations shall be binding upon Tenant upon delivery of a copy to Tenant, and
Tenant agrees to abide by such rules and regulations. Landlord shall enforce
rules and regulations in a non-discriminatory manner.
ARTICLE 5
TRADE FIXTURES AND ALTERATIONS
5.1 TRADE FIXTURES: Throughout the Lease Term, Tenant may provide and
install, and shall maintain in good condition, any trade fixtures required in
the conduct of its business in the Premises. All trade fixtures shall remain
Tenant's property.
5.2 TENANT'S ALTERATIONS: Tenant shall not construct any Tenant's
Alterations or otherwise alter the Premises without Landlord's prior written
approval. At the expiration or sooner termination of the Lease Term, all
Tenant's Alterations shall be surrendered to Landlord as part of the realty and
shall then become Landlord's property, and Landlord shall have no obligation to
reimburse Tenant for all or any portion of the value or cost thereof, provided,
however, that if Landlord requires Tenant to remove any Tenant's Alterations,
Tenant shall so remove such Tenant's Alterations prior to the expiration or
sooner termination of the Lease Term. All Tenant's Alterations shall be
constructed by a licensed contractor in accordance with all Laws, using new
materials of good quality. Landlord agrees that if Tenant requests in writing
prior to the installation of any Tenant Alterations that Landlord specify
whether it will require the removal of such Tenant's Alterations upon
termination or expiration of this Lease. Landlord shall so specify within ten
(10) days after Tenant's request. If Landlord fails to respond to such a
request, Landlord shall be deemed to have required the removal of such Tenant's
Alterations upon the termination or expiration of this Lease.
5.3 ALTERATIONS REQUIRED BY LAW: Tenant shall make any alteration,
addition or change of any sort to the Premises that is required by Law because
of (i) Tenant's particular use or change of use of the Premises, (ii) Tenant's
application for any permit or governmental approval, or (iii) Tenant's
construction or installation of any Tenant's Alterations or trade fixtures.
5.4 MECHANIC'S LIENS: Tenant shall keep the Project free from any liens
and shall pay when due all bills arising out of any work performed, materials
furnished, or obligations incurred by Tenant or Tenant's Agents. If any claim
of lien is recorded, Tenant shall bond against or discharge the same within 30
days after the same has been recorded against the Project.
5.5 TAXES ON TENANT'S PROPERTY: Tenant shall pay before delinquency any
and all taxes, assessments, license fees and public charges imposed against
Tenant or Tenant's estate in this Lease or the property of Tenant.
ARTICLE 6
REPAIR AND MAINTENANCE
6.1 TENANT'S OBLIGATION TO MAINTAIN: Except as set forth in Section 6.2
below, Tenant shall, at its sole cost and expense, clean and maintain in good
order, condition, and repair and replace when necessary the Premises and every
part thereof regardless of whether the damaged portion of the Premises or the
means of repairing the same are accessible to Tenant, including but not limited
to, floors, ceilings, windows, doors, skylights, interior walls, and the
interior surfaces of the exterior walls, plumbing, all wall mounted HVAC
equipment serving only the Premises, telecommunications equipment and
intrabuilding network cabling, electrical and lighting facilities and equipment
including circuit breakers, and exterior lighting attached to the Premises. All
glass, both interior and exterior, is at the sole risk of Tenant and any broken
glass shall promptly be replaced by Tenant at Tenant's expense with glass of
the same kind, size and quality according to the current local code. In the
event Tenant fails to perform Tenant's obligations under this Paragraph 6.1,
Landlord shall give Tenant notice to do such acts as are reasonably required to
so maintain the Premises. If Tenant, within ten (10) days after notice from
Landlord, fails to commence to do the work and diligently prosecute it to
completion, then Landlord shall have the right (but not the obligation) to do
such acts and expend such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount as expended by Landlord shall be paid
by Tenant promptly after demand with interest at the Agreed Interest Rate from
the date of such work until paid. Landlord shall have no liability to Tenant for
any damages, inconvenience or interference with the use of the Premises by
Tenant as a result of performing any such work. All repairs and replacements
required of Tenant shall be promptly made with new materials of like kind and
quality. If the work affects the structural parts of the Building or if the
estimated cost of any item of repair or replacement is in excess of One Thousand
Dollars ($1,000.00), then Tenant shall first obtain Landlord's written approval
of the name in accordance with Paragraph 5.2 hereof.
6.2 LANDLORD'S OBLIGATION TO MAINTAIN: Landlord shall, at its sole cost
and expense (subject to reimbursement as set forth in this Lease), repair,
maintain and operate the Common Area and repair and maintain the exterior roof,
all roof mounted HVAC equipment, the exterior and structural parts of the
Building so that the same are kept in good order and repair and if there is
building service equipment and/or utility facilities serving portions of the
Common Area and/or both the Premises and other parts of the Building, Landlord
shall maintain and operate (and replace when necessary) such equipment.
Landlord shall not be responsible for repairs required for damage caused to any
part of the Project by any act or omission of Tenant or Tenant's Agents and
Tenant shall be solely responsible for such repairs.
6.3 CONTROL OF COMMON AREA: Landlord shall at all times have exclusive
control of the Common Area. Subject to Xxxxxxxxx 00.0, Xxxxxxxx shall have the
right, without the same constituting an actual or constructive eviction and
without entitling Tenant to any abatement of rent, to close any part of the
Common Area for any reason, eliminate from or add to the Project any land or
improvement, make changes to the Common Area, remove unauthorized persons from
the Project, and/or change the name or address of the Building or Project.
Landlord shall have no obligation to provide guard services or other security
measures for the benefit of the Project and Tenant assumes all responsibility
for the protection of Tenant and Tenant's Agents from acts of third parties.
ARTICLE 7
WASTE DISPOSAL AND UTILITIES
7.1 WASTE DISPOSAL: Tenant shall cause all of its waste to be stored only
in designated areas and regularly removed from the Premises at Tenant's sole
cost; provided that, Landlord may elect to provide for waste disposal at the
Premises and/or Project and the cost thereof shall be considered a Common
Operating Expense. Tenant shall keep all fire corridors and mechanical
equipment rooms in the Premises free and clear of all obstructions.
3.
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7.2 HAZARDOUS MATERIALS: Landlord and Tenant agreement as follows with
respect to the existence or use of Hazardous Materials on the Project:
A. Any handling, transportation, storage, treatment, disposal or use
of Hazardous Materials by Tenant and Tenant's Agents in or about the Project
shall strictly comply with all applicable Hazardous Materials Laws. Tenant
shall indemnify, defend upon demand with counsel reasonably acceptable to
Landlord, and hold harmless Landlord from and against any and all liabilities,
losses, claims, damages, interest, penalties, fines, monetary sanctions,
reasonable attorneys' fees, experts' fees, court costs, remediation costs,
investigation costs and other expenses which result from or arise in any manner
whatsoever out of the use, storage, treatment, transportation, release, or
disposal of Hazardous Materials on or about the Project by Tenant or Tenant's
Agents.
B. If the presence of Hazardous Materials on or about the Project
caused or permitted by Tenant or Tenant's Agents results in contamination of
water or soil, then Tenant shall promptly take any and all action necessary to
investigate and remediate such contamination as required by Law or as a
condition to the issuance or continuing effectiveness of any governmental
approval which relates to the use of the Project or any part thereof. Tenant
shall further be solely responsible for, and shall defend, indemnify and hold
Landlord and its agents harmless from and against, all claims, costs and
liabilities, including attorneys' fees and costs arising out of or in
connection with any investigation and remediation to return the Project to its
condition existing prior to the appearance of such Hazardous Materials.
C. Tenant shall give written notice to Landlord as soon as reasonably
practicable of (i) any communication received from any governmental authority
concerning Hazardous Materials which relates to the Project, and (ii) any
contamination of the Project by Hazardous Materials which constitutes a
violation of any Hazardous Materials Law. Tenant may use such Hazardous
Materials as are necessary to the operation of Tenant's business of which
Landlord receives notice prior to such Hazardous Materials being brought onto
the Premises and to which Landlord consents in writing. At any time during the
Lease Term, Tenant shall, within five days after written request therefor
received from Landlord, disclose in writing all Hazardous Materials that are
being used by Tenant on the Project, the nature and quantity of such use, and
the manner of storage and disposal. Landlord acknowledges that Tenant's use
requires batteries which may contain Hazardous Materials and Landlord consents
to Tenant's use of such batteries provided Tenant is in compliance with all
other terms of this Article 7.
D. Landlord may cause testing xxxxx to be installed on the Project,
and may cause the ground water to be tested to detect the presence of Hazardous
Materials by the use of such tests as are then customarily used for such
purposes. The cost of such tests and of the installation, maintenance, repair
and replacement of such xxxxx shall be paid by Tenant. If such tests disclose
the existence of facts which give rise to liability of Tenant pursuant to its
indemnify given in Paragraph 7.2A and Paragraph 7.2B.
E. As used herein, the term "Hazardous Material," means any hazardous
or toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States
Government. As used herein, the term "Hazardous Material Law" shall mean any
Law which regulates the use, storage, release or disposal of any Hazardous
Material.
F. The obligations of Landlord and Tenant under this Paragraph 7.2
shall survive the expiration or earlier termination of the Lease Term. The
rights and obligations of Landlord and Tenant with respect to issues relating to
Hazardous Materials are exclusively established by this Paragraph 7.2. In the
event of any inconsistency between any other part of this Lease and this
Paragraph 7.2, the terms of this Paragraph 7.2 shall control.
G. Landlord hereby represents and warrants to Tenant, that, to the
best of its knowledge, no Hazardous Materials exist in or about the Project in
violation of Law. Landlord agrees to hold Tenant harmless from and against any
costs, liabilities, losses, claims, or damages resulting from the presence or
release of Hazardous Materials in or about the Project caused by Landlord, or
its Agents. Notwithstanding anything to the contrary contained in the Lease,
Tenant shall have no obligation to indemnify, defend, or hold Landlord harmless
for claims originating from the presence of Hazardous Materials which are not
placed on or in the Premises or the Project by the Tenant or its Agents.
Landlord and Tenant agree to comply with all relevant statutes, ordinances and
regulations involving Hazardous Materials.
7.3 UTILITIES: Tenant shall promptly pay, as the same become due, all
charges for water, gas, electricity, telephone, sewer service, waste pick-up
and any other utilities, materials or services furnished to or used by Tenant
on or about the Premises during the Lease Term, including, without limitation,
meter, use and/or connection fees, hook-up fees or standby fees, and penalties
for discontinued or interrupted service. Landlord may, at Landlord's option,
require Tenant to place any utility service serving only the Premises in
Tenant's name. If any utility service is not separately metered to the
Premises, then Tenant shall pay its pro rata share of the cost of such utility
service with all others served by the service not separately metered. However,
if Landlord determines that Tenant is using a disproportionate amount of any
utility service not separately metered, then Landlord at its election may (i)
periodically charge Tenant, as Additional Rent, a sum equal to Landlord's
reasonable estimate of the cost of Tenant's excess use of such utility service,
or (ii) install a separate meter (at Tenant's expense) to insure the utility
service supplied to the Premises.
ARTICLE 8
COMMON OPERATING EXPENSES
8.1 TENANT'S OBLIGATION TO REIMBURSE COMMON OPERATING EXPENSES: As
Additional Rent, Tenant shall pay Tenant's Share (specified in Section G of the
Summary) of all Common Operating Expenses; provided, however, that if the
Project contains more than one building, then Tenant shall pay Tenant's Share
of all Common Operating Expenses fairly allocable to the Building, and provided
further, that Tenant shall pay all Common Operating Expenses fairly allocable
to the Premises. Tenant shall pay such share of the actual Common Operating
Expenses incurred or paid by Landlord but not therefore billed to Tenant within
thirty (30) days after receipt of a written xxxx therefor from Landlord, on
such periodic basis as Landlord shall designate, but in no event more
frequently than once a month. Alternatively, Landlord may from time to time
require that Tenant pay Tenant's Share of Common Operating Expenses in advance
in estimated monthly or, at Landlord's option, quarterly installments. In
accordance with the following: (i) Landlord shall deliver to Tenant Landlord's
reasonable estimate of the Common Operating Expenses it anticipates will be
paid or incurred for the Landlord's fiscal year in question, (ii) during such
Landlord's fiscal year, Tenant shall pay Tenant's Share of the estimated Common
Operating Expenses in advance in equal monthly installments due with each
installment of Base Monthly Rent, and (iii) within ninety (90) days after the
end of such Landlord's fiscal year, Landlord shall furnish to Tenant a
statement in reasonable detail of the actual Common Operating Expenses paid or
incurred by Landlord in accordance with this paragraph during the just ended
Landlord's fiscal year, and thereupon there shall be an adjustment between
Landlord and Tenant, with payment to or repayment by Landlord, as the case may
require, within 30 days after delivery by Landlord to Tenant of such statement,
so that Landlord shall receive the entire amount of Tenant's Share of all
Common Operating Expenses for such Landlord's fiscal year and no more. Tenant
shall have the right, at its expense, exercisable upon reasonable written
notice to Landlord, to audit Landlord's books and records for Common Operating
Expenses provided such audit is conducted during normal business hours and
within twelve (12) months following the Lease year subject to audit. Landlord
shall pay the reasonable cost of such audit if it is determined that Tenant
has been overcharged for Common Operating Expense by more than five percent
(5%) and shall promptly refund the amount of such overpayment to Tenant.
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8.2 COMMON OPERATING EXPENSES DEFINED: The term "Common Operating
Expenses" shall mean all costs and expenses incurred by Landlord with respect
to the operation, protection, improvement, maintenance, repair and replacement
of the Project, including, without limitation, the following: (i) the operation,
repair, maintenance and replacement of the roof (excluding replacement of the
roof structure and/or membrane), the exterior surfaces and interior improvements
of all buildings located on the Project, the roof mounted HVAC equipment,
utility facilities and other building service equipment, and the Common Area;
(ii) reserves and aside for Common Operating Expenses or for maintenance, repair
and/or replacement of the Common Area; (iii) the amounts of any "deductible" and
"coinsurance" paid by Landlord with respect to damage caused by an "Insured
Peril" (as hereafter defined) or amounts incurred in connection with an
"Uninsured Peril" ( as hereinafter defined) up to a minimum amount in any twelve
(12) month period equal to two percent (2%) of the replacement cost of the
building or other improvements damaged; and (v) reasonable management fees.
Specifically excluded from Operating Expenses (to the extent provided below)
shall be the following:
(1) Costs of initial improvements to any tenant's premises, or any
architectural, engineering or legal fees, relocation expense or any permit or
similar fees or charges associated with such improvements;
(2) Principal or interest payments on loans, including loans accrued by
mortgages or trust deeds on the Project and ground lease payments, if any;
(3) Costs of capital improvements, except that Operating Expenses shall
include the cost during the Term, as reasonably amortized by Landlord pursuant
to sound management and accounting principles consistently applied, with
interest on the unamortized amount at ten percent (10%) per annum of any
capital improvements which are intended to reduce any component cost included
within Operating Expenses (and which, at such time, prudent owners of office
buildings in Santa Clara, California would reasonably determine to be
necessary).
(4) Depreciation or amortization of any improvements, except as
specifically set forth in this Lease;
(5) Costs of repairs, alterations or replacements caused by casualty
losses for which Landlord is compensated through proceeds of insurance or for
which Landlord would have been compensated had Landlord maintained the
insurance required by this Lease;
(6) Costs of repairs, alterations or replacements caused by the exercise
of the rights of eminent domain;
(7) Costs and expenses incurred in connection with leasing space in the
Project, such as legal fees for the preparation of ????, tenant allowances,
space planner fees, real estate brokers' leasing commissions and advertising
and promotional expenses, expenses of any leasing office incurred with regard
to leasing the Project or portions thereof;
(8) Court costs and legal fees incurred with regard to enforcing the
obligations of tenants under other leases;
(9) Leasing commissions, attorneys' fees, costs and disbursements and
other expenses insured in connection with negotiations or disputes with
tenants, occupants or prospective tenants or occupants of the Project;
(10) Costs incurred due to violation by Landlord of any lease for space in
the Project or any indemnity payments made by Landlord pursuant to any such
lease because of a violation by Landlord under such lease;
(11) Any payments made to subsidiaries of Landlord or entities under
common control with Landlord except if such payments are for services or goods
on, to or for the Building and only to the extent that the cost of such services
and goods are at market rates being paid for such services or goods by owners of
other office buildings in Santa Clara, California from time to time;
(12) Any expense for which Landlord is compensated by proceeds of
insurance;
(13) Any expense for services or items for which any tenant of the
Building (including Tenant) directly reimburses Landlord (other than as a
component of Operating Expenses);
(14) Accounting fees (including those for the preparation of Landlord's
income taxes), except reasonable accounting fees incurred in connection with
the operation and management of the Project;
(15) Any lender's fees;
(16) Variable expense that are not being furnished to Tenant, including,
without limitation, janitorial services and Buildings HVAC system;
(17) Costs of asbestos abatement and/or removal and/or any other measures
needed to comply with environmental requirements or to investigate or remediate
environmental contamination from Hazardous Materials except as set forth in
Article 7;
(18) Any costs, fines or penalties incurred due to violations by Landlord
of any governmental rule or authority;
(19) Management fees in excess of four percent (4%) of gross ????;
(20) Wages, salaries and other compensation paid to clerks or attendants in
newsstands or other commercial concessions, if any, operated by Landlord and any
expense or costs for wages, salaries or other benefits or compensation paid to
any person above the level of building manager;
(21) Costs relating to relocating existing tenants in the Project;
(22) Expenses arising as a result of Landlord's gross negligence or
willful misconduct or the negligence or willful misconduct of Landlord's agents
or employees;
(23) Real Property Taxes (reimbursement of Real Property Taxes is dealt
with exclusively in Article 8.3); and
(24) Repairs necessary to bring the Project or any part thereof into
compliance with Laws in effect as of the Commencement Date.
8.3 TENANTS OBLIGATION TO REIMBURSE REAL PROPERTY TAXES AND LANDLORD'S
INSURANCE: As Additional Rent, Tenant shall pay Tenant's Share (specified in
Section G of the Summary) of the amount (if any) by which Real Property Taxes
and/or Landlord's insurance costs paid or incurred in any Landlord's fiscal
year during the Lease Term exceed the Real
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Property Taxes and/or Landlord's Insurance costs, respectively, paid or
incurred during the fiscal year in which the Commencement Date occurs (which
excess is referred to herein as the "Excess Expenses") for any amount or
portion thereof. If the Project contains more than one building, then Tenant
shall pay Tenant's share of the Excess Expenses for the Landlord's fiscal year
in question based upon the real Property Taxes and/or Landlord's Insurance
costs fairly allocable to the Building. Tenant shall pay such share of
the Excess Expenses on the same payment terms as are contained in Paragraph 8.1
hereof regarding payment of Common Operating Expenses.
8.4 REAL PROPERTY TAXES DEFINED: The term "Real Property Taxes"
shall mean all taxes, assessments, levies, and other charges of any kind or
nature whatsoever, general and special, foreseen and unforeseen, now or
hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Project or the rents
derived therefrom (except federal and state and income taxes). Notwithstanding
anything contained in the Lease to the contrary, during the first five (5) years
of the Lease Term only (after such time this exclusion shall no longer apply)
there shall be excluded from the tax xxxx for the purposes of computing Real
Property Taxes, any increase in real estate taxes caused solely by a "change in
ownership," as defined in the law under which reassessment or tax increase
results from a transfer of all or a portion of Landlord's interest in the
Project. Real Property Taxes shall also not include interest and penalties for
late payment. If assessments or other special taxes that are payable in
installments are levied against all or any portion of the Project, Landlord
shall pay such assessments or taxes in installments over the maximum period of
time permitted by law, and all interest payments thereon shall be considered
part of the assessment for purposes of this provision. Landlord represents that
the Project is assessed as a single tax parcel for Real Property Tax purposes
separate and apart from any other land.
ARTICLE 9
INSURANCE
9.1 TENANT'S INSURANCE; Tenant shall maintain insurance complying
with all of the following:
A. Tenant shall procure, pay for and keep in full force and
effect: (i) commercial general liability insurances, including property damage,
against liability for personal injury, bodily injury, death and damage to
property occurring in or about, or resulting from an occurrence in or about,
the Premises with combined single limit coverage of not less than the amount
specified in Section O of the Summary, which insurance shall contain a
"contractual liability" endorsement insuring performance of Tenant's obligation
indemnify Landlord contained in Paragraph 10.3; (ii) fire and property damage
insurance in so-called "all risk" form insuring Tenant's Alterations for their
full actual replacement cost; and (iii) such other insurance and amounts of
insurance as are either (1) reasonably required by any Lender, or (2)
reasonably required by Landlord and customarily carried by tenants of similar
property in similar businesses.
B. Where applicable and required by Landlord, each policy of
insurance required to be carried by Tenant pursuant to this Paragraph 9.1: (i)
shall name Landlord and such other parties in interest as Landlord reasonably
designates as additional insured; (ii) shall be primary and not secondary or
contributing; (iii) shall be in a form and carried with companies reasonably
acceptable to Landlord; (iv) shall provide that such policy shall not be subject
to cancellation, lapse or change except after at least thirty (30) days prior
written notice to Landlord; (v) shall not have a "deductible" in excess of such
amounts as are approved by Landlord; and (vi) shall contain a cross liability
endorsement and a "severability" clause.
C. A copy of such paid-up policy evidencing the insurance
required to be carried by Tenant pursuant to this Paragraph 9.1 (appropriately
authenticated by the insurer) shall be delivered to Landlord prior to the time
Tenant or any of its Agents enter the Premises and upon renewal of such
policies, but not less than five (5) days prior to the expiration of the term
of such coverage.
D. Tenant shall have the right to maintain the required
liability insurance in the form of a blanket policy covering other business
locations of Tenant in addition to the Premises; provided, however, that
Tenant shall provide Landlord with a certificate of insurance specifically
naming the location of the Premises and naming Landlord as required in this
Section, the limits of which coverage applicable to the Premises are to be in
the amounts set forth in this Section.
9.2 LANDLORD'S INSURANCE: Landlord shall maintain a policy or
policies of fire and property damage insurance in so-called "all risk" form
insuring Landlord (and such others as Landlord may designate) from physical
damage to the Project with coverage of not less than the full replacement cost
thereof, and if Landlord elects, a commercial general liability policy
("Landlord's Insurance"). Such insurance may be endorsed to cover loss caused by
such additional perils against which Landlord may elect to insure (including
earthquake and/or flood), and to provide such additional coverage as Landlord
reasonably requires, and shall contain reasonable "deductibles" which, in the
case of earthquake and flood insurance, may be up to such amount as is then
available at commercially reasonable rates. Landlord shall not be required to
cause such insurance to cover any of Tenant's Alterations or trade fixtures.
9.3 RELEASE AND WAIVER OF SUBROGATION: The parties hereto release
each other, and their respective agents and employees, from any liability for
injury to any person or damage to property that is caused by or results from
any risk insured against under any valid and collectible insurance policy
carried by either of the parties which contains a waiver of subrogation by the
insurer and is in force at the time of such injury or damage; subject to the
following limitations: (i) the foregoing provision shall not apply to the
commercial general liability insurance described by subparagraph Paragraph 9.1A;
and (ii) Tenant shall not be released from any such liability to the extent any
damages resulting from such injury or damage are not covered by the recovery
obtained by Landlord from such insurance, but only if the insurance in question
permits such partial release in connection with obtaining a waives of
subrogation from the insurer. Each party shall use reasonable efforts to cause
each insurance policy obtained by it to provide that the insurer waiver all
right of recovery by way of subrogation against the other party and its agents
and employees.
ARTICLE 10
LIMITATION ON LANDLORD'S LIABILITY
AND INDEMNITY
10.1 LIMITATION ON LANDLORD'S LIABILITY: Landlord shall not be
liable to Tenant, nor shall Tenant be entitled to terminate this Lease or to
any abatement of rent, for any injury to Tenant or Tenant's Agents, damage to
the property of Tenant or Tenant's Agents, or loss to Tenant's business
resulting from any cause whatsoever unless same is proximately caused by
Landlord's willful misconduct or gross negligence of which Landlord has actual
notice and a reasonable opportunity to cure but which it fails to so cure.
10.2 LIMITATION ON TENANT'S RECOURSE: Tenant shall have recourse
only to the interest of Landlord in the Project for the satisfaction of the
obligations of Landlord and shall not have recourse to any other assets of
Landlord or in the assets of any officers, directors, trustees, partners, joint
venturers, members, owners, stockholders, or other principals or
representatives of Landlord for the satisfaction of such obligations.
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10.3 INDEMNIFICATION OF LANDLORD: Tenant shall hold harmless, indemnify
and defend Landlord, and its employees, agents and contractors, with competent
counsel reasonably satisfactory to Landlord, from all liability, penalties,
losses, damages, costs, expenses, causes of action, claims and/or judgments
arising from or relating to (i) any cause or extent whatsoever (other than the
willful misconduct or gross negligence of Landlord of which Landlord has had
notice and a reasonable time to cure, but which Landlord has failed to cure)
occurring in or about or resulting from an occurrence in or about the Premises
during the Lease Term, (ii) the negligence or willful misconduct of Tenant or
Tenant's Agents, wherever the cause may occur, or (iii) an Event of Tenant's
Default. The provisions of this Paragraph 10.3 shall survive the expiration or
sooner termination of this Lease. Notwithstanding anything herein to the
contrary, Landlord shall not be indemnified from any liability for damage or
injury to persons or property caused by or resulting from the gross negligence
or wanton misconduct of Landlord or its Agents.
ARTICLE II
DAMAGES TO PREMISES
11.1 LANDLORD'S DUTY TO RESTORE: If the Premises are damaged by any
peril, Landlord shall restore the Premises unless the Lease is terminated by
Landlord pursuant to Paragraph 11.2. All insurance proceeds available from the
fire and property damage insurance carried by Landlord pursuant to Paragraph
9.2 shall be paid to and become the property of Landlord. Landlord's obligation
to restore shall be limited to the Premises and Interior Improvements
constructed by Landlord as they existed as of the Commencement Date, excluding
any Tenant's Alterations, trade fixtures and/or personal property. Tenant shall
forthwith replace or fully repair all Tenant's Alterations and trade fixtures
existing at the time of the damages.
11.2 LANDLORD'S RIGHT TO TERMINATE: Landlord shall have the right to
terminate this Lease in the event any of the following occurs: (i) either the
Project or the Building is damaged by an Insured Peril to such an extent that
the estimated cost to restore exceeds thirty three (33%) of the then actual
replacement cost thereof; (ii) either the Project or the Building is damaged by
an Uninsured Peril to such an extent that the estimated cost to restore exceeds
two percent (2%) of the then actual replacement cost thereof; or (iii) the
Premises are damaged by any peril within twelve (12) months of the last day of
the Lease Term. As used herein, "Insured Peril" shall mean a peril actually
insured against for which the insurance proceeds actually received by Landlord
are sufficient (except for any "deductible" amount specified by such insurance)
to restore the Project under then-existing building codes to the condition
existing immediately prior to the damage; and "Uninsured Peril" shall mean any
peril which is not an Insured Peril. Notwithstanding the foregoing, if the
"deductible" for earthquake or flood insurance exceeds two percent (2%) of the
replacement cost of the improvements insured, such peril shall be deemed an
"Uninsured Peril."
11.3 ABATEMENT OF RENT: In the event of damage to the Premises which
does not result in the termination of this Lease, the Base Monthly Rent and the
Additional Rent shall be temporarily abated during the period of restoration
in proportion to the degree to which Tenant's use of the Premises is impaired
by such damage. Tenant shall not be entitled to any compensation or damage from
Landlord for loss of Tenant's business or property caused by such damage or
restoration. Tenant hereby waives the provisions of California Civil Code
Sections 1932(2) and 1933(4) and the provisions of any similar law hereinafter
enacted.
11.4 TENANT'S RIGHT TO TERMINATE: If the Premises are damaged by any
peril and Landlord does not elect to terminate this Lease or is not entitled to
terminate this Lease pursuant to this Article, then as soon as reasonably
practicable, Landlord shall furnish Tenant with the written opinion of
Landlord's architect or construction consultant as to when the restoration work
required of Landlord may be complete. Tenant shall have the option to terminate
this Lease in the event any of the following occurs, which option may be
exercised in the case of A or B below only by delivery to Landlord of a written
notice of election to terminate within ten (10) business days after Tenant
receives from Landlord the estimate of the time needed to complete such
restoration:
A. If the time estimated to substantially complete the restoration
exceeds nine months from and after the date of such damage; or
B. If the damage occurred within nine months of the last day of the
Term and the time estimated to substantially complete the restoration exceeds
ninety days from and after the date such restoration is commenced; or
C. Landlord does not complete the restoration within nine months
from the date of the damage.
ARTICLE 12
CONDEMNATION
12.1 LANDLORD'S TERMINATION RIGHT: Landlord shall have the right to
terminate this Lease if, as a result of a condemnation, more than 40% of the
Premises or 20% of the Project is so taken; provided that if Landlord elects to
terminate due to 20% of the Project being taken, Landlord terminates the Leases
of substantially all other Tenants at the Project.
12.2 TENANT'S TERMINATION RIGHT: Tenant shall have the right to
terminate this Lease if, as a result of any condemnation, ten percent (10%) or
more of the Premises is taken and the remaining part of the Premises cannot be
restored within a reasonable period of time and thereby made reasonably
suitable for the continued operation of the Tenant's business.
12.3 ABATEMENT OF RENT: If any part of the Premises is taken by
condemnation and this Lease is not terminated, Base Monthly Rent shall be
reduced in the same proportion that the floor area of that part of the Premises
so taken (less any addition thereto by reason of any reconstruction) bears to
the original floor area of the Premises.
12.4 DIVISION OF CONDEMNATION AWARD: Any award made as a result of any
condemnation of the Premises or the Common Area shall belong to and be paid to
Landlord, and Tenant hereby assigns to Landlord all of its right, title and
interest in any such award.
ARTICLE 13
DEFAULT AND REMEDIES
13.1 EVENTS OF TENANT'S DEFAULT: Tenant shall be in default of its
obligations under this Lease if any of the following events occurs (an "Event
of Tenant's Default"):
A. Tenant shall have failed to pay Base Monthly Rent or Additional
Rent when due, and such failure is not cured within 3 days after delivery of
written notice from Landlord specifying such failure to pay; or
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B. Tenant shall have failed to perform any term, covenant, or
condition of this Lease other than these requiring the payment of Base Monthly
Rent or Additional Rent, and Tenant shall have failed to cure such breach within
thirty (30) days after written notice from Landlord specifying the nature of
such breach where such breach could reasonably be cured within said thirty (30)
day period, or if such breach could not reasonably be cured within said thirty
(30) day period, Tenant shall have failed to commence such cure within said
thirty (30) day period and thereafter continues with due diligence to prosecute
such cure to completion within such time period as is reasonably needed; or
C. Tenant shall have sublet the Premises or assigned its
Interest in the Lease in violation of the provisions contained in Article 14; or
D. (i) The making by Tenant of any general arrangements or
assignments for the benefit of creditors; (ii) Tenant becomes a "debtor" as
defined in 11 USC paragraph 101 or any successor status thereto (unless, in the
case of a petition filed against Tenant, the [Illegible] is dismissed within
ninety (90) days; (iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to Tenant
within sixty (60) days; or (iv) the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within
sixty (60) days; provided, however, is the event that any provision of this
Paragraph 13.1D is contrary to any applicable Law, such provision shall be of no
force or effect; or
E. Tenant shall have failed to deliver documents required of
it pursuant to Paragraph 15.4 or Paragraph 15.6 within the time periods
specified therein.
13.3 LANDLORD'S REMEDIES: If an Event of Tenant's Default occurs,
Landlord shall have the following rights and remedies in addition to all other
rights and remedies provided by Law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
A. This Lease shall not terminate unless Landlord gives Tenant
written notice of its election to terminate and no act by or on behalf of
Landlord intended to mitigate the adverse effect of such breach shall constitute
a termination of Tenant's right in possession unless Landlord gives Tenant
written notice of termination. Should Landlord not terminate this Lease giving
Tenant written notice, Landlord may enforce all of its rights and remedies under
this Lease or available at law or its equity, including (i) the right to perform
Tenant's obligations and be reimbursed by Tenant for the cost thereof together
with interest at the Agreed Interest Rate from the date any sum is paid by
Landlord until Landlord is reimbursed by Tenant, and (ii) the remedy described
in California Civil Code Section 1951.4 (Landlord may continue Lease in affect
after Tenant's breach and abandonment and recover rent as it becomes due, if
Tenant has right to sublet or assign, subject only to reasonable limitations).
B. Landlord may terminate this lease, to which event Landlord
shall be entitled, at Landlord's election, to damages in an amount as set forth
in California Civil Code Section 1951.2. For purposes of computing damages
pursuant to California Civil Code Section 1951.2; (i) an interest rate equal to
the Agreed Interest Rate shall be used where permitted; and (ii) the term "rent"
includes Base Monthly Rent and Additional Rent. Such damages shall include: (i)
the worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such rental
loss that Tenant proves could be reasonably avoided, computed by discounting
such amount at the discount rate of the Federal Reserve Banks of San Francisco
at the time of award plus one percent (1%); and (ii) any other amount necessary
to compensate Landlord for all detriment proximately caused by Tenant's failure
to perform. Tenant's obligations under this Lease, or which in the ordinary
course of things would be likely to result therefrom.
C. The remedies set forth herein are not intended to be
exclusive and shall be in addition to the rights and remedies granted to
Landlord by Law or in equity. Nothing in this Paragraph 13.2 shall limit
Landlord's right to indemnification from Tenant as provided in Paragraph 7.2 and
Paragraph 10.3. Any notice give by Landlord in order to satisfy the requirements
of Paragraph 13.1A or Paragraph 13.1B above shall also satisfy this notice
requirements of California Code of Civil Procedure Section 1161 regarding
unlawful detainer proceedings.
13.3 WAIVER: Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be [Illegible] to waive or
render unnecessary Landlord's consent to or approval of any subsequent similar
act by Tenant. The receipt by Landlord of any rent or payment with or without
knowledge of the breach of any provision hereof shall not be deemed a waiver of
or consent to any such breach unless such waiver is in writing and signed by
Landlord. No delay or omission in the exercise of any right or remedy occurring
to Landlord upon any breach by Tenant shall impair such right or remedy or be
construed as a waiver of any such breach theretofore or thereafter occurring.
The waiver by either party of any breach of any provision of this Lease shall
not be deemed to be a waiver of any subsequent breach of the same or of any
other provisions herein contained.
13.4 WAIVER BY TENANT OF CERTAIN REMEDIES: Tenant waives the
provisions of Sections 1932(1), 1941 and 1942 of the California Civil Code and
any similar or successor law regarding Tenant's right to terminate this Lease or
to make repairs and deduct the expense of such repairs from the rent due under
this Lease. Tenant hereby waives any right of redemption or relief from
forfeiture under the laws of the State of California, or under any other present
or future law, including the provisions of Sections 1174 and 1179 of the
California Code of Civil Procedure.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFER BY TENANT: The following provisions shall apply to any
assignment, subletting or other transfer by Tenant or any subtenant or assignee
or other successor in interest of the original Tenant (collectively referred to
in this Paragraph 14.1 as "Tenant"):
A. Tenant shall not do any of the following (collectively
referred to herein as a "Transfer"), whether voluntarily, involuntarily or by
operation of law, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed: (i) sublet all or any part of the
Premises or allow it to be sublet, occupied or used by any person or entity
other than Tenant or assign its interest in this Lease; (ii) mortgage or
encumber the Lease (or otherwise use the Lease as a security device) in any
manner; or (iii) amend or modify as assignment, sublease or other transfer that
has been previously approved by Landlord. The dissolution, merger, or other
reorganization of Tenant of the sale, transfer, withdrawal, or substitution of
twenty five percent (25%) or more of the ownership interests in Tenant shall be
deemed a Transfer. Any attempted Transfer without Landlord's consent shall
constitute an Event of Default and shall be voidable at Landlord's option. No
Transfer, even with the consent of Landlord, shall relieve Tenant of its
personal and primary obligation to pay the rent and to perform all of the other
obligations to be performed by Tenant hereunder. Tenant shall reimburse Landlord
for all responsible costs and attorneys' fees in connection with the processing
and/or documentation of a requested Transfer, whether or not Landlord's consent
is given. In the event Landlord consents to any proposed Transfer, Tenant agrees
to pay to Landlord, an Additional Rent, fifty percent (50%) of any and all rents
or other consideration (including key money) received by Tenant from the
transferee by reason of such Transfer in excess of the rent payable by Tenant to
Landlord under the Lease (less any brokerage commissions, attorneys' fees and
advertising expenses incurred by Tenant in connection with the Transfer).
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B. At least thirty (30) days before a proposed Transfer is
to become effective, Tenant shall give Landlord written notice of the proposed
terms of such Transfer and request Landlord's approval, which notice shall
include the name and legal composition of the proposed transferor, a current
financial statement and financial statements of the transferee covering the
preceding three years if the same exist all of which statements prepaid in
accordance with generally accepted accounting principles, the nature of the
proposed transferee's business to be carried on in the Premises, and the form of
Transfer agreement to be used. Tenant shall provide to Landlord such other
information as may be reasonably requested by Landlord, and Tenant shall
immediately notify Landlord of any material modification to the proposed terms
of such Transfer.
C. In the event that Tenant seeks to make any Transfer,
Landlord shall have the right to terminate this Lease or, in the case of a
sublease of less than all of the Premises, terminate this Lease as to that part
of the Premises proposed to be so sublet. Upon such termination, Tenant shall be
released from any further obligation under this Lease if it is terminated in its
capacity, or shall be released from any further obligation under the Lease with
respect to the space proposed to be sublet in the case of a proposed partial
sublease. In the case of a partial termination of the Lease, the Base Monthly
Rent and Tenant's Share shall be reduced to an amount which bears the same
relationship to the original amount thereof as the area of that part of the
Premises which remains subject to the Lease bears to the original area of the
Premises. Landlord and Tenant shall execute a cancellation and release with
respect to the Lease to effect such termination.
D. Notwithstanding anything contained herein to the
contrary, none of the following, or any changes, assignments or transfers
resulting from the following shall be deemed a "Transfer" or require Landlord's
prior written consent, the payment by Tenant of any fees or charges of any kind,
or give rise to any right of Landlord to cancel or recapture all or any part of
the Premises; provided, however, Tenant shall provide at least twenty (20) days
prior written notice of such transfer below (except subparagraph v) and shall
provide Landlord with all information regarding such transfer as is reasonably
requested by Landlord:
(i) a transfer by Tenant of its interest in
this Lease to a person or entity controlling, controlled by or under common
control with Tenant;
(ii) a transfer of or change in the ownership
interest of Tenant as long as the new ownership interest continues to operate
the business of the Tenant in the same manner, provided such new ownership
interest has an equal to or greater net worth than existing ownership at the
time of transfer;
(iii) a transaction in which Tenant becomes an entity
whose shares of stock or other ownership interests are, directly or indirectly,
sold on a national stock exchange or an inter-dealer quotation system; and in
the event the foregoing transaction has occurred, any subsequent sale of
ownership interests or issuance of new ownership interest, directly or
indirectly, to Tenant;
(iv) the merger, consolidation or amalgamation of
Tenant with a third party or the sale of all, or substantially all, of the
assets used by Tenant in the conduct of its business at the Premises; provided
such new ownership interest has an equal to or greater net worth than existing
ownership at the time of Transfer; and
(v) any license or co-location agreement of
portions of the Premises to persons or entities which interconnect with Tenant's
equipment in the Premises.
H. Landlord acknowledges that Tenant's Permitted Use
requires the installation in the Premises of certain telecommunications
equipment owned by customers, licensees and co-locators of Tenant ("Tenant
Customers") in order for such Tenant Customers to interconnect with Tenant's
equipment or to permit Tenant to manage or operate such Tenant Customers'
equipment. Notwithstanding anything to the contrary provided herein, Landlord
approves such use of portions of the Premises by Tenant Customers for such
purposes without Landlord's further consent. All use or occupancy of the
Premises by said Tenant Customers shall comply with the terms of the Lease and
any and all applicable governmental laws, rules, or regulations, and shall be in
the form of a license agreement which shall terminate upon any termination of
the Lease.
14.3 TRANSFER BY LANDLORD: Landlord and its successors in interest
shall have the right to transfer their interest in this Lease and the Project
at any time. In the event of any such transfer, the Landlord originally named
herein (and, in the case of any subsequent transfer, the transferer) shall
automatically be relieved, from the date of such transfer and without any
further act by any person or entity, of all liability for the performance of
the obligations of the Landlord hereunder which may accrue after the date of
such transfer.
ARTICLE 15
GENERAL PROVISIONS
15.1 LANDLORD'S RIGHT TO ENTER: Landlord and its agents may enter
the Premises at any reasonable time after giving at least twenty four (24)
hours' prior notice to Tenant (and immediately in the case of emergency) for any
reasonable purposes including, without limitation, showing the Premises to
prospective purchasers, mortgagees or tenants and posting upon the Premises
ordinary "for lease" signs or "for sale" signs. Landlord shall have the right
to use any and all means Landlord may deem necessary and proper to enter the
Premises in an emergency. Any entry into the Premises obtained by Landlord in
accordance with this Paragraph 15.1 shall not be a forcible or unlawful entry
into, or a detainer of, the Premises, or an actual or constructive eviction of
Tenant from the Premises. No entry or repairs by Landlord or rights reserved
to Landlord to alter, modify or otherwise improve all or any part of this
Project shall be deemed or construed to be a disturbance of Tenant's quiet or
peaceful possession of the Premises so long as the aforesaid work or actions do
not disturb or disrupt Tenant's business operations. Tenant shall have the
right to install its own security in the Building provided that Tenant provides
Landlord with the information necessary to allow Landlord (and emergency
personnel) access to the Building in the event of an emergency.
15.2 SURRENDER OF THE PREMISES: Upon the expiration or sooner
termination of this Lease, Tenant shall vacate and surrender the Premises to
Landlord in the same condition as existed at the Commencement Date, broom
clean, ordinary wear and tear, fire, other casualty and condemnations excepted.
Tenant, at its sole cost and expense, agrees to repair any damage to the
Premises caused by Tenant or caused by or in connection with the removal of any
article of personal property, business or trade fixtures, machinery, equipment,
or furniture, including without limitation thereto, repairing the floor and
patching and painting the walls where required by Landlord to Landlord's
reasonable satisfaction. Tenant shall indemnify Landlord against any loss or
liability resulting from delay by Tenant in so surrendering the Premises,
including without limitation, any claims made by any succeeding tenant founded
on such delay. If the Premises are not so surrendered at the termination of
this Lease, Tenant shall be liable to Landlord for all costs incurred by
Landlord in returning the Premises to the required condition, plus interest on
all costs incurred at the Agreed Interest Rate. Tenant shall indemnify Landlord
against loss or liability resulting from delay by Tenant in so surrendering the
Premises.
15.3 HOLDING OVER: This Lease shall terminate without further notice
at the expiration of the Lease Term. Any holding over by Tenant after
expiration of the Lease Term shall not constitute a renewal or extension of the
Lease or give Tenant any
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rights in or to the Premises except as expressly provided in this Lease. Any
holding over after such expiration with the written consent of Landlord shall
be construed to be a tenancy from month to month on the same terms and
conditions herein specified insofar as applicable except the Base Monthly Rent
shall be increased to an amount equal to one hundred and fifty percent (150%)
of the Base Monthly Rent payable during the last full calendar month of the
Lease Term.
15.4 SUBORDINATION: This Lease is subject and subordinate in all
Security Instruments now or hereafter encumbering the Premises. However, if any
Lender so requires, this Lease shall become prior and superior to any such
Security Instrument. Tenant shall upon request execute any document or
instrument reasonably required by any Lender to make this Lease either superior
or subordinate to a Security Instrument, which may include such other matters as
the Lender reasonably requires in connection which such agreements; provided,
such Lender agrees to recognize Tenant's rights under this Lease and agrees not
to disturb Tenant's quiet possession of the Premises so long as there is no
Event of Tenant's Default. Landlord, if requested by Tenant, shall use
reasonable efforts to obtain a recognition and non-disturbance agreement from
any existing Lender. Tenant's failure to execute any such document or instrument
within ten (10) days after written demand thereafter shall constitute an Event
of Tenant's Default.
15.5 ATTORNMENT: Tenant shall attorn to any purchaser of the Premises
at any foreclosure sale or private sale conducted pursuant to any Security
Instrument encumbering the Premises, or to any grantee or transferee designated
in any deed given in lieu of foreclosure.
15.6 ESTOPPEL CERTIFICATES: At all times during the Lease Term,
Tenant agrees to execute and deliver to Landlord within 10 business days
following delivery of Landlord's request an estoppel certificate certifying such
factual information about the Lease and such financial information of Tenant as
may be reasonably required by Landlord.
15.7 NOTICES: Any notice required or desired to be given regarding
this Lease shall be in writing and may be given by personal delivery, by
facsimile telecopy, or by mail. A notice shall be deemed to have been given (i)
on the third business day after mailing if such notice was deposited in the
United States mail, certified or registered, postage prepaid, addressed to the
party to be served at its Address for Notices, (ii) when delivered if given by
personal delivery, and (iii) in all other cases when actually received at the
party's Address for Notices. Either party may change its address by giving
notice of the same in accordance with this Paragraph 15.7.
15.8 ATTORNEYS' FEES: If wither Landlord or Tenant shall bring any
action or legal proceeding for an alleged breach of any provision of this
Lease, to recover rent, to terminate this Lease or otherwise to enforce,
protect or establish any term of covenant of this Lease, the prevailing party
shall be entitled to recover as a part of such action or proceeding, or in a
separate action brought for that purpose, reasonably attorney's fees, court
costs, and experts' fees as may be fixed by the court.
15.9 CORPORATE AUTHORITY: If Tenant is a corporation or partnership,
each individual executing this Lease on behalf of Tenant represents and
warrants that he or she is duly authorized to execute and deliver this Lease of
such corporation or partnership and that this Lease is binding upon such
corporation or partnership in accordance with its terms.
15.10 MISCELLANEOUS: Time is of the essence of this Lease. This Lease
shall, subject to the provisions regarding assignment, apply to and bind the
respective heirs, successors, executors, administrators and assigns of Landlord
and Tenant. If Tenant consists of more than one person or entity, then all
members of Tenant shall be jointly and severally liable hereunder. The language
in all parts of this Lease shall in all cases be construed as a whole according
to its fair meaning, and not ???? for or against either Landlord or Tenant.
Landlord and Tenant agree that (i) the rentable area of the Premises is measured
from the exterior ???? of exterior walls to the centerline or interior
partitions and includes any atriums, depressed loading docks, covered entrances
or egresses, and covered loading areas, and (ii) all measurements of area
contained in this Lease are conclusively agreed to be correct and binding upon
the parties for all purposes hereunder, even if a subsequent measurement of any
one of these areas determines that is more or less than the amount of area
reflected in this Lease. Any prevention, delay or stoppage due to inclement
weather, inability to obtain labor or materials, governmental restrictions, fire
or other acts of God, and other causes beyond the reasonable control of the
party obligated to perform (except financial inability) shall excuse the
performance, for a period equal to the period of any said prevention, delay or
stoppage, of any obligation hereunder except the obligation of Tenant to pay
rent or any other sums due hereunder.
15.1 ENTIRE AGREEMENT: this Lease constitutes the entire agreement
between the parties, and there are no agreements or representations between the
parties except as expressed herein. This Lease supersedes and cancels any and
all previous negotiations, arrangements, brochures and understandings, if any,
between Landlord and Tenant. No modification to this Lease shall be effective
unless in writing signed by the parties. This Lease shall not be legally binding
until fully executed by Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease to be
effective as of the Effective Date.
LANDLORD: TENANT:
LAFAYETTE BUSINESS PARK, LLC UNIVERSAL ACCESS, INC.,
a California limited liability company an Illinois corporation
By: /s/ [Signature illegible] By: /s/ XXXXXX X. XXXXXX, XX.
--------------------------------- ------------------------------------
Its: MEMBER Its: COO
-------------------------------- -----------------------------------
Date: 9/21/99 Dated: 8/31/99
-------------------------------- ----------------------------------
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LEASE RIDER
1. BASE MONTHLY RENT INCREASES. Base Monthly Rent shall be subject to
increases as follows:
A. Effective June 1, 2000, Base Monthly rent shall increase to
$2?,0?0.00 and thereafter shall be subject to increases set forth in B and C
below.
B. Base Monthly Rent shall be subject to adjustment on the anniversary
of each Lease Year ("the Adjustment Date") as follows: the base for computing
the adjustment is the Consumer Price Index for All Urban Consumers (base year
1982-84?100) for San Xxxxxxxxxx-Oakland-San Xxxx. All items published by the
United States Department of Labor, Bureau of labor Statistics ("Index"), which
is most recently published prior to the Commencement Date ("Beginning Index").
If the Index most recently published prior to the Adjustment Date ("Extension
Index") has increased over the Beginning Index, the Base Monthly Rent for the
following year shall be set by multiplying the Initial Base Monthly Rent by a
fraction, the numerator of which is the Extension Index, and the denominator of
which is the Beginning Index. In no case shall the Base Monthly Rent increase
less than three percent (3%) or more than eight percent (8%) on each Adjustment
Date. The term "Lease Year" shall mean the twelve month period beginning with
the first day of the month in which the Commencement Date occurs and each
successive twelve month period thereafter during the Lease Term.
C. If the Index is changed so that the base year differs from that used
for the Beginning Index, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term, such
other government index or computation with which it is replaced shall be used
in order to obtain substantially the same result as would be obtained if the
Index had not been discontinued or revised. Rent adjustments made hereunder
shall be final and binding on Landlord and Tenant.
2. SURRENDER CONDITION. At the expiration or earlier termination of the
Lease, Landlord shall have the option of requiring Tenant to return the Premises
to its original configuration and improvements, substantially as the Premises
existed prior to Tenant's occupancy. If Landlord requests, Tenants obligations
shall include, without limitation, the following:
i) Floorplan shall be as shown on Exhibit D;
ii) All areas of the Premises to be served by roof mounted HVAC as
existed prior to Tenant's occupancy;
iii) All units to have its own electrical meter and standard electrical
outlets and lighting serviced only to that space as existed prior
to Tenant's occupancy; and
iv) Each unit to have its own restroom.
3. SECURITY DEPOSIT. Tenant shall provide Landlord with a Security Deposit
equal to the sum of $100,000.00 and the Return Cost. As used herein, the term
"Return Cost" shall mean the cost of restoring the Premises as a result of
Tenant's Alterations in excess of $50,000.00. The Return Cost shall be
established by an estimate provided by a contractor selected by Landlord and
reasonably approved by Tenant. If at anytime the Return Cost increases for any
reason, including without limitation, Tenants future improvements in the
Premises the Security Deposit shall be increased. Tenant may provide the
Security Deposit by posting a letter of credit in the amount of the Security
Deposit in favor of Landlord. Such letter of credit shall be in a form
reasonably acceptable to Landlord and shall include, without limitation, the
following: i) payable on demand by Landlord; (ii) not terminable without at
least 30 days prior written notice to Landlord, and (iii) Landlord may demand
payment of the letter of credit if it is not renewed at least 30 days prior to
expiration.
4. CROSS-DEFAULT. A default by Tenant under any lease at Lafayette Business
Park between Landlord and Tenant shall be considered a default under this Lease
and Landlord shall have all rights and remedies provided in the Lease for
Tenant's default.
5. ROOF RIGHTS, CONDUIT. Landlord maintains ownership of the roof of the
Premises and ability to lease space on the roof of the Premises and all conduit
located outside the Premises. Notwithstanding the above, Tenant shall have the
right to utilize existing conduit at the Project to bring fiberoptic cable to
the Premises without charge for the Lease Term, including any extension or
renewal thereof, (i) Tenant may install a CIPS antenna on the roof subject to
Landlord's prior written approval; and (ii) Tenant may directly connect 1900
Lafayette and 1940 Lafayette via conduit under the parking areas subject to
Paragraph 10 of the Lease Rider. Tenant shall have the right at its sole cost
and expense, to install and maintain to and from the Premises through
horizontal and vertical shafts, chasms, floors and other areas within the
Building. Tenant's cabling, conduits and other connecting equipment
(collectively, "Connecting Equipment"), to the extent such Connecting Equipment
does not unreasonably interfere with the operation of the Building. Landlord
agrees to provide Tenant with reasonable advance written notice prior to any
construction occurring in space immediately adjacent to the Premises. Landlord
shall have the right to review and approve the location of all said Connecting
Equipment, which approval will not be unreasonably withheld, conditioned or
delayed. Tenant shall be entitled to such access without charge for the term of
this Lease including any extensions and renewals thereof. In addition, Landlord
shall permit Tenant to receive such telephone and other data communications
services direct from any telecommunications service provider serving the area
at Tenant's cost and shall permit Tenant access to the Building telephone riser
cable and all other telephone or communications cables or wiring, junction
boxes, wire conduits and associated facilities and equipment serving the
Premises, to the point of connection to Tenant's communication equipment and
all telephones and communications closets in the Building without charge for
the term of this Lease, including any extensions and renewals thereof.
6. FUTURE DEVELOPMENT. Tenant acknowledges that Landlord may convert all or a
portion of the Project to telecommunications use. Landlord shall have the right
to connect into and through the Premises to accommodate future development so
long as such actions do not disturb or disrupt Tenant's business operations.
Landlord and Tenant shall use reasonable and good faith to allow Landlord, if
they so elect, to develop the Project for telecommunications use.
7. CONSENT APPROVAL. Whenever the consent or approval of Landlord is required
under the Lease, Landlord agrees not to unreasonably withhold, delay or
condition such approval.
8. QUIET ENJOYMENT. Upon payment by Tenant of the rent for the Premises and
the performance of all of the covenants, conditions and provisions on Tenant's
part to be performed under this Lease, Tenant shall have and enjoy quiet
possession of the Premises and all other rights granted to Tenant under the
Lease for the entire Lease Term (including any extensions or renewals) subject
to all of the provisions of this Lease.
9. EARLY OCCUPANCY. If Landlord is able to deliver any portion of the
Premises to Tenant prior to the Scheduled Commencement Date, Tenant may occupy
such space subject to the following: (i) prior to occupancy, Landlord and
Tenant shall agree on a reasonable
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rental rate for such space and (ii) such occupancy shall be subject to all
terms and conditions of the Lease except for rent which shall be as agreed in
subparagraph (i) above.
10. TENANT'S ALTERATIONS. Landlord acknowledges that Tenant's use of the
premises will require that tenant perform certain Tenant's Alterations in and
around the Premium including the installation of conduit in the parking area
for electrical and telecommunications fiber, placement of backup generator,
transformer and switchgear, fuel tanks, condensors and chillers, FM200 or
equivalent fire suppression system, and other improvements necessary to utilize
the Premises as a telecommunications facility. All such Tenant's Alterations
shall comply with Article 5 of the Lease, provided, however, Landlord hereby
approves (i) the location of exterior equipment as set forth on the plan
attached as Exhibit F, and (ii) the right to place conduit and/or the parking
areas to accommodate the electrical upgrade and fiber installation. In
addition to the requirements of Article 5, all Tenant's alterations, including,
without limitation, those set forth above, shall be subject to the following:
(a) receipt of Landlord's prior written approval; (b) prior delivery to
Landlord of detailed plans and schedules which Tenant shall adhere to or
immediately notify Landlord of any changes; (c) Tenant's construction shall not
unreasonably interfere with the use of the Project by any other tenants; and
(d) promptly upon completion of Tenant's Alterations, tenant shall deliver to
Landlord "as-bulk" plans.
11. TELECOMMUNICATIONS FIBER: Landlord shall use reasonable efforts to allow
fiber optic telecommunications carriers access to the Premises and 1900
Lafayette. Tenant shall be allowed to install its own dark fiber to the
Premises and 1900 Lafayette.
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EXHIBIT A
SITE PLAN
LAFAYETTE BUSINESS PARK
1900 LAFAYETTE 15,600 SQ.FT.
1902 LAFAYETTE 16,560 SQ.FT.
1920 LAFAYETTE 19,200 SQ.FT.
1940 LAFAYETTE 14,040 SQ.FT.
PROJECT TOTAL 65,400 SQ.FT.
[PLOT DIAGRAM]
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EXHIBIT B
LANDLORD'S IMPROVEMENTS
Tenant to accept the premises in its "as-is" condition.
17
EXHIBIT C
SIGN CRITERIA
All signage at the Premises shall be at Tenant's cost and subject to Landlord's
prior approval and shall be consistent with the existing signage at the Project.
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EXHIBIT D
SURRENDER CONDITION
[ ] Office Areas
[ ] Restrooms
[ ] Warehouse Area
[FLOOR PLAN]
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EXHIBIT E
OPTION TO EXTEND:
Provided that there has been no Event of Tenant's Default, Landlord hereby
grants to Tenant two (2) options to extend the Lease Term for a period of five
(5) years each (each an "Option Period") upon all of the same terms and
conditions as are contained in the Lease, except that Base Monthly Rent during
an Option Period shall be the greater of (i) Base Monthly Rent payable in the
last month of the Lease Term or Initial Option Term or (ii) the then Fair
Market Rent for the Premises (as hereafter defined). In order to ?????? the
option granted herein Tenant must give written notice of its election to
exercise the option no later than one hundred eighty (180) days prior to the
expiration of the Lease Term or Initial Option Term.
The "then Fair Market Rent for the Premises" shall mean the fair market rental
value of the Premises as of the commencement of the Option Period including,
without limitation, rent increases over the extended term which are customary
at the commencement of the Option Period. If the parties are unable to agree on
the Base Monthly Rent for the Option Period prior to ninety (90) days before
the expiration of the Initial Lease Term, or Initial Option Term, then Tenant
may withdraw its exercise of the option on the following terms:
i) Tenant must notify Landlord in writing of its election to withdraw
its exercise of the Option; and
ii) If less than 180 days remain in the Lease Term or Initial Option
Period, whichever is applicable, on the date Tenant withdraws its exercise of
the option, the Lease Term or Initial Option Period shall be extended on all
terms and conditions of the Lease then in effect, the number of days necessary
to make the remaining term 180 days.
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EXHIBIT F
TENANT'S ALTERATIONS
[DIAGRAM OF BUILDINGS 1940 and 1900]
